Video Laryngoscopy Emergency Medicine Expert Witness Discusses Difficult Airway Secured with Video Laryngoscopy and an Endotracheal Tube Introducer
by: Seth Womack, MD, FAAEM , an ALM Listing Expert
CASE: 43-year-old male presents to the ER with chief complaint of vomiting blood and epigastric (upper stomach) pain. Approximately 1 hour prior to presenting to the ER, he finished dinner with his family of 5; became nauseated and sweaty; and vomited his meal mixed with a large amount of dark red blood. His wife states that it seemed “like a gallon!” Pertinent past history included weekly ibuprofen use for chronic knee pain and alcohol use consisting of beer only on the weekends when he is not working. He injured his knee due to playing frequently with his children. On exam, he is afebrile (no fever); has blood pressure of 82/44; heart rate of 122; respiratory rate of 28; and oxygen saturation of 96% when breathing room air. The patient appears pale, sweaty, and has some mild tenderness to palpation over his upper abdominal area.
Immediately, the patient is placed on nasal cannula oxygen with continuous pulse oximetry and telemetry. This allows him to breath pure oxygen through his nose while the doctor can monitor the oxygen level in his blood and his heart rate and rhythm on a screen similar to a small flat screen TV. Two 18 gauge peripheral IVs are placed and O negative blood is ordered, stat, from the laboratory to be given through the rapid transfusion warming unit. Pantoprazole and octreotide boluses and drips are ordered. Pantoprazole is a medicine given through an IV that reduces acid in the stomach. Octreotide is a medicine also given through an IV that reduces pressure in the veins of the esophagus.
This patient is in hemorrhagic shock (low blood pressure due to bleeding somewhere in the body).
His blood pressure is 95/54 after two units of packed red blood cells. His wife brings his children in the room to see him briefly, and the ER doctor walks out to call the gastroenterologist. The ER doctor has a strong suspicion that the patient has upper GI bleeding from ruptured esophageal varices (veins in the esophagus have burst and are bleeding).
This condition often requires emergent intubation (patient placed on a ventilator or breathing machine) by emergency room physicians in order to protect the patient’s airway from the rapid upper GI bleeding that could be aspirated or sucked into the patient’s lungs.
Minutes later, the ER doctor goes back into the room to report to the patient that the gastroenterologist is on his way in only to find the patient has begun to vomit a copious amount of dark red blood.
The ER doctor decides to secure the patient’s airway to prevent aspiration of blood. He suspects this will be a difficult airway due to the patient’s obesity and active bleeding into the patient’s airway. He calls for drugs to sedate and paralyze the patient as well as the video laryngoscope (VL). After the patient is sedated and paralyzed, the VL is inserted into the patient’s oropharynx (upper airway). The VL provides a sufficient view of the vocal cords and trachea but only for approximately a 4 second window. The oropharynx fills up with blood, and the VL has to be removed quickly to be wiped free of the blood that obscures the small camera. To make the airway even more difficult, the patient has a short neck and jaw with vocal cords in a high, anterior position. The endotracheal tube (tube through which the patient will have oxygen delivered) stylet that is made specifically for the VL is insufficient to direct the endotracheal tube between the patient’s vocal cords into his trachea in order to secure his airway. Meanwhile, the patient’s oxygen saturations are falling. He cannot be ventilated (oxygen being pushed manually into the lungs) and oxygenated back up to life sustaining levels due to blood obscuring his airway and potentially being pushed into the patient’s lung with bag valve mask ventilation (mask and oxygen bag placed over the patient’s face to manually breath for him). The ER doctor knows he has one last chance and seconds before having to perform an emergent cricothyrotomy (cutting a hole in the patient’s neck and trachea to insert a tube by which to breath for the patient), which is not best for the patient. With one last chance, the doctor secures the patient’s airway with video laryngoscopy and an ETI (endotracheal tube introducer).
This rigid piece of elongated blue plastic has more likely than not saved this patient’s life. The ETI has prevented an emergent cricothyrotomy from occurring.
ER doctors would benefit to be familiar with the process of securing a difficult emergent airway by using video laryngoscopy with ETI assistance.
- ETI: endotracheal tube introducer, also commonly named “bougie” or “gum elastic bougie” in the emergency room. Calling the ETI a “bougie” is a misnomer when using it to secure an airway. Stedman’s defines bougie as a cylindrical instrument, usually somewhat flexible and yielding, used for calibrating or dilating constricted areas in tubular organs, such as the urethra or esophagus; sometimes containing a medication for local application. Basically, the ETI goes where the endotracheal tube cannot and then provides a pathway for the endotracheal tube to follow.
