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 email@example.com 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..........
by Dennis Ryan, an ALM Listing Expert
Forensics in government laboratories in the United States is undergoing a transformation. The transformation began within the last ten years and principally involves the comparative science disciplines that were a mainstay in many government labs. The comparative sciences includes, but is not limited to, impression evidence, paint examination, fiber examinations and questioned document examination. With declining funding for salaries and equipment, lab administrators have been forced to choose between DNA and the comparative sciences.
Many of the comparative sciences provide investigative leads that otherwise would not be encompassed by a DNA examination. For instance, a robbery demand note will be processed for DNA rather than be subjected to a questioned document examination for the possibility of indentations. In a sexual assault case, a fiber examination may assist in placing the defendant at a specific location. Tape lifts for fiber examinations are collected by rarely if ever subject to a forensic fiber examination. Anonymous threat letters are also rarely subjected to a questioned document examination. When is a forensic paint examination conducted on automotive parts left as the scene of an auto accident to determine the year and make of the automobile that left the scene? It is likely that that evidence will be put in the long term storage of the government evidence vault never to be examined or seen again.
Specialization in forensic science has also contributed to the decline of forensic science in government laboratories. The days of the trace evidence analyst doing different types of examinations is long gone; one analyst will do the paint examination, while another analyst will do the footwear impression and another analyst will do instrumental analysis. While specialization is a positive for forensics, the municipality that funds the forensic laboratory has not funded for this specialization and fails to see the need for the additional analysts. Many forensic laboratories have met the need for specialization by either informing their “customers” that they no longer offer those services (handwriting examination, fiber examination) or subcontracting with an outside laboratory or forensic scientist. A majority of government laboratories subcontract some, if not all, of their forensic services. One of the reasons for the subcontracting phenomenon is all about turnaround time. Many government laboratories have gone from turnaround times of three or four weeks to three or four months. Many government laboratories work on the premise that they will examine evidence only when needed for court. A call to the government laboratory from an investigator or prosecutor will be needed in order to put their case in the queue. The alternative for the investigator or prosecutor is to reach out to an outside contractor, especially if the prosecutor is looking for a short turnaround time.
Laboratory accreditation has also contributed to the transformation of the government forensic laboratory. Cases that used to take an hour or two hours are now taking double that time. This contributes to the backlog of cases in the laboratory. While accreditation is a positive factor, many administrators of government laboratories have not “wrapped their head” around the whole accreditation issue. Many administrators are taken aback when faced with regulatory control from an outside accreditation body. There are other administrators who look at the accreditation body and react by letting the accreditation body “drive the train” and set the goals and objectives for the government laboratory. Accreditation should be a cooperative effort between laboratory personnel and the accreditation body.
There are efforts from many different fronts to increase the funding to forensics and forensic laboratories. Only time will tell if it is too little too late, or if the transformation will yield a better, more effective structure of the government laboratory.
Leave a Comment September 22, 2015SHOW LESS..........
Originally published on: New Jersey Law Journal, August, 31,2015
By: Charles Toutant
A New Jersey appeals court has reversed judgment in an elevator injury suit in which the plaintiff was awarded $8 million after an earlier $4 million award was reversed.
In Tufaro v. Headquarters Plaza, the case was remanded a second time for the judge below to reconsider the Schindler Elevator Company’s request for a new trial or remittitur. The trial judge was also instructed to review the jury’s $8 million award in accordance with the state Supreme Court’s May 2011 ruling in He v. Miller, which provides a framework for considering requests for remittitur.
Appellate Division Judges Carmen Messano and Mitchel Ostrer ruled that Morris County Superior Court Judge Edward Gannon’s failure to address the jury’s award in light of comparable verdicts cited by both the plaintiff and defendant was grounds for remand.
Plaintiff Richard Tufaro was a carpenter who was working at Headquarters Plaza in Morristown on Aug. 19, 2005, when he entered the service elevator to descend to the parking garage, according to court documents. As the elevator descended, it shook and then came to an abrupt stop, causing his upper body to strike an elevator wall. In subsequent months, he complained of neck and back pain, as well as pain in his left knee and right shoulder. He also gained 60 pounds due to his inactivity and was diagnosed with hypertension and diabetes. In addition, he reported erectile dysfunction and said he could no longer have intercourse with his wife.
In the first trial, before Morris County Superior Court Judge Donald Coburn, the plaintiff was awarded $2.8 million in noneconomic damages and his wife received $950,000 on her per quod claim, but that award was reversed on appeal, according to court documents.
In the second trial, before Gannon, the jury found that the elevator malfunction was the result of Schindler’s negligence and was the proximate cause of Tufaro’s injuries. It awarded $5.5 million for pain and suffering, $2.25 million per quod and $250,000 in medical expenses.
