Filed under: Expert Witnesses

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

Motion Denied Because of Expert Witness Testimony

Originally published in The New York Law Journal an ALM Media publication, March 13, 2017.

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

  • Supreme Court, Nassau County, IAS Part 7
  • 601626/2014
  • Justice Arthur M. Diamond
  • For Plaintiff: For Plaintiffs: Kushnick Pallaci, PLLC.
  • For Defendant: For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

Cite as: Percora v. Bankers Standard Ins. Co., 601626/2014, NYLJ 1202780991401, at *1 (Sup., NA, Decided March 1, 2017)

CASENAME

Frank Percora and Lisa Percora, Plaintiff v. Bankers Standard Insurance Co., ACE Private Risk Services, Defendants

601626/2014

Justice Arthur M. Diamond

Decided: March 1, 2017

ATTORNEYS

For Plaintiffs: Kushnick Pallaci, PLLC.

For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

The following papers having been read on this motion:

Notice of Motion 1

Opposition 2

Reply 3

 

Defendants herein move for summary judgment to dismiss the Plaintiffs’ complaint pursuant to CPLR §3212. Plaintiffs oppose the instant application. After consideration, Defendants’ motion is denied in its entirety.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Summary judgment is the procedural equivalent of a trial and must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable. Rivers v. Birnbaum, 102 AD3d 26, 953 NYS2d 232 (2nd Dept., 2012). In considering a motion for summary judgment, the function of the Court is not to determine issues of fact or credibility, but merely to determine whether such issues exist. Id. at 42, 243.

In general, it is the insured’s burden to establish coverage and the insurer’s burden to prove the applicability of an exclusion. Great American Restoration Services, Inc. v. Scottsdale Insurance Co., 78 AD3d 773, 911 NYS2d 142 (2nd Dept., 2010). An exclusion from coverage must be specific and clear and any ambiguity must be construed most strongly against the insurer. Id at 776, 142. The test for ambiguity is whether the language is susceptible of two reasonable interpretations, and the focus of the test is on the reasonable expectations of the average insured. Id. at 776, 142-143.

The action before the Court arises out of damage to Plaintiffs’ home in Long Beach, New York, as the result of Superstorm Sandy. Plaintiffs’ complaint has a single cause of action for breach of contract. The allegations in the complaint refer to damage to Plaintiffs’ home solely caused by the high winds of the storm, only. The interrogatories of Plaintiffs attached to Defendants’ moving papers acknowledge that they did not have a flood insurance policy in place at the time the alleged damage was sustained to their home.

Defendants’ motion for summary judgment to dismiss the complaint is based upon the premise that all of the damage to Plaintiffs’ home as a result of the storm was caused by water, which is excluded from coverage under the policy. In support of this position, Defendants attach excerpts of depositions transcripts taken of Plaintiff Frank, as well as three expert witnesses disclosed by Plaintiffs during discovery. None of these transcripts are in their completed form and all have had pages from the transcript removed prior to submission herein. Defendants have not attached an affidavit or a complete deposition transcript such that would allow the Court to consider their papers to be sufficient to consider judgment as a matter of law. By reasons of this defect, the Defendants’ request is appropriately denied in its entirety. See Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 864 NYS2d 554 (2nd Dept., 2008); see also generally Marks v. Robb, 90 AD3d 863, 935 NYS2d 593 (2nd Dept., 2011).

Even assuming, arguendo, that Defendants did properly include full copies of certified depositions transcripts of the Plaintiff and/or any one of its experts, Defendants motion still cannot be granted. It appears uncontroverted by the papers that Plaintiffs did not have flood insurance for the subject property; moreover, nowhere in Plaintiffs’ opposition papers do plaintiffs suggest that damage caused by water should be covered under the policy, as the exclusion clause for water is clear. Instead, Plaintiffs argue that the damage asserted that is part of the denial of coverage by Defendants was for wind damage, which is clearly covered under the policy terms.

In reviewing the complete transcript of Plaintiffs’ expert witness Boccia, as well as the complete transcript of expert witness Wallwork, both attached to Plaintiffs’ opposition papers, there are triable issues of fact that are certainly outstanding. For example, Defendants in their moving papers suggest that both of these witnesses acknowledge that the damage to the home of Plaintiffs was caused by water only. However, the completed transcript of Mr. Boccia on pages 62 through 69 make clear that damage can be attributed to wind, or water, or both, and that damage, such as racking, can be attributed to wind alone regardless of the water damage that may have occurred to the home. Similarly, Mr. Wallwork testified that he too was able to parse out damage cause by wind alone versus damage caused by water either in whole or in part. For this reason, granting of summary judgment to Defendants would be improper, and the instant motion is hereby denied.

