Filed under: Testimony

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

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

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

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