Filed under: News

Del. Supreme Court: Trial Judge Misinterpreted Expert Testimony Precedent

Originally published in the Delaware Law Weekly, an ALM Media publication, on August 22, 2018.

By: Tom McParland


The Delaware Supreme Court has revived medical negligence claims against a doctor and a women’s health clinic, finding a lower court judge improperly excluded expert testimony regarding a procedure gone wrong.

A three-judge panel of the high court ruled Tuesday that Superior Court Judge William L. Witham Jr. misinterpreted Delaware precedent for establishing the reliability of expert testimony, and ordered the judge to revisit a ruling that granted summary judgment in favor of All About Women and Dr. Christine W. Maynard, who practices gynecology for the Newark-based clinic.

The ruling wiped out a November 2017 order from Witham, which found the testimony of plaintiff Amanda Norman’s expert witness unreliable because it was not based on medical literature or peer-reviewed publications.

State Supreme Court Justice James T. Vaughn Jr., writing for the court, said Dr. Jeffrey Soffer’s more than 20 years of experience in obstetrics and gynecology had qualified him to testify that Maynard and the clinic had been negligent in conducting a 2013 procedure, which allegedly left Norman hospitalized with a ruptured bladder.

“In this case, the information relied on by Dr. Soffer are Ms. Norman’s medical records and the depositions of Ms. Norman and Dr. Maynard. He arrives at his opinions by applying his training and experience to the facts of this case,” Vaughn wrote in a 12-page opinion.

“Medical literature or peer-reviewed publications may be useful factors in an appropriate case, and may be relevant to the defense in this case, but they have no bearing on the admissibility of Dr. Soffer’s opinions,” the panel ruled.

Norman’s lawsuit, filed in December 2014, seeks compensatory damages stemming from a diagnostic laparoscopy—a surgical procedure that allows doctors to examine a woman’s reproductive organs. According to court documents, surgical reports did not indicate any complications, but Norman immediately experienced intense pain in her lower abdomen and reported her symptoms to Maynard.

Still in pain, Norman was rushed to the hospital three days later, where doctors discovered that her bladder had ruptured, and attributed the injury to the laparoscopy. Norman later sued in Superior Court, claiming that Maynard was negligent in perforating her bladder and failing to recognize the problem. The lawsuit alleged Norman has racked up more than $42,000 in medical bills and nearly $4,800 in lost earnings due to the “disabling nature of her injuries.”

Maynard and All About Women have denied allegations of negligence, saying the injury is a known complication of the laparoscopy. According to court documents, Maynard discussed the risks and alternatives with Norman before the procedure.

The defendants also attacked Soffer’s testimony that Maynard had provided substandard care, saying that his opinion was not supported by any medical literature, and was based solely on the fact that an injury occurred.

“Adopting Dr. Soffer’s reasoning, any time a bladder injury occurs during this procedure, it is a violation of the standard of care,” attorneys from Wharton Levin Ehrmantraut & Klein argued in court papers last year.

Tuesday’s ruling from the Supreme Court cited a similar case in which the justices found the testimony of a plaintiff’s expert was based on an analysis of the circumstances of the case, and “not mere speculation over the cause of a bad result.”

“The same can be said of Dr. Soffer’s analysis in this case,” Vaughn said. “Dr. Soffer’s deposition testimony, considered as a whole, is sufficient to establish the applicable standards of care, Dr. Maynard’s deviations from those standards, and injury to Ms. Norman caused by those deviations. His testimony is admissible.”

The case will be remanded to Witham for further proceedings. Vaughn was joined in the opinion by Justices Karen L. Valihura and Collins J. Seitz Jr.

The case is captioned Norman v. All About Women.

Leave a Comment August 30, 2018

Ford Appeals Sanctions in Roof Crush Case

Originally published in the Daily Report, an ALM Media publication, on August 17, 2018.

By: Kathryn Tucker


Ford Motor Co. is appealing what its lawyers are calling civil capital punishment in a contentious roof crush case that ended in a mistrial.

Ford lawyers have repeatedly asked to file interlocutory appeals in the product liability wrongful death case filed by the family of South Georgia farmers Melvin and Voncile Hill, who died in a rollover crash in their F-250 Super Duty pickup truck.

The company has filed a new notice of appeal based on Gwinnett County State Court Judge Shawn Bratton’s imposition of sanctions against Ford for repeatedly violating his orders. Bratton declared a mistrial in April after Ford’s lead counsel took an expert witness into cause-of-death testimony that the judge had already ruled out. As punishment, Bratton precluded the company’s defense against charges that it knowingly made a roof that was dangerously weak and deadly in a foreseeable rollover crash.

Ford said in a notice of appeal that Bratton’s sanction is “in substance, intention, and effect, an order holding defendant in contempt of the court and is therefore directly appealable” under Georgia law.

“The imposition of impermissible death-penalty contempt sanctions, violating basic due process rights by adjudicating a controversy not based on the merits, constitutes an exceptional case justifying interlocutory review of the order, particularly in light of the trial court’s blanket refusal to certify that or any order for immediate review—a practice consistently and without exception followed with each and every certificate of immediate review requested by Ford,” the company said in its notice of appeal.

