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Construction Expert for Complex Litigation

By: Derek Graham, an ALM listing expert.

Finding the right construction expert for defect and workmanship claims expert is a slippery slope for attorneys whose specialty is not construction. A typical strategy to find a construction expert is to retain an engineer or architect expert, since like attorneys, they are degreed and licensed. I believe that, for some, there is a tacit notion that having a degree makes one a more qualified witness. This boot-strap stereotype does a disservice by significantly narrowing the field of candidates, and disqualifying some of the best resources.

The other reason attorneys default to architects is because architects routinely inspect tradesmen work quality for approval or rejection as a daily part of their office. So as it should be, per the AIA contract family. Thus, it is understandable for an attorney to seek an architect to render an opinion on defective workmanship. A tradesman would be at least equally as capable as the architect. Indeed, just as architects provide expert opinions on defective work, so can many tradesmen testify on the nature of architectural errors and omissions that contribute to a given defect, as good or better as any architect.

“The knee-jerk selection of an architect as a construction expert is misguided. It is a vestige of the old stereotype that architects are more educated and sophisticated than builders.

Yet even within firms that specialize in construction litigation, many attorneys don’t have the precise knowledge required to understand the complex science of defects at higher levels of luxury, such as custom high-end residential construction. The same can be said of mediators and arbitrators who may be unfamiliar with ultra-high-end work. This latter condition can be problematic, as it may preclude the reliability of the construction expert. The subjective nature and lack of consensus about what constitutes high quality further compounds the problem. It is therefore necessary to establish the value of a construction dollar on each distinct project.

The Almighty Construction Dollar

Every project has a design intent and vision built into the design documentation that is meant to set the bar for quality. The level of quality is what determines the value of a construction dollar on a project. Quality levels can sometimes be ascertained directly from the price per square foot for different types of construction. For high-end construction, the range is wide. It is not enough to say “I want the best,” or “I want the highest quality,” because no two architects will measure quality in the same way.

An architect less experienced in high-end is more likely to under-design for his clients than a seasoned high-end architect, simply because his concept of high-end is limited, and not sophisticated enough to make subtle adjustments depending on his clients’ design intent. This will become painfully evident after all of the costly infrastructure is installed, and when there is little or no time left in the schedule to make amends.

“In the 19th century United Kingdom, architects and builders were required to maintain budgets. They absorbed any overages.

Boutique” architects designing ultra-high-end projects end up all over the map in terms of the integrity of their designs and the cost to build their projects. The same is true of high-end contractors, who aspire to this most lucrative building sector. Such disparity lends itself to the wild fluctuations in practice that invariably lead to defect complaints.

Of course, it is the construction expert who will ultimately evaluate and assess workmanship defects. However, it is up to the attorney to choose the right expert for the case. In order to do this, an attorney should have at least a basic understanding of what makes high-end residential construction litigation so very different from all other construction litigation, such that he can make the most informed decision, and choose the right expert for his case.

Luxury: Custom or off the Rack

Custom high-end residential construction must be differentiated from luxury residential construction: whereas both niches are in the top price tier, luxury construction – in modern parlance, nowadays refers to redundant Modernist glass tower condominiums featuring fit-outs designed by boutique architects and interior designers. The units all receive the same interior treatments. Such standardization keeps these construction schedules moving forward and defects to a minimum. There is little time or interest in customizing luxury developer work, as customizations simply slow down the cycle.

As one would expect, defect claims are (nowadays) unusual in luxury residential development. Custom high-end residential construction also features accomplished designers and architects; however, these designers are tasked with creating a more or less unique design according to each of their clients ’budgets and vision. That may not sound like much, but it can be a long, drawn out, tedious process. The level of scrutiny is considerably higher in custom high-end residential construction than it is in developer work. Accordingly, an architect can cycle (design and build) several identical apartments in a fraction of the time it would take to design one or two customized units.

“design standardization in the high-end is more efficient, but NYC is still the most expensive place to build on the planet.

The timeline from design through build is considerably longer in custom high-end residential construction, than it is in the developer market, because custom work invariably requires an extended design and development window before construction drawings can be developed. Production and installation is also protracted.

“Building are going up at a feverish pace, yet any efficiencies have done little to reign in skyrocketing costs.