- Video laryngoscope
- Endotracheal tube of appropriate size
- ETI (endotracheal tube introducer)
- Failure at securing airway by traditional video laryngoscopy with ETT (endotracheal tube) and accompanying stylet
Technique: (assuming the patient has been correctly prepared for intubation)
- Bend the ETI to approximately 45 degrees at a point 8 cm proximal to the distal tip and hold it with dominant hand.
- Hold the VL with non-dominant hand.
- Have assistant standing at the side of your dominant hand with the ETT.
- Insert the VL into the oropharynx and obtain clear view of the vocal cords on the video monitor of the VL system.
- While holding the VL steady, advance the ETI into the oropharynx until the distal end can be seen on the video monitor.
- Advance the ETI between the vocal cords and into the trachea until mild resistance is felt, then stop advancing. Resistance is usually met at 24-40cm from the teeth. Make a mental note of the number at teeth or lip level of the patient.
- While viewing the ETI between the vocal cords and holding both the VL and the ETI steady, have assistant thread the ETT over the ETI until the ETT is at the level of the intubator’s dominant hand.
- At this point, have the assistant hold the ETI at the point just proximal to the proximal end of the ETT and grasp the ETT with dominant hand.
- By looking at the video monitor, confirm that the ETI is between the vocal cords. Also, confirm that the ETI is at the previous noted number at teeth or lip level.
- Gently advance the ETT while the assistant holds the ETI stationary. The ETT may become lodged on the epiglottis (a thin plate of flexible cartilage that protects the airway when swallowing). This complication is usually overcome by twisting the ETT along the axis of the ETI while advancing the ETT.
- When the ETT has been advanced appropriately, hold it in place firmly and have the assistant withdraw the ETI.
- Inflate the ETT balloon and proceed with traditional ETT placement confirmation.
Over the last decade, video laryngoscopy has become an invaluable tool to emergency physicians. VL has made the difficult airway as defined by using direct laryngoscopy (viewing a patient’s airway with just the human eye) not so difficult anymore. However, a clinician can still encounter a failed airway with the use of VL. The doctor can reduce his or her chances of failing to intubate a patient by adding the use of an ETI to his or her airway algorithm.
Seth Womack, MD, FAAEM is a Board Certified Emergency Medicine Physician in active clinical practice at a level 1 trauma center. He is licensed in both Louisiana and Texas. Dr. Womack’s undergraduate degree is in biomedical engineering. In addition to his busy clinical practice, Dr. Womack serves as an emergency medicine expert witness. He can be contacted at Seth Womack, MD FAAEM; 16623-C FM 2493, PMB #408; Tyler, TX 75703; firstname.lastname@example.org; (414) 218-4310 (Cell).
Leave a Comment May 20, 2016SHOW LESS..........
by Terry E. Morgan, DLP & CTL-AST&L & Surface Transportation Board Practitioner and an ALM Listing Expert
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.
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.
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, 2016SHOW LESS..........
Originally published in Texas Lawyer, an ALM Media publication, April 20, 2016
*Part of the ALM family of award-winning legal products and publications.*
By: Quentin Brogdon
Expert witnesses can make or break a case. Trial lawyers thoroughly investigate opposing experts, but often fail to subject their own experts to that same high level of scrutiny. The consequence of hiring the wrong expert can include the striking of the expert, sanctions, massive wasted financial resources, and even the dismissal of a party’s claims or defenses. When it comes to hiring experts, an ounce of prevention is worth a pound of cure.
First, determine whether the headache of dealing with an expert is really needed. Even if experts are allowed to opine about an issue, you may not want to hire an expert if expert testimony is not required. The decision not to hire an expert may be based on considerations of expense, the potential for the expert to contradict other experts or fact witnesses, or a concern that the jury may not find testimony from a hired expert on the particular issue to be persuasive or credible.
Some issues generally are inappropriate for expert testimony. Texas courts have prevented experts from testifying about: 1. pure questions of law; 2. mixed questions of fact and law, if not confined to relevant issues and based on the proper legal standard; 3. subjects within the jurors’ common knowledge; 4. the truthfulness of a witness; 5. whether conduct is outrageous; and 6. the dollar value of love and affection.
