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Lost Profits Award for Breach of a License Agreement Cannot Rely on Comparison Between Recent Entrant and Market Behemoth

Originally published in the New York Law Journal, an ALM Media publication, on November 13, 2017.

By: Richard Raysman and Peter Brown

It is black-letter law that liability for breach of contract does not mean that the prevailing party is entitled to its requested damages award, much less any damages at all. In particular, New York law applies a higher standard relative to other damage categories when evaluating a prevailing party’s claim based on lost profits. To avoid losing on a damages request, or receiving only a nominal award, the prevailing party must show that lost profit damages can be proven with “reasonable certainty” and “were fairly within the contemplation of the parties to the contract at the time it was made.”

Past sales often furnish a persuasive rationale for estimating lost profits. Obviously this is largely inapplicable to start ups and other nascent enterprises, particularly when these entities have not executed agreements that specifically contemplate the dollar amount of compensation, and rely instead on equity offerings or percentages of prospective sales. An early stage trademark licensor encountered this problem when litigating the breach of a license by the licensee in 2005, when the licensee had been in business for only a handful of years. This column discusses the most recent opinions in the matter, which illustrate the difficulties in obtaining a lost profits award when premised on conjectural comparisons between the prevailing party and an established, if not leading presence in the relevant market.

 

Facts and Procedural Background

Plaintiffs Daryl Washington and Sunday Players, Inc. owned seven licensed marks for a “Sunday Players” brand utilized in selling “compression” apparel. Defendant Kellwood Company manufactures, advertises and distributes various types of apparel. In 2002, the parties discussed an arrangement wherein defendants would manufacture compression products bearing the “Sunday Players” marks. This proposed business arrangement soon progressed into a potential joint venture after Kellwood allegedly facilitated meetings with major players in the retail apparel market, in which such retailers “express considerable interest in selling products displaying [plaintiffs’] marks.”

Consequently, on Nov. 25, 2003, the parties entered into a license agreement (the “license”). The initial term of the license expired on Jan. 31, 2007. The license granted defendant an exclusive license to use the “Sunday Players” mark in conjunction with the “production, manufacture, advertising, merchandising, promotion, importation, distribution and sale” of various classes of apparel and accessories. The license obligated defendant to spend three percent of gross sales on marketing these products. Plaintiffs’ alleged that defendants, through subsequent “various oral and written agreements,” undertook additional obligations, including to spend additional funds on marketing products using the Sunday Players name.

According to the plaintiffs, the defendant failed to uphold its side of the bargain to use best efforts to generate profits under the license. Defendant countered by alleging that it in fact did dedicate its best efforts to selling products with the Sunday Players mark, but nonetheless could not make a single sale of such a product. Defendant claimed to have spent more than $220,000 in marketing the Sunday Players’ products, including pitches to “approximately eighteen large retailers.” Dissatisfied with the performance of the Sunday Players products, in or around April 2005, defendant terminated its arrangement with plaintiffs’, including the license.

That decision triggered the instant litigation, which has now been active for nearly 12 years. Plaintiffs alleged, inter alia, that defendant failed to give its best efforts to market and sell the Sunday Players products and breached the license by unilaterally terminating it prior to expiration. After considerable procedural wrangling and discovery, on summary judgment, the District Court held that defendant breached the license due to an unlawful premature termination and the failure to provide product samples to plaintiffs.

Trial was held to determine if defendant also breached the license in a third way: by failing to undertake reasonable marketing efforts prior to termination. On Feb. 11, 2016, a jury returned a verdict in the affirmative, awarding plaintiffs, in relevant part, $4,350,000 in lost profits. The jury heard the testimony of plaintiffs’ expert witness, which concluded that if reasonable marketing efforts had been made, “Sunday Players would have sold [products] at 50 percent [of a primary competitor] at a comparable stage of development.”

 

Legal Analyses and Conclusion

In September 2016, the parties cross-moved for various reasons, including defendant’s motion for a judgment as a matter of law alleging that plaintiffs’ provided no foundation for certain assumptions of plaintiff’s expert concerning the lost profits and loss value estimates. See Washington v. Kellwood Co., 2016 WL 3920348 (S.D.N.Y. July 15, 2016).