A developer I work with needs about sixteen-weeks to turn around a typical two-bedroom unit, in an eighteen-story condo. All the units have construction drawings, and preorder of standard materials. There is little or no design and development period. By comparison, a similar gut-renovation for a custom high-end renovation might have a twelve month design window, and twelve to eighteen month construction window.

Finally, there are no close working relationships to gum up the works between developer architects and condominium buyers, whereas building custom homes can best be described as a short, stormy, three-way marriage between the boutique architect, the well-heeled – and not atypical arrogant owners, and the contractor. Such projects are often fraught with indecision, lack of documentation, and persistent change orders. I believe that the more personal a construction contractual relationship becomes, the more the likelihood for conflict. This circumstance describes a majority of the cases I have been involved with.

Your construction expert

The trouble with finding experts offering opinions on high-end residential construction architectural workmanship defects is that projects with defect claims typically involve systemic defects across five or ten trades. Defects are abundantly evident in a job gone south across the entire project. Depending on the value of each component of the claim, you might seek an expert who specializes in the area where the most substantial claims lie, rather than try to find a construction expert for every condition.

Why are defects often systemic? Because it is typically the general contractor who is responsible for hiring craftsmen with the appropriate skill-level for a given project. The contractor determines what skill-level is appropriate, and builds the project based on that rubric. If it turns out that the general skill-level of the tradesmen he hires is below the architect and owners’ standards, it will be evident in most of the visible work – particularly, all the finish and cabinetry trades. It will also be evident behind the walls and ceilings.

Why would a contractor endeavor to build to a level below what would be acceptable to the owner? Sometimes, he does so inadvertently: he may be ignorant, incapable, or inexperienced in the level of workmanship and quality expected of him; he honestly believes he can deliver high-level work, and may even have a different conception of what it should look like, or he may simply be trying to maximize his profit by skimping on lower-paid, unskilled tradesmen. This latter circumstance is not inadvertent, and is considered to be unscrupulous business practice.

“Specialization is key, yet never assume you a licensed engineer automatically trumps a building industry expert. My argument is that the former lacks practical experience, and the latter theoretical experience.

All construction experts are not equal. Construction expert engineers tend to be specialized: if you want an opinion, for example, on a structural, electrical, or plumbing claim, you would seek an expert in his respective calling, who need not necessarily be an engineer. However; interior fit-out seldom requires an engineer’s opinion, nor does it merit one. Typically an expert in a trade such as woodworking, or ornamental iron, could assess architectural defects within their bailiwick, and they may appear to be the one in the best position to do so; however, that does not guarantee they will make a good witness.

A construction expert may have any specialty, or they may be trying to be the one-size-fits-all expert. I am dead-set against a construction expert offering opinions on matters for which he or she has little or no practical exposure or insight. Turning away work is an exception that few experts take, or can afford to take, and that is why there are so many experts practicing outside their element.

Do Architects Make Better Experts than Trade-Experts?

Many architects also provide construction expert witness services to support defect claims. Some are better at it than others. Their dalliance into the defect construction expert market is not welcome by those in the construction industry. Yet, few architects I have met have actually ‘worked the tools,’ a prerequisite to expertise in means-and-methods and critical insight to the comprehensive nature of a given defect. In other words, they may be able to identify the defect, but will be hard put to demonstrate cause, its impact, or the cost of remediation, due to limited technical prowess. For that reason, architects with little or no field experience bring less to the table than a seasoned trade expert.

My uncle was an FAIA. He rebuilt an 18th century farmhouse, turned wood, and was hands-on as they come. I’ve met very few besides him of that caliber.

For my money, trade experts typically have vastly more experience than architects in terms of number and diversity of projects. For example, within his own small firm, a project architect may have been involved with three of his own projects a year, for twenty-years, whereas an architectural millwork expert may have built fifteen of his own projects each year, for twenty-years.

The same is even true of assessing the value, integrity, of architectural drawings. The tradesman has the advantage again – in addition to his three-hundred built projects, he has estimated thousands of drawings, with hundreds of different architects, as opposed to the narrow exposure of an architect, who only sees the comparatively few jobs that he is commissioned. Thus, who would be in a better position to testify as to what is typical across the industry?