On appeal, Schindler claimed two experts for the plaintiffs, orthopedic surgeon James Dwyer and mechanical engineer James Filippone, gave net opinions, but the appeals court disagreed. Schindler also claimed that Gannon’s decision to bar testimony from defense witness Monica Lynch, an expert in biomechanics, and restrictions on testimony from two others, elevator mechanic John DeLorenzi and neurologist Elliot Grossman dictate reversal, either singly, collectively or in combination with the admission of testimony from Dwyer and Filippone.
The appeals court agreed that some restrictions placed on DeLorenzi were improper but said that the errors did not materially prejudice Schindler or render the trial unfair.
Deciding the issue of remittitur, Gannon asked the parties to name other cases where parties had similar damages, noting that the focus of the case was the plaintiff’s erectile dysfunction and the impact it had on his life and his wife’s life. The parties cited a case reported in New Jersey Jury Verdict Review and Analysis, as well as He v. Miller, an automobile injury case where the plaintiff and her husband testified that her injuries diminished their sexual relations.
In that case, the jury awarded her $1 million for pain and suffering and $100,000 for her husband’s loss of consortium. The trial judge in He reduced the awards on remittitur to $200,000 for pain and suffering and $20,000 for loss of consortium and the Supreme Court affirmed that ruling.
Gannon said the Supreme Court requires an analysis of comparable verdicts, but he said there were no comparable verdicts. The appeals court reversed and remanded the case based on a finding that the judge failed to conduct the proper analysis before deciding the motion.
The He case calls for judges deciding remittitur motions to create an opportunity for litigants to be heard and for a record to be created, the appeals court said. The motion judge must “identify with as much precision as possible the particular basis on which the court has made its decision,” and the record “must include a recitation of the reasons that explain why some of the cases offered by the parties were persuasive and others were not.”
In addition, the judge deciding the motion must articulate with care and precision his or her observations on “the feel of the case,” the panel said.
In the present case, Gannon failed to explain why the cases cited by the parties, some of which involved sexual disfunction, were dissimilar, the appeals court said. He also failed to address the great disparity between the first and second verdicts, the panel said.
Andrew Fraser of Laddey, Clark & Ryan in Sparta, who represented the plaintiff, said he was pleased with the ruling because it eliminated appellate issues other than the judge’s need to perform a more thorough analysis of the remittitur motion.
“This is about as good as it could get. We’re very pleased. We look forward to the judge’s analysis,” Fraser said.
The lawyer for Schindler, Ronald Riccio of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, declined to comment on the ruling.
Contact the reporter at firstname.lastname@example.org.
Original Source: http://www.njlawjournal.com/id=1202736080212/Defendant-Gets-New-Hearing-After-8M-Elevator-Verdict#ixzz3lkZdmc3f
Leave a Comment September 14, 2015SHOW LESS..........
Originally published by: New York Law Journal
By: Michael Hoenig
In a bombshell decision issued on July 30, Eastern District of New York U.S. Judge Jack B. Weinstein held that it is unconstitutional to use ethnicity-based statistics to calculate future economic loss in a tort case. In G.M.M. v. Kimpson,1 an infant lead poisoning claim against a defendant landlord that resulted in a two-week trial and a plaintiff’s verdict of about $2 million, the judge ruled that the testimony of three economics experts (two for the plaintiff and one for defendant) could not rely on assumptions based on ethnicity—in this case the fact that the infant was Hispanic. The July 30 Memorandum and Order copiously explained the trial ruling and the reasons why such testimony is unconstitutional. Judge Weinstein found that use of “ethnicity-based statistics” to obtain a reduced damage award in calculating future economic loss violates due process and equal protection.
Weinstein’s decision could have profound impact on economic loss evidence in cases where consulting or testifying economists rely on assumptions and statistics based, in part, on ethnicity factors. For example, in personal injury cases involving youngsters, impairment of future earnings and earning capacity are often contested issues. Proverbially and exaggeratedly speaking, just to make a point, plaintiffs’ lawyers might like to posit that a 5-year-old claimant, were she not injured, would have become a neurosurgeon. The defense, however, might like to show that, based on ethnicity and economic strata data, the child likely would not have gone beyond a high school education, which translates into a lower range of earnings into the future.
This kind of debate, fortified by assumptions, statistics, trends, graphs and historical data, is subject matter routinely and typically reflected in a battle among experts. The economic loss damages in a given case can be significant. If a youngster could be projected out to graduating from university into high-paying professions, then a future worklife expectancy into the child’s 60s or 70s can support a high damage award. On the other hand, if the infant plaintiff is likely to engage in lower-paying work, then the economic loss projected forward for five decades or so justifies only a lower award. Weinstein’s ruling and rationales affect the permissible assumptions and statistical bases that expert economists can use and, therefore, perhaps also the quality of their testimony as well as the loss figures in their bottom-line opinions.