If you must hire an expert, you can avoid much future aggravation by running from experts who: 1. act unethically; 2. have problems communicating; 3. have been struck by other courts; 4. have a criminal or disciplinary history; 5. have taken prior inconsistent positions under oath or in publications; 6. have only expressed opinions in the context of litigation; 7. have inappropriate internet postings by, or about them; 8. have promised expertise in an unrealistic number of different areas; 9. are evasive about case budgets or tasks to be performed; 10. are unwilling to comply with your guidance about their role in the case; 11. brag about verdicts they enabled or prevented through their brilliant testimony and expertise, 12. send spontaneous, ill-advised emails at every stage of their thought processes, 13. demand that you immediately file a motion to modify the scheduling order’s expert report deadline to fit their busy schedule; 14. make “promise the moon” statements, such as “I’m going to win this for you;” or 15. try to act as a lawyer or delve into settlement discussions or case strategy.
If possible, it is best to meet the expert before hiring him to assess first-hand how the expert carries himself. Is he able to make eye contact when speaking? Does he appear to be credible and persuasive? Can he teach the judge and the jurors by reducing complex concepts to understandable basics?
You can get answers to the hard questions during the initial interview of the expert, or you can hear the answers for the first time during the expert’s deposition. During the interview of the expert, ask pointed questions, such as:
1. “Are you the best expert for this issue?” Given a chance, credible experts who appear to be a perfect fit often will confess that they are not the right expert, and that another expert or another type of expert would be a better fit.
2. “What in your background, experience, and training enables you to express opinions about this issue?” A qualified expert cannot help if he cannot sell the judge and jurors on his qualifications. Think long and hard before you hire any expert who cannot even sell you on his qualifications.
3. “Have you ever been prevented from testifying in any case by a court for any reason?” If the answer is yes, ask for case styles, attorneys, and reasons that the expert was prevented from testifying.
4. “Do you anticipate any problem in getting your report done before the expert designation deadline?” If there is a problem, you want to know about it now, not on the eve of the deadline.
5. “What testimony, documents, and information will you need to formulate and support your opinions in this case?” Let the expert tell you before he is hired what discovery you need to undertake to support and bolster his opinions. Do not allow the expert to get struck simply because you did not complete the underlying discovery necessary to support his opinions. Likewise, you need to know at the outset if the expert has unreasonable or impossible expectations.
6. “Have you ever testified for or against the opposing party before?” If the other side is familiar with your expert, you want to know that now.
7. Ask about publications, prior testimony, internet references, speaking engagements,
advertisements, membership in professional organizations, criminal and disciplinary history, and past representations about areas of expertise.
8. “Are there other types of experts with whom you typically work on these types of cases?” You may be speaking to only part of an expert team—all of whom are indispensable.
9. Ask pointed Daubert-based questions about: 1. testing of the expert’s theory; 2. the theory’s potential rate of error; 3. whether the theory has been, or could be subjected to peer review; 4. whether the theory has been generally accepted as valid by the scientific community; 5. the extent to which the theory relies on the subjective interpretation of the expert; and 6. the non-judicial uses that have been made of the theory.
10. Ask about previous testifying experience, including case
styles, outcomes of cases, names of hiring and opposing attorneys, Daubert strikes granted, cases against your opponent, ratio of plaintiffs’ to defense work, and ratio
of litigation consulting work to other types of work.
11. Explain that you expect to hear any and all misgivings about the case, up front, and that you are not looking for an outcome-oriented review. You do not want to learn for the first time during your over-eager expert’s deposition that he has serious misgivings about your case.
12. Ask about the expert’s experience with the opposing side’s experts and his opinion of them. If the opposing side has hired your expert’s best friend, mentor, or former employer, you need to know that now. Likewise, if your expert seems intimidated by the names or credentials of the other side’s experts, you may want to consider hiring a different expert.
13. Ask how your expert prefers to receive documents and communications. Some experts prefer everything in electronic format, while others still want everything in paper format. If an expert cannot, or will not review paper or electronic documents, you need to know that now.
If you do find the right expert, do not set up the expert to fail after you hire him. Promptly notify him of deadlines for expert reports, Daubert hearings, trials, and other relevant activities in the case, and periodically remind him of forthcoming deadlines.