Ford further reasoned that, if the sanctions order can be appealed, then so can “all prior orders and rulings that may affect the proceedings below.” Thus the company announced in the notice that it is also appealing 14 other orders by Bratton, saying they “and many others” are “reviewable in the same manner as a final order.”

Ford’s issues with the judge include Bratton preventing the company from apportioning fault to the driver, partly because he tested positive for “numerous prescription drugs with significant side effects.” Ford objected to being prevented from making an issue of seatbelt use: Although witnesses said the Hills were wearing their seatbelts, Ford suggested they may not have had the shoulder portion of their belts in proper position. Ford also took issue with Bratton’s denial of its request for recusal based on alleged bias in favor of the Hills.

Ford asked the clerk to “omit nothing from the record on appeal” and designate that all transcripts, pleadings, papers, exhibits, depositions and other materials before and during the three-week trial be sent as part of the record.

The Georgia Court of Appeals has jurisdiction over the appeal, Ford asserted, “because this case does not involve matters within the exclusive jurisdiction of the Supreme Court of Georgia.”

The first firm name among the signatures on the notice is a new entry for Ford in this case: Troutman Sanders. The new Ford attorneys there, in order of appearance on the notice, are William Withrow Jr., Pete Robinson and James Manley. They replaced Dentons partner Randy Evans after Evans left the firm to become a U.S. ambassador to Luxembourg.

The rest of the Ford team remains the same: lead counsel D. Alan Thomas of Huie Fernambucq & Stewart in Birmingham, Alabama, working with Paul Malek of the same firm; Michael Eady of Thompson Coe Cousins & Irons of Austin, Texas; and Atlanta lawyers Michael Boorman and Philip Henderson of Huff, Powell & Bailey.

The Ford lawyers declined to comment beyond what they’ve said in the record.

Counsel for Kim and Adam Hill, who brought the suit on behalf of their deceased parents, filed a request for special setting of a new trial date and opposition to what they claim are Ford’s attempts to delay it.

The Hills’ lead counsel is Jim Butler of Butler Wooten & Peak of Columbus and Atlanta. Butler’s legal team includes Gerald Davidson Jr. of Mahaffey Pickens Tucker in Lawrenceville; Brandon Peak, David Rohwedder, Christopher McDaniel and Ramsey Prather of Butler Wooten; and Michael Gray of Walker, Hulbert, Gray & Moore in Perry. The Butler team has also added appellate lawyers Michael Terry and Frank Lowrey IV of Bondurant Mixson & Elmore.

The Hill team has made an issue of Ford’s choice of lawyers.

“Robinson, like the now-departed Randy Evans, is co-chair of the Judicial Nominating Commission,” the Hill filing said, adding in parentheses that Ford brought Evans in just before the case went to trial the first time.

In an earlier pleading, the Hill team suggested that Ford “brought in Evans to be its conduit to the court.” The lawyers said Evans had sent the judge’s staff attorney 113 emails, many mentioning his JNC role. According to the Hills’ lawyers, those emails included statements such as: “I am currently in a Judicial Nominating Commission meeting selecting folks to recommend to the Governor for appointment to the Bench,” and, “We are trying to set the date for the selection of 4 Court of Appeals judges.” Another email, according to the Hill lawyers, said, “based on the Governor’s instructions, the interviews for the four (4) Court of Appeals seats cannot go forward without me.”

A separate request for comment from Robinson, about the plaintiff lawyers’ claims in connection with his position on the JNC, was referred to Ford, which didn’t provide a comment.

The JNC—with Evans gone and Robinson now as chair—will interview nine candidates next week for two appointments to the Georgia Supreme Court.

The Hill team said in its filing that Ford’s latest action “makes it even more clear that Ford intends to try to delay retrial as much as possible by attempted unauthorized appeals.” The Butler team said the Hills “have a right to get a trial and a verdict” and cited another case the firm tried, Gibson v. Ford, in which the firm claims the company’s lawyers delayed the trial for five years with pre-verdict appeals. That case finally ended in 2005 with a $13 million verdict.

“Plaintiffs are opposed to piecemeal appellate review and should not be punished by further delay as a result of Ford’s and Ford’s lawyers’ reprehensible behavior,” the Hill lawyers said in the latest filing. They also quoted Bratton’s July 19 sanctions order: “Ford’s ability to appeal the Court’s rulings with which it took exception was within arm’s length. Upon verdict, likely days away, all rulings would have been directly appealable.”

Leave a Comment August 30, 2018

Is Insurance a Safety Net for Phishing or Whaling Attacks?

Originally published in the Daily Business Review, an ALM Media publication, on August 8, 2018.

By: Walter J. Andrews

Just when one thought it was safe to go back into the water companies are being victimized by sophisticated and pervasive social engineering fraud attacks.

“Social engineering fraud” is a broad term that generally refers to computer scams used by cybercriminals to trick their victims into transferring confidential information and funds. “Phishing” is the most common form of social engineering fraud for which the fraudster sends an email impersonating a vendor, client or supervisor of the company and advises that banking information for the vendor/client has changed or company funds immediately need to be wired at the “supervisor’s” direction. Such cybercriminals exploit a person’s trust in order to find out their banking details, passwords or other personal data. “Whaling” is another term for such attacks when they are made against the top-level executives of companies—the “whales.”

