Articles Posted in Evidence

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The 7th Circuit U.S. Court of Appeals in Chicago has affirmed a lower court decision by a federal judge dismissing Gregory Cripe’s lawsuit for exposure to chemical toxic fumes from Pur-Fect Lok 834A. This product is a glue made by the defendant, Henkel Corp. Cripe was exposed to the toxic fumes when he was working on his employer’s roof.

The glue in question contained methylene diphenyl diisocyanate, which can cause serious injury.

Cripe and his wife, Tammy, sued Henkel Corp. under the diversity of citizenship jurisdiction in federal court, contending that exposure to the chemical byproduct of the glue caused both neurological and psychological problems, which could have been prevented if the adhesive had better warnings.

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The on-the-job exposure to asbestos experienced by Ronnie Startley occurred in Alabama. Startley was a drywall finisher. However, for 3 to 4 months in 1965, he worked on approximately 50 jobs in Chicago with his cousin, Walter Startley. The Startleys used several brands of drywall joint compound that contained asbestos. Startley was diagnosed with mesothelioma in 2013; he died a year later in Alabama. The Alabama statute of limitations blocked Startley’s estate’s claims there.

According to Walter Startley’s testimony, during an evidence deposition in the Illinois lawsuit that Ronnie’s estate filed against Welco Manufacturing Co., the manufacturer of Well-Coat, the joint compound they used for Chicago projects in 1965 were “USG, Gold Bond, Best Wall, and Wel-Coat.” He added, “Wel-Coat and Best Wall was the most we used.”

When Walter was asked whether he could recall having more jobs with “one product more than the other,” Walter said, “Well, I really can’t, because that’s a long time ago, but I remember the bags was being like gray-looking stuff and I imagine it would be Wel-Coat or Best Wall.”

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Missouri’s HB 153 became law recently, supplanting the expert witness screening standard set out in the Federal Rules of Evidence 702, 703, 704 and 705. Missouri’s new expert witness standard  effectively submits expert testimony in most civil and criminal cases to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Until the law enactment, R.S.Mo. 490.065 has set forth the requirements for admission of expert testimony in Missouri state courts. In its present form, the language of the statute has varied significantly from the familiar expert witness standard set forth in the Federal Rules of Evidence and the rules of numerous sister states that track the federal rules.

Missouri appellate decisions have noted on occasion that Daubert and its progeny could provide “guidance” when the federal rules and the Missouri rules match up. See, e.g. State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 155-156 (Mo. 2003) (Wolff, J, concurring in part and dissenting in part), and Goddard v. State, 144 S.W.3d 848, 852-853 (Mo. App. S.D. 2004).

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On July 28, 2008 Mai Leen Aguilar-Santos was injured in a car crash alleged to have been caused by the defendant, Helen Brine. On April 1, 2010 the lawsuit against Brine was filed by Mai Leen Aguilar-Santos seeking to recover damages for her injuries caused in the accident. Mai Leen claimed she sustained injuries to her neck, back and burns to her arm from the deployment of the airbag.

Before trial, the court granted Mai Leen’s motion for partial summary judgment, finding that Brine breached her duty of ordinary care in causing the car collision. Brine then filed an amended answer admitting that her negligence was the proximate cause of Mai Leen’s injuries, but denied that the injuries she sustained in the accident were permanent. Two treating doctors provided trial testimony.

One doctor, Dr. Lim, an orthopedic surgeon, testified that Mai Leen’s injuries and symptoms identified in the medical records were caused by the accident. He said Mai Leen’s condition may deteriorate with age or treatment. Dr. Lim examined Mai Leen recently and testified that she required future and further medical treatment for her pain and problems related to the automobile collision. The other treating physician, Dr. Malek, testified that Mai Leen suffered a permanent injury. Dr. Malek had not seen Mai Leen for 15 months prior to his evidence deposition that was presented to the jury.

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On Jan. 27, 2011, there was a multi-car crash on Interstate 294 in the Chicago suburbs. Kevin Boyd George drove his car into the rear of another car and that car was in turn pushed into a car driven by the plaintiff, John Larkin.

Larkin’s car was pushed into the car in front of him. He filed a lawsuit on March 1, 2012 claiming that he suffered “numerous injuries” due to the negligent driving by the defendant, Kevin Boyd George.