” a site superintendent can read drawings as well as an architect. The difference is – the former is a builder, the latter a facilitator.

In terms of technical insight: if for instance, a kitchen is to be designed, the architect will generally prepare basic elevations and details, which are relatively schematic, as compared to the copious shopdrawings a millworker’s draftsman will have to prepare based on the architect’s schematics. The notion being that the architect is not concerned with how the cabinets will be constructed: only that they look like his drawings. That being said, who is in a better position to opine on the nature of a structural defect?

Finally, when it comes to valuation of a claim, most architects will simply not be able to do the math. Although they are supposed to have a general knowledge – $/square-foot, depending on building type, of the construction dollar on their projects, they will be hard-put to give any detailed sort of breakdown, or even accurate unit-price, in the way that a seasoned construction estimator or general contractor might. When architects require cost control of their clients’ construction budgets, they are typically wholly reliant on their general contractor’s estimator to generate any sort of detailed budget, or value engineering options. After all, architects are not contractors.

On the other hand, well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”

Final Selection

Whether you plan to solicit a construction expert opinion from an architect, a tradesman, or both, use these Best Practices in selecting your high-end expert:

1. Educate yourself about the specific nature of the claim: this knowledge will help you in determining which construction expert you might seek.

2. Set up a game plan to determine which experts you will call to testify: architect, tradesman, other …

3. Interview at least three experts for each area of expertise you expect to provide testimony

a. Have they testified before?

b. Have they prepared construction expert witness reports?

c. Are they experienced in high-end construction?

d. Do they have experiences in similar cases?pert

4. Ask for statement of qualifications

5. Contract: no expert should be retained without a contract. Most experts have their own form.

Conclusion

Well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”

The answer is: it depends. The defect(s) may be a function of an architect’s errors and omissions, for which most architects are insured against. Perhaps he specified incompatible materials, or stressed material beyond their tolerance. In that circumstance, an architect may provide the best opinion., Alternatively, there may have been nothing wrong with the specification of the materials, and the defect may be wholly attributable to poor workmanship. To be sure, a peer tradesman is well positioned to give an opinion on the nature of the defect. However; any decent architect can also assess the same cosmetic defects.

At the end of the day, it is not the specific vocation of the expert, but the integrity of the construction expert witness and the experience and insight he has to offer that should inform your expert selection. There are some great expert architects and tradesmen in the industry who are well suited to certain types of claims. The trick is to find just the right one for your case.

Leave a Comment May 30, 2017

MICHELLE DILORENZO vs JOHN ZASO

Originally published in The New York Law Journal , an ALM Media publication, on March 31, 2017.

  • SUPREME COURT, APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
  • Mar 29 2017 (Date Decided)
  • Mastro, J.P.; Chambers, Miller and Maltese, JJ.

MICHELLE DILORENZO, res, v. JOHN ZASO, ETC., ET AL, ap — (INDEX NO. 13297/11)In an action to recover damages for medical malpractice, the defendant John Zaso appeals, and the defendants Beth Gottlieb and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital, separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 6, 2015, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the motion of the defendant John Zaso and the separate motion of the defendants Beth Gottlieb and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital, for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

The plaintiff commenced this action against John Zaso, her former pediatrician, Beth Gottlieb, a pediatric rheumatologist, and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital (hereinafter North Shore), alleging medical malpractice with respect to treatment she received from the defendants in June 2003. The plaintiff further alleged that as a result of the defendants’ medical malpractice, she developed acute rheumatic fever, which was manifested by Sydenham’s chorea and mitral valve regurgitation. Zaso moved for summary judgment dismissing the complaint insofar as asserted against him, and Gottlieb and North Shore separately moved for the same relief as to them. The Supreme Court denied both motions on the basis that the plaintiff had raised triable issues of fact. Zaso appeals, and Gottlieb and North Shore separately appeal.

The elements of a medical malpractice cause of action are a deviation or departure “from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries” (Stukas v. Streiter, 83 AD3d 18, 23). A defendant moving for summary judgment in a medical malpractice case must “demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324), with respect to at least one of these elements (see Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004). “In pursuance of its prima facie burden of proof, the moving defendant is required to address the factual allegations set forth in the plaintiffs’ bill of particulars with reference to the moving defendant’s alleged acts of negligence and the injuries suffered with competent medical proof” (id. at 1005). “[B]are conclusory assertions” by “defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). In opposing a motion for summary judgment in a medical malpractice case, a plaintiff needs “only to rebut the moving defendant’s prima facie showing” (Stukas v. Streiter, 83 AD3d at 23).

