Author Archives: Kimberly DelMonico

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

California Law Legal System Concept

Expert Witness Testimony Improperly Tossed Out

A California Court of Appeals has reversed a trial court’s summary judgment order and reinstated a wrongful death lawsuit after it concluded that the trial court had improperly thrown out “clear, reasoned” expert testimony.

The Death

In October 2013, Marleny Escobar attended her first prenatal appointment with her ob/gyn, Dr. Azmath Qureshi. She complained of pain with urination and blood in her urine. Her lab tests showed a low white blood cell count and low platelet counts. Dr. Qureshi prescribed her medicine for urinary tract infections.

Over the course of Escobar’s pregnancy, she experienced a fever, a sore throat, congestion, cough, and an earache. Escobar failed to gain weight after her initial prenatal appointment and eventually lost ten pounds. Her urinalysis showed abnormal levels of proteins, ketones, and bilirubin, and her lab results showed that her white blood cell count remained abnormally low. Dr. Qureshi prescribed her an antibiotic and did not order additional lab tests.

In March 2014, Escobar was admitted to the hospital for the early onset of labor. She arrived at the hospital with a fever, an enlarged fatty liver, and gallstones. Her lab work showed that her white blood count was still abnormally low and that she had “severely deranged liver function.”

Escobar gave birth to a healthy son and was transferred to Long Beach Memorial Medical Center where she was treated by Dr. Jennifer McNulty. Within a week, Escobar’s new physician was considering hemophagocytic lymphohistiocytosis (HLH), a rare immunodeficiency disease, as a diagnosis. Within days, Escobar began treatment for HLH. Escobar died on April 17, 2014. Her autopsy confirmed a diagnosis of HLH and a fungal infection throughout her body.

Superior Court

Two years after Escobar’s death, her husband and sons sued Dr. Qureshi for wrongful death. The lawsuit alleged that Dr. Qureshi’s failure to investigate Escobar’s HLH symptoms fell below the standard of care and led to her premature death.

The court dismissed the husband’s claims on the grounds that his case was time-barred. Dr. Qureshi then filed a motion for summary judgment against the remaining plaintiffs, arguing that they failed to prove causation. Dr. Qureshi claimed that Escobar’s symptoms did not meet the criteria for HLH while she was pregnant, therefore he could not have diagnosed her and given her treatment.

The plaintiffs submitted testimony from obstetrician-gynecologist Dr. Paul Sinkhorn, opining that if Dr. Quereshi had investigated Escobar’s symptoms while she was pregnant, it was more likely than not that she would have survived. The trial court did not admit Dr. Sinkhorn’s testimony because he did not have any experience treating patients with HLH. The court also decided that the testimonyt did not raise a triable issue of fact about causation because Dr. Sinkhorn did not opine that Escobar’s “chance of survival would have been greater than 50% if Defendants had acted differently.”

The trial court granted Dr. Qureshi’s motion for summary judgment.

California Court of Appeals

The plaintiffs appealed to the California Court of Appeals. On appeal, the Court of Appeals determined that the trial court abused its discretion by striking Dr. Sinkhorn’s testimony. The appeals court noted Dr. Sinkhorn’s more than thirty years of experience working as an obstetrician-gynecologist, the time he served as a professor at several local medical schools, and the time he spent reviewing Escobar’s medical records. The court determined that he was qualified to testify about whether the defendants’ acts or omissions caused Escobar’s death.

The Court of Appeals also stated that Dr. Sinkhorn’s declaration was sufficient to raise a triable issue of fact as to whether Escobar’s chance of survival would have been more than 50% if Dr. Qureshi had taken the proper steps to investigate her symptoms. The court reversed the summary judgment order.

 

Expert Witness

Experts Battle Over Legitimacy of Retrograde Extrapolation

Two toxicology experts are battling over the use of retrograde extrapolation in the trial of a former EMT who is on trial for vehicular homicide.

The Accident

On July 3, 2018, 37-year-old former EMT and Hamilton County reserve deputy Justin Whaley was driving the wrong way on Highway 111 in Tennessee. Whaley’s vehicle crashed into another car head-on. The crash claimed the life of James Brumlow, who was driving the other car.

The police and EMS arrived on the scene within minutes; however, Whaley’s blood draw was not conducted for four hours after the police arrived on the scene.