In dealing with experts, an ounce of prevention really is worth a pound of cure.Quentin Brogdon is a partner with Crain Lewis Brogdon in Dallas. He is board certified in personal-injury trial law by the Texas Board of Legal Specialization and in civil trial advocacy by the National Board of Trial Advocacy, and he is the vice president of the Dallas Chapter of the American Board of Trial Advocates. His email is email@example.com.
Leave a Comment April 26, 2016SHOW LESS..........
Originally pushed for Legaltech News, an ALM publication
October 28, 2015
by Joe Sremack, an ALM Listing ExpertSource code analysis can provide critical insights needed to solve an investigation and answer key questions about how events occurred.
Source code analysis is a powerful tool that can answer questions that traditional investigative methods such as document review and data analysis cannot. Traditional methods answer questions about the who, what, where, when, and why of a matter, but may not fully answer how certain events occurred. Source code can be found within any organization, and many organizations are increasingly reliant on creating and customizing their own software. Source code analysis can provide critical insights needed to solve an investigation and answer key questions about how events occurred.
In Part 1 of this two-part series, Joe Sremack discusses the role of source code analysis for investigations.
What is source code?
Source code is a set of computer instructions written in a human-readable form. It is a set of text-based instructions written in a programming language, compiled or interpreted to perform one or more tasks, and the source code statements follow the programming language’s syntax and semantics rules. There are hundreds of known programming languages—thousands if you count obscure and task-specific languages—used for different purposes and with their own syntaxes and semantics. Once source code is written, it can be executed either by being compiled into an executable program or at runtime by an interpreter that translates the code into computer operations.
The format of source code depends on the language and Integrated Development Environment (IDE) used. Some source code is simply one or more text files. This is commonly the case for scripting languages, such as Python and Ruby. Other source code can combine text files and non-text file objects—such as pre-compiled libraries, GUI design files, and system configuration files. Compiled languages often have these non-text objects, which are combined in an IDE. Analyzing the text file–only source code can be accomplished with any text editor, but the non-text file objects may require specialized software to view.
Source code is as varied as the different types of software. Source code can be written for mainframe computers, personal desktop and laptops, servers, virtual environments, websites, business intelligence platforms, data transfer processes, data-centric mobile applications, and so on. Each environment can have a host of different types of software created for it—each with different programming languages. The source code for each can be analyzed to answer questions about how the software operated and what was performed.
Source code can be created by various people in different roles. Because code comes in many different forms, it is not only created by software developers and specialized programmers. While highly specialized, complex software may only be created by programmers, other types of source code can be created by people in different roles. Database queries, small scripts, and batch programs can all be created with relatively little programming knowledge or experience. This is important for investigations, because the investigator needs to consider who could potentially write source code and the types of programs that could be written. For example, an employee in a company’s payroll department may create logic using Excel VBA to generate ghost employee records that could be critical to the investigation.
Why analyze source code?
Source code is valuable for investigations for a number of reasons. First, source code contains information about the logic and business rules used to perform various operations. The operations of an organization may be described or documented, but those may not match the actual operations. Source code can be used to reveal the actual operations. For example, a healthcare company may claim that it does not modify certain types of medical records. If it relies on custom software for its medical record processing, that claim can be tested by reviewing the medical record processing software’s source code.
Second, the source code for key business operations contains information about the location and nature of the data used for specific operations. In an adversarial investigation, an investigator can locate key data repositories via the source code, rather than simply relying on potentially deceptive interview subjects. This enables an investigator to identify key data sources more completely and effectively.
Third, source code can be used to aid the data analysis process. The investigator can use the logic from the source code to determine the types of data to analyze and uncover relationships between various data sets. These insights can be used to understand business rules and help identify critical elements in the data that might otherwise go unnoticed.
Fourth, source code can be analyzed in relation to the data to identify discrepancies. Source code analysis can yield insights into the business rules for how the data should be stored. If an investigator is confident that data should not have been modified by anything except for that program, the data can be tested in relation to the business rules in the source code to identify anomalies. These anomalies, in turn, may point to non-standard or fraudulent activity performed outside of the business rules.
Other examples of goals for source code analysis include:
- Analyzing similarities and differences between two sets of source code as part of an intellectual property dispute
- Analyzing how a program’s behavior evolved over time
- Locating security flaws
Investigators should consider source code when conducting investigations. Numerous forms of source code can exist, and since many organizations have customized software that performs business operations, the source code may be a valuable source of information. Source code analysis can help validate data analysis, identify data sources, pinpoint data anomalies and fraudulent activity, or highlight how a data breach occurred. Without source code analysis, the investigator may not have a full understanding of what actually happened.