The District Court agreed. While finding for plaintiffs on liability grounds, the court held that plaintiffs lost business value broadly speaking as a result of the license breach, but did not prove that “its new and untested business would have achieved vast market success but for Kellwood’s breaches,” which was the foundation for the $4,350,000 verdict. Accordingly, since the jury’s lost value verdict relied on speculative evidence projections rooted in the future success of plaintiffs’ business (then in its nascent stages), the court vacated the verdict with respect to damages and remanded for a new trial to establish any “lost business value damages.”

Specifically, the District Court held that the lost profits award was based on insufficient evidence. First, the award did not have a foundation, i.e., Sunday Players’ lack of “track record” in the market, to prove with reasonable certainty the existence of lost profits. See Kenford Co., Inc. v. Cnty. of Erie, 67 N.Y.2d 257 (1986) (lost profits must be proven “with reasonable certainty” and be “fairly within the contemplation of the parties to the contract at the time it was made”). Rather, Sunday Players was a “start-up business with no capital or manufacturing capacity, no national advertising, and no long-term deals with retailers. It had no brand recognition and meager sales.”

Second, the court rejected the estimate of the plaintiffs’ expert that, had the license been fully performed, defendant would have then sold $82,000,000 of Sunday Players’ product. It noted that plaintiffs’ expert had no marketing expertise, so any prognostications about lost value are without basis. The court out-of-hand rejected the comparison by the plaintiffs’ expert of Sunday Players to Under Armour. The comparison “posited superficial similarities” to Under Armour, the “market’s dominating force.” His comparison, which entailed in part suggesting that Sunday Players and Under Armour were comparable because they used similar grassroots marketing strategies and television advertising, is “pitched at such a high level of generality as to be totally meaningless.” Moreover, of course plaintiffs would try to emulate Under Armour’s past strategies, given the successful results, irrespective of whether Under Armour was a comparable company for purposes of damages analysis.

In sum, for these reasons and a number of others, the court concluded that the comparison with Under Armour actually proved the opposite of the plaintiffs’ expert’s argument. As a result, the jury’s lost value award was also erroneous as a matter of law, since it was premised entirely on the same expert testimony that justified the lost profits analysis. Nonetheless, since plaintiffs proved liability based on defendant’s breach of the license, the court ordered a new trial with respect to lost profit damages.

Reviewing de novo, the Second Circuit agreed and held that the vacatur of the $4,350,000 verdict and the denial of a new damages trial was correct. See Washington v. Kellwood Co., — F. Appx. —-, 2017 WL 494467 (2d Cir. Nov. 2, 2017). The Second Circuit elaborated by stating that plaintiffs’ “failed to proffer evidence from which lost profits could be established with reasonable certainty.” To wit, during the relevant period Under Armour had annual sales between $49.5 million and $195 million, whereas Sunday Players had “no record of notable sales.” Accordingly, the plaintiffs’ expert’s contention that Sunday Players’ revenues were reasonably certain to increase from a six figures to approximately $80 million “was so unfounded that it failed to establish any legal basis for awarding lost-profits damages.”

Leave a Comment November 16, 2017

Motion to Quash ‘Paranoia’-Driven Subpoena Filed by Expert Witness in Spinrilla Case

Originally published in the New Daily Report, an ALM Media publication, on September 28, 2017.

By: Colby Hamilton

A subpoena being driven by attorney “paranoia” in a Georgia-based copyright violations case should be quashed, according to a motion filed in the U.S. District Court for the Southern District of New York on Wednesday.

William Rosenblatt, an expert witness in digital music cases, is trying to keep a one-time potential client from deposing him in Manhattan, over what he alleges is “the very epitome of litigation paranoia.”

Rosenblatt, represented by New Jersey-based Tenaglia & Hunt name attorney James Hunt Jr., says he was approached by Georgia-based private attorney David Lilenfeld as a potential expert witness in an ongoing copyright violations case, Atlantic Recording v. Spinrilla, 17-cv-00431, in the U.S. District Court for the Northern District of Georgia.

Lilenfeld’s clients operate a music website, Spinrilla.com, which has been sued by four record companies, including Sony and Warner Bros., over copyright violations. The companies allege that the defendant, Spinrilla owner Jeffery Copeland, knowingly allowed users to upload music copyrighted by the defendants that were then downloaded for free.