Don’t think that you are the only one who may fall for these attacks. More than 60 percent of companies report that they have been victims of social engineering fraud and there are well over $1 billion in such losses each year. Companies are doing all that they can to protect themselves from such attacks, but it is clear that insurance should play a major part in protecting companies from such losses.

However, when companies look to their traditional insurance program, they are often told that they do not have coverage for such losses or they learn that they will have to litigate with the insurers to obtain the coverage that the policyholders thought that they had purchased. Insurers have regularly denied coverage for social engineering claims under those policies, claiming that the loss did not result from “direct” fraud. Insurers contend that the crime policy applies only if a hacker penetrates the company’s computer system and illegally takes money out of company coffers. In the case of a social engineering claim, company funds have been released with the knowledge and “consent” of an employee, albeit the employee has been induced by fraud to release the funds. Policyholders have prevailed on some of these cases recently, but it takes a long time and a lot of money to get the court to rule favorably. See., e.g., Medidata Solutions v. Federal Insurance, No. 17-2492 (2d Cir. July 6 2018); American Tooling Center v. Travelers Casualty and Surety Co. of America, No. 17-2014, 2018 WL 3404708 (6th Cir. July 13, 2018).

These decisions represent the first times that federal appellate courts have ruled in a policyholder’s favor on the direct loss issue in a dispute over coverage for a phishing theft. However, there are other decisions that have gone against policyholders on these issues, including cases that have found that the insured’s failure to properly investigate fraudulent emails meant that the loss did not result “directly” from the use of a computer as required by the policies and that steps taken between the receipt of social engineering emails and the eventual transfer of funds broke the chain of immediacy required by the insurance provision at issue. And, while these more recent federal appellate decisions provide guidance on a number of recurring issues under computer fraud policies, it left open the door for debate on key points in future cases, a debate that policyholders should try to avoid because they don’t have the same resources that insurers have to tie these issues up in court.

Hijacking or spoofing email addresses should be considered an attack on a company’s computer system for which a reasonable policyholder should expect coverage, but that is not always the case. While there should be coverage for these losses they are often denied by the insurance companies. These decisions should serve as a reminder to policyholders to review their cyber and crime insurance policies with experienced insurance coverage counsel to determine whether the specific policy provisions meet each policyholder’s particular needs and whether any revisions may be necessary before, or at, renewal to avoid any disputes. If companies are victims of phishing or whaling attacks they should carefully consider the insurance coverage they purchased in order to determine whether they have coverage, including under both traditional insurance policies and specialized cyber insurance products. Don’t allow your company to be a potential victim of a phishing or whaling attack without an appropriate insurance safety net.

Leave a Comment August 15, 2018

Jury Returns $1.55M Verdict for Failure to Prevent Jail Inmate’s Suicide

Originally published in the New York Law Journal, an ALM Media publication, on June 21, 2018.

By: Charles Toutant

The family of a man who killed himself while being held in the Ocean County Jail was awarded a $1.55 million verdict Wednesday in a suit claiming jail administrators failed to follow their own suicide-prevention policy.

The jury found that Ocean County was 60 percent liable for the death of Kenneth Conforti, and a private health care contractor, Correctional Health Services, was  40 percent liable. The jury’s apportionment of fault brings the county’s payout to $930,000, though Correctional Health Services entered into a confidential settlement in the case before trial.

There were 63 attempts at suicide or self-injury in the Ocean County Jail between 2005 and 2015, said Brick attorney Donald Burke Jr., who brought the case with his father, Donald Burke.

The suit asserted that the number of incidents and the lack of effort to address those incidents through training and supervision “reflect a deliberate indifference by defendant managers and policymakers” at the jail.

The jury returned its verdict after hearing from an expert witness for the plaintiff, former New York City Corrections Commissioner Martin Horn, that the suicide rate at the Ocean County Jail was higher than in the New York City jail system, according to Burke Jr.

The suit was brought on behalf of Conforti’s wife, Carol Ann Conforti, individually and as administrator of his estate. The couple also has a 17-year-old son who is deaf and has Down syndrome. The jury awarded $150,000 on a wrongful death claim, and $1.4 million on a survivorship claim, following a seven-day trial before Superior Court Judge James Den Uyl.

According to the suit, Conforti was first placed in the Ocean County Jail on Sept. 8, 2010, after he was charged with violating a restraining order at his wife’s home. At the time, he was in extreme pain due to a back injury that was treated with a rod and screws in his spine, and he also was a binge drinker, and felt feelings of hopelessness due to marital problems, the suit claimed.

An intake evaluation by Correctional Health Services took note of his back injury and drinking problem, and placed him in the jail’s medical unit for evaluation. After two days, he was released into the general jail population, but with several accommodations—a physician’s order provided him with an extra mattress and pain medication, and said he could not be assigned to work or to sleep in a top bunk. He was released from jail after staying six days.

Conforti was arrested again on Oct. 13, 2010, again at his wife’s home, and was charged with burglary. He was again placed in the Ocean County Jail, and evaluated by Correction Health Services, but this time his intake was “completed in a vastly different manner” than the previous one, the suit said. His health assessment did not address his alcohol dependency, his prior spinal surgery or his mental health, the estate claimed.