Part 2 of the series, covering the types of source code analysis that can be performed and how you can integrate source code analysis into an investigation, can be found on Legaltechnews.com.
Leave a Comment April 8, 2016SHOW LESS..........
By: Noreen Marcus, Daily Business Review
Now that police dashboard cameras and smart phones are everywhere, it seems incredible that a grainy, silent video can still sway a 1994 murder case.
But it can. Casmir “Casey” Sucharski, one of three homicide victims, had installed a surveillance camera at his Miramar home. The camera captured two men killing Sucharski along with Marie Rogers and Sharon Anderson, friends he knew from his tavern Casey’s Nickelodeon.
With little else connecting defendants Pablo Ibar and Seth Penalver to the gory home invasion on June 26, 1994, the videotape became the state’s Exhibit A.
The case spawned a marathon of five trials. In 2012 a jury acquitted Penalver; on Feb. 4 the Florida Supreme Court gave Ibar a new trial. Ibar has spent 22 years behind bars, almost 16 of them on Death Row.
By a 4-3 vote the court decided his trial lawyer, the late Kayo Morgan, so mishandled his defense as to render ineffective assistance of counsel. The majority said Morgan’s worst failing was not using an expert witness to challenge his client’s identification as one of the men in the video.
“Ibar told Morgan that he wanted a ‘forensic thing,’ but, despite Morgan’s understanding of the critical nature of such evidence, Morgan talked Ibar out of it,” the unsigned opinion states.
“Simply put, we cannot and do not have confidence in the outcome of this trial,” it concludes.
Benjamin Waxman, Ibar’s post-conviction lawyer, said the ruling reflects four justices’ “deep concern that Mr. Ibar may be another innocent person.”
“It all comes down to this blurry, grainy, soundless videotape which was never analyzed for the jury,” said Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman in Miami.
At this point “I can’t imagine Mr. Ibar agreeing to a life sentence,” he said.
Fort Lauderdale-based Morgan cared passionately about his clients but was a rogue within the organized bar. After Morgan died of cancer at 63, his mother said he “got in trouble with judges a lot,” the South Florida Sun Sentinel reported Nov. 21, 2014.
“Morgan’s personal life impacted his practice,” the Supreme Court opinion notes. During jury selection in Ibar’s trial Morgan was charged with aggravated battery on the drug-addicted woman who bore his child. “Morgan was in emotional and physical pain, suffering from extreme duress, and ‘was not there’ mentally,” the opinion recounts.
Knowing he had to attack the video ID’s reliability, Morgan brought in Fort Lauderdale lawyer Barbara Brush as his second-chair and penalty-phase counsel. Morgan delegated to Brush the job of getting a facial identification expert to testify for their side.
Somehow that didn’t happen. The Supreme Court blamed Morgan, finding “Brush acted under Morgan’s direction and it was clear that Morgan was ultimately responsible.”
The majority rested on the expert witness gap to find ineffective assistance, but acknowledged eight other problems with Morgan’s Ibar defense. The justices emphasized they didn’t take Morgan at his word when he testified about his “defective” lawyering at a 2009 post-conviction hearing.
“[W]e do not rely on his admission … but rather on his complete failure to pursue the important defense that Ibar was not the perpetrator of the crime through discrediting the videotape and the state’s evidence as to that identification,” the opinion states. The court reversed Broward Circuit Judge Jeffrey Levenson, who had denied Ibar’s motion for post-conviction relief.
The majority even hinted that the court might have ruled for Ibar a decade ago if an expert had forcefully challenged the video. Instead it upheld his conviction on direct appeal in 2006.
“The video was the foundation of the other testimony and much of that was found erroneously introduced,” Waxman said. Since the video survived unscathed, the high court dismissed as harmless error the jury’s misplaced reliance on video-related evidence that fingered Ibar.
Beyond the Video
To Justice Peggy Quince the case isn’t only about the video and Morgan’s failure to attack it.
She said the jury heard “the proper and compelling trial testimony of Gary Foy,” who saw Sucharski’s vehicle leave the crime scene and made eye contact with the passenger. Foy swore the passenger was Ibar.
The jury saw the video and decided Ibar was one of the killers, even though a T-shirt he allegedly used as a mask didn’t provide a DNA match. Quince clearly trusts the jury system.