 According to the motion filed in Manhattan federal court, Lilenfeld approached Rosenblatt in late August as a potential expert witness on behalf of the defendants. After initially expressing interest, Rosenblatt says that two matters that he’d already been engaged on, but which were unrelated to Lilenfeld’s litigation, arose shortly after their initial conversation. Given the new time constraints, Rosenblatt said he told Lilenfeld he wouldn’t be available, but went so far “as a courtesy to Lilenfeld” to make recommendations for other potential experts, according to the motion.

That’s when things took a turn, according to Rosenblatt. Allegedly believing Rosenblatt had been contacted and coerced by plaintiffs in the Georgia case—and refusing to believe Rosenblatt’s repeated denials to the contrary—Lilenfeld subpoenaed Rosenblatt for a deposition on Sept. 8 in New York City.

According to the motion, the subpoena demands copies of telephone records, emails and text messages over an eight-day period in August. Rosenblatt claims to have offered an affidavit that he wasn’t contacted by anyone, including the plaintiffs in the Georgia case, but was rebuffed by Lilenfeld. Through counsel, Rosenblatt says he then offered to provide the information under a series of conditions, including a promise that Lilenfeld would not contact any of the phone numbers, and that Lilenfeld never contact Rosenblatt again. Lilenfeld allegedly refused that offer as well.

Lilenfeld could not be reached for comment.

“Indeed, Lilenfeld’s invasion of Rosenblatt’s privacy knows no bounds,” the motion states.

Lilenfeld’s actions are an abuse of subpoena power, seeking irrelevant information that is private and confidential—including communications between Rosenblatt and third-party clients—while subjecting a nonparty in the original litigation to an undue burden, according to Rosenblatt.

Additionally, Rosenblatt asked the court for sanctions under Rule 45(d) for “this bizarre attempt to subpoena a person they sought to hire as an expert witness.”

“The subpoena served by defendants on non-party Rosenblatt is nothing more then a fishing expedition on an innocent non-party that has absolutely nothing to do with the underlying action and appears to have been pursued in bad faith,” Rosenblatt stated in the motion.

Rosenblatt’s counsel Hunt could not be reached for comment.

Leave a Comment October 23, 2017

Court Reinstates Med Mal Case Over Catheterization Gone Awry

Originally published in the New York Law Journal, an ALM Media publication, on October 10, 2017.

By: Jason Grant

An expert witness and a fellow physician raised triable issues of fact regarding whether a gastroenterologist departed from the standard of care when he catheterized a patient with an inflamed bile duct, a state appeals court ruled Tuesday.

An Appellate Division, First Department, panel found that despite Dr. Louis May providing experts who said that the plaintiff’s bile duct perforation occurred before his actions, triable issues of fact were raised “as to whether Dr. May caused the … perforation when he conducted the ERCP [endoscopic retrograde cholangiopancreatography] or exacerbated decedent’s injuries by advancing the catheter and performing excessive manipulation.”

The panel’s unanimous opinion reversed Bronx Supreme Court Justice Douglas McKeon’s 2015 decision granting summary judgment to May. The medical malpractice suit was lodged in 2003 by multiple plaintiffs, including Jean Philippe Cadichon, the patient, who was unnamed and later died. Cadichon suffered a perforation of the hepatic and/or common bile duct and, eventually, developed acute renal insufficiency and liver failure, the panel said.

The summary judgment question—and, in turn, the divergence between experts and two doctors who treated the patient at Good Samaritan Hospital—focused largely on evidence of who and what caused the perforation.

In 2002, Dr. Thomas Facelle removed the Cadichon’s gallbladder. She later returned to the hospital with pain and, after bile duct scans, May performed an ERCP to take X-rays of the area through an endoscope and possibly repair a duct leak, according to the decision.

The plaintiffs alleged both procedures were performed negligently.

In testimony, the two physicians diverged on who perforated the duct, wrote Justices Rosalyn Richter, Judith Gische, Barbara Kapnick, Marcy Kahn and Cynthia Kern in Cadichon v. Facelle, 16878/03. Facelle’s records indicated May advised him that a catheter he inserted perforated the duct and entered the abdominal cavity. May said he only advised Facelle of leakage from an existing perforation.

The panel wrote that “as an initial matter, Dr. May established his prima facie right to summary judgment” based on “his deposition testimony, decedent’s medical records and the affirmations of two experts who opined that there is no evidence of any departure from the standard of care.”