Given the foregoing, the parties are directed to appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on March 30, 2017 at 9:30 am.

This hereby constitutes the decision and order of this Court.

Dated: March 1, 2017

Original Source: http://www.newyorklawjournal.com/id=1202780991401?keywords=expert+witness&slreturn=20170210091937 

Leave a Comment March 10, 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

AVOIDING THE TERM “REASONABLE DEGREE OF SCIENTIFIC CERTAINTY”

by: Dennis J. Ryan, an ALM Listing Expert

Recently, the National Commission on Forensic Science published a Views Document by the Subcommittee on Reporting and Testimony dealing with the terminology “Reasonable Degree of Scientific Certainty” or any variation of the term which may be discipline-specific.  The Commission was highly critical of using the term in testimony by forensic experts, and suggested that the scientific community should not encourage the use of this terminology. The Commission recommends abandoning this phrase, which has been used for many years in courts across the United States.  The Commission admits that there is no clear alternative to the term “reasonable degree of scientific certainty,” and they admit that work is needed in this area to strengthen terminology for expressing an expert’s opinion.

The term “reasonable degree of scientific certainty” is not defined in any standard medical or scientific journals; rather, it is a legal term that was first linked to opinion testimony in a 1969 case (Twin City Plaza Inc. v. Central Surety & Ins. Corp 409 F.2d 1195, 1203 (8th Cir. 1969). The Daubert-related cases, Daubert, Joyner and Kumho, and the Federal Rules of Evidence 702-705 do not require any similar language.  The Daubert and Frye tests serve to exclude any speculative testimony and preclude the need for any such language relating to scientific certainty.

The Commission recommended that courts discontinue using the term “reasonable degree of scientific certainty” because it could result in confusion for those involved in court cases.  The commission states: “In the courtroom setting, the phrase risks misleading or confusing the factfinder” and “has no scientific meaning and may mislead jurors or judges when deciding whether guilt has been proved beyond a reasonable doubt.” In a 2014 case in Hawaii (State v. DeLeon, 319P.3d 382, 403 (Haw.2014) the court said “trial courts should not require a ‘reasonable degree of scientific certainty’ before admitting expert opinions.”

The lack of a common definition of this word across the sciences, or even within a discipline of science, is confusing and frustrating.  If one was to assemble a room of legal professionals, there would be a host of different definitions for the term, and no common definition would result.  The same would hold true for a room of scientific scholars. A juror may, on the other hand, have a totally different understanding of the term and may equate it to finding of proof beyond a reasonable doubt.

Much work is needed to strengthen the terminology a forensic expert uses to expresses their opinions. The goal is to minimize any misleading or confusing terminology.

Leave a Comment June 29, 2016

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

Shippers That Load Cargo May be Responsible for Injuries

by Terry E. Morgan, DLP & CTL-AST&L & Surface Transportation Board Practitioner and an ALM Listing Expert

Case Synopsis:

A contracted truck driver was injured while making a delivery to a large department store. A large heavy carton which had been loaded on the top of other freight began to fall from the top of the load on the driver. When he attempted to deflect the falling carton away from hitting his head and upper body, he was severely injured. The trailer he was unloading had been loaded by the department store’s employees at their distribution center.

Expert Analysis:

1) The load remaining on the trailer was stacked almost to the roof of the trailer.

a) Any goods stacked on top of the load and forward of the end of the remaining load would not have been visible to the driver. The front portion of the trailer where the shipment that fell was located, would not have been well lighted.
b) The large heavy carton was placed on top of lighter weight goods without securing it in place or providing any warning of this hazard. A distribution center manager, stated that the distribution center’s procedure is to put heavy items on the bottom and light items on the top when loading cargo equipment. Thus, the distribution center did not follow their own procedures in loading the trailer.
c) One of the distribution center managers stated that loaders are to be trained in “proper loading techniques,” which includes loading in a manner that will prevent injuries to people who are loading and unloading. He further stated that they are responsible for safety.

2) The distribution center had a duty to load trucks in such a manner that the load was secure for the rigors of transportation and was safe for unloading.