The Kimpson decision is lengthy and, as often in Judge Weinstein’s pivotal opinions, is lucidly erudite, chock-full of facts, statistics and data. Although infant tort claims are a natural arena in which the decision’s influence will be felt, that’s not the only area of potential impact. Economic loss issues affect adults in tort cases. Such questions can also arise in non-personal injury settings as well. Thus, especially if followed by other judges, the Kimpson ruling is something litigators need to review right away. They need to infuse its lessons into their trial evidence checklists when dealing with economist experts.
Then, there is the question of what Kimpson’s effect will or should be with respect to cases not yet tried but scheduled for trial soon in which the parties have hired experts, issued expert reports, exchanged experts’ depositions, filed pretrial orders and, in effect, are “ready to go.” Do these cases now warrant a revisit by the affected counsel and the filing of possible motions to preclude, curtail or modify evidence? Should applications for trial postponements be made or allowed to accommodate Judge Weinstein’s declaration of widespread constitutional effects?
Then there is the question of cases already tried to verdict yet still alive in the post-verdict pipeline, for example, where post-trial motions are pending. If the problem is one of constitutional dimensions and the verdict was based on evidence or economic testimony laced with unconstitutional ethnicity-based assumptions or data, should that issue now be considered at this stage? Does it matter if the issue was not preserved?
After all, Judge Weinstein acted on his own motion. Should other judges follow suit? And, how about cases on appeal? If the evidence was unconstitutionally infirm, is that a question that has some effect for the pending appeal? Perhaps the issue was waived, if the “prejudiced” party did not preserve the question by objection, motion or application. Or, does Weinstein’s conclusion have prospective effect only? Such thorny but practical questions warrant thoughtful consideration by counsel since, again, Kimpson has overt constitutional implications.
Let’s briefly highlight select aspects of Judge Weinstein’s lengthy opinion. A mother sued on behalf of herself and her child claiming injury to the infant’s central nervous system caused by absorption of lead dust. Defendant was the owner and lessor of the apartment the plaintiffs lived in during the child’s gestation, birth and first year of life. The jury found the apartment contained lead-based paint that had not been properly removed or encapsulated. The jury returned a verdict of $2 million in favor of plaintiffs.
At trial the child was less than 4 years old. A critical factor in determining damages required ascertaining the infant’s prospects for obtaining post-secondary education degrees had he not suffered from lead poisoning. In contesting damages, defendant’s attorney attempted to show, through expert economic testimony, statistics and cross-examination of plaintiffs’ experts, that because the child was “Hispanic,” the likelihood of obtaining a bachelor’s, master’s or doctoral degree, and any corresponding elevated income, was improbable.
Judge Weinstein observed that the child’s father has a baccalaureate degree, the mother has a Master of Fine Arts. Both held “responsible income-generating jobs.” The family was “stable,” and the parents were “caring.” Based upon “his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings.” Treated by experts as a “Hispanic,” however, his potential, based on the education and income of “average ‘Hispanics’ in the United States,” was “relatively low.”2
At trial, the court ruled that, for the purposes of projecting damages, the “specific characteristics of the child and his family,” rather than the characterization of the child as a member of a particular ethnic group, “must be used” in determining damages. This ruling was based on the same constitutional and other factors relied upon in a 2008 decision, McMillan v. City of New York,3 which held that statistical evidence, used to prove that a spinal cord-injured “African-American” was likely to survive for fewer years than occidental persons with similar injuries, “violated the equal protection and due process clauses” of the U.S. Constitution, and “was inadmissible in computing life expectancy and damages.”4
Judge Weinstein posed the question and answer this way: “[C]an statistics based on the ethnicity (in this case ‘Hispanic’) of a child be relied upon to find a reduced likelihood of his obtaining a higher education, resulting in reduced damages in a tort case? The answer is no.”5
During trial, testimony regarding the future economic prospects of the child, had he not been poisoned with lead, were discussed by three experts: Dr. Kenneth W. Reagles, plaintiffs’ forensic rehabilitation expert; Dr. Frank Tinari, plaintiffs’ forensic economist, and Dr. Bernard F. Lentz, defendant’s forensic economist. Dr. Reagles noted the general “Hispanic” background of the boy, but placed primary reliance on the parents’ specific backgrounds.6