But the panel went on to find that, “plaintiff and Dr. Facelle raised triable issues of fact as to whether Dr. May caused the bile duct perforation.”

“Plaintiff’s expert opines that Dr. May departed from the accepted standard of care when he advanced the catheter knowing the decedent was at high risk for duct injury due to her post-surgical inflammation, and record evidence demonstrates that her bile duct was not healthy,” the panel wrote, adding that “Dr. Facelle testified that he was summoned to the ERCP procedure by Dr. May because it was Dr. May who perforated the bile duct.”

Brian Isaac of Pollack, Pollack, Isaac & DeCicco represented Cadichon in the appeal. Paul Weitz, of Paul Weitz & Associates, the attorney of record for the Cadichon family, said in an email, “The Cadichon family is extremely gratified by the court’s decision and they look forward to their day in court.” Neither Melinda Kollross, a shareholder at Clausen Miller who represented May, nor Barbara Goldberg, a partner at Martin Clearwater & Bell, Facelle’s lawyer, could be reached.

Leave a Comment October 23, 2017

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

The Challenge of Presenting Treating Physicians

 

By: E. Drew Britcher and Armand Leone,  of the New Jersey Law Journal, an ALM publication.

Lawyers from both sides of the litigation aisle have long battled over the presentation of opinions by treating physicians, not only with each other but with the physicians themselves and with the strategic and practical considerations of producing them. This should not be a surprise to anyone who has tried more than a few cases, but jurors tend to be more suspicious of the opinions of doctors who have been retained for litigation purposes. This was effectively confirmed by the New Jersey Supreme Court in Stigliano v. Connaught Labs , 140 N.J. 305 (1995), when the court stated:

Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of retained experts.

However, despite that credibility, the AMA’s position in section 9.07 of their Principles of Medical Ethics that physicians must reasonably cooperate with their patient’s litigation support, and the decision in Spaulding v. Hussain , 229 N.J. Super. 430, 440 (App. Div. 1988), noting that “unless otherwise agreed, a physician treating an accident victim ‘impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries,” many doctors are less than cooperative in a patient’s litigation.

Following the Stigliano decision, where neither of the involved doctors had prepared any reports of their opinions, it became accepted that doctors could testify to any opinion on causation that they had arrived at, during the course of their medical treatment. Subsequently, the Rules of Court were amended to reflect a requirement that the identity of experts and treating physicians, who would testify at trial, and their reports, be produced in discovery. While this represented no change as to experts or treating physicians offering certain opinions arrived at for the purpose of the litigation, such as an opinion on permanency, to many, this is a departure from what the court said in Stigliano.

 

Enter the court’s decision in the matter of Delvecchio v. Township of Bridgewater , 224 N.J. 559 (2016), a LAD case where the testimony of a treating physician regarding a plaintiff’s disability was sought to be introduced. The court, citing to past precedent, cited with the Stigliano matter, stated:

The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert witness, his or her testimony is limited to the diagnosis and treatment of the individual patient. Given that distinction, if a particular claim requires testimony beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert, conforming to NJRE 702 and 703.

Delvecchio, 224 N.J.at 579.

This requirement places the attorney that is seeking that doctor’s testimony at conflict with the doctor, who takes the position that they did not bargain for being involved and inconvenienced by the plaintiff’s litigation or who demands an outrageous fee for meeting their ethical obligations to their patient. Plaintiff’s counsel sought to have the court conclude that the report required by the combination of Rules 4:17-4(a), (e) and 4:10-2(d)(1) is only an obligation that exists if one is prepared—a contention the court specifically rejected. “Under the court rules, a party seeking to present physician testimony at trial must disclose the substance of the witness’s anticipated testimony, and the basis for that testimony, if requested to do that in discovery.”

So, what is a lawyer supposed to do when a doctor refuses to prepare a report? On the plaintiff’s side, one alternative is to have all the plaintiff’s medical records reviewed by a separate physician and have that doctor examine the patient and testify to the whole of the opinions needed about care, treatment, causation, disability and permanency. This would lose the innate credibility that a truly coincidental treating physician’s would potentially hold. So, the alternative is that an attorney should contact the physician and his/her staff and arrange to speak to the physician at a time convenient to the doctor and determine what opinions are not reflected by the doctor’s records and prepare a summary of the treating physician’s anticipated testimony. Should the doctor remain recalcitrant to writing a report or agreeing to an interview, one can always serve the doctor with a subpoena for a deposition. While this may not enamor one to the doctor, it will often get their attention sufficiently to get them to agree to one or the other. Not only is this something that practitioners have done in such situations before Delvecchio, the use of a summary of opinions is an authorized approach in our Rules regarding criminal procedures, as well as being what the court suggested that the Civil Practice Committee consider as an amendment to the rules at issue.