At the scene of the crash, Larkin did not report any injury, but on the following day he did go to an urgent care center reporting pain in his left ankle. Larkin ultimately had to undergo two orthopedic procedures to correct the pain and reported continuing pain, which prevented him from participating in family and recreational activities that included golf and basketball, which he claimed to have participated in regularly.

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Matthew Schaefer’s employer, Brand Energy, was putting in place a scaffold at the Dynegy Power Plant. Brand Energy had complete control over the scaffold construction and had acquired the scaffold components from Universal Scaffolding & Equipment LLC. Dynegy paid for the scaffolding and owned it.

Brand Energy workers had difficulty with the Universal Scaffolding components because faulty components would not lock. While working on the assembly, a bar popped loose and struck Schaefer on the head.

Schaefer suffered serious injuries. In addition to bringing an Illinois workers’ compensation claim against Brand Energy, his employer, Schaefer also brought a lawsuit against Universal Scaffolding. Schaefer’s wife joined the lawsuit with a claim for loss of consortium.

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The Illinois Supreme Court case of Kotecki v. Cyclops Welding, 146 Ill.2d 155 (1991) is the decision by the court that stands for the law that an employer may avoid contribution liability by waiving its lien under Section 5(b) of the Workers’ Compensation Act. This is in reference to the so-called “Kotecki cap” and affirmative defense that an employer has pleaded and then proved at trial. The question is: Can the employer invoke Kotecki with a post-judgment motion supported by affidavits specifying the amount of benefits it paid to the injured employee?

This is the issue that was taken up by the Illinois Appellate Court for the 3rd District in this Illinois case. Nacin Burhmester was injured while he was working for L.J. Keefe Co. Burhmester prevailed in a trial and received a verdict of $534,608 against Steve Spiess Construction Co.

Spiess in turn sued Keefe for contribution in a third-party action. The answer to the contribution claim by Keefe included an affirmative defense based on Kotecki.  Although Keefe paid benefits to Burhmester totaling $95,487 under the workers’ compensation policy of insurance, it did not present any evidence on this defense during the contribution trial.

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There were eight cases, all involving claims by or on behalf of the estates of now deceased former workers of the defendant Weyerhaeuser Co. The former workers had claimed that their nonoccupational exposure to asbestos was the cause of their injuries and subsequent deaths.

Weyerhaeuser operated a door manufacturing facility in Marshfield, Wis., from 1960 to 2000. It was there that the company manufactured wood products with multiple operations and divisions on that site. The defendant manufactured a door containing asbestos in the plant from 1968 until it stopped using asbestos in 1978.

The evidence in these cases showed that asbestos dust was emitted from the Weyerhaeuser plant. It was also shown that Weyerhaeuser hauled asbestos dust and scrap waste through landfills into the surrounding community. All of the eight plaintiffs in the case were employed by Weyerhaeuser at the Marshfield plant during the relevant time period assigned to varying job duties.

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Carol Keiser-Long’s claim for decreased earning capacity from an automobile accident she was involved in presented a question about her compensatory damages. She was never salaried or received dividends from her solely owned cattle-brokering business. The company, C-Bar, was set up as a separate entity, a C corporation.

She was the sole employee and left all of the profits in the company as retained earnings. She thought that the retained earnings would act as a retirement account that she would eventually start drawing on as income when she quit working. Retained earnings are generally taxable at the end of each calendar or fiscal year.

The car belonging to defendant Kirk Owens, alleged to have run through a stop sign while intoxicated, broadsided Keiser-Long’s vehicle on a rural road in Champaign County, Ill., and admitted liability before trial.

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Julie Sheridan injured her right shoulder, right knee, left arm and the back of her neck after she was involved in a three-car crash at the intersection of Ogden Avenue and River Drive in Lisle, Ill., in February 2010. After the crash, Sheridan refused an ambulance and did not receive medical treatment that day. Instead she drove 300 miles to her home in Union, Mo., and saw a doctor there for symptoms one day later.

She received pain and anti-inflammatory medication for her symptoms, which she said did not relieve her pain. An orthopedic surgeon who saw Sheridan in May 2010 tried but failed to discover her reported numbness, tingling and decreased strength.

The orthopedic surgeon testified during the trial that Sheridan had full range of motion in her neck and left shoulder, normal grip strength in her left hand, normal reflexes in her left arm and proper sensation throughout her left hand. The orthopedic surgeon could not identify the cause of her symptoms.

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