On cross-examination, defense counsel emphasized the “low general educational backgrounds of the ethnic group he characterized as ‘Hispanics’.” After a series of questions and answers along this line, the court precluded an answer “on its own motion” and “exclud[ed] ethnicity as a factor in damages computations.” The court then asked Dr. Reagles whether his testimony would be changed if the undifferentiated statistics with respect to “Hispanics” would be struck, to which the expert responded, “Not materially and substantially at all.”7
The court explained outside the presence of the jury that it was basing its decision on the McMillan ruling regarding race sociology and statistics. Neither party objected to the ruling. Before plaintiffs’ separate economic expert, Dr. Tinari, took the stand, the court reminded the jury of its earlier ruling and instructed: “[y]ou cannot say that, for example, Hispanics generally go to college less than others and therefore use that statistic or that analysis or that chart.” Dr. Tinari was told to adhere in his testimony to that instruction. Dr. Tinari projected the child’s future economic losses to be between $2.5 and 4 million.8
Defense expert economist, Dr. Lentz, found that because the child-plaintiff was “Hispanic,” his “future economic loss of earnings was lower than that projected by plaintiffs’ forensic economist.” The court told Dr. Lentz about his ruling of unconstitutionality and instructed: “So all of your answers should be based on individual characteristics and not the general characteristics of a group, ethnic group. Is that clear to you?” Dr. Lentz responded: “I believe so, sir.”9 Taking the court’s ruling into consideration, the defense expert ultimately projected that if the child obtained a baccalaureate degree, his total future economic loss would be some $2.5 million. If he obtained only a high school diploma, the loss was projected as less than $1.4 million.10
In his Kimpson decision, Judge Weinstein explained at length the McMillan precedent11 and the unconstitutionality of “race” as a criterion for assessing damages (including the “equal protection” and “due process” principles).12 Tracing and discussing a number of scholarly sources, Weinstein said that “[e]thnicity, like race, as discussed in McMillan, is a fictitious, changing, and unreliable social construct.”13 It is “unconstitutional in a tort trial to premise projected societal and educational achievements on race or ethnicity to reduce tort damages.” Indeed, the “state itself discriminates by enforcing a substantive rule of discrimination—damages—based on race or ethnicity in reducing damages in tort cases. Such an illegal standard cannot be enforced by the courts.”14 Judge Weinstein hinted that the problem may extend to “gender worklife expectancy tables” but the court did not have to confront that issue in this case.15 Counsel and readers: Be alert to this gender evidence issue on the horizon!
There’s more, lots more and, so, only a careful reading of this studious opinion will uncover the potential to affect what presently constitutes the gigantic status quo of statistically based economic assumptions and expert opinions. Weinstein admonished that use of “ethnicity-based statistics” to obtain a reduced damage award in calculating future economic loss “is unconstitutional.” It violates due process “because it creates arbitrary and irrational state action, and equal protection, because it subjects the claimant to a ‘disadvantageous estimate’ of damages ‘solely on the basis’ of ethnic classification.”16
“Propelling race and ethnicity to the forefront of predictions about an individual’s future achievement ignores the myriad factors affecting an individual’s capacity to fulfill his or her potential.”17 And here’s another land mine of sorts for trial counsel to ponder: there may be times when the use of Federal Evidence Rule 403 to exclude “racially-, ethnically- and gender-based tables,” even when they have probative force and are therefore relevant, is justified.18
Judge Weinstein’s erudite opinion has some explosive potential to alter the quality, quantity and content of expert opinions regarding future economic loss as well as the tables, statistics, charts and data upon which experts rely—to the extent that they employ race-, ethnicity- or gender-based conclusions and assumptions. Counsel certainly have some interesting work ahead of them in order to keep pace. The bench and bar generally have some homework too. So do economic experts.
1. 2015 U.S. Dist. LEXIS 99715 (E.D.N.Y. July 30, 2013).
2. Id. LEXIS at *2-*3.
3. 253 F.R.D. 247 (E.D.N.Y. 2008).
4. Kimpson, supra n. 1, LEXIS at *3.
5. Id. LEXIS at *2.
6. Id. LEXIS at *8-*16.
7. Id. LEXIS at *15-*16.
8. Id. LEXIS at *17.
9. Id. LEXIS at *19.
11. Id. LEXIS at *20-*31.
12. Id. LEXIS at *31-*32.
13. Id. LEXIS at *50-*51.
14. Id. LEXIS at *53.
15. Id. LEXIS at *54.
16. Id. LEXIS at *63.
17. Id. LEXIS at *64.
18. Id. LEXIS at *78.
Leave a Comment August 20, 2015SHOW LESS..........
A panel of forensic investigators and expert witnesses gathered to discuss pitfalls and tips in testifying.