 

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v. Feit, 23 AD3d 517, 519). “General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician’s summary judgment motion” (Myers v. Ferrara, 56 AD3d 78, 84; see Shashi v. South Nassau Communities Hosp., 104 AD3d 838, 839; Goldsmith v. Taverni, 90 AD3d 704, 705). Rather, the plaintiff’s expert must specifically address the defense expert’s allegations (see Feuer v. Ng, 136 AD3d 704, 707; Berthen v. Bania, 121 AD3d 732, 733; Swanson v. Raju, 95 AD3d 1105, 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d 839, 842).

“[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field” (Behar v. Cohen, 21 AD3d 1045, 1046-1047 [internal quotation marks omitted]). However, the witness must “be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (id. at 1047 [internal quotation marks omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (id.). Where no such foundation is laid, the expert’s opinion is “of no probative value” (Feuer v. Ng, 136 AD3d at 707; see Tsimbler v. Fell, 123 AD3d 1009, 1009-1010; Shashi v. South Nassau Communities Hosp., 104 AD3d at 839; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842; Mustello v. Berg, 44 AD3d 1018, 1018-1019).

Here, Zaso correctly contends that he demonstrated his prima facie entitlement to judgment as a matter of law and that the plaintiff did not raise a triable issue of fact in opposition (see Alvarez v. Prospect Hosp., 68 NY2d at 324). The plaintiff alleged that Zaso committed malpractice by: (1) failing to test, diagnose, and treat her for strep throat on June 6, 2003, and (2) failing to consider her history of strep infections and include rheumatic fever in the differential diagnosis on June 6, 2003. As to the failure to test, diagnose, and treat strep throat, Zaso did not meet his prima facie burden on the departure element, as his moving papers demonstrated the existence of a triable issue of fact as to whether the plaintiff complained of a sore throat to him in June 2003 (see id.Stukas v. Streiter, 83 AD3d at 23; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004). Zaso met his prima facie burden with respect to causation, however, as his experts both opined in their affirmations that the strep infection that triggered the plaintiff’s rheumatic fever predated June 6, 2003, as shown by the fact that the plaintiff was already experiencing joint pain by that time. Thus, even if Zaso departed from the accepted standard of care in failing to test the plaintiff for strep throat on June 6, 2003, that failure did not proximately cause the injuries that she has alleged in this action, namely, rheumatic fever manifested by Sydenham’s chorea and mitral valve regurgitation (see Stukas v. Streiter, 83 AD3d at 23). As to the failure to consider the plaintiff’s history of strep infections and include rheumatic fever in the differential diagnosis, Zaso’s experts opined that there was no departure from the standard of care in light of the fact that the plaintiff did not meet the diagnostic criteria for rheumatic fever, and Zaso thus met his prima facie burden with respect to the departure element (see id.Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004).

In response to the foregoing prima facie showing on the causation element with respect to the failure to test, diagnose, and treat strep throat and the departure element with respect to a failure to consider the history of strep infections and include rheumatic fever in the differential diagnosis, the plaintiff failed to raise any triable issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324). First, as to the issue of causation with respect to Zaso’s failure to test, diagnose, and treat strep throat, the plaintiff’s expert did not address Zaso’s experts’ opinions that such failure did not proximately cause the plaintiff’s injuries because the strep infection that triggered the plaintiff’s rheumatic fever predated June 6, 2003 (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842). As to the failure to consider the plaintiff’s history of strep infections and include rheumatic fever in the differential diagnosis, the plaintiff’s expert relied on different diagnostic criteria from those relied on by Zaso’s experts and failed specifically to address the diagnostic criteria cited by Zaso’s experts or to opine that such criteria were inapplicable (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842). Contrary to the plaintiff’s contention, her expert did not implicitly address the diagnostic criteria cited by Zaso’s experts. The plaintiff’s expert also opined that Zaso should have ordered an anti-strep titer to rule out rheumatic fever, but failed to explain why, if the plaintiff did not meet the diagnostic criteria for rheumatic fever as Zaso’s experts contended, an anti-strep titer to rule out rheumatic fever would have been necessary (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v North Shore Univ.

