Articles Posted in Experts

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Jeffrey Kopplin worked for Wisconsin Central Railroad. In January 2014, he was operating a train at the rail yard in Fond du Lac, Wis. In order to bring the train onto the right track, Kopplin had to get out of the train and “throw” a switch.

The weather that morning was severe, with below-freezing temperatures and high winds. Due to the weather, ice and snow had built up inside of the switch. Kopplin attempted to remove the buildup with a broom provided by the railroad, but he was unsuccessful. In attempting to remove the buildup of ice and snow, Kopplin injured his elbow.

A doctor diagnosed his injury with a medial and lateral epicondylitis. Kopplin took time off from work to receive treatment, including a pain-relief injection.

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This was a case of a rear-end car crash in which the plaintiff, William Kevin Peach, brought a lawsuit against Lyndsey E. McGovern  stemming  from personal injuries he sustained in an automobile incident. The jury returned a verdict in favor of defendant, and the judgment on the verdict was entered.

The plaintiff appealed, contending that the jury verdict was against the manifest weight of the evidence, especially when the defendant was adjudged negligent as a matter of law. The plaintiff further asserted that the trial court erred in allowing the defense counsel, over objection, to present evidence pertaining to the relative amount of damage sustained by the vehicles. The plaintiff also argued that there was a direct correlation between the amount of damage to the vehicles, as depicted in photographs and plaintiff’s injuries.

In this case, the plaintiff was on his way home around 10 p.m. after visiting his girlfriend on the evening of July 17, 2010. As he was driving home, he had to stop at an intersection to allow traffic to clear. While waiting at the stop sign, the rear of plaintiff’s pickup truck was hit by another vehicle driven by the defendant who was also on her way home. The defendant claims she was fully stopped behind plaintiff, when her foot slipped off the brake. She further testified that the vehicle simply rolled into the rear of the plaintiff’s truck. The plaintiff, on the other hand, estimated the defendant’s speed to have been 20-25 mph at the time of impact.  He also noticed that the defendant was on her cell phone.

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Steven Campbell testified at trial that in early July 2012 he was working for UPS when the defendant’s dog lunged at him and pushed him backward. As a result, Campbell injured his back and was not able to continue to work that day. He sought medical treatment and took some time off from work to recover.

He returned to work the next month. However, when he did return to UPS, he was unable to complete all of his normal employment responsibilities.

Just two months after Campbell’s July 2012 injury, he returned to the clinic where he had previously been treated. In November of that year, he consulted with a board-certified neurosurgeon regarding his ongoing back pain. This doctor, Dr. Kennedy, prescribed physical therapy and epidural injections. Campbell told the jury that he followed Dr. Kennedy’s advice.

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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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