“Even if Morgan had secured a different expert, the probability of a different outcome at trial is not substantial,” she wrote in her dissent, joined by Justice Charles Canady. Justice Fred Lewis dissented separately without opinion.
Only the four justices in the majority know whether they were influenced by the acquittal of Ibar’s co-defendant Penalver.
Soon after Ibar’s case arrived at the Supreme Court Waxman tried to interject the acquittal but the prosecution objected and the acquittal discussion disappeared from court filings.
Still the majority took notice. “There are … similarities between Ibar and Penalver’s case,” where the court found Penalver “was denied a fair trial by the prejudicial admission of irrelevant and inadmissible evidence repeatedly elicited by the State over objections,” the opinion says.
The ruling “goes deeper,” Waxman asserted.
Ibar’s conviction survived direct and post-conviction appeals. “It wasn’t until the fourth round of review that the court determined there was error of such magnitude that the conviction could not stand,” he said. “I don’t know any better proof of why we should abandon the death penalty.”
PABLO IBAR, APPELLANT, V. STATE OF FLORIDA, APPELLEE
Case no.: SC12-522
Date: Feb. 4, 2016
Case type: Death penalty
Court: Florida Supreme Court
Author of opinion: Per curiam
Lawyer for petitioner: Benjamin Samuel Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, Miami
Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Leslie T. Campbell, West Palm Beach
Panel: Chief Justice Jorge Labarga and Justices Barbara J. Pariente, Ricky Polston and James E.C. Perry; Justice Peggy A. Quince (dissent) with Justice Charles T. Canady, and Justice R. Fred Lewis (dissent)
Originating court: Broward Circuit Court
Leave a Comment February 24, 2016SHOW LESS..........
Originally published on: The National Law Journal, January 7, 2016
*Part of the ALM family of award-winning legal products and publications.*
By: Amanda Bronstad
A new roadblock could lie ahead in Uber’s legal fight with its own drivers following a move by a New York plaintiffs attorney to coordinate a dozen lawsuits, including a high-profile class action in California challenging its employee classifications.
Most of the suits allege that Uber Technologies Inc. has misclassified drivers as independent contractors rather than employees who are entitled to unpaid wages, tips and reimbursement for gas and other expenses. Uber, based in San Francisco, offers a transportation service through a mobile application that connects drivers with customers.
A multidistrict litigation would coordinate all the cases before a single judge for pretrial purposes but, more immediately, could halt proceedings in individual cases where Uber has moved to dismiss the litigation, primarily citing arbitration agreements that drivers signed.
Hunter Shkolnik of New York’s Napoli Shkolnik, who has filed nearly half the suits, moved on Dec. 1 to coordinate all the cases into a multidistrict litigation proceeding. The U.S. Judicial Panel on Multidistrict Litigation has scheduled the matter for its Jan. 28 hearing in Fort Myers, Florida.
“We felt it was appropriate for those drivers in other states to have the same protections that they’re moving forward in California on,” Shkolnik said. He said he wouldn’t be surprised if more cases got filed in every state Uber is operating.
“We’re just getting contacted by drivers like crazy,” he said. “There are a lot of very upset drivers.”
Uber spokeswoman Jessica Santillo declined to comment but referred to the company’s Dec. 29 motion before the MDL panel that opposed coordination in part because “the tests for determining contractor status vary by state, with critical distinctions.”
Uber also parceled out the California case, stating it was “far too procedurally advanced to be consolidated or coordinated.”
The plaintiffs lawyer behind that California action, Shannon Liss-Riordan of Lichten & Liss-Riordan in Boston, filed a Dec. 16 motion opposing coordinating her case, which is scheduled to go to trial on June 20.
“After devoting countless hours and hundreds of pages of legal opinions to this case, it would be a grave mistake to transfer this case to another court at this late hour,” she wrote. Liss-Riordan did not respond to a request for comment.
A few of the cases allege that Uber rejected certain job applicants based on background checks that violate the U.S. Fair Credit Reporting Act. Attorney Bruce Greenberg, a member of Newark’s Lite DePalma Greenberg, who filed one those cases, opposed an MDL on Wednesday on ground that the claims are too different from the misclassification cases.