3) The distribution center had exclusive control over the loading of the cargo and retained or exercised control over the details of the performance of the work. The unstable and unsecured, large heavy carton in the driver’s trailer, would not have been readily apparent to him through ordinary observation. The large heavy carton represented a hazard perched high above the driver’s head, deep within the trailer and camouflaged among the multitude of other packaged products around it.

a) It is well recognized in the trucking and distribution industries that shippers who improperly load cargo where the defects are latent and not apparent upon reasonable inspection may be held liable for injuries and damage caused by their negligence.
b) The driver was not permitted to observe loading of the trailers they were required to haul nor inspect their loads before leaving the distribution facility.
c) Shifting loads and falling cargo are a well recognized hazard in the loading and unloading of cargo carrying vehicles.
d) The driver testified that drivers are not permitted to complain about any defects in loads.
e) These shipments would be described as “Shipper Load and Count” shipments and the bill-of-lading should be marked as “SLC,” confirming they were “Shipper Load and Count.”
f) The carrier is not liable for loss or damage, except in the case of negligence, for shipments noted as being “SLC.”

4) It is my professional opinion when a shipper delivers goods for shipment, it impliedly warrants that the goods are fit for shipment and are properly packed. The driver’s injuries were occasioned solely by act or fault of the department store distribution center’s loaders.

Result:

This case was settled prior to trial.

 

DISCLAIMER: This article is not intended to be legal advice. It is only intended to be information based on the experience of the author and only under the specific circumstances contained herein. Consult with a qualified attorney to determine how the issues outlined above may apply to your specific circumstances.

Leave a Comment May 16, 2016

Tech in Trial: Advancing Techniques Means Increased Preparation

If a Picture is Worth a Thousand Words, Is a Trial Tech Expert Worth $200 an Hour?

Originally published on: The Litigation Daily, November 10, 2015

By: Jenna Greene

 

Andrew Cox, who leads Thompson Hine’s product liability practice, is a Gen Xer, the kind of guy you might think would be all over using technology in the courtroom. He even has a goatee.

But the 43-year-old litigator is distinctly old-school when it comes to presentations in court.

He won a trial in May, a defense verdict in Ohio state court case involving a fatal plane crash.

The plaintiffs used fancy animation—a short video depicting their version of what went wrong.

Cox had a big aerial photo of the airport mounted on a magnetic board. And he had magnets showing where each eye witness was positioned, plus a magnetic airplane he could move across the photo.

“We used it in the opening, our experts used it, we used it in the closing,” he said. “And it was tangible—a Google Earth photo. People knew it was real.”

As for the animation, he said the plaintiffs lawyers were constantly starting, stopping and replaying it, dividing the jurors’ attention between the screen, the expert witness and the tech doing the rewinding.

“I’ve never seen a perfect animation,” Cox added. In this video, a small detail was off: the accident took place in Ohio in March, when the trees are still bare. In the animation, the trees were green and leafy.  It was a subtle reminder that the events depicted weren’t real, he said.

In the end, neither the video nor the magnet photo was probably the deciding factor for the jury. But it’s all part of the bigger task at trial: to tell your client’s story.

The question is, what visual aids will help accomplish that, and which might be glitzy distractions? Do you have the wisdom to tell the difference?

Robb Helt, director of trial technology for Suann Ingle Associates, makes a compelling case that the best reason to hire a tech consultant is not to get “someone sitting behind the scenes putting things on a screen and pushing buttons,” he said. “A monkey with enough bananas can push buttons.”

Rather, trial technology consultants offer experience—the best of them have seen more trials than most lawyers. Helt, for example, has racked up 513 trials, arbitrations and mediations since 1999. Among them: 16 months as Halliburton’s trial technology consultant in the Deepwater Horizon oil spill litigation.

As a result, he said, he’s developed  “a really good feel for what’s worked here and not there.”

Lawyers often “have an idea of what they want, but not what they need” when it comes to using technology to present their cases, Helt continued.

For about $200 to $250 an hour, consultants can help figure that out, design the graphics and make sure it all works seamlessly in court. They can also make sure lawyers don’t “over-egg the pudding” with too many high tech elements, Helt added.

But it’s not the easiest time to be a trial technology consultant. For starters, fewer cases are going to trial. And the technology is getting easier to use—which means more lawyers are bypassing the consultants and doing it themselves.

