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Florida Death Penalty Cases Cause Strains for Legal System

Originally published in the Daily Business Review, an ALM Media publication, on January 25, 2018. By: Dara Kam. A U.S. Supreme Court ruling that led to an overhaul of Florida’s death-penalty sentencing process has put financial and workload pressure on prosecutors, public defenders and courts. The government lawyers are grappling with fallout from the 2016 ruling, in a case known as Hurst v. Florida, that said the state’s system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury. The ruling set off a string of court decisions that effectively put Florida’s death penalty in limbo for 18 months and resulted in a new law requiring unanimo... Read More >

Expanded Burden of Proof Clarified in Workers' Comp Modification Actions

Originally published in The Legal Intelligencer, an ALM Media publication, on January 11, 2018. By: P.J. Dannuzio The Commonwealth Court has ruled that while employers seeking a modification of workers’ compensation benefits based on proof of earning power must show that positions identified in a transferable skills analysis are open and available, a claimant’s own testimony about pursuing those jobs could also be used to bolster the employer’s case. A divided en banc Commonwealth Court panel held that claimant Dennis Smith’s workers’ compensation benefits should be reduced from $661 to $336 per week based on the availability of jobs that Smith could perform with his educational and physical restrictions, as identified in a labor market survey by his employer’... Read More >

Superior Court Revives Bifurcated Med Mal, Legal Mal Case

Originally published in the New Daily Report, an ALM Media publication, on January 8, 2018. By: P.J. Dannuzio The Pennsylvania Superior Court has ruled that a previously dismissed legal malpractice lawsuit against an attorney accused by his clients of botching a medical malpractice case can proceed to trial, along with the underlying medical malpractice claims. A nine-judge panel consisting of Judges Anne E. Lazarus, Susan Peikes Gantman, John T. Bender, Mary Jane Bowes, Jacqueline O. Shogan, Judith Ference Olson, Paula Francisco Ott, Victor P. Stabile and Alice Beck Dubow overturned an Allegheny County judge’s grant of nonsuit in the case filed by plaintiffs Aldis Rutyna and Mary Jane Rutyna against attorney William S. Schweers Jr.  The Rutynas retained Schw... Read More >

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

Originally published in the New York Law Journal, an ALM Media publication, on November 13, 2017. By: Richard Raysman and Peter Brown It is black-letter law that liability for breach of contract does not mean that the prevailing party is entitled to its requested damages award, much less any damages at all. In particular, New York law applies a higher standard relative to other damage categories when evaluating a prevailing party’s claim based on lost profits. To avoid losing on a damages request, or receiving only a nominal award, the prevailing party must show that lost profit damages can be proven with “reasonable certainty” and “were fairly within the contemplation of the parties to the contract at the time it was made.” Past sales often furnish a persuasive r... Read More >

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

Originally published in the New Daily Report, an ALM Media publication, on September 28, 2017. By: Colby Hamilton A subpoena being driven by attorney “paranoia” in a Georgia-based copyright violations case should be quashed, according to a motion filed in the U.S. District Court for the Southern District of New York on Wednesday. William Rosenblatt, an expert witness in digital music cases, is trying to keep a one-time potential client from deposing him in Manhattan, over what he alleges is “the very epitome of litigation paranoia.” Rosenblatt, represented by New Jersey-based Tenaglia & Hunt name attorney James Hunt Jr., says he was approached by Georgia-based private attorney David Lilenfeld as a potential expert witness in an ongoing copyright violations ... Read More >

Court Reinstates Med Mal Case Over Catheterization Gone Awry

Originally published in the New York Law Journal, an ALM Media publication, on October 10, 2017. By: Jason Grant An expert witness and a fellow physician raised triable issues of fact regarding whether a gastroenterologist departed from the standard of care when he catheterized a patient with an inflamed bile duct, a state appeals court ruled Tuesday. An Appellate Division, First Department, panel found that despite Dr. Louis May providing experts who said that the plaintiff’s bile duct perforation occurred before his actions, triable issues of fact were raised “as to whether Dr. May caused the … perforation when he conducted the ERCP [endoscopic retrograde cholangiopancreatography] or exacerbated decedent’s injuries by advancing the catheter and performing excess... Read More >

Construction Expert for Complex Litigation

By: Derek Graham, an ALM listing expert. Finding the right construction expert for defect and workmanship claims expert is a slippery slope for attorneys whose specialty is not construction. A typical strategy to find a construction expert is to retain an engineer or architect expert, since like attorneys, they are degreed and licensed. I believe that, for some, there is a tacit notion that having a degree makes one a more qualified witness. This boot-strap stereotype does a disservice by significantly narrowing the field of candidates, and disqualifying some of the best resources. The other reason attorneys default to architects is because architects routinely inspect tradesmen work quality for approval or rejection as a daily part of their office. So as it should b... Read More >

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 defenda... Read More >

Elite Plaintiffs Lawyer Accused of Concealing Payments to Expert Witnesses

Originally published on Law.com, an ALM Media publication, on May 5, 2017. By: Amanda Bronstad Johnson & Johnson, hoping to reverse a $502 million verdict, is accusing plaintiffs attorney W. Mark Lanier of lying to a federal judge and jury about payments he made to two expert witnesses in a pivotal hip implant trial last year in Dallas. The allegations against the Houston lawyer surfaced in documents unsealed this week by the U.S. Court of Appeals for the Fifth Circuit, which is hearing Johnson & Johnson subsidiary DePuy Orthopaedics Inc.’s appeal of the verdict. In an April 18 appeal brief, Johnson & Johnson lawyers Paul Clement and John Beisner said a “strange thing happened” when they started deposing the experts for a subsequent trial: The plai... Read More >

Rising to the Challenge: Junior Attorneys Utilize Expert Witnesses in the Courtroom

  Originally published in The New York Law Journal , an ALM Media publication, on March 31, 2017. By: Michael Rader Much ink has been spilled in recent years about the "vanishing jury trial" in America. With fewer jury trials and more at stake in many of the cases that are tried (for example, large patent infringement cases), opportunities for junior attorneys to participate meaningfully in trial advocacy have evaporated. Federal judges have increasingly expressed concern about who will be prepared to try the complex cases of the next generation. Creating opportunities for young lawyers to take an active role in today's trials is not, however, just a way of preparing the legal profession for the future. It is also an important strategy for serving clie... Read More >

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