Filed under: Testimony

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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