Hosp., 57 AD3d at 842). Accordingly, the plaintiff failed to raise a triable issue of fact in response to Zaso’s prima facie showing that he was entitled to summary judgment, and the Supreme Court should have granted Zaso’s motion for summary judgment dismissing the complaint insofar as asserted against him.

As to Gottlieb and North Shore, the plaintiff alleged that these defendants committed malpractice by failing to obtain a full medical history and failing to test for strep throat, misdiagnosing the plaintiff with benign joint pains, and providing misleading follow-up instructions. Gottlieb and North Shore demonstrated, prima facie, that they did not depart from the accepted standard of care with respect to these allegations (see Stukas v. Streiter, 83 AD3d at 23; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004). Specifically, their expert, a pediatric rheumatologist, opined that because strep and other infections were common in children, Gottlieb and the staff at North Shore were not required, under the accepted standard of care, to obtain information about the plaintiff’s history of strep infections or to test the plaintiff for strep. This expert further opined that the diagnostic criteria for rheumatic fever included both a prior strep infection and at least one major manifestation. Since the plaintiff had no major manifestations of rheumatic fever on June 13, 2003, according to Gottlieb’s and North Shore’s expert, she could not have been diagnosed with rheumatic fever at that time. Thus, according to their expert, Gottlieb did not deviate from the accepted standard of care in diagnosing the plaintiff with probable benign joint pain and in providing corresponding follow-up instructions. This evidence demonstrated, prima facie, that Gottlieb and North Shore did not depart from the accepted standard of care as alleged by the plaintiff (see Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1005). However, Gottlieb’s and North Shore’s showing with respect to the causation element of medical malpractice was conclusory and insufficient to meet their prima facie burden on that element (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853; Stukas v. Streiter, 83 AD3d at 23).

In opposition, the plaintiff failed to raise a triable issue of fact, as her expert’s opinion “was of no probative value” (Feuer v. Ng, 136 AD3d at 707). Gottlieb and North Shore correctly contend that the plaintiff’s expert, a pediatrician and neonatologist, did not lay the requisite foundation to render an opinion on Gottlieb’s actions as a rheumatologist (see Behar v. Cohen, 21 AD3d at 1047). Contrary to the plaintiff’s contention, her allegations against these defendants were based not on Gottlieb having improperly treated strep throat, but on his alleged failure to conduct a proper rheumatological exam, failure to diagnose rheumatic fever, and improper follow-up instructions in light of the misdiagnosis. The plaintiff’s expert did not specify in his affirmation whether he had any specific training or expertise in rheumatology or state that he had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice (see id. at 1046). Accordingly, the plaintiff’s expert’s opinion was of no probative value and was insufficient to defeat Gottlieb’s and North Shore’s prima facie showing, and the Supreme Court should have granted their motion for summary judgment dismissing the complaint insofar as asserted against them (see Feuer v. Ng, 136 AD3d at 707).

MASTRO, J.P., CHAMBERS, MILLER and MALTESE, JJ., concur.

Leave a Comment March 31, 2017

The ‘Mudano’ Rule: Conflicting Expert Opinions Often Prove Fatal

Originally published on The Legal Intelligencer  an ALM Media publication, March 16, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Daniel E. Cummins

A plaintiff’s personal injury case can go off the rails when the plaintiff’s medical experts offer opinions that conflict with one another. This may typically arise where one expert for the plaintiff opines that a particular injury was caused by the subject accident and yet another expert questions whether the injury is indeed related.

Under Pennsylvania Rule of Evidence 702, titled “Testimony by Expert Witnesses,” it is provided, that “a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion” if the expert’s specialized knowledge is beyond that of a layperson and such knowledge will assist the jury to understand the evidence or determine a fact in issue.

Generally speaking, the admissibility of expert opinion is a matter left largely within the broad discretion of the trial court, as in Bolus v. United Penn Bank, 525 A.2d 1215, 1225 (Pa.Super. 1987).

