Articles Posted in Experts

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The United States Court of Appeals for the Seventh Circuit in Chicago has affirmed the grant of defendant’s motion for summary judgment in the plaintiff’s lawsuit that alleged that the product Testim, which was manufactured by Auxilium Pharmaceuticals as a topical gel containing testosterone, caused the plaintiff, Isaac Owens, to develop deep vein thrombosis (DVT).

The federal district court in Chicago granted Auxilium’s motion to exclude Owens’ sole expert witness on the issue of causation linking Testim to his medical condition.

The appeals panel stated that the district court could properly exclude causation testimony from the Owens’ expert, when: (1) although the expert opined that Testim had caused plaintiff’s DVT, he did so under the assumption that Owens was applying the prescribed dose of the gel in the proper manner; (2) Owens conceded that he had used only half of the prescribed dosage and applied the gel in the wrong parts of his body; and (3) Owens’ expert could not express an opinion regarding causation under circumstances that more accurately described Owens’ use and application of Testim.

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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 plaintiff Stephen Limoges claimed that he suffered significant pulmonary injuries as a result of inhaling the toxic fumes following a chemical spill. Plaintiffs brought suit against three different entities, including Arden Engineering Constructors LLC, alleging that they were individually and collectively responsible for Limoges’s injuries. Mr. Limoges was an employee of the State of Rhode Island as an Assistant Administrator to Facilities and Operations. His duties included overseeing the heating, ventilation, and air conditioning systems (HVAC) in the state’s courthouses.  The Limoges lawsuit claimed that on August 8, 2008, a pipe that carried bromine in the HVAC system at a judicial complex in Providence ruptured causing a chemical spill.  When this pipe burst, Mr. Limoges rushed to the scene to stop the leak.  Limoges asserted that while he was trying to stop the leak, he inhaled bromine which caused his serious pulmonary injuries.  Limoges’ wife was a party plaintiff in this case claiming loss of consortium.

Arden Engineering filed a motion for summary judgment, which the trial level judge granted. Limoges appealed, arguing that that the court made an improper credibility assessment about the affidavit of the Limoges expert and because the judge overlooked material issues of fact that were in dispute. Arden had argued that the Limoges expert’s affidavit was false and that the expert did not provide a basis for his opinions.  Arden maintained that this expert’s affidavit was completely failed to identify one fact which would make Arden responsible, let alone owe a duty to Limoges.

Limoges argued that the expert’s affidavit was sufficient to establish duty and breach, particularly at the summary-judgment phase of the proceedings.

The state Supreme Court vacated the judgment of the superior court, holding that the plaintiff’s expert’s affidavit, combined with the documents that were available to the hearing justice, raised a material  issue of fact as to whether Arden Engineering was responsible for Limoges’s injury.  The attorney representing the Limoges family was Amato A. DeLuca of Providence, RI.

 

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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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Donald Etherton was injured in a rear-end car crash. The other driver’s insurer settled with Etherton for $250,000, which was the insurance policy limits. Etherton entered a claim to Owners Insurance Co., his underinsured motorist coverage insurer, which had limits of $1 million. He requested that the company pay up to $750,000, which was the remainder of his insurance policy limit. Etherton’s vehicle had only minor damage, but Etherton underwent three back surgeries to repair disk damage to his spine.

Between July and December of 2009, he communicated frequently with Owners. Owners repeatedly indicated it needed additional information to assess his claim. On Dec. 30, 2009, Owners offered to settle the underinsured motorist claim for $150,000. Etherton asked Owners to explain the basis for the low offer. Owners responded that “our $150k offer is based on the documentation you have provided to date . . . We note serious questions of causation of Mr. Etherton’s injuries . . .”  Many other additional communications between Etherton and Owners failed to resolve the matter. Etherton filed this lawsuit in March 2010.

He first filed his lawsuit in the state of Colorado, which was removed to the Federal District Court. As the jury trial approached, Owners filed a motion in limine under Federal Rule of Evidence 702, seeking to exclude Dr. Joseph Ramos, Etherton’s causation expert. Owners argued that Dr. Ramos’s methodology was not reliable under Rule 702 and Daubert v. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). After a Federal Rule of Evidence 104(a) Daubert hearing, the presiding federal judge ruled from the bench and excluded Dr. Ramos’s testimony, concluding his methodology was not reliable. Shortly thereafter, Etherton moved for reconsideration wherein the presiding judge recused herself from the case, and the case was reassigned to another judge who granted Etherton’s motion to reconsider. Based upon his review of the Daubert hearing transcript, the new judge concluded Dr. Ramos’s methodology was reliable and he therefore could testify.

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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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The Illinois Appellate Court has reversed a jury verdict of $3.6 million as being too speculative and without enough discovery. The unpublished order was issued remanding Nazmi Nomat’s automobile-injury case back to the Circuit Court of Cook County to determine again how much he should receive in damages in the case where the defendants admitted liability.

This time, however, the defense will be able to conduct more discovery and Nomat won’t be able to present an expert who testified about $1 million in lost wages.

In the new trial on damages, Nomat, who is now 49, will have to again attempt to prove damages resulting from the October 2009 automobile accident that he was involved in. Nomat suffered injuries to his lower spine and right ankle. Although Nomat was released from the hospital the same day of the crash, he subsequently saw a chiropractor and other physicians for neck, lower back, left shoulder and right ankle pain and treatment through March 2010.

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Kent Higgins, along with his wife and two children, visited Holiday World & Splashin’ Safari amusement park. During their stay, the filter pump connected to the park’s lazy river ride malfunctioned due to a tripped circuit breaker.

While the park’s staff worked on fixing the problem, pool chemicals, which included bleach and hydrochloric acid, accumulated into the pump. When the pump restarted, these chemicals discharged into the water and a cloud of chlorine gas was released in the air.

Although at the time the chlorine gas was released, the Higginses were far enough away from the area, a niece of theirs was much closer. The Higginses received a call alerting them that the niece was in trouble, which prompted them to head in that direction. When they arrived, Kent Higgins inhaled an unspecified amount of chemical fumes that lingered in the air. Higgins visited the emergency room that day and was diagnosed with having a mild chemical exposure.

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In February 2010, the plaintiff Janusz Bruszniewski, 55, was working for a plumbing subcontractor at a renovation project at 2132 Jefferson St. in Joliet, Ill. While leaving the building, he slipped and fell on a sheet of ice in front of the entranceway. Bruszniewski suffered a distal femur fracture in his left leg just above the knee, which required internal reduction fixation surgery with the placement of a rod to support the healing fracture.

However, the femur did not heal due to nonunion. Bruszniewski underwent a second surgery to remove the original hardware and insert a plate. He also required bone grafting.

The fractured femur eventually healed, but Bruszniewski also suffered aggravation of pre-existing arthritis in his left knee, causing continued pain and limitations, which have prevented him from returning to work as a plumber.

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