He was not provided with medication, had no restrictions on activities, and was placed in a single-bunk cell that was already occupied by an inmate, leaving him to sleep on the floor of the cell. He was unable to sleep, and when he requested treatment for his back pain, an employee of Correctional Health Services told him to self-medicate with Motrin or Tylenol that he could get from the jail commissary, according to the suit.

The Ocean County Jail had a detailed suicide-prevention policy, with a long list of factors for identifying at-risk inmates, such as loss of appetite, general anxiety, self-pity, giving away possessions, and sudden changes in behavior. Conforti displayed many of those factors but was never referred to the jail’s medical staff as a suicide risk, the suit alleged, claiming that the failure to provide him proper medical care demonstrated indifference and negligence.

On Oct. 20, 2010, Conforti was alone in his cell while his cellmate was elsewhere. A guard made hourly health and welfare checks on him, which violates the suicide prevention policy’s proscription on systematic patrols, the suit claimed—the policy said patrols at irregular intervals would hinder an inmate’s efforts to time the guard. At 1 p.m., an inmate found Conforti hanging by the neck from a light fixture. He was declared dead a short time later.

The county, which made no pretrial offer, maintained that it was not at fault in Conforti’s death, said Burke Jr. The county also asserted that jail personnel did not have access to records from Conforti’s prior period of incarceration when he made his second visit, and thus didn’t know of his medical history.

“With proper training and procedures and protocols that eliminate the opportunity for suicides in county jails, the number of suicides can be reduced to almost zero,” Burke Jr. said in a statement. “We’re hopeful that this brings attention to the problem so that effective means will be taken to make sure this doesn’t happen to someone else.”

The county was represented by MaryJane Lidaka of Berry, Sahradnik, Kotzas & Benson in Toms River, who did not return a call about the verdict. Ocean County counsel John Sahradnik, of the same firm, also did not return a call.

Leave a Comment July 6, 2018

Reducing the Legal Challenges of Employing Independent Contractors

Originally published in the Corporate Counsel, an ALM Media publication, on June 26, 2018.

By: John A. Pearce

The employer-employee relationship is being transformed by technology’s impact on business as witnessed by the soaring number of independent contractors. As a percentage of the total workforce it has doubled in the past 10 years to 12.9 percent. Unfortunately, employment classification laws in the United States have failed to keep pace. Government statistics show that 30 percent of companies intentionally or inadvertently misclassify and shortchange workers, making these employers subject to fines, class action lawsuits, and reputational damage. My research recommends that executives make one important change in hiring practices to reduce misclassification and legal jeopardy while securing fair treatment for workers.

Independent contractors are less expensive for companies to engage than traditional employees—sometimes by as much as 30 percent—because they are not counted against a company’s employment tax, the costs of providing health insurance, retirement plans and other benefits, liability insurance and worker’s compensation. However, lawsuits claiming that a business’ economic motivations lead to the inappropriate classification of workers as independent contractors have been filed by numerous gig-economy workers claiming they are really employees. The volume and success of these claims are likely to continue to increase: According to the U.S. Government Accountability Office, 80 percent of large U.S. corporations plan to increase their use of contingent workers at the level of 40 percent of total workers through 2020.

The primary test that managers use to distinguish between employees and independent contractors is the “right-to-control.” If the activities of the workers are controlled by a manager, then the workers are classified as employees, whereas workers are classified as independent contractors if they control their own activities. Other factors are also considered, including the control that the company exercises over the work; whether the worker is engaged in a distinct occupation or business; the skill required of the occupation; who provides the necessary supplies, tools, and the place of work; the length of employment; payment by time or by the job; and whether the work is regular business of the employer.

The growth in the number of independent contractors has greatly increased the legal vulnerability of the companies that engage their services. The designation of an independent contractor has historically been appropriate for entrepreneurial individuals with specialized skills that demanded higher pay on the open market. But recently the designation has been used by employers in home health care, janitorial services and restaurants, where the negotiating strength of individual workers is lower. The combination results in frequent misclassifications of workers as independent contractors when they are actually employees.

Approximately one in three businesses misclassify at least one worker, and the Department of Labor estimates that at least 10 percent of private-sector workers are misclassified. Overall, hundreds of thousands of businesses are exposed to liability claims for failure to comply with labor and tax laws, and hundreds of thousands of workers are being denied employment benefits and have become potential litigants.

Executives can make an important adjustment in their worker classification system to defend against charges that they mislabeled workers to deny them employee benefits that they properly deserve. Since businesses first classify workers and are then second-guessed by government agencies as to their accuracy, executives should consider adopting the most frequently used government system as their own basis for classification. This system is known as the ABC Test, and it has been adopted by 38 states in the United States.

The ABC Test distinguishes employees from independent contractors using three criteria.  The company must show: (A) that “the individual is free from control and direction in connection with the performance of the service,” (B) that “the service is performed outside the usual course of the business of the employer,” and, (C) that “the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” By applying the ABC Test as their approach to classifying workers, executives can improve the likelihood that the court system will recognize the legitimacy of the company’s efforts to abide by the law.

