Archives – September, 2015

Forensics in Government Labs: A Dying Breed

by Dennis Ryan, an ALM Listing Expert

Forensics in government laboratories in the United States is undergoing a transformation.  The transformation began within the last ten years and principally involves the comparative science disciplines that were a mainstay in many government labs.  The comparative sciences includes, but is not limited to, impression evidence, paint examination, fiber examinations and questioned document examination.  With declining funding for salaries and equipment, lab administrators have been forced to choose between DNA and the comparative sciences.

Many of the comparative sciences provide investigative leads that otherwise would not be encompassed by a DNA examination.  For instance, a robbery demand note will be processed for DNA rather than be subjected to a questioned document examination for the possibility of indentations.  In a sexual assault case, a fiber examination may assist in placing the defendant at a specific location.  Tape lifts for fiber examinations are collected by rarely if ever subject to a forensic fiber examination.  Anonymous threat letters are also rarely subjected to a questioned document examination.  When is a forensic paint examination conducted on automotive parts left as the scene of an auto accident to determine the year and make of the automobile that left the scene?  It is likely that that evidence will be put in the long term storage of the government evidence vault never to be examined or seen again.

Specialization in forensic science has also contributed to the decline of forensic science in government laboratories.  The days of the trace evidence analyst doing different types of examinations is long gone; one analyst will do the paint examination, while another analyst will do the footwear impression and another analyst will do instrumental analysis.  While specialization is a positive for forensics, the municipality that funds the forensic laboratory has not funded for this specialization and fails to see the need for the additional analysts.  Many forensic laboratories have met the need for specialization by either informing their “customers” that they no longer offer those services (handwriting examination, fiber examination) or subcontracting with an outside laboratory or forensic scientist.  A majority of government laboratories subcontract some, if not all, of their forensic services.  One of the reasons for the subcontracting phenomenon is all about turnaround time.  Many government laboratories have gone from turnaround times of three or four weeks to three or four months.  Many government laboratories work on the premise that they will examine evidence only when needed for court.  A call to the government laboratory from an investigator or prosecutor will be needed in order to put their case in the queue.  The alternative for the investigator or prosecutor is to reach out to an outside contractor, especially if the prosecutor is looking for a short turnaround time.

Laboratory accreditation has also contributed to the transformation of the government forensic laboratory.  Cases that used to take an hour or two hours are now taking double that time.  This contributes to the backlog of cases in the laboratory.  While accreditation is a positive factor, many administrators of government laboratories have not “wrapped their head” around the whole accreditation issue.  Many administrators are taken aback when faced with regulatory control from an outside accreditation body.  There are other administrators who look at the accreditation body and react by letting the accreditation body “drive the train” and set the goals and objectives for the government laboratory.  Accreditation should be a cooperative effort between laboratory personnel and the accreditation body.

There are efforts from many different fronts to increase the funding to forensics and forensic laboratories.  Only time will tell if it is too little too late, or if the transformation will yield a better, more effective structure of the government laboratory.

Leave a Comment September 22, 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.

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Leave a Comment September 14, 2015


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