Investigators said that Whaley was driving in the early morning hours after a night of drinking with a friend. Whaley was arrested and charged with vehicular homicide, reckless driving, two counts of failure to yield, failure to maintain lane, speeding, failure to exercise due care, and driving under the influence.

The Extrapolation Controversy

Because the blood was taken from Whaley four hours after the incident, the state had to extrapolate the results of the test to determine what his blood alcohol level would have been at the time of the accident. Whaley’s defense attorney, Lee Davis, asked for the results of the blood draw to be suppressed, arguing that the extrapolation was unreliable.

Prosecutor Chris Post retained East Tennessee State University professor Kenneth Ferslew of the William L. Jenkins Forensic Center to explain why the blood draw results should be admitted.

Professor Ferslew explained that “the body begins breaking down and processing alcohol from the moment it enters the body, but that as a person drinks, the amount of alcohol being broken down is outpaced by the amount coming in. When people drink more, then that’s when their blood alcohol content goes up. But after alcohol is no longer consumed, then the blood alcohol level goes down in a linear fashion.”

Professor Ferslew testified that, based on the time that the blood was drawn, the Tennessee Bureau of Investigation was “99.73 percent confident by statistical analysis that blood [had] a 0.02 gram percent concentration in it.” Professor Ferslew told the judge that if the police had waited even 15 minutes longer to draw the blood, the results would have been unusable. However, Professor Ferslew testified that the blood taken from Whaley could appropriately be used to determine that he was intoxicated when the crash occurred.

Defense attorney Davis brought in his own toxicology expert to explain why extrapolating the blood draw results would be unreliable. Jimmie Valentine, Ph.D., holds a degree in medicinal chemistry from the University of Mississippi and served as a professor of pharmacology at the University of Arkansas College of Medicine for 19 years.

Dr. Valentine testified that “Using this retrograde extrapolation is just not very scientific at this juncture. It’s best used when you have multiple samples from different times, so you can be sure.” Dr. Valentine pointed out that in other states, two or three samples would be taken over the course of several hours.

Judge Steelman, who is presiding over the case, announced that he would take both experts’ testimony into consideration and would make a decision about what the jury will hear when the case goes to trial in September.

Pennsylvania Justice

Pennsylvania Supreme Court Considers Court’s Gatekeeper Role

The Pennsylvania Supreme Court has decided a product liability case that required it to reexamine the state’s standards for the admission of expert witness testimony.

Walsh’s Death

Thomas Walsh served as the groundskeeper and superintendent at several Pittsburgh area golf courses for almost 40 years. His work involved the regular application of pesticides. On October 5, 2008, Walsh was diagnosed with Acute Myelogenous Leukemia. On February 2, 2009, died. His oncologist, James Rossetti, D.O., opined that Walsh’s extensive exposure to pesticides raised a high degree of suspicion that the exposure played a significant role in the development of his AML.

Trial Court

Walsh’s executor initiated a wrongful death and survival action against the manufacturers of the various pesticides that Walsh had applied over his career. The lawsuit raised claims in strict products liability, negligence, and breach of warranty. The trial court granted summary judgment in favor of a large number of manufacturers based upon a lack of expert testimony identifying their pesticides as substantial contributing factors in Walsh’s death.

The remaining manufacturers filed Frye motions to exclude two of the executor’s expert witnesses, Nachman Brautbar, M.D, and April Zambelli-Weiner, Ph.D. The motions claimed that Drs. Brautbar and Zambelli-Weiner failed to apply methodologies generally accepted in the relevant scientific communities. Following a review of depositions and briefs filed by each party, the trial court granted the Frye motions. Following the trial court’s grant of the Frye motions, the parties stipulated to summary judgment in favor of all remaining defendants.

Superior Court

The executor appealed to the Superior Court. On appeal, the superior court reversed the trial court’s grant of the Frye motions. The court ruled that the expert opinions that pesticides in general could cause cancer in general were admissible under Pennsylvania’s Frye framework for evaluating expert testimony, and sufficient to preclude summary judgment as to the pesticide products of fourteen different manufacturers.

Pennsylvania Supreme Court

The defendants appealed to the Pennsylvania Supreme Court, asking it to review the following:

(1) Did the Superior Court majority commit reversible error in concluding that, when evaluating scientific evidence under the Frye standard, trial courts are not permitted to act as “gatekeepers” to ensure the relevance and reliability of scientific studies offered by experts to support their opinions by scrutinizing whether those studies actually support their opinions?