In the longer term, corporate employers in the United States should advocate for the modification of the traditional binary classification schemes to include a third category of workers—called dependent contractors—who depend on a single employer or easily identifiable group of employers for the bulk of their annual income. Workers with multiple sources of income would receive the independent contractor designation, while workers who are reliant on one or a few similar employers would be categorized as dependent contractors and would be eligible for many of the benefits provided to the firms’ employees.

As the use of independent contractors continues to expand, companies need to protect themselves against the costly fines, penalties and lawsuits that arise from employee misclassifications. Executives can reduce their firm’s exposure by relying on the factors outlined in the ABC Test, paired with the ability to classify a worker as a dependent contractor. I believe that adding this option will allow firms to hire a flexible workforce while expanding worker protections.

Leave a Comment July 6, 2018

NY Courts May Take Judicial Notice of Google Maps Under New State Law

Originally published in the New York Law Journal, an ALM Media publication, on June 25, 2018.

By: Dan M. Clark

Using digital mapping services in court will be easier for litigants thanks to a bill passed by the state legislature last week.

Senate Bill S9061, sponsored by State Sen. Michael Gianaris, D-Queens, will allow judicial notice of online web mapping or global imaging websites, like Google Maps and Google Earth.

That will make using those services in court a lot easier. It will also save litigants time and money, Gianaris said.

“Typically any case of this kind would have to be validated by other evidence to support,” Gianaris said. “We already rely on Google maps to tell us where we are or where we’re going, why don’t the courts do the same?”

The bill applies to both civil and criminal cases, a spokesman for Gianaris said.

Litigants can already use digital mapping services in court, but they have to take steps to validate those resources. Attorneys have to either provide supporting evidence that shows the map is accurate or bring in an expert witness that can testify about the validity of the map.

That can be expensive if a litigant has to pay for an expert witness to travel for the court appearance. The bill aims to cut down on those costs while speeding up the process, said Assemblyman Jeffrey Dinowitz, D-Bronx, who sponsored the bill in the State Assembly.

“It would save time and this is not just the plaintiff, the defendants could benefit from this too,” Dinowitz said.

Albany County District Attorney David Soares said the change will save the state’s prosecutors money in particular. When using a map from Google, for example, a prosecutor could be forced to fly in a mapping expert from the company’s headquarters in California.

“You have to bring in a person who’s familiar with how the map was produced to testify to lay a foundation for allowing that map to come in, which is absurd,” Soares said.

Sometimes it’s easier than that. A police officer can testify about the geography of a map, Soares said. They can point to a street presented on the map and testify to its accuracy, for example.

“You’re more or less trying to orient a juror to where an incident took place,” Soares said.

Digital mapping services are not always perfect. The bill provides an avenue for litigants to rebut the use of such a map before it’s used in court if they believe it’s not accurate.

The litigant planning to use the map will have to give notice at least 30 days before a trial or hearing. The opposing side then has until 10 days before a trial or hearing to request that the map not be used.

A common reason to rebut a map would be the date of its origin, said David Ferstendig, who litigates civil and commercial litigation with his own firm, the Law Offices of David L. Ferstendig in Manhattan.

“Google doesn’t run around taking pictures of everything and every place,” Ferstendig said. “Sometimes it’s quite accurate, sometimes it’s not that accurate. Sometimes the image it gives you is not necessarily everything that you want.”

One example would be a motor vehicle case where a stop sign is involved. A litigant could try to use Google’s street view to show that there was not a stop sign at an intersection. The opposing attorney could rebut the map by showing the stop sign in question was put up after the map was produced by Google.

Digital maps can be commonly used in any case that involves time or distance, such as motor vehicle accidents. They could also be presumed to help in cases about condition, Ferstendig said. There is nothing in the legislation that limits the use of those maps, which typically have images of streets, homes and businesses.

That could be helpful in premises liability cases, where someone is trying to show a particular condition and how long it may have persisted, Ferstendig said. That could also be open to rebuttal, with a litigant claiming the image was taken before the condition was corrected.

“The concept here is that Google maps can give you some physical issues that can be factual in a whole slew of instances, maybe in a personal injury accident to know where things are located,” Ferstendig said.

Judicial notice of digital maps is already allowed in federal courts, according to a memorandum of support accompanying the bill. If signed by Cuomo, the change would take effect in courts immediately.

Leave a Comment July 6, 2018

Providing Opposing Expert’s Report

By:  href=""
J. Ryan, Forensic Document Examiner

data-mce-style="font-variant-ligatures: normal; font-variant-caps: normal; orphans: 2; text-align: start; widows: 2; -webkit-text-stroke-width: 0px; text-decoration-style: initial; text-decoration-color: initial; word-spacing: 0px;"> data-mce-style="font-size: 10.0pt; font-family: 'Georgia','serif'; color: #333333;"> style='font-size:10.0pt;font-family:"Georgia","serif";color:#333333'>Many
times, the issue comes up as to whether an expert should see the opposing
expert’s report. In the initial phone call or email, the attorney may inform
the expert that opposing counsel has retained an expert, but they are not sure
of his or her name. Other times, the attorney may casually include the opposing
expert’s report with the initial paperwork that they submit to the expert.