Let this not suggest that this is only the plaintiff’s counsel’s headache. The decision would seem to place a similar onus on defense counsel who might want to elicit testimony from treating physicians that is damaging to the plaintiff, akin to what the defense obtained in Stigliano. So how do they comply? The answer lies in the use of the interview process under Stempler v. Speidell , 100 N.J. 368 (1985). The defense attorney should send the plaintiff’s counsel an authorization to be signed by their client permitting an interview of the treating physician, arrange for the same, and then likewise prepare and serve a summary of the physician’s anticipated testimony. The failure to do so would seem to place defendants in a similar position of possibly being barred from calling the treater.

This approach by each side should not only satisfy the adversary and the court, it should let the practitioner sleep more soundly at night.•

 

Britcher and Leone and are founding partners of Britcher Leone LLC (www.medmalnj.com) based in Glen Rock.

Leave a Comment May 12, 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

Expert Witness Confronts Pharmaceutical Giant, GSK.

Originally published in The American Lawyer, an ALM Media publication, March 22, 2017.

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

By: Roy Storm, The Am Law Daily

The bad blood between Dr. David Healy and GlaxoSmithKline plc brewed up long before the psychiatrist took the stand in a Chicago federal court last week to testify that the pharmaceutical giant hid the risk of suicide in its blockbuster antidepressant Paxil.

Healy’s testimony is the bedrock of a claim brought by the widow of a Reed Smith partner who committed suicide in 2010 while taking a generic version of Paxil. GSK argues that Stewart Dolin’s death was the result of stress from a diminished role at the firm following a 2007 merger. Dolin’s widow, who claims her husband died from an adverse reaction to Paxil, is seeking $12 million from GSK.

All GSK has wanted is for the fast-talking psychiatrist to stop testifying.

Healy, a professor at a British university and a practicing physician in Toronto, has been a thorn in the pharmaceutical giant’s side since about 1999, when he wrote “The Antidepressant Era” and first began raising concerns about GSK’s clinical trials related to antidepressants known as SSRIs, or selective serotonin reuptake inhibitors. In 2005, The New York Times profiled Healy, noting that he was “internationally known as both a scholar and a pariah.”

“You don’t really know who you can trust,” Healy told the paper.

Healy has been a longtime expert witness in cases against GSK. His all-day direct examination in Chicago last Thursday was followed by a six-hour cross-examination this week. Healy said he had testified in more than 10 cases against GSK, something the company’s lawyers at Dentons and King & Spalding made a spirited effort to prevent in the Dolin case.

Healy’s testimony, for instance, was admitted in a suit in the Southern District of Indiana involving the sister of a priest who committed suicide after taking paroxetine, the trade name for Paxil. That case appears to have settled in 2011. And in 2015, Healy was an author of a new review of clinical Paxil trials on teenagers, which led to headlines that the drug was unsafe for teens.

The heart of Healy’s testimony contends that GSK artificially inflated the number of suicides and suicide attempts committed by members of the placebo group during clinical trials for Paxil. That had the effect of minimizing the risk of suicide associated with the antidepressant, meaning there was no warning of suicide risks on the drug’s label.

In the Dolin case, GSK’s lawyers filed a motion to exclude Healy’s testimony in the Dolin case, writing a 46-page memorandum with 70 attached exhibits arguing that Healy was a financially biased witness with an axe to grind against GSK.

The filing asserts that the lead plaintiff lawyer in the Chicago case, Michael Baum, a senior managing partner of Los Angeles-based Baum, Hedlund, Aristei & Goldman, is an investor in a company founded by Healy. That company runs a website, RxISK.org, which GSK’s lawyers said helps promote suits against the pharmaceutical industry. The filing also said Healy’s personal blog showed his bias against GSK, including his purported belief that the company helped get him fired from a previous professor position and may have been behind an investigation that could have led to his medical license being revoked in the U.K.