In large part, credit the iPad and apps like TrialPad, which for about $130 can do nifty things like highlight text, create side-by-side document comparisons and edit and show video clips.

“An iPad not only increases an attorney’s mobility in the courtroom, but it also allows the attorney far greater control over the presentation of evidence to the judge and jury,” wrote Alexander Rusek of White Law in an article  last year for the American Bar Association’s trial evidence committee. “No longer must an assisting attorney attempt to coordinate the presentation of exhibits or highlight or enlarge the exact portion of an exhibit for the presenting attorney.”

Which is great, provided the attorney doing the presenting knows what he or she is doing.

Solo practitioner Carolyn Elefant, who writes the blog My Shingle, last month told of prepping for her first jury trial in more than a decade. She opted to use an iPad for photos, charts and presenting impeachment material to the witnesses. And she learned how to do it 10 days before the start of trial.

She won three six-figure verdicts for her clients.

“While ultimately, it was the strength of the prep, the evidence and fact and expert witnesses and not the iPad that produced the win, the iPad allowed me to present that evidence in a far more professional and seamless a manner than would have been possible at my last trial ten years ago,” she wrote.

Contact Jenna Greene at jgreene@alm.com or on Twitter @jgreenejenna.

Original Source: http://www.litigationdaily.com/id=1202742147525/If-a-Picture-is-Worth-a-Thousand-Words-Is-a-Trial-Tech-Expert-Worth-200-an-Hour?mcode=1202615798744

Leave a Comment November 11, 2015

Engineering Expert Aids in Multi-Million Dollar Verdict for TX Crane Operator

Originally published on: VerdictSearch.com

Offshore worker’s foot crushed when cable snapped, block fell

Amount: $2,809,898.72

Type: Verdict-Plaintiff

State: Texas

Venue: Harris County

Court: Harris County District Court, 152nd

Injury Type(s):

back-herniated disc(herniated disc at L4-5); lumbar(herniated disc at L4-5)
other-plate
other-laceration
other-arthrodesis
other-physical therapy
other-pins/rods/screws
other-hardware implanted
foot/heel-heel
foot/heel-fracture(fracture, metatarsal); foot(fracture, metatarsal)
foot/heel-Lisfranc injury
foot/heel-crush injury; foot
foot/heel-fracture(fracture, calcaneus/heel); heel/calcaneus(fracture, calcaneus/heel)

Case Type:

Worker/Workplace Negligence - Worker/Workplace Negligence, , Worker/Workplace Negligence, Labor Law, Worker/Workplace Negligence, Oil Field, Worker/Workplace Negligence, Negligent Maintenance

Case Name: Luke Meyers v. W & T Offshore, Inc., No. 2012-74366

Date: August 27, 2015

Parties

Plaintiff(s):

Luke Meyers (Male, 52 Years)

Plaintiff Attorney(s):

Kyle Findley; Arnold & Itkin LLP; Houston, TX, for Luke Meyers
Cesar Tavares; Arnold & Itkin LLP; Houston, TX, for Luke Meyers

Plaintiff Expert(s):

Angel Roman ; MD ; Physical Medicine; San Antonio, TX called by: Kyle Findley, Cesar Tavares
Edward Ziegler ; P.E., C.S.P. ; Accident Reconstruction; Houston, TX called by: Kyle Findley,Cesar Tavares
Kenneth McCoin ; Ph.D. ; Economics; Houston, TX called by: Kyle Findley, Cesar Tavares


Defendant(s):

W&T Offshore Inc.

Defense Attorney(s):

Kelley J. Friedman; Johanson & Fairless; Houston, TX, for W&T Offshore Inc.
Randy L. Fairless; Johanson & Fairless; Sugar Land, TX, for W&T Offshore Inc.

Defendant Expert(s):

Matthew Gardiner; Engineering; called by: Kelley J. Friedman,Randy L. Fairless


Insurer(s):

Travelers Property Casualty Corp.