data-mce-style="font-variant-ligatures: normal; font-variant-caps: normal; orphans: 2; text-align: start; widows: 2; -webkit-text-stroke-width: 0px; text-decoration-style: initial; text-decoration-color: initial; word-spacing: 0px;"> data-mce-style="font-size: 10.0pt; font-family: 'Georgia','serif'; color: #333333;"> style='font-size:10.0pt;font-family:"Georgia","serif";color:#333333'>There are
two schools of thought on whether an opposing expert’s report should be
disclosed to the other expert. One school of thought is not to disclose the
other expert’s report. There are reasons why one could argue not to disclose
the other expert’s report. The principal reason is so that the expert can
conduct their own independent examination. There are also some instances in
which the attorney is not aware that a report has been written by the opposing expert,
and they fail to inquire about the opposing expert’s report. In some
arbitration cases where discovery is “fast and loose,” there is no duty to turn
over the opposing expert’s report.

data-mce-style="font-variant-ligatures: normal; font-variant-caps: normal; orphans: 2; text-align: start; widows: 2; -webkit-text-stroke-width: 0px; text-decoration-style: initial; text-decoration-color: initial; word-spacing: 0px;"> data-mce-style="font-size: 10.0pt; font-family: 'Georgia','serif'; color: #333333;"> style='font-size:10.0pt;font-family:"Georgia","serif";color:#333333'>One must
be cautious in situations where the opposing expert has written a report, but
the attorney chooses to instead disclose the expert and their findings in some
type of expert disclosure. In this case, these expert disclosures replace the
opposing expert’s report, and the original report is never disclosed. Some of these
expert disclosures do not actually reflect the findings of the expert. In this
situation, the expert has written a report, but the attorney has taken that
report and editorialized the
report into a disclosure that can portray the expert’s findings out of context so
that it will better support his client’s position. Rarely, if ever, does the
expert see this disclosure, and a possible disparity exists with their findings
and what the attorney is putting forth in the disclosure. In the federal
courts, sometimes it is called the “702 letter.” This letter is written pursuant
to the Federal Rules of Evidence Rule 702 Testimony of Expert Witnesses. In
either scenario, the attorney can prepare the disclosure without the expert
getting a final review. This may create a difficult situation for the expert,
who now needs to explain why their findings are different than the expert

data-mce-style="font-variant-ligatures: normal; font-variant-caps: normal; orphans: 2; text-align: start; widows: 2; -webkit-text-stroke-width: 0px; text-decoration-style: initial; text-decoration-color: initial; word-spacing: 0px;"> data-mce-style="font-size: 10.0pt; font-family: 'Georgia','serif'; color: #333333;"> style='font-size:10.0pt;font-family:"Georgia","serif";color:#333333'>The second
school of thought is to provide the expert with the opposing expert’s report. In
this setting, the expert is aware that the opposing expert has written a
report, and a copy of that report is turned over to the expert being retained. This
method is the preferred method for several reasons. First and foremost, reviewing
an opposing expert’s report gives the other expert a list of the items that the
opposing looked at in their examination. Did both experts get the same material
to examine? If one expert examined the original material, and the other expert
saw only pictures of the material, the later expert is working at a
disadvantage. This is a very important question and can remove a lot of the
guesswork and surprises at any later point. Some attorneys may “cherry pick”
what they give their expert and withhold some crucial pieces of evidence. The
attorney will do this in order to try and influence the expert’s opinion. This
is counterproductive and borders on unethical. Any expert wants to be on the
same “level playing field” as the other expert in the case.

data-mce-style="font-variant-ligatures: normal; font-variant-caps: normal; orphans: 2; text-align: start; widows: 2; -webkit-text-stroke-width: 0px; text-decoration-style: initial; text-decoration-color: initial; word-spacing: 0px;"> data-mce-style="font-size: 10.0pt; font-family: 'Georgia','serif'; color: #333333;"> style='font-size:10.0pt;font-family:"Georgia","serif";color:#333333'>Another
reason for viewing the opposing expert’s report is to give the expert to review
the opposing expert’s opinion and determine if the conclusions that they have
reached are based on sound principles that are generally expected in their
field of expertise. No expert should draw a conclusion unless it is backed up
with empirical data supporting their conclusions. An expert that draws
conclusions that are not based on empirical data is likely an expert that is
lacking the requisite training in that area of
expertise or one that has “gone out on the limb” in their conclusions. This is
where peer review is so important in any case where an expert has been retained.

data-mce-style="font-variant-ligatures: normal; font-variant-caps: normal; orphans: 2; text-align: start; widows: 2; -webkit-text-stroke-width: 0px; text-decoration-style: initial; text-decoration-color: initial; word-spacing: 0px;"> data-mce-style="font-size: 10.0pt; font-family: 'Georgia','serif'; color: #333333;"> style='font-size:10.0pt;font-family:"Georgia","serif";color:#333333'>What
happens in the situation when there is a request by an attorney to critique the
opposing expert’s report? That critique, if written, should be done separately
and apart from the expert’s report of their findings. The report detailing
their findings is a scientific report of the findings of the expert. There is no
place in that report for a critique of an opposing expert’s report. Any critique
may best be done in testimony and not written in a report format. An expert
that critiques another expert’s report can be seen as vindictive and




Leave a Comment June 20, 2018

Medical Examiner’s Report Inadmissible in Wrongful Death Case, Appellate Division Rules

Originally published in the  href=""
Business Review, an ALM Media publication, on January 25,

By: Dara Kam.