(2) Did the Superior Court majority commit reversible error in concluding that trial courts may not review experts’ opinions extrapolating from a broad class of products and injuries to a specific product and injury, thereby eliminating plaintiff’s burden to show product-specific causation of plaintiff’s specific injury?

(3) Did the Superior Court majority commit reversible error in concluding that the trial court erred without explaining how it abused its discretion because of manifest unreasonableness, partiality, prejudice, bias, ill-will or such lack of support from the evidence or the record so as to be clearly erroneous?

Addressing the first “gatekeeping” issue, the Pennsylvania Supreme Court affirmed the Superior Court’s decision, but did not give a clear ruling about the trial court’s role as gatekeepers. The court stated that “the trial court must be guided by scientists in the relevant field, including the experts retained by the parties in the case and any other evidence of general acceptance presented by the parties.”

For the second extrapolation issue, the Supreme Court ruled that the record did not show that the plaintiff’s experts used extrapolation in the way that the defendants claimed. It stated, “while both experts employed the Bradford Hill criteria to establish a causal link between cancer (or AML) and long-term exposure to pesticides, neither expert opined that this link wholly constituted product-specific causation between cancer and long-term exposure to the Appellants’ specific pesticide products.”

For the third abuse of discretion issue, the court ruled that it is an abuse of discretion for a trial judge “to make its own bald judgments about which studies relied upon by [an expert] were scientifically acceptable, relevant and/or supportive of [the expert’s] conclusions.”

The court then affirmed the order of the Superior Court and remanded the matter to trial court for the defendants to renew their Frye motions in line with the Supreme Court’s opinion.

 

Expert Witness typography

The Best Expert Witness Qualities According to Social Science Research

The National Law Review has published an overview of social science studies that seek to answer the question of “what makes your expert witness the best expert witness?”

Purpose of the Overview

The overview was authored by Clint Townson, Ph.D., who works as a jury consultant at an expert witness search firm. Townson explained that when evaluating a potential expert witness, examining his or her credentials and experience is only half of the analysis. Towson noted that, especially when an expert is offering testimony on a complex issue, jurors tend to rely on heuristics such as credibility when evaluating expert testimony. Townson then reviewed some of the social science research on credibility, including knowledge, trustworthiness, dynamism, and likability.

Knowledge

Expert witnesses are primarily called to testify because of their knowledge, which includes educational credentials, publications, and experience. According to a 2012 study published in the Journal of the American Academy of Psychiatry and the Law, knowledge is also a product of “clarity in explanations, moderate assertiveness, and familiarity with the intricacies of the case.”

A 2010 study published in Behavioral Sciences & the Law noted that the best way for experts to show their knowledge is to act as teachers for the jury. Experts should aim to be consistent and coherent in their explanations, exhibit reasonable confidence in their own opinions, and demonstrate case-specific knowledge in addition to their general knowledge on the topic.

Trustworthiness

Perceived trustworthiness is a critical factor in whether a juror decides to believe an expert witness’s testimony. Experts who are patient and considerate teachers are likely to be perceived as trustworthy.

Eye contact is also important. A 2008 study published in Criminal Justice and Behavior examined the effects of eye contact on credibility and found that the expert witness’s ability to maintain eye contact with the attorneys and jurors had an effect on those expert’s credibility ratings.

Additionally, a 2000 study published in Law and Human Behavior found that the amount of pay, frequency of testifying, and level of credentials influenced jurors’ perceptions of expert’s believability.

Dynamism

Dynamism or charisma also play a factor in an expert’s credibility. According to a 2006 study published in Law & Social Inquiry, an expert’s ability to endear himself or herself to the jury is important, especially in cases where experts are asked to testify on complex issues. This can be accomplished through the use of simple terms or metaphors, the use of demonstrative examples, and remaining patient and composed through cross examination. In cases where jurors understand very little of an expert’s testimony, an expert’s dynamism combined with a show of passion for and knowledge of the subject matter may be the deciding factor.

Likability

A 1976 study published in Psychology found that likability has been tied to perceptions of trustworthiness and credibility as a whole. Jurors evaluate the likability of witnesses based upon their friendliness, the level of respect that they show, their use of informal language, and nonverbal behaviors including eye contact and vocal inflection.