Where a plaintiff’s experts conflict with one another, the plaintiff is likely to be faced with a defense motion in limine seeking to preclude each expert’s opinion on the basis that allowing such evidence would only serve to confuse, and not educate, the jury.

Notably, in the separate scenario where the defense produces conflicting expert reports in a civil litigation matter, the defense may still be permitted to proceed with the expert testimony as the defense does not bear the burden of proof at trial. The remedy for the plaintiff in this regard is to point out to the jury the conflicting nature of the opinions of the defense experts in an effort to discredit the defense.

The ‘Mudano’ Rule

Under what has become known as the Mudano rule, the Pennsylvania Supreme Court in Mudano v. Philadelphia Rapid Transit, 289 Pa. 51, 60, 137 A. 104, 107 (1927), has held that the testimony of a plaintiff’s medical experts must be reasonably consistent with one another such that, with respect to the plaintiff’s experts, “there must be no absolute contradiction in their essential conclusions.” The court further stated that a plaintiff has a “duty to furnish consistent, and not inconsistent, advice—otherwise the jury would be confused rather than instructed.”

The Pennsylvania Supreme Court reiterated the Mudano rule in case of Brannan v. Lankenau Hospital, 417 A.2d 196 (Pa. 1980). In Brannan, the court cited Mudano for the proposition “that a plaintiff’s case will fail when the testimony of his two expert witnesses is so contradictory that the jury is left with no guidance on the issue, see also Menarde v. Philadelphia Transportation, 103 A.2d 681 (Pa. 1954) (The Pennsylvania Supreme Court applies Mudano rule to the plaintiff’s expert reports); see also Halper v. Jewish Family and Children Services of Great of Philadelphia, 963 A.2d 1282, 1287 (Pa. 2009) (The Pennsylvania Supreme Court applies the Mudano rule to the plaintiff’s expert reports).

Even if a plaintiff attempts to supplement his discovery responses to only identify one of the two conflicting as the only expert the plaintiff will call at trial, the Mudano rule will be implicated when the defense cross-examines the plaintiff’s expert with respect to the separate, contradictory opinion of the plaintiff’s other expert.

In such a case, the jury would still be faced with conflicting opinions by two experts from the plaintiff’s side of the matter, i.e., the very situation that the Mudano rule holds will cause the plaintiff’s case to fail. The defense argument will be that the plaintiff should not be allowed to put the court, the parties, the attorneys and the jurors through the time and expense of the trial by simply choosing to identify one expert and ignoring the contradictory opinions of his or her other expert. Such evidentiary gamesmanship should not be countenanced by the courts where the purpose of a civil trial is get to the truth of the claims and defenses asserted.

Not Applicable to Defense

The courts of Pennsylvania have rejected attempts by plaintiffs to have the Mudano rule applied to defense experts that conflict with one another. The courts have reasoned that the rule should not apply to the defense case because the defense does not bear the burden of proof at trial.

Plaintiffs may cite to the case of Smith v. German, 253 A.2d 107 (Pa. 1959), in support of an argument that the defense must produce consistent evidence in an effort to disprove causation between an accident and a plaintiff’s alleged injuries.

However such an argument has been rejected by more recent Pennsylvania appellate court decisions. In Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003), the Pennsylvania Superior Court stated that its “research indicates that Smith has never been cited in subsequent cases for the proposition that in all cases where a defendant challenges the causation element of a plaintiff’s case, that he must produce independent evidence of his own. In fact, we can find no case citing to Smith that applies the case to the defendant. In large part, Smith, as it may apply to a defendant, appears to be an anomaly limited to the facts of that case.”

Rather, in personal injury matters, the defense has no burden of proof on the issue of causation and, therefore, the Mudano is inapplicable to the defense evidence. As emphasized by the Pennsylvania Superior Court in the Kennedy case, when there is some evidence of other causes of a plaintiff’s alleged injuries, the burden of proving these other causes does not shift to the defense. To the contrary, as confirmed by the Kennedy court, absent special circumstances, a defendant carries no burden of proof in a civil litigation matter.

Stated otherwise, “a defendant may choose to present no evidence and may simply argue that the plaintiff has not met its burden of proof. A jury may find for the defendant in such a situation.” The Kennedy court also pointed out that the Smith decision “does not require a defendant … to present independent medical testimony specifically linking the alleged injuries to another cause.”