Facts:

On May 12, 2011, at approximately 8 a.m., plaintiff Luke Meyers, a 52-year-old crane mechanic, was performing maintenance on a crane that was located on an offshore oil and gas production platform (West Cam 610), in the Gulf of Mexico, off of the coast of Louisiana. While he was working, a holding a 67-pound , causing the to approximately 60 onto his left , which was . Meyers sued the owner/operator of the oil production platform, W & T Inc., for negligent maintenance. Meyers claimed that six months earlier, he had informed the defendant that the crane line was in need of replacement due to deficiencies that could potentially arise due to the ‘ life expectancy. The plaintiff contended that pursuant to industry standards, crane need to be replaced for preventative maintenance once every three years, because such can develop hidden defects. The plaintiff argued that six months and 19 days prior to the subject accident, he had recommended the subject be replaced pursuant to industry standards, and that the defendant had knowingly allowed a dangerous condition to exist on their property. Plaintiff’ counsel also argued that the order for a new the defense claimed existed did not feature a receipt. The plaintiff’ expert engineer testified that it was the defendant’ obligation to make sure the platform was maintained properly; that Meyer should not have had to take extra precautions; and that the crane should have featured a secondary constraint. The defense contended that an order for a new had been approved, and a ticket approving this order had been signed by a contracted supervisor on the platform, as well as a supervising W & T employee. The defense argued that while a recommendation had been made for replacement of the , it was still in technical working order, and met such requirements as to continue using it. The defense also contended that Meyers could have prevented the accident from occurring by refusing to work on the crane while it was in operation. The defense argued that if Meyers knew the crane may have deficits due to his own inspection of the , he should have taken more precautions in working on the crane, or should have refused to perform work on it. The defendant’ expert engineer testified that Meyers had not performed an adequate inspection of the crane in October 2010, as he did not recognize any defects in the at that time. He also testified that the could have had hidden defects, and that Meyers should have taken extra precautions while working on or near the crane, or recommended the crane be taken out of service, if he knew the had exceeded its life span.

Injury:

Meyers suffered a crush injury of his left foot. He was taken by helicopter to Lafayette General Medical Center in Lafayette, La. X-rays showed crush fractures to the metatarsal bones and lisfrac joint, as well as a crack to the left heel. Meyers also suffered a laceration to the left side of the foot, where his skin split due to force. This laceration was sutured, and Meyers was released with a modified walking boot and crutches for ambulation, as well as orders to let the injury attempt to heal, and to follow up with an orthopedic surgeon.

Approximately three weeks following the accident, Meyers began physical therapy that lasted five weeks, and included sessions three times per week.

Meyers presented to an orthopedic surgeon every six to eight weeks, and presented to a second orthopedic surgeon for a second opinion approximately eight months after the accident. This second orthopedic surgeon recommended Meyers undergo surgery to repair the fractures in his foot due to their failure to heal.

Meyers began to complain of back pain six weeks following the subject accident, and underwent a lumbar MRI. It revealed a disc herniation at the L4-5 level, for which was treated with home exercises.

Meyers underwent surgery to repair his foot fractures. This included the use of a plate and screws for stabilization of the bones. He underwent four more weeks of physical therapy, three times per week, following surgery.

Meyers claimed that he will need a one-level discectomy and fusion surgery at L4-L5. Other future needs included periodic MRIs and orthopedic appointments, as well as prescription medication.

He walks with a limp and claimed that the injuries have impaired his ability to walk on inclines and on stairs.

Meyers’ treating pain management doctor testified that he could no longer work in a heavy labor occupation as he had previous to the accident, and that future work would need to be sedentary.

Meyers sought recovery of damages totaling $2,809,898.72, including $180,463 for past lost wages; $707,129 for future lost wages; $66,074.93 for past medical costs; $306,232.09 for future medical costs; $300,000 for past pain and suffering; $500,000 for future pain and suffering; $250,000 for past physical impairment; and $500,000 for future physical impairment.

Result:

The jury placed 100% negligence on the defendant. The jury awarded Meyers $2,809,898.72.

Luke Meyers

$66,075 Personal Injury: Past Medical Cost

$306,232 Personal Injury: Future Medical Cost

$250,000 Personal Injury: Past Physical Impairment

$500,000 Personal Injury: Future Physical Impairment

$180,463 Personal Injury: Past Lost Earnings Capability

$707,129 Personal Injury: FutureLostEarningsCapability

$300,000 Personal Injury: Past Pain And Suffering

$500,000 Personal Injury: Future Pain And Suffering

Actual Award: $2,809,898.72

Trial Information:

Judge: Robert Schaffer

Demand: $430,000

Offer: $250,000 (Revoked before trial)

Trial Length: 7  days

Trial Deliberations: 1.5  hours

Jury Vote: 11-1

Jury Composition: 8 Female 4 Male

Editor’s Comment:

This case was written suing information provided by plaintiff’s counsel. Defense counsel did not respond to reporters requests for information.