 

Expert Testimony Not Needed to Prove Hurricane Damage

The Eleventh Circuit Court of Appeals has overturned a district court and ruled that an expert witness is not required to prove hurricane damage in Georgia.

The Damage to the Church

In March 2016, Southern Mutual Southern Mutual Church Insurance Company issued an insurance policy to Greater Hall Temple Church of God in Brunswick, Georgia. The policy covered “direct physical loss to covered property” if the loss is “caused by a covered peril.” The policy did not cover losses caused by water or loss to the interior of buildings caused by rain, unless the rain enters through an opening made by a “specified peril.” The policy defined specified perils to include windstorms.

In October 2016, Hurricane Matthew hit Georgia. Following the hurricane, the roof of the Greater Hall Temple Church of God in Brunswick, Georgia was damaged. Greater Hall submitted a claim for $15 million in damages with its insurer, Southern Mutual.

Southern Mutual retained an independent field adjuster, Alan Taylor, to inspect the damages. Taylor determined that the damage to the church was not caused by wind; it was caused by pre-existing structural issues. Southern Mutual denied the claim.

District Court

Greater Hall filed a lawsuit against Southern Mutual in district court, arguing that Southern Mutual had violated the terms of the insurance agreement for failing to pay for its claims.

Greater Hall retained three experts to testify on its behalf: John Kern, Shawn Brown, and Alfred Teston. The court refused to allow each of these witnesses to present expert testimony. One proposed expert was a civil engineer who had little experience with the type of metal roof that had been installed on the church. Another proposed expert had put in a bid to repair the roof damage, but had little knowledge about the roof’s prior condition and no experience in determining the causes of roof damage. The third expert was a contractor who had installed the roof, but the church did not disclose the subject of his testimony until after the discovery deadline.

Southern Mutual presented experts who testified that the water damage to the interior of the church was caused by “improper flashing” that diverted rainfall through the building’s HVAC system. They also presented evidence that the church’s roof had leaked prior to the hurricane.

Southern Mutual filed a motion for summary judgment and the district court granted it. Greater Hall appealed.

Eleventh Circuit

On appeal, the Eleventh Circuit agreed with the district court’s decision not to admit the proposed expert testimony of Kern and Brown because neither had the requisite experience or had used a sufficiently reliable methodology to formulate their opinions. The court of appeals also agreed that the district court had not erred by excluding Teston’s expert testimony for untimeliness.

However, the Eleventh Circuit disagreed with the district court’s decision to grant summary judgment in the insurer’s favor. The district court had granted summary judgment because “proving causation requires expert testimony,” all of Greater Hall’s expert testimony had been excluded, and Greater Hall could not rebut Southern Mutual’s expert report that suggested the damage to the building was caused by poor workmanship.

The Eleventh Circuit ruled that, under Georgia law, expert testimony is not necessarily required to prove causation in an insurance contract — a plaintiff may satisfy its burden with lay testimony. Accordingly, the court ruled that Greater Hall’s case survived summary judgment because it was possible for a reasonable jury to find in its favor.

Photo by NASA on Unsplash

Fire

Appeals Court Rules Firefighter and Electrician Qualifies as Expert

The Third Circuit Court of Appeals has ruled that a veteran firefighter, licensed master electrician, and forensic expert were qualified to give expert testimony about a Pennsylvania shopping center fire.

The Fire

On December 17, 2012, a fire broke out at Natrona Heights Shopping Plaza in Harrison, Pennsylvania. The fire began at around 9:40 pm and destroyed or damaged twelve businesses. It took almost 300 volunteer firefighters from thirty companies to contain the damage.

James Tanda, the agent in charge of the Pittsburgh office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, estimated that the fire caused “in excess of $10 million” in damages.

The Natrona Heights Shopping Plaza was insured by Seneca Insurance Company, and Seneca paid for the losses resulting from the fire. An investigation revealed that Mark Beal and his company, Mark’s Maintenance and Repair, may have caused the fire when removing a neon sign from the facade of the building. Seneca sued Beal for damages.

The Trial

At trial, Seneca retained three experts to testify on its behalf. The experts were Dennis Brew, an expert in installing and removing neon signs; Gerald Kufta, a private investigator specializing in fires; and Samuel Sero, a forensic engineer. Beal retained Ralph Dolence, a firefighter, fire officer, licensed master electrician, and forensic expert.