But Shkolnik disagreed that those claims couldn’t be part of an MDL. Shkolnik, who initially sought coordination before U.S. District Judge Orlando Garcia in the Western District of Texas, who is overseeing one case, later added the Northern District of California as a potential venue. He said he agreed with Liss-Riordan that U.S. District Judge Edward Chen, who is overseeing several cases against Uber, including hers, has made significant rulings, such as finding Uber’s arbitration agreements to be unenforceable and certifying a class of drivers. (On Monday, Liss-Riordan filed a new case in San Francisco Superior Court on behalf of drivers who were potentially left out of the class.)
“It was a very cogent argument that he has done so much work on the case,” he said. “It would be offensive for me not to say he would be a very good alternative.”
Leave a Comment January 8, 2016SHOW LESS..........
Milberg Announces Spin Off of Litigation Support and Data Hosting Services Division: Based in Stamford, Conn., the new business will continue to serve litigants throughout their discovery process from the start of a case assessment to trial.
Original published on: Legaltech News, November 19, 2015
By: Trudy Knockless
Milberg, a class action and complex litigation firm, has made structural changes, spinning off its litigation support and data hosting services division into an independently-owned business.
Renamed Meta-e Discovery, the new business will continue to serve litigants, mainly plaintiffs, throughout the discovery process from the beginning of a case assessment to trial.
“The principal purpose [of the spin off] is to enable the business to be more flexible and nimble to its litigation support and data hosting clients’ needs. Working under the umbrella of a law firm can pose some limitations insofar as growth opportunities, including servicing other law firms. We now have a broader base for business development,” Paul H. McVoy, who was appointed Milberg’s chief discovery officer in February, told Legaltech news. He said this move will enable the company to market itself in a new, distinct way, which will allow it to grow dramatically in the short term.
The new business can now bring in services that may not have made sense in the law firm context, forensics and consulting for example. Additionally, the company has an opportunity to create strategic alliances that allows them to offer more services from a wide base of service providers that will complement the services offered by Meta-e.
“We will continue building a go-to discovery resource for small and midsized firms and entities that have been traditionally overlooked by the bigger electronic discovery providers,” McVoy, who has been with Milberg for more than six years, added. “We will also be able to cater to plaintiff firms in a way that no one else can because we came from the plaintiff bar; we have crafted customized workflows that uniquely serve that bar.”
Milberg’s litigation support and data hosting services division was formed five years ago as a spin-off to its eDiscovery Legal Practice.
“This is the logical next step for what we have been building,” Ariana J. Tadler, executive committee member and group founder, said in a statement. “The new company is the perfect model for law firms seeking e-discovery services from those who have been in the trenches fighting the battle every day in real cases.”
Based in Stamford, Conn., the new business will continue to manage Milberg’s ongoing litigation support needs, as well as current customers. Meta-e Discovery will assist customers in maximizing the benefits of its existing Relativity Platform with its own proprietary workflow that aims at leveraging technology-assisted review that applies to productions received. Additionally, the company will develop new mobile computing and artificial intelligence software, specifically geared to the discovery process.
“We are very excited by this move,” McVoy told Legaltech News. “The reception in the legal community and service provider community has been extremely positive. The market recognizes that there is an underserved segment that desperately needs the services, experience and expertise we offer. We look forward to helping these firms litigate their cases with the same tools as the larger firms, and as we are fond of saying, ‘leveling the discovery playing field.’”
Leave a Comment November 20, 2015SHOW LESS..........
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 firstname.lastname@example.org or on Twitter @jgreenejenna.
Leave a Comment November 11, 2015SHOW LESS..........
Originally published on: VerdictSearch.com
Offshore worker’s foot crushed when cable snapped, block fell
Venue: Harris County
Court: Harris County District Court, 152nd
back-herniated disc(herniated disc at L4-5); lumbar(herniated disc at L4-5)
foot/heel-fracture(fracture, metatarsal); foot(fracture, metatarsal)
foot/heel-crush injury; foot
foot/heel-fracture(fracture, calcaneus/heel); heel/calcaneus(fracture, calcaneus/heel)
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
Luke Meyers (Male, 52 Years)
Kyle Findley; Arnold & Itkin LLP; Houston, TX, for Luke Meyers
Cesar Tavares; Arnold & Itkin LLP; Houston, TX, for Luke Meyers
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
W&T Offshore Inc.
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.
Matthew Gardiner; Engineering; called by: Kelley J. Friedman,Randy L. Fairless
Travelers Property Casualty Corp.
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.
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.
The jury placed 100% negligence on the defendant. The jury awarded Meyers $2,809,898.72.
$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
Judge: Robert Schaffer
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
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, 2015SHOW LESS..........