U.S. District Judge James Zagel ruled that Healy (pictured right) could testify in the Dolin case. But at the trial, presided over by U.S. District Judge William Hart, lawyers could not ask Healy about his blog or his personal relationship with GSK.

King & Spalding life sciences and health care litigation co-chair Andrew Bayman asked Healy if his website was intended to make it easier for the public to file suits and to garner work for himself as an expert. Healy testified that he bills $750 an hour to testify and $400 an hour to review cases.

But as was the case with many of the points that Bayman tried to pin Healy down on, the psychiatrist was prepared with a response to that charge in court Monday.

The website “has nothing to do with supporting lawsuits. This is all about minimizing the problem so there won’t be lawsuits,” Healy said, adding that Baum’s investment in his company, “would probably put him out of business.”

Proceedings in the Dolin case are continuing this week in Chicago. Some of his former Reed Smith partners are expected to take the stand.

 

Roy Strom is based in Chicago, where he writes about the business of law and the changing nature of law firm client relationships. He can be reached at rstrom@alm.com. On Twitter: @RoyWStrom.

Leave a Comment March 24, 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

Florida May Be Reverting to Frye Standard for Admissibility of Expert Testimony

Originally published in Daily  Business Review, an ALM Media publication, March 2, 2o17.

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

By:  April M. Dahl

The Florida Supreme Court issued a highly anticipated decision on Feb. 16 regarding the admissibility of expert testimony in Florida.

After less than four years as a presumptive Daubert state, Florida may be reverting to the Frye standard to govern the admissibility of expert testimony, a standard which many find to be archaic and out of touch with its federal counterpart. Although the decision was not unexpected, its impact will be significant for trial attorneys statewide due in large part to the unresolved questions left in its wake.

The Court of Appeals of the District of Columbia gave birth to Frye v. United States in 1923. Florida subsequently adopted the test espoused by the Frye court, which requires a two-prong inquiry for the admissibility of scientific evidence: whether the scientific theory or discovery from which the expert derived his/her opinion is reliable, and whether the opinion is accepted in the scientific field. The Frye standard reigned supreme nationwide for almost 70 years.

In 1993, the U.S. Supreme Court adopted a new, more stringent standard governing the admissibility of expert testimony with Daubert v. Merrell Dow Pharmaceuticals. In Daubert, the court held that the Federal Rules of Evidence, and not Frye, provided the standard for admitting expert testimony at trial. Under Daubert, the trial court is tasked with evaluating the credentials of the proffered expert witness and serving as a gatekeeper to ensure that the testimony is based upon reliable foundation. The court noted that under the Federal Rules of Evidence, the trial judge must make a preliminary determination of whether the underlying methodology is scientifically valid. The Daubert court identified non-exclusive factors that a court may consider: whether the methodology has been or is amenable to testing, whether it has been subjected to peer review and/or publication, the known and potential error rate of the methodology and whether it has been generally accepted in the relevant scientific community.

 

Many states adopted the Daubert analysis shortly thereafter. Florida appeared to be one of the minority holdouts until July 1, 2013, when the Florida Legislature in House Bill 7015 amended Florida Statutes Sections 90.702 and 90.704 to replace the standard for expert testimony from the test set out in Frye to the test set forth by the U.S. Supreme Court of the in Daubert. These amendments to the Florida statutes mirror their counterparts contained in the Federal Rules of Evidence regarding the admissibility of expert testimony almost verbatim.

Case Vs. Rule

In its recent decision, the Florida Supreme Court declined to adopt certain legislative changes to the Florida Evidence Code, but only to the extent that the proposed changes were ‘procedural,’ the most significant of which were the newly enacted 90.702 and 90.704. In doing so, the court noted that it has been its policy to adopt procedural provisions of the Florida Evidence Code as enacted by the Florida Legislature. This departure underscores the significance and impact of the court’s decision.

In reaching its decision, the court cited “grave constitutional concerns” raised by the Florida Bar’s code and rules of evidence committee. In particular, the court found that the Daubert amendment may undermine a litigant’s right to a jury trial and deny access to the courts. Although the court raised these issues, it did not address the constitutionality of the statutes at this time. Rather, the court relied upon these “grave constitutional concerns” as the impetus for departing from its policy of adopting procedural provisions of the Florida Evidence Code.