Seneca Insurance requested that the Beal’s expert, Ralph Dolence, be disqualified, arguing that his testimony was “speculative and lacked foundation.” The district court denied the motion.

A jury found Beal negligent in removing the sign, but that his acts or omissions did not cause the fire. Seneca filed a motion for a judgment notwithstanding the verdict or a motion for a new trial. The district court denied the motion. Seneca appealed.

The Appeal

On appeal, Seneca argued that the district court erred by allowing Ralph Dolence to testify as an expert. The Third Circuit reviewed the district court’s decision for an abuse of discretion.

In the Third Circuit, an expert’s testimony is admissible if their “methodology and reasoning are sufficiently reliable to allow the fact finder to consider the expert’s opinion.” The Third Circuit determined that Dolence was qualified as an expert witness “because of his knowledge from years of professional experience, which included over 30 years as a fire investigator and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified forensic expert in 30 states, had served on arson task forces, investigated over 12,000 fires, and taught hundreds of classes on fire causes and origin investigations.”

The court additionally noted that Dolence’s testimony was “based on, among other things, his personal observations and review of materials from the fire investigation. The foundation of his opinion was an examination of several hundred photographs, videos, and other documentation provided by the township, fire marshal, and individuals who were at the scene of the fire. He also analyzed depositions, documents, and reports provided by appellant’s experts and attended a joint evidence examination with Gerald Kufta and several other experts.”

The court determined that Dolence “ultimately testified that the cause of the fire was ‘undetermined’ because the fire investigation was improper and other causes were not ruled out.” The Third Circuit affirmed the district court’s verdict.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida State Attorney Releases “Brady Alert List”

Orange-Osceola, Florida State Attorney Aramis Ayala has released a new database that identifies experts that have credibility issues. This database is called the “Brady Alert List.”

Ayala created this database to have a centralized list of witnesses who appear in court on a recurring basis and who have engaged in criminal behavior, misconduct, or dishonesty.

Brady Committee

Ayala initially announced her plans to create this database in July 2019. With the database came the creation of a Brady Committee to evaluate witness credibility. The Brady Committee is comprised of the director of conviction integrity, the chief investigator, two felony bureau chiefs, and the chief assistant state attorney.

The Brady Committee is tasked with reviewing information about witnesses and determined whether witnesses should be cleared, placed on a Brady Alert List, or placed on a Brady exclusion, or “Last Resort” list.

If a witness is listed on the Brady alert list, the prosecutors will be notified. It will be up to the prosecutors whether to proceed with caution or obtain permission if they choose to call that person as a witness. If a witness is on the Brady exclusion list, he or she is not permitted to testify as a state witness.

In explaining her reasoning for creating the Brady Alert List, Ayala explained, “My office processes hundreds of thousands of criminal cases every year, and in many instances, prosecutions rely solely on the honest and credible testimony of law enforcement and other personnel who either witness or investigate crimes.”

Ayala gave the example of a recurring state expert witness who was later found to have questionable credentials. A former fingerprint examiner had documented performance issues relating to failing to identify prints of value, questionable findings, and mislabeling of print cards. This issue was not discovered for two years. The 2,500 cases that involved this expert are currently under review.

Review Process

The Brady Committee has been meeting monthly since June 2019 to determine who should be on the list. The committee initiates a review of a law enforcement officer or expert witness when that person is relieved of duty, under investigation for criminal conduct, or accused of any other misconduct. Once someone is added to the database, their place of employment is notified.

The Fraternal Order of Police has raised concerns about the Brady Committee and its process. The Order has suggested that the committee should have members outside of the state attorney’s office on it, that it publish its criteria, and that due process be provided for the people placed on the list. The organization’s concern may be related to the fact that prosecutors so often rely on law enforcement officers with dubious credentials as expert witnesses.

Initial Release

The newly released list includes 38 law enforcement officers, confidential informants, and forensic experts. This first iteration of the list is only a Brady Alert List. None of the names were listed on a Brady Last Resort List.

Ayala said that she believed that some of the names listed on the initial Brady Alert List should have instead been on a Last Resort list, but that she decided not to immediately publish a Last Resort list when the Orlando Police Department Chief Orlando Rolon told her that anyone that was placed on this list would not be able to function at the agency, but would still have to be paid.

 

No Expert Needed for Improper Morphine Injection Claim in Nevada

The Nevada Supreme Court has ruled that the “common knowledge” exception to the affidavit requirement for professional negligence claims against a health care provider can be applied to determine whether a claim constituted negligence.