Originally published by: Legaltech News
By: Sean Doherty
Digital forensic investigators get their day in court but it may never end for some who regularly testify as expert witnesses. At CEIC (Computer Examinations and Investigations Conference) in Las Vegas on May 19, a panel of forensic investigators and expert witnesses gathered to discuss some of the pitfalls to avoid and tips for navigating the hot seat between judge and jury.
The panel entitled “Forensic Evidence in Court,” was moderated by Suzanne Widup, senior analyst at Verizon Enterprise Services, and included David Cowen, partner at G-C Partners; James Vaugh, managing director at Intelligent Discovery Solutions; Jonathan Rajewski, director at Senator Patrick Leahy Center for Digital Investigation; and Sheryl Falk, partner at Winston & Strawn.
The format for the panel was entirely interactive. Widup had a list of questions for the panelists posed via email and questions were presented from the audience.
QUESTION AND ANSWER
Attendee: How do you get qualified on the stand as an expert?
Cowen: That, probably, is the easiest part. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), layed down three foundations: qualified by education, experience, or by training. You don’t have to have all three. You only need one. The important thing when you’re doing it is that you’re an expert in your field. They will go through your background and experience to understand what it is that fits the criteria that you are in fact an expert in the field. In the legal world expert is a pretty vague word. It’s anyone who knows more than the layman.
Attendee: What are the differences between a testifying and a consulting expert?
Vaugn: Hired as a consultant. Later you may become an expert. Or you can be hired as the expert and you will do some expert consulting. The difference there being what’s discoverable from the beginning vs. what’s not. What are you going to put in emails vs. not. Everything from the time you become a consultant is arguably discoverable.
Cohen: I think you’re going to hear the word discoverable, a lot.
Attendee: Do any of you have any experience with the Office 365 litigation hold feature and is it sufficient on the court to do discovery on mailboxes in litigation hold after the fact? Although it preserves all user data, it may or may not preserve all system data.
Vaugh: I would love to hear what Sheryl has to say as a lawyer, but I want to respond as a technical consultant. The fact is that there is no tool that is perfect. It is what is available, does the tool work, has the tool been validated, have you tested the tool, can you replicate the results, and if so, does it meet the standard of reasonableness. That’s really what your faced with, it’s not perfection. And there is a difference in collecting for electronically stored information and forensics.
Do not bring a computer to a deposition unless there is a request to image it at the deposition.
Eye contact: Making eye contact is a big thing. Whenever you answer a question, try to make eye contact with the judge or jury because they are the only people who matter when you testify. When you make eye contact with the judge or jury, you add to your credibility. It does you no good to look at the lawyer when answering questions.
Judge: If you have any questions on the judge’s preferences, ask the lawyer. He or she will know all about the judge.
Notes: follow your standard practice in using notes to write reports. If you use notes, use fact-based notes and make sure your attorneys know. And if there is no request for notes from the opposing party, and you incorporate the contents of your notes into reports, then there’s no reason to keep the notes.
Plain talk: The art of testimony is being able to address your audience. You have to be able to beak down technical concepts and use simple analogies, while still technically true, describe what you are going to do in a way they can understand. Keep testimony simple and concise.
Preparation: To better prepare yourself, meet the lawyer and know what he or she will ask you ahead of time; or give them a list of questions to use. If you have to read from your report on the stand, you will lose credibility.
Yes-or-No. In a deposition don’t allow yourself to be limited to a yes or no answer. For example, Question: “Isn’t it true that you did this?” Answer: “Well, it sounds like you’re asking me a hypothetical, so I am going to give you a hypothetical answer” or “While that’s possible, it’s not plausible, and I’d like to explain to you why it’s not plausible.”
Leave a Comment May 27, 2015SHOW LESS..........
Originally published by: Law.com
By: Saranac Hale Spencer
Defense lawyers have 30 days to whittle down their 13 voluminous expert reports to the essential points before the federal judge overseeing the case decides who will be allowed to testify to what at trial.
U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania, who is handling the case filed by the Federal Trade Commission and competing pharmaceutical companies against Cephalon and four generic drugmakers over their alleged reverse-payment settlements, asked the defense lawyers to distill the reports into seven-to-10 paragraph abstracts for the court to review.
He made the request toward the end of a Daubert hearing, which allows parties in a case to challenge expert testimony before the start of trial and is named for the 1993 U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, on Monday.
“They need to be precise, with facts to back up opinions,” Goldberg said of what he expects from the abstracts. “I want it succinct.”
The hearing was permeated with differing interpretations of the U.S. Supreme Court’s 2013 opinion in Federal Trade Commission v. Actavis, which dealt with the issue of reverse-payment settlements, which are the deals made by major pharmaceutical companies with generic drugmakers in order to keep the cheaper drugs off the market.