New Jersey appeals court has ruled that a plaintiff in a wrongful death action
does not have an absolute right to use a medical examiner’s death certificate
as evidence to support his or her claim.

Appellate Division panel in a published ruling said that in most cases, the
certificate of death contains hearsay and net expert opinion, which, in the
present case, was properly excluded by a trial judge.

hold that the [State Medical Examiner Act] does not provide an absolute right
to a civil plaintiff to admit the full contents of a certificate of death,”
wrote Appellate Division Judge Jack Sabatino.

it is unlikely that the medical examiner would consent to be called as a
witness at a civil trial, a party cannot rely on his or her report without the
backup of an expert witness, Sabatino said.

narrative report is filled with opinions and conclusions,” Sabatino

lawsuit involves a plaintiff, William Quail, who is executor of the estate of
his late wife, Mary. He is suing a Shop-Rite grocery store in Stanhope.

to the decision, Mary Quail, whose age was not noted by the court, was injured
on Oct. 19, 2012, while she and William were at the supermarket. At the time,
Mary Quail was using a motorized cart, which struck a checkout
stand, causing the stand to fall and strike her on the leg, the court
said. She said she was not injured but died four days later from
unexplained complications.

medical examiner issued a certificate stating that Mary Quail’s death was an accident
resulting from “complications of blunt trauma.” A subsequent report offered
additional details, according to the ruling.

Quail filed a wrongful death and survivor act lawsuit against the
supermarket and sought to have the certificate of death and the
follow-up report admitted as evidence.

County Superior Court Judge Robert Hanna rejected the reports, and dismissed
the lawsuit on summary judgment, holding that the statements on the
certificate of death and the report amounted to inadmissible hearsay.

appealed, but the Appellate Division sided with Shop-Rite.

hearsay opinions within the certificate were properly excluded by the trial
court … [under] the net opinion doctrine and pertinent case law,” class=SpellE>Sabatino
said, joined by Judges Mitchel Ostrer
and Lisa Rose. “We also hold that the hearsay exception for vital statistics
does not require the admission of the examiner’s opinion.”

appeals court also ruled that Hanna did not abuse his discretion in declining
to reopen discovery in order to allow the plaintiff to obtain an expert

was represented by Michael Bubb of class=SpellE>Bubb
, Grogan & Cocca in

was represented by Mark Marino and Stephen Wellinghorst
of Hackensack’s Harwood Lloyd.

ruling clears up any confusion about whether you need an expert to testify
about a death certificate,” Wellinghorst said. “You
can’t cross-examine a piece of paper.”



Leave a Comment June 20, 2018

Florida Death Penalty Cases Cause Strains for Legal System

Originally published in the New York Law Journal, an ALM Media publication, on June 4, 2018.

By: Michael Booth

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 unanimous jury recommendations for death sentences to be imposed.

The federal Hurst ruling affected about 180 of the state’s 349 death row inmates. The Florida Supreme Court last year began sending back some of the cases to lower courts for resentencing, a process that is taxing the resources of prosecutors and public defenders.

The impact on the judicial circuits is varied, depending on the number of cases sent back for new sentencing hearings. The Florida Senate’s chief budget writer said Wednesday he is looking for data to determine whether the resentencings are having a financial impact.

In circuits revisiting multiple cases that are sometimes decades old, prosecutors have to “start from scratch,” according to State Attorney Bill Cervone of the Eighth Judicial Circuit, which includes Alachua, Baker, Bradford, Gilchrist, Levy and Union counties.

“Every one of them requires that you start over and that you reassess the viability of the case,” Cervone said. “It’s a dollar and a time workload issue for us that will not go away for many years.”

The costs include locating witnesses who may have moved or died, hiring experts and finding victims, whose wishes must be considered when making decisions about prosecutions.

It’s unclear how many prosecutors are again seeking death sentences and how many are instead opting for life sentences without parole.

“Those decisions are being made probably on a daily basis, but I don’t think we have even guesswork on how many might not be pursued for whatever reason,” Cervone said.

The costs will vary depending on how the cases are litigated, said Pete Mills, an assistant public defender in the Tenth Judicial Circuit who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee.

“Some will have a great deal more investigation than others,” Mills said. “Furthermore, science has come a long way in the analysis and understanding of how the brain works.”

The evolution of brain science will almost certainly translate into additional expert witness costs and analysis for both sides.

It’s also too soon to interpret the impact of the unanimous jury requirement on whether prosecutors seek death or life in prison, Mills and Cervone said.

Under Florida’s old death penalty law, a simple majority of jurors could recommend death in capital cases. But the law passed last year required unanimous jury decisions for the sentence to be imposed by judges.

The Florida Supreme Court has been sending back cases for resentencing if juries were not unanimous and the sentencing occurred after June 2002. That is when the U.S. Supreme Court issued a ruling known as Ring v. Arizona that served as a key premise for the 2016 ruling in Hurst.

Prosecutors who once were confident about their chances of getting a majority of jurors to agree to a death-sentence recommendation are less certain about whether all 12 jurors will reach consensus. Juries have produced mixed results on the resentencings so far.