The manner in which court attempted to resolve the present Frye vs. Daubert debate has not in fact definitively resolved the issue. Importantly, the Florida Supreme Court declined to address the remaining question — whether the Legislature’s attempt to transition Florida from Frye to Daubert was a substantive rather than a procedural change. The court left that question open for a “proper case or controversy.”

If the Daubert amendment is found to be procedural in a “proper case or controversy,” then Florida will revert to the arguably outdated Frye standard. On the other hand, if the Legislature’s amendment is subsequently held to be substantive, Florida may now be a Daubert state after all.

Until such a ruling, however, members of the state bar are left searching for the next case to provide direction regarding the appropriate standard governing the admissibility of expert testimony.

 

April M. Dahl is a partner in the Fort Lauderdale office of the national law firm of Hinshaw & Culbertson. She focuses her practice primarily in tort litigation, including products liability, toxic tort, indoor air quality, chemical exposure, construction defect, premises liability, automobile and general liability matters. Contact her at adahl@hinshawlaw.com.

Original Source: http://www.dailybusinessreview.com/id=1202780342439?back=law

 

Leave a Comment March 3, 2017

Video Laryngoscopy Emergency Medicine Expert Witness Discusses Difficult Airway Secured with Video Laryngoscopy and an Endotracheal Tube Introducer

by: Seth Womack, MD, FAAEM , an ALM Listing Expert

CASE:  43-year-old male presents to the ER with chief complaint of vomiting blood and epigastric (upper stomach) pain.   Approximately 1 hour prior to presenting to the ER, he finished dinner with his family of 5; became nauseated and sweaty; and vomited his meal mixed with a large amount of dark red blood.  His wife states that it seemed “like a gallon!”  Pertinent past history included weekly ibuprofen use for chronic knee pain and alcohol use consisting of beer only on the weekends when he is not working.  He injured his knee due to playing frequently with his children.  On exam, he is afebrile (no fever); has blood pressure of 82/44; heart rate of 122; respiratory rate of 28; and oxygen saturation of 96% when breathing room air.  The patient appears pale, sweaty, and has some mild tenderness to palpation over his upper abdominal area.

Immediately, the patient is placed on nasal cannula oxygen with continuous pulse oximetry and telemetry.  This allows him to breath pure oxygen through his nose while the doctor can monitor the oxygen level in his blood and his heart rate and rhythm on a screen similar to a small flat screen TV.  Two 18 gauge peripheral IVs are placed and O negative blood is ordered, stat, from the laboratory to be given through the rapid transfusion warming unit.  Pantoprazole and octreotide boluses and drips are ordered.  Pantoprazole is a medicine given through an IV that reduces acid in the stomach.  Octreotide is a medicine also given through an IV that reduces pressure in the veins of the esophagus.

This patient is in hemorrhagic shock (low blood pressure due to bleeding somewhere in the body).

His blood pressure is 95/54 after two units of packed red blood cells.  His wife brings his children in the room to see him briefly, and the ER doctor walks out to call the gastroenterologist.  The ER doctor has a strong suspicion that the patient has upper GI bleeding from ruptured esophageal varices (veins in the esophagus have burst and are bleeding).

This condition often requires emergent intubation (patient placed on a ventilator or breathing machine) by emergency room physicians in order to protect the patient’s airway from the rapid upper GI bleeding that could be aspirated or sucked into the patient’s lungs.

Minutes later, the ER doctor goes back into the room to report to the patient that the gastroenterologist is on his way in only to find the patient has begun to vomit a copious amount of dark red blood.

The ER doctor decides to secure the patient’s airway to prevent aspiration of blood.  He suspects this will be a difficult airway due to the patient’s obesity and active bleeding into the patient’s airway.  He calls for drugs to sedate and paralyze the patient as well as the video laryngoscope (VL).  After the patient is sedated and paralyzed, the VL is inserted into the patient’s oropharynx (upper airway).  The VL provides a sufficient view of the vocal cords and trachea but only for approximately a 4 second window.  The oropharynx fills up with blood, and the VL has to be removed quickly to be wiped free of the blood that obscures the small camera.  To make the airway even more difficult, the patient has a short neck and jaw with vocal cords in a high, anterior position.  The endotracheal tube (tube through which the patient will have oxygen delivered) stylet that is made specifically for the VL is insufficient to direct the endotracheal tube between the patient’s vocal cords into his trachea in order to secure his airway.  Meanwhile, the patient’s oxygen saturations are falling.  He cannot be ventilated (oxygen being pushed manually into the lungs) and oxygenated back up to life sustaining levels due to blood obscuring his airway and potentially being pushed into the patient’s lung with bag valve mask ventilation (mask and oxygen bag placed over the patient’s face to manually breath for him).  The ER doctor knows he has one last chance and seconds before having to perform an emergent cricothyrotomy (cutting a hole in the patient’s neck and trachea to insert a tube by which to breath for the patient), which is not best for the patient.  With one last chance, the doctor secures the patient’s airway with video laryngoscopy and an ETI (endotracheal tube introducer).