Leave a Comment October 23, 2015

Defendant Gets New Hearing After $8M Elevator Verdict

Originally published on: New Jersey Law Journal, August, 31,2015

By: Charles Toutant

A New Jersey appeals court has reversed judgment in an elevator injury suit in which the plaintiff was awarded $8 million after an earlier $4 million award was reversed.

In Tufaro v. Headquarters Plaza, the case was remanded a second time for the judge below to reconsider the Schindler Elevator Company’s request for a new trial or remittitur. The trial judge was also instructed to review the jury’s $8 million award in accordance with the state Supreme Court’s May 2011 ruling in He v. Miller, which provides a framework for considering requests for remittitur.

Appellate Division Judges Carmen Messano and Mitchel Ostrer ruled that Morris County Superior Court Judge Edward Gannon’s failure to address the jury’s award in light of comparable verdicts cited by both the plaintiff and defendant was grounds for remand.

Plaintiff Richard Tufaro was a carpenter who was working at Headquarters Plaza in Morristown on Aug. 19, 2005, when he entered the service elevator to descend to the parking garage, according to court documents. As the elevator descended, it shook and then came to an abrupt stop, causing his upper body to strike an elevator wall. In subsequent months, he complained of neck and back pain, as well as pain in his left knee and right shoulder. He also gained 60 pounds due to his inactivity and was diagnosed with hypertension and diabetes. In addition, he reported erectile dysfunction and said he could no longer have intercourse with his wife.

In the first trial, before Morris County Superior Court Judge Donald Coburn, the plaintiff was awarded $2.8 million in noneconomic damages and his wife received $950,000 on her per quod claim, but that award was reversed on appeal, according to court documents.

In the second trial, before Gannon, the jury found that the elevator malfunction was the result of Schindler’s negligence and was the proximate cause of Tufaro’s injuries. It awarded $5.5 million for pain and suffering, $2.25 million per quod and $250,000 in medical expenses.

On appeal, Schindler claimed two experts for the plaintiffs, orthopedic surgeon James Dwyer and mechanical engineer James Filippone, gave net opinions, but the appeals court disagreed. Schindler also claimed that Gannon’s decision to bar testimony from defense witness Monica Lynch, an expert in biomechanics, and restrictions on testimony from two others, elevator mechanic John DeLorenzi and neurologist Elliot Grossman dictate reversal, either singly, collectively or in combination with the admission of testimony from Dwyer and Filippone.

The appeals court agreed that some restrictions placed on DeLorenzi were improper but said that the errors did not materially prejudice Schindler or render the trial unfair.

Deciding the issue of remittitur, Gannon asked the parties to name other cases where parties had similar damages, noting that the focus of the case was the plaintiff’s erectile dysfunction and the impact it had on his life and his wife’s life. The parties cited a case reported in New Jersey Jury Verdict Review and Analysis, as well as He v. Miller, an automobile injury case where the plaintiff and her husband testified that her injuries diminished their sexual relations.

In that case, the jury awarded her $1 million for pain and suffering and $100,000 for her husband’s loss of consortium. The trial judge in He reduced the awards on remittitur to $200,000 for pain and suffering and $20,000 for loss of consortium and the Supreme Court affirmed that ruling.

Gannon said the Supreme Court requires an analysis of comparable verdicts, but he said there were no comparable verdicts. The appeals court reversed and remanded the case based on a finding that the judge failed to conduct the proper analysis before deciding the motion.

The He case calls for judges deciding remittitur motions to create an opportunity for litigants to be heard and for a record to be created, the appeals court said. The motion judge must “identify with as much precision as possible the particular basis on which the court has made its decision,” and the record “must include a recitation of the reasons that explain why some of the cases offered by the parties were persuasive and others were not.”

In addition, the judge deciding the motion must articulate with care and precision his or her observations on “the feel of the case,” the panel said.

In the present case, Gannon failed to explain why the cases cited by the parties, some of which involved sexual disfunction, were dissimilar, the appeals court said. He also failed to address the great disparity between the first and second verdicts, the panel said.

Andrew Fraser of Laddey, Clark & Ryan in Sparta, who represented the plaintiff, said he was pleased with the ruling because it eliminated appellate issues other than the judge’s need to perform a more thorough analysis of the remittitur motion.

“This is about as good as it could get. We’re very pleased. We look forward to the judge’s analysis,” Fraser said.