Moreover, it has otherwise generally been held as a principle of Pennsylvania law that an opinion offered by the party, i.e., the defendant, not having the burden of proof need not be as precise as an opinion offered by the party with the burden of proof, as in Neal v. Lu, 530 A.2d 103, 109-110 (Pa. Super. 1987).

It Comes Down to Sufficiency of Expert Evidence

It has generally been held by the courts of Pennsylvania that the effect of a conflict between the testimony of different experts called by a party is in reality a question of the sufficiency of the evidence.

In the case of conflicting expert opinions presented by a defendant not having the burden of proof, the courts will allow the issue to proceed to the jury for the jury’s consideration as to what weight to be applied to such contradictory evidence.

However, conflicting expert opinions on the plaintiff’s side of the case will often prove fatal. Such evidence fails to satisfy the plaintiff’s burden of proof, renders the plaintiff’s case speculative and, if the case were allowed to proceed to verdict, would cause the jury to engage in impermissible guesswork on the important issues presented in the case.

Accordingly, where a plaintiff’s experts conflict with one another, the courts will likely preclude such experts under the Mudano rule and then proceed to enter a nonsuit in favor of the defense due to the plaintiff’s failure to meet his or her burden of proof on the case presented. •

 

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

Leave a Comment March 17, 2017

Milberg Strengthens Litigation Support and Data Hosting with Division SpinOff

Milberg Announces Spin Off of Litigation Support and Data Hosting Services Division: Based in Stamford, Conn., the new business will continue to serve litigants throughout their discovery process from the start of a case assessment to trial.

Original published on: Legaltech News, November 19, 2015

By: Trudy Knockless

Milberg, a class action and complex litigation firm, has made structural changes, spinning off its litigation support and data hosting services division into an independently-owned business.

Renamed Meta-e Discovery, the new business will continue to serve litigants, mainly plaintiffs, throughout the discovery process from the beginning of a case assessment to trial.

“The principal purpose [of the spin off] is to enable the business to be more flexible and nimble to its litigation support and data hosting clients’ needs. Working under the umbrella of a law firm can pose some limitations insofar as growth opportunities, including servicing other law firms. We now have a broader base for business development,” Paul H. McVoy, who was appointed Milberg’s chief discovery officer in February, told Legaltech news. He said this move will enable the company to market itself in a new, distinct way, which will allow it to grow dramatically in the short term.

The new business can now bring in services that may not have made sense in the law firm context, forensics and consulting for example. Additionally, the company has an opportunity to create strategic alliances that allows them to offer more services from a wide base of service providers that will complement the services offered by Meta-e.

“We will continue building a go-to discovery resource for small and midsized firms and entities that have been traditionally overlooked by the bigger electronic discovery providers,” McVoy, who has been with Milberg for more than six years, added. “We will also be able to cater to plaintiff firms in a way that no one else can because we came from the plaintiff bar; we have crafted customized workflows that uniquely serve that bar.”

Milberg’s litigation support and data hosting services division was formed five years ago as a spin-off to its eDiscovery Legal Practice.

“This is the logical next step for what we have been building,” Ariana J. Tadler, executive committee member and group founder, said in a statement. “The new company is the perfect model for law firms seeking e-discovery services from those who have been in the trenches fighting the battle every day in real cases.”

Based in Stamford, Conn., the new business will continue to manage Milberg’s ongoing litigation support needs, as well as current customers. Meta-e Discovery will assist customers in maximizing the benefits of its existing Relativity Platform with its own proprietary workflow that aims at leveraging technology-assisted review that applies to productions received. Additionally, the company will develop new mobile computing and artificial intelligence software, specifically geared to the discovery process.

“We are very excited by this move,” McVoy told Legaltech News. “The reception in the legal community and service provider community has been extremely positive. The market recognizes that there is an underserved segment that desperately needs the services, experience and expertise we offer. We look forward to helping these firms litigate their cases with the same tools as the larger firms, and as we are fond of saying, ‘leveling the discovery playing field.’”

 

Original Source: http://www.legaltechnews.com/id=1202742914129/Milberg-Announces-Spin-Off-of-Litigation-Support-and-Data-Hosting-Services-Division#ixzz3s4IjX3Wc

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