“[The unanimity requirement] has had a big impact. We are still trying to assess individually in our communities how that will play out,” Cervone said, adding that “it’s hard for us to project it” until prosecutors have a history of how juries voted in capital cases.

Failing to seek the death penalty could be problematic for elected state attorneys, especially in more conservative regions of the state.

“It would be foolish to ignore the political dynamic of it. That is a reality to a greater or lesser extent in different communities across the state. We’re constitutionally bound to consider the wishes of survivors. It’s to me so grossly unfair to drag those people back in and put them through this again, but we’ve got to go through that process,” Cervone said.

State lawmakers haven’t specifically earmarked any funds to address the Hurst-related cases, but public defenders in some circuits will get additional resources.

And Senate budget chief Rob Bradley, a Fleming Island Republican who is a former prosecutor, indicated he needs more information to determine whether the resentencings are straining resources.

“I would expect the judges working with the state attorneys and defense counsel to use their time wisely to address these issues. If there is some expert witness or discovery costs that are above and beyond, I would like to see some specific data on that point,” Bradley said.

The Senate has included $14 million in its proposed budget for state attorneys and public defenders to deal with employee turnover, an issue they say has hampered their agencies.

“The good news is that in the Senate budget, we’re going to be addressing some long-standing requests with regard to retention pay. That is going to be the focus of the Senate for the criminal justice system,” Bradley said.


Leave a Comment February 5, 2018

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’s vocational expert.

 Smith, a forklift operator, was injured when boxes fell on him during his employment with Supervalu Holdings. His weekly pay was $992. Supervalu’s vocational counselor determined that several other, lower-paying local jobs existed that were a match for Smith’s skill set and cited that analysis in recommending lower benefits, according to the Commonwealth Court’s opinion.

On appeal, Smith argued that the workers’ compensation judge erroneously modified his benefits based on five positions that were identified in the vocational counselor’s transferable skills analysis as open and available. The Commonwealth Court said Supervalu was entitled to a reduction in benefits, though it found that the evidence was only sufficient to show that two of those five positions were open and available.

“Because employer established the existence of two open and available jobs within claimant’s vocational, physical and medical restrictions, employer is entitled to a modification of benefits based on those two positions,” Judge Robert Simpson wrote in the Commonwealth Court’s majority opinion. “As such, rather than averaging the weekly rate of the five positions identified in the labor market survey, as the WCJ did … employer is entitled to a modification of benefits based on the average weekly rate of the two security guard positions.”

The proof establishing the existence of the two open and available jobs came from Smith’s own testimony that he inquired in person about two of the positions in the labor market survey, was instructed on how to apply for them, submitted his applications and was interviewed but ultimately not hired.

To support this finding, Simpson cited the Commonwealth Court’s December 2017 ruling in Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab).

In that case, the court expanded the burden of proof in modification cases by holding that, under the state Supreme Court’s 2013 ruling in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), a claimant can present evidence to dispute an employer’s claims that comparable jobs were open and available. However, according to Simpson, the Valenta court also “held that if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, the evidence can be considered against her in the overall evaluation of the availability of the jobs.”

“Based on our recent decision in Valenta, we hold that an employer bears the burden of proving all facts entitling it to a modification of benefits, including the continued availability of jobs identified as proof of earning power,” Simpson explained. “However, if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, that evidence can be considered on the issue.”

So, as in Smith’s case, ”testimony of an in-person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding” that a position is open or available, Simpson said.

Simpson was joined in the majority by Judges Renee Cohn Jubelirer, P. Kevin Brobson and Michael H. Wojcik. Judge Patricia A. McCullough wrote a concurring opinion, joined by President Judge Mary Hannah Leavitt.

In that opinion, McCullough concurred with the result of the majority’s ruling but disagreed with its analysis of Valenta.

McCullough said she was “concerned that the present majority opinion may be construed as shifting the burden to the claimant to establish that any identified jobs are not open and available, an outcome which is not directed by either Valenta or Phoenixville Hospital.”

“Contrary to the majority, we did not hold in Valenta that ‘if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, the evidence can be considered against her in the overall evaluation of the availability of the jobs,’” she  wrote. ”Rather, we merely held that, under Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), a claimant must be permitted the opportunity to present evidence regarding his/her experience in applying for jobs identified by an employer as being open and available.”

In a dissenting opinion filed by Judge Joseph M. Cosgrove, the judge voiced agreement with McCullough that the majority misread Valenta and misapplied Phoenixville but disagreed with the result of the majority’s ruling.

In Phoenixville, Cosgrove said, “the Supreme Court made clear that it was the employer which bore the burden of establishing that ‘the jobs identified by the employer’s expert witness that the claimant is ‘capable of performing’ must thus be those jobs that are actually open and potentially available.’ … The way the majority applies this principle turns it on its head and allows a mechanism designed to protect the claimant to become a force against him or her. This cannot be what the Supreme Court meant.”

James Welker of Jubelirer, Pass & Intrieri represents Smith and did not return a call seeking comment. Supervalu is represented by Andrew Riley of Dell, Moser, Lane & Loughney, who did not return a call seeking comment.

Leave a Comment January 19, 2018

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