“This is the playbook,” Goldberg told the dozens of lawyers gathered in the courtroom, referring to Actavis.
“You’re hyper-focusing on one section and I think that you’re losing sight of what I think is, frankly, the prevailing guidance from the Supreme Court, which is, it’s a rule-of-reason case,” Goldberg told Russell Chorush, of Heim, Payne & Chorush in Houston. Chorush is on the team representing one of the plaintiffs in the case, King Drug Co.
In January, Goldberg denied the defendants’ motion for summary judgment, ruling that challenges to reverse-payment settlements don’t have a new threshold to meet, in an opinion that defined the contours left open in Actavis.
“Actavis primarily instructs that the familiar antitrust rule-of-reason analysis be applied to cases challenging reverse-payment settlements. This analysis does not include a ‘threshold burden,’” as the defendants had argued.
Cephalon, the maker of the name-brand wakefulness drug called Provigil, and the four generic drugmakers with which there were deals, ranging from $25 million to $164 million, are the defendants in the case. They argued that with the Actavis opinion, the Supreme Court had introduced a new threshold for challengers to meet in cases like this.
The majority’s opinion in Actavis, while it does emphasize the importance of the size of the payments and the ability to justify them, it doesn’t explicitly spell out a threshold encompassing those two things.
Goldberg integrated the duty to address the size and the justification for the payment into two different parts of the rule-of-reason analysis.
Since it was introduced in the U.S. Supreme Court’s 1918 decision in Chicago Board of Trade v. United States, the burden-shifting rule-of-reason analysis applied to antitrust cases has stayed, essentially, the same, according to the opinion.
The plaintiffs bear the initial burden to show that the deals they challenge have had anti-competitive effects. If they meet that bar, then the burden shifts to the defendants to show that the challenged deal had contributed to objectives that promote competition. Following that, the plaintiffs can come back and demonstrate that the challenged deal wasn’t necessary to promote competition.
The judge then considers the arguments and balances them to rule on whether the deal was anti-competitive.
“We’re going to get into issues about anti-competitive versus competitive and burden-shifting as I’ve explained it, and we’re going to, mostly, I think, as the trial is going to occur, is going to be about explaining the supply agreements and things like that—and that is the bulk of the case,” Goldberg told Chorush at the hearing Monday.
Later, the judge suggested bifurcating the case, which also involves both patent and antitrust claims, saying, “Maybe we do bifurcate the Walker Process and Actavis cases and maybe in the Actavis case we just have a trial about the agreements and keep the patent out of it.”
In 2011, Goldberg found that Cephalon’s patent was invalid and that the company committed fraud on the patent office by concealing the fact that a French company, Laboratoire L. Lafon, had actually developed the drug.
Not only did Cephalon hide from the U.S. Patent and Trademark Office that the French company had invented the drug, with the active ingredient of modafinil, it also misled the office by suggesting that it had altered the particle size of modafinil, according to that opinion, the judge had found.
Lawyers on Monday had differing views of the extent to which the patent could be discussed at trial.
Original Source: http://www.law.com/sites/articles/2015/03/24/judge-seeks-precision-in-cephalon-expert-reports/#ixzz3Xs3maWyy
Leave a Comment April 20, 2015SHOW LESS..........
CHOOSING A FORENSIC PSYCHIATRIC EXPERT— The Difference Between Treating Clinicians and Forensic Psychiatric Experts
by Mark I Levy, an ALM Listing Expert
Forensic psychiatry is a medical subspecialty of psychiatry. Its focus is the interface between the law and behavioral medicine. Like the law, forensic psychiatry is divided into various sections. According to the American Board of Psychiatry and Neurology (ABPN): Forensic psychiatry is a subspecialty that involves a psychiatric focus on interrelationships with civil, criminal and administrative law, evaluation and specialized treatment of individuals involved with the legal system, incarcerated in jails, prisons, and forensic psychiatry hospitals.
Like all medical specialty boards, the ABPN offers subspecialty board certification in this field. However, in order to qualify even to take this subspecialty board examination, a candidate must have completed a four-year residency in psychiatry, been examined and attained board certification by the ABPN in psychiatry, and undergone a rigorous one-year, full-time postresidency fellowship in law and psychiatry.
There currently are thirty-three forensic psychiatric training programs in the United States that are accredited by the Accreditation Council for Graduate Medical Education (ACGME). Accredited programs have demonstrated that they meet the standards for forensic psychiatry training programs established for departments of psychiatry by the ACGME. Graduates of these one-year full-time fellowships then are eligible to take the board examination offered by the ABPN. Passing the exam provides the candidate with the additional “Certification in the Subspecialty of Forensic Psychiatry.”