The Accidental Death

Mary Curtis was a resident at Life Care Center of Las Vegas nursing home. Life Care Center was contracted to administer the professional services necessary to maintain Curtis’s physical and mental health.

While Curtis was under Life Care Center’s care, licensed nurse Ersheila Dawson mistakenly administered to Curtis 120 milligrams of morphine that had been intended for another patient. Nurse Dawson soon realized her mistake and reported it to her supervisor. Under physician’s orders, Life Care Center administered Narcan, another drug, to Curtis to counteract the morphine. Life Care Center decided not to send Curtis to the hospital at this time; instead, it monitored her vital signs.

The following day, Curtis’s daughter, Laura Latrenta, came to Life Care Center to check on her mother. Latrenta found her unresponsive. Curtis was taken to the hospital, where she passed away two days later. Curtis’s death certificate lists morphine intoxication as the cause of death.

The Negligence Suit

Latrenta sued Life Care Center as Curtis’s heir and the representative of the estate. The estate brought claims against Life Care Center: abuse and neglect of an older person, wrongful death, and tortious breach of the implied covenant of good faith and fair dealing. The estate did not assert claims for professional negligence, name Nurse Dawson as a defendant, or file an expert affidavit.

Life Care Center filed a motion for summary judgment, arguing that although the estate hadn’t specifically asserted professional negligence claims, that was the essence of the claims. Under Nevada law, any lawsuit for professional negligence must be filed along with an affidavit that supports the allegations in the action, is submitted by a medical expert who practices or practiced in that area, identifies the negligent defendant by name, and specifically sets forth the specific acts or acts of negligence. Nev. Rev. Stat. 41A.071

The district court agreed with Life Care Center’s characterization of the claims as sounding in professional negligence. Because the estate had failed to file a supporting medical expert affidavit, the district court dismissed the case. The estate appealed.

The Nevada Supreme Court

On appeal, the estate argued that it was excused from complying with NRS 41A.071 because its claims against Life Care Center were for ordinary and not professional negligence or that the common knowledge exception applied. Therefore, an expert affidavit was not required.

The Nevada Supreme Court determined that the estate’s complaint was based on two underlying allegations: (1) that Nurse Dawson administered morphine to Curtis that had been prescribed for another patient, and (2) Life Care Center failed to properly monitor and care for Curtis.

The court ruled that the second claim was based on professional negligence, but that that the first claim was a claim for ordinary negligence. The court reasoned that there was no professional judgment in administering the morphine; the nurse had simply given Curtis the wrong drug. The court ruled that the act of administering another patient’s morphine to Curtis was an ordinary negligence claim and therefore the estate was not required to submit an expert affidavit to pursue a negligence claim for this act. This could also be characterized as the “common knowledge” exception to the rule that an expert witness is required to prove professional negligence.

 

Georgia

Georgia Court Says No Conflict in Same Firm Expert Affidavit

The Georgia Court of Appeals has ruled that there is no conflict of interest in using an expert affidavit supporting a complaint written by an attorney who is also a law partner of the filing attorney.

The Personal Injury Case

Plaintiff David Mitchell retained attorney Randall Cade Parian of Parrian Injury Law, LLC to represent him in a personal injury action. Without informing Mitchell, Parian referred the case to Brian Wesley Craig of Craig & Avery, LLC. Attorney Craig filed a personal injury action on Mitchell’s behalf in Fulton County State Court.

Mitchell contacted Parian numerous times in the two years after retaining them. Parian told Mitchell that the case was “chugging along” and never informed him that the case was actually being handled by another law firm.

The defendants in the personal injury case set a deposition for Mitchell and notified Craig, but neither Parian nor Craig notified Mitchell of the deposition. The defendants filed a motion to compel and a motion for sanction, but neither Craig nor Parian contacted Mitchell. As a result of the motions, Mitchell’s case was dismissed with prejudice.

When Mitchell learned of the dismissal, he reviewed the complaint that Craig had filed on his behalf. Mitchell saw that the allegations had little resemblance to the facts of his case, leading him to conclude that Craig had simply used a complaint his firm had filed in a different case and substituted Mitchell as the plaintiff.