This rigid piece of elongated blue plastic has more likely than not saved this patient’s life.  The ETI has prevented an emergent cricothyrotomy from occurring.

ER doctors would benefit to be familiar with the process of securing a difficult emergent airway by using video laryngoscopy with ETI assistance.

Terminology: 

  • ETI: endotracheal tube introducer, also commonly named “bougie” or “gum elastic bougie” in the emergency room.  Calling the ETI a “bougie” is a misnomer when using it to secure an airway.  Stedman’s defines bougie as a cylindrical instrument, usually somewhat flexible and yielding, used for calibrating or dilating constricted areas in tubular organs, such as the urethra or esophagus; sometimes containing a medication for local application.  Basically, the ETI goes where the endotracheal tube cannot and then provides a pathway for the endotracheal tube to follow.

Equipment:

  • Video laryngoscope
  • Endotracheal tube of appropriate size
  • ETI (endotracheal tube introducer)

Indication: 

  • Failure at securing airway by traditional video laryngoscopy with ETT (endotracheal tube) and accompanying stylet

Technique: (assuming the patient has been correctly prepared for intubation)

  • Bend the ETI to approximately 45 degrees at a point 8 cm proximal to the distal tip and hold it with dominant hand.
  • Hold the VL with non-dominant hand.
  • Have assistant standing at the side of your dominant hand with the ETT.
  • Insert the VL into the oropharynx and obtain clear view of the vocal cords on the video monitor of the VL system.
  • While holding the VL steady, advance the ETI into the oropharynx until the distal end can be seen on the video monitor.
  • Advance the ETI between the vocal cords and into the trachea until mild resistance is felt, then stop advancing. Resistance is usually met at 24-40cm from the teeth.  Make a mental note of the number at teeth or lip level of the patient.
  • While viewing the ETI between the vocal cords and holding both the VL and the ETI steady, have assistant thread the ETT over the ETI until the ETT is at the level of the intubator’s dominant hand.
  • At this point, have the assistant hold the ETI at the point just proximal to the proximal end of the ETT and grasp the ETT with dominant hand.
  • By looking at the video monitor, confirm that the ETI is between the vocal cords. Also, confirm that the ETI is at the previous noted number at teeth or lip level.
  • Gently advance the ETT while the assistant holds the ETI stationary. The ETT may become lodged on the epiglottis (a thin plate of flexible cartilage that protects the airway when swallowing).  This complication is usually overcome by twisting the ETT along the axis of the ETI while advancing the ETT.
  • When the ETT has been advanced appropriately, hold it in place firmly and have the assistant withdraw the ETI.
  • Inflate the ETT balloon and proceed with traditional ETT placement confirmation.

Over the last decade, video laryngoscopy has become an invaluable tool to emergency physicians.  VL has made the difficult airway as defined by using direct laryngoscopy (viewing a patient’s airway with just the human eye) not so difficult anymore.  However, a clinician can still encounter a failed airway with the use of VL.  The doctor can reduce his or her chances of failing to intubate a patient by adding the use of an ETI to his or her airway algorithm.

Seth Womack, MD, FAAEM is a Board Certified Emergency Medicine Physician in active clinical practice at a level 1 trauma center.  He is licensed in both Louisiana and Texas.  Dr. Womack’s undergraduate degree is in biomedical engineering.  In addition to his busy clinical practice, Dr. Womack serves as an emergency medicine expert witness. He can be contacted at Seth Womack, MD FAAEM; 16623-C FM 2493, PMB #408; Tyler, TX  75703; womackmd@gmail.com; (414) 218-4310 (Cell).

Leave a Comment May 20, 2016

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