At this time, fewer than two thousand of the approximately thirty-five thousand board-certified or eligible psychiatrists within the United States are also board certified in forensic psychiatry.
Nevertheless, many psychiatrists who are neither forensically trained nor board certified in forensic psychiatry continue to offer themselves to attorneys as forensic psychiatric “experts.” Too often, such untrained “experts” do not have a clear understanding of the significant role distinctions between functioning as treating clinicians and as independent forensic psychiatric experts. Therefore, all too easily they may unwittingly slip into the clinician’s role of advocate, as if their relationship to the forensic examinee is identical to the relationship they may have with a patient whom they are treating. As a result, it is crucial that any trial attorney intending to retain a forensic psychiatric expert understand the important differences between clinical psychiatrists and trained, board-certified, independent forensic psychiatric experts.
The Distinction between Treating Clinicians and Independent Forensic Psychiatric Experts—The Problem of Wearing Two Hats
Too often, a plaintiff’s treating clinician is retained by plaintiff’s counsel to serve as the plaintiff’s so-called forensic psychiatric independent expert and to offer opinions that will be cross-examined at deposition and trial. Although this usually is done in order to avoid the cost of retaining a genuinely independent expert, it is a strategic error that may end up winning the battle and losing the war. Here’s why. Despite the fact that most experienced forensic psychiatric experts also treat patients clinically, trained experts understand that they should never combine and confuse these two distinct roles.
Not only does such role confusion cause ethical and interpersonal conflicts within the therapeutic relationship, it also leaves so-called expert opinions offered by the plaintiff’s treating psychiatrist highly vulnerable to cross-examination. This is why: The roles of treating clinician and forensic psychiatric expert differ markedly in mission, method, and ethical duty.
Like all treating physicians, the psychiatrist who is functioning as a treating clinician accepts his or her mission as being the alleviation of (emotional) suffering, regardless of its cause.
The method of the treating clinician is to rely almost exclusively on the patient’s subjective account of his or her experience. For example, when a psychiatrist treats symptoms of depression and anxiety in an adult patient who reports that his father beat him as a child, the treating psychiatrist or psychologist accepts that as a factual statement of the patient’s subjective reality. The treating clinician does not attempt to determine the objective accuracy of this self-reported statement by, for example, corroborating the claimed abuse by interviewing family members or reviewing old medical records or by any other means.
In addition, there is an implicit treatment contract between clinicians and their patients that the patient is seeking treatment from the doctor to alleviate suffering, not to bolster a damages claim in litigation.
Furthermore, with rare exceptions, treating clinicians generally do not obtain psychological testing of their patients, except under several specific infrequent circumstances. These would include situations where there is diagnostic uncertainty and making a timely, accurate diagnosis is critical to treatment decisions, or when a child or adult is being evaluated for learning difficulties, or when a patient appears to be cognitively impaired from trauma or a degenerative brain disease, diagnoses that require objective refinement and confirmation.
The Ethical Duty
Under the Hippocratic oath, the ethical duty of a treating psychiatrist, as it is with all physicians, is to act in the best interest of the patient and “above all do no harm (primum non nocere).” Consequently, treating physicians are inclined to accommodate the wishes of their patients unless they believe that doing so would be harmful to their patients. Therefore, when a patient claims to be disabled from employment due to an acutely distressing event, most treating physicians are prone to accede to their patient’s wishes and authorize leave from work unless there are clear factors causing the physician to be more skeptical than usual.
Similarly, when treating clinicians are asked to testify on behalf of their patients, they appropriately function as advocates for whatever they believe is in their patient’s best interest. They do not approach such testimony with the same professional skepticism exhibited by a forensic expert. Furthermore, they have usually relied entirely upon their patient’s self-report to support their diagnoses. Thus, the diagnostic, treatment, and prognostic opinions that may be offered to the trier of fact do not necessarily reflect evidence-based, objective truth.
For example, in more complex employment matters, a patient may report that he or she has been discriminated against by an employer or retaliated against for “whistle-blowing.” When the patient subsequently is terminated, he or she alleges that it was “wrongful,” characterizing any subjective dysphoria as “severe and ongoing emotional distress” allegedly caused by the employer. Although this may be a perfectly true conclusion, to stand, it must be supported by objective evidence substantiating both the suffering and the causation, not simply the assumption that because B follows A, A caused B. However, more often than not, the treating clinician accepts as valid the patient’s characterization of his or her workplace experience and the unsubstantiated “facts” offered to support that conclusion, frequently also accepting presumed motivations of coworkers and employers as reported to them by their patient.