The Malpractice Action

Mitchell retained attorney William Ney to represent him in a legal malpractice action against Parian and Craig. Ney filed a complaint that was supported by the affidavit of Jacob Rhein, an attorney who is licensed to practice law in Georgia. In his affidavit, Rhein indicated that he was familiar with the standard of care for Georgia attorneys and that it was his opinion that Parian and Craig had breached that standard of care. The day after Rhein executed his affidavit, he and Ney formed a law firm together, Ney Rhein, LLC.

Parian and Craig filed a motion to dismiss, arguing that because Rhein was a member of Ney’s law firm, he was not competent to provide the affidavit that was required to support a legal malpractice action. Following a hearing, the trial court granted the motion to dismiss. The court ruled that there was “an inherent conflict between Rhein making the affidavit as a witness and being a member of the law firm” that represented Mitchell.

The Appeal

Mitchell appealed the trial court’s ruling. On appeal, the Georgia Court of Appeals, First Division, looked to the language of the statutory requirement. OCGA § 9-11-9.1 provides, in relevant part, that to assert a claim for legal malpractice, the plaintiff is “required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such Claim.”

The Georgia Court of Appeals found that Rhein met the statutory requirements for an expert witness as set forth in OCGA § 24-7-702. The court further found that Rhein’s status as Ney’s law partner affected Rhein’s qualifications as an expert witness. Presiding Judge Anne Elizabeth Barnes authored the opinion with the concurrence of Judges Elizabeth Gobeil and John Pipkin III.

Attorney for the plaintiff William Ney said of the ruling, “It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other’s clients and still comply with [the statute].” Whether a member of the firm could testify at trial, as opposed to filing a pretrial affidavit attesting to the claim’s legal merit, was not a question the court needed to answer.

 

PAM Spray Defect Case Tossed Out for Lack of Admissible Expert Evidence

The Eastern District of New York has dismissed claims against the makers of PAM cooking spray after the plaintiffs failed to present admissible expert witness testimony.

The Incident

In August 2016, Lucita Arena was in her kitchen preparing dinner when a nearby can of PAM cooking spray exploded and injured her. Lucita and her husband Jose Urena sued ConAgra Goods, Inc. and DS Containers, Inc., the makers of PAM and its container. The couple alleged design defect, failure to warn, and loss of consortium.

The type of PAM canister that exploded has four U-shaped score lines that are designed to open when the pressure inside the can rises to a particular level. The can features warnings including, “USE ONLY AS DIRECTED. FLAMMABLE. DO NOT SPRAY ON HEATED SURFACES OR NEAR OPEN FLAME … CAN MAY BURST IF LEFT ON STOVE OR NEAR HEAT SOURCE.” The canister that injured Lucita Arena was discarded by her attorney’s custodial staff after it was left in a conference room before experts had the opportunity to examine it.

The Design Expert

Plaintiffs retained Dr. Lester Hendrickson, Ph.D., as a design expert to help them prove their theory of causation. Dr. Hendrickson had a Ph.D. in metallurgical engineering and serves as a professor emeritus at Arizona State University. He has authored more than 1,000 technical reports as an expert witness. Dr. Hendrickson planned to testify that “absent the vents in this can, the circumstances under which” the plaintiff “was burned would not have occurred.”

The defendants objected to the design expert and the district court decided to exclude him. The court ruled that Dr. Hendrickson did not satisfy Daubert because he had failed to explain how the alternative design that he proposed would be safer. The court also found that Dr. Hendrickson’s opinion failed to satisfy Daubert’s criteria for reliability because he had criticized the PAM canister’s propellant, but had not proposed a safer proponent, nor tested any. Further, his proposal had never been subjected to peer review or publication. Therefore, the court found that Dr. Hendrickson had failed to show general acceptance of his design or methodology.

The defendants filed a motion for summary judgment. The defendants argued that the plaintiff’s design defect failed because they had not offered admissible evidence that the design of the PAM canister and not a manufacturing defect had caused the plaintiff’s injuries. The plaintiffs had also failed to offer admissible evidence from an expert regarding a defect or a feasible alternative design. The court agreed with the defendants.

The court also ruled that the plaintiffs’ failure to warn claim did not raise any triable questions of fact because they could not show that any inadequacy of the warnings was the proximate cause of the plaintiff’s harm. The court ruled that the plaintiff’s theory that the warnings were inadequate for failure to warn about the canister’s vent design failed because they could not show that the absence of the warning was the cause of the plaintiff’s injuries.