The lawyer for Schindler, Ronald Riccio of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, declined to comment on the ruling.

Contact the reporter at ctoutant@alm.com.
Original Source: http://www.njlawjournal.com/id=1202736080212/Defendant-Gets-New-Hearing-After-8M-Elevator-Verdict#ixzz3lkZdmc3f

Leave a Comment September 14, 2015

Legaltech News: Digital Forensic Testimony 101

A panel of forensic investigators and expert witnesses gathered to discuss pitfalls and tips in testifying.

Originally published by: Legaltech News

By: Sean Doherty

Digital forensic investigators get their day in court but it may never end for some who regularly testify as expert witnesses. At CEIC (Computer Examinations and Investigations Conference) in Las Vegas on May 19,  a panel of forensic investigators and expert witnesses gathered to discuss some of the pitfalls to avoid and tips for navigating the hot seat between judge and jury.

The panel entitled “Forensic Evidence in Court,” was moderated by Suzanne Widup, senior analyst at Verizon Enterprise Services, and included David Cowen, partner at G-C Partners; James Vaugh, managing director at Intelligent Discovery Solutions; Jonathan Rajewski, director at Senator Patrick Leahy Center for Digital Investigation; and Sheryl Falk, partner at Winston & Strawn.

The format for the panel was entirely interactive. Widup had a list of questions for the panelists posed via email and questions were presented from the audience.

QUESTION AND ANSWER

Attendee: How do you get qualified on the stand as an expert?

Cowen: That, probably, is the easiest part. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), layed down three foundations: qualified by education, experience, or by training. You don’t have to have all three. You only need one. The important thing when you’re doing it is that you’re an expert in your field. They will go through your background and experience to understand what it is that fits the criteria that you are in fact an expert in the field. In the legal world expert is a pretty vague word. It’s anyone who knows more than the layman.

Attendee: What are the differences between a testifying and a consulting expert?

Vaugn: Hired as a consultant. Later you may become an expert. Or you can be hired as the expert and you will do some expert consulting. The difference there being what’s discoverable from the beginning vs. what’s not. What are you going to put in emails vs. not. Everything from the time you become a consultant is arguably discoverable.

Cohen: I think you’re going to hear the word discoverable, a lot.

Attendee: Do any of you have any experience with the Office 365 litigation hold feature and is it sufficient on the court to do discovery on mailboxes in litigation hold after the fact? Although it preserves all user data, it may or may not preserve all system data.

Vaugh: I would love to hear what Sheryl has to say as a lawyer, but I want to respond as a technical consultant. The fact is that there is no tool that is perfect. It is what is available, does the tool work, has the tool been validated, have you tested the tool, can you replicate the results, and if so, does it meet the standard of reasonableness. That’s really what your faced with, it’s not perfection. And there is a difference in collecting for electronically stored information and forensics.

ADVICE

Do not bring a computer to a deposition unless there is a request to image it at the deposition.

Eye contact: Making eye contact is a big thing. Whenever you answer a question, try to make eye contact with the judge or jury because they are the only people who matter when you testify. When you make eye contact with the judge or jury, you add to your credibility. It does you no good to look at the lawyer when answering questions.

Judge: If you have any questions on the judge’s preferences, ask the lawyer. He or she will know all about the judge.

Notes: follow your standard practice in using notes to write reports. If you use notes, use fact-based notes and make sure your attorneys know. And if there is no request for notes from the opposing party, and you incorporate the contents of your notes into reports, then there’s no reason to keep the notes.

Plain talk: The art of testimony is being able to address your audience. You have to be able to beak down technical concepts and use simple analogies, while still technically true, describe what you are going to do in a way they can understand. Keep testimony simple and concise.

Preparation: To better prepare yourself, meet the lawyer and know what he or she will ask you ahead of time; or give them a list of questions to use. If you have to read from your report on the stand, you will lose credibility.

Yes-or-No. In a deposition don’t allow yourself to be limited to a yes or no answer. For example, Question: “Isn’t it true that you did this?” Answer: “Well, it sounds like you’re asking me a hypothetical, so I am going to give you a hypothetical answer” or “While that’s possible, it’s not plausible, and I’d like to explain to you why it’s not plausible.”

 
Original Source: http://www.legaltechnews.com/id=1202727360710/Digital-Forensic-Testimony-101#ixzz3bLTBauEc

 

Leave a Comment May 27, 2015

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