In stark contrast, the mission of the forensic psychiatric expert is to determine as accurately as possible what is objectively true about the plaintiff’s or criminal defendant’s diagnosis from a skeptical point of view. In addition, the forensic psychiatric expert vigorously seeks objective data relevant to determination of diagnosis, treatment, prognosis, and causation. The gold bullion standard for the opinions of a forensic psychiatric expert is the ballistics expert who can opine with reasonable scientific probability that a particular bullet was fired by a particular weapon, or was not, albeit recognizing that determining what is objectively true in behavioral science is far more complex and nuanced than in ballistic science. Nevertheless, this remains the goal for any competent forensic psychiatric expert.
The method of forensic psychiatric analysis is to review all possibly relevant behavioral data. This includes all medical and legal records from time periods both prior and subsequent to the events giving rise to the litigation or criminal prosecution, collateral information from deposition transcripts, other testimony and declarations of key witnesses and from psychological or neurocognitive test data. At Forensic Psychiatric Associates Medical Corporation (fpamed), it is standard practice to obtain psychological testing administered, interpreted, and reported by an experienced and well-trained forensic psychologist in all civil (and some criminal) matters.
Neuropsychologists measure aspects of neurocognitive and psychological functioning through the use of a variety of standardized, valid, and reliable tests. The data yielded by the tests makes possible a statistical comparison of the individual’s functioning to that of other individuals of similar age and educational levels.
The test battery can provide evidence of abnormal functioning that may be the result of injury or disease or that may be related to personality traits and psychiatric disorders. In addition, an assessment is made about the manner in which the individual responds to test questions. This provides a quantitative measure of the magnitude of atypical responses, the degree of effort made by the examinee, as well as the likelihood of the feigning of psychological symptoms or neurocognitive functioning.
Test data is analyzed statistically to compare the ways in which an individual’s pattern of test findings is similar or dissimilar to those of other persons who have suffered comparable injuries, disabilities, or diagnoses. Neurocognitive and psychological testing provides solid, scientific evidence that can be used to form evidence-based opinions about the likely veracity of the plaintiff’s claims regarding loss of cognitive functioning and emotional distress, as well as the plaintiff’s fitness to function at work, at home, or in legal proceedings.
In addition, the forensic psychiatrist conducts an in-depth interview of the plaintiff or criminal defendant. This interview, which requires a minimum of several hours, permits the forensic expert to hear the examinee’s subjective view of events leading up to the legal action firsthand. The interview supplements other data already gathered from the careful and detailed review of medical and legal records, as well as in the psychological test data. Thus, the examinee’s subjective narrative is assessed within a much larger context of clinical evidence than is generally available to the treating psychiatrist.
Finally, the ethical duty of the forensic psychiatric expert is only to the trier of fact. He or she should not be an advocate for either side in a civil or criminal dispute. His or her opinions must be evidence-based, which is the modern standard for best medical practices. It should specifically be understood that the only duty owed by the forensic expert to the retaining attorney is a commitment to professionalism and honesty and a fiduciary agreement regarding payment for expert services. Furthermore, at the time that the expert is retained, she or he should explain, preferably in writing, that after applying the current best principles of scientific data analysis, the expert may reach conclusions that may or may not be supportive of the attorney’s theory of the case.
Psychological testing is regarded as essential to our ability to reach accurate, independent, and evidence-based psychiatric diagnoses. However, just as one would want an experienced radiologist or neuroradiologist to administer and interpret a brain MRI, so is it with psychologists and neuropsychologists. In order to obtain meaningful interpretation of psychological test data for medical legal purposes, it is critical not only that the psychologist or neuropsychologist be well trained and experienced but also that they understand the unique parameters that apply to forensic questions.
When seeking a forensic psychiatric opinion about the behavioral symptoms of a plaintiff or criminal defendant, no matter how clearly and explicitly you formulate the specific questions that you would like your expert to address, whom you retain to assist you with these issues can be of critical importance to the outcome of your case.
Mark I. Levy is an assistant clinical professor of psychiatry at the UCSF School of Medicine. A Distinguished Life Fellow of the American Psychiatric Association (DLFAPA), he is the founder and medical director of fpamed, a Bay Area firm of board-certified forensic psychiatrists and forensic neuropsychologists.
Dr. Sarah Hall also contributed to this article. Hall, a foren-sic adult and pediatric neuropsychologist and member of fpamed, has taught courses and seminars on various topics in neuropsychological assessment to attorneys, graduate students, school psychologists and parent groups and maintains a private clinical neuropsychological consulting prac-tice in Corte Madera, California.
Leave a Comment March 12, 2015SHOW LESS..........