April 2009 Archives

Heart expert Dr. Charles Swerdlowfor has told a public inquiry into Robert Dziekanski's death that he doesn't think the stun gun contributed to the man's death.  Dziekanski died in October 2007 after four RCMP officers confronted him at Vancouver's airport and stunned him several times with a Taser.  The expert, a heart specialist who sits on Taser International's medical advisory board, says he doesn't believe the death is at all related to the Taser.  MetroNewsca Vancouver reports:

Swerdlow says if electric current causes an irregular heartbeat, such as ventricular fibrillation, it would happen immediately.  He notes that an airport security guard testified he checked Dziekanski's pulse three times before firefighters arrived, and he had a pulse each time. An autopsy concluded Dziekanski died of sudden death following restraint.

From InjuryBoard.com:

The insurance company for the doctor or hospital who’s at fault in causing your injury will not simply pay you the money because they feel sorry for having done you harm. The insurance company will fight you every step of the way and typically not voluntarily settle a case until your attorney has shown all of his cards including what (medical) experts he has managed to arrange to support the claim. In addition to the difficulty of finding these experts, there’s also the question of paying the expenses of the experts for their time. These costs start off in the $5,000.00 and $10,000.00 range just for an initial review. By the time a North Carolina medical malpractice case is resolved by jury verdict or settlement at mediation, it has typically taken $20,000.00, $50,000.00 or even $100,000.00 of out‑of‑pocket expense to prove the validity of the claim. So, unless you are in a position to pay this money yourself which most clients are not, then you have to have an attorney and a law firm who has the financial clout to invest in your case to get something done for you. Another thing which separates the experienced medical malpractice lawyers in North Carolina from those who just dabble or advertise for such cases is the willingness to shell out the significant dollars as client cost advance to pursue the case. Thus, you really must have experienced counsel who knows and routinely does medical malpractice in order to successfully get compensation for a botched surgery, a missed diagnosis, an improper administration of medication, or other injury which does happen in the health care system.

From InjuryBoard.com:

The law of North Carolina (NC) that governs lawsuits against doctors, hospitals, nurses or other health care providers requires certification before you can go to court that an expert in the appropriate field of medicine has reviewed the case and has agreed that the doctor in question violated the applicable standard of care in their treatment of the patient. This law which requires that you have the appropriate medical expert before going to court makes it important to get the best injury attorney that you can to handle your North Carolina medical malpractice case. The top injury lawyers who focus on medical negligence have access to appropriate doctors to prove their cases. Even if the patient has suffered a serious injury or even death because of an error by a health care provider, it can be very difficult to find another doctor who is willing to stand up and testify under oath that the first doctor messed up. If you have a catastrophic and permanent injury as a result of the doctor or hospital’s mistake in North Carolina, you need to have an experienced attorney on your side who is in a position to find the highly qualified doctors in the right specialty to prove your case. Without the right expert, you cannot hope to win these complex and hard fought cases.

USA Today reported Thursday that thousands of laid-off workers might not qualify for federal COBRA subsidies offered under the federal economic stimulus package because they worked for a small company that doesn’t provide the coverage or their former employer has gone out of business....

Though they are limited, there are options if you do not qualify for federal COBRA, says health insurance expert Nancy Metcalf. The federal subsidy also applies to state COBRA expansion programs that extend coverage to employees in firms with fewer than 20 workers, to whom the federal COBRA law doesn’t apply. But only 39 states have these programs, which may vary duration, restrictions, and eligibility from the coverage provided to workers under the federal law. Families with children who have lost jobs and do not have access to COBRA should immediately contact their local Medicaid agency to find out whether their children are eligible for their state’s Children’s Health Insurance Program. In some states you can earn up to 300% the Federal Poverty Level, or a bit more than $60,000 a year, and still be eligible. And in most states, families who apply for CHIP are automatically evaluated to see if they are eligible for family Medicaid coverage. Eligibility standards vary widely by state and are different for working and jobless parents.

Excerpted from ConsumerReportsHealth.org.

USA Today reported Thursday that thousands of laid-off workers might not qualify for federal COBRA subsidies offered under the federal economic stimulus package because they worked for a small company that doesn’t provide the coverage or their former employer has gone out of business.  Under the federal stimulus package, the government will subsidize 65 percent of the total COBRA premium, for up to nine months, for people who are involuntarily laid off from their jobs or have their hours reduced to the point that they no longer qualify for benefits. (The subsidy also applies to family members covered under an employee’s group plan.)

The White House estimates more than 7 million unemployed workers will qualify.  So, why are thousands being left out in the cold—without coverage?  According to Nancy Metcalf, a health insurance expert at Consumer Reports, one reason is practicality: it was lot easier to temporarily subsidize COBRA than to restructure and subsidize the flawed individual insurance market.

For more, see ConsumerReportsHealth.org. 

Madison County, NJ,  jurors heard medical expert testimony from Dr. Aaron Chevinsky in the first day of the wrongful death suit against Dr. Jose A. Diaz Jr.  Diaz is being sued by plaintiff Russell Darbon, 44, in the death of his former wife, 43-year old Virginia Gettys.  The suit alleges Diaz failed to perform necessary tests on Gettys when she was admitted to St. Joseph's Hospital in Highland in January 2004. Gettys, who complained of abdominal pain two days after a colonoscopy, died three days after being taken to the Highland emergency room.

An autopsy showed that Gettys died of sepsis stemming from a severe kidney infection. Expert Chevinsky testified that, although Gettys' symptoms had presented in an unusual way, there were enough signs pointing to the kidney infection to necessitate further tests before surgery.

Excerpted from MadisonRecord.com.

The Libby Montana W.R. Grace & Co. environmental trial is in its eighth week with testimony from a government witness that described the imminent risk of asbestos exposure to Libby residents. Expert Richard Lemen said the mineral’s needle-like fibers build in a person’s lungs over time and that the more asbestos one inhales over time, the more they are pushed toward disease.  WesternNews.com reports:

“Asbestos-related disease is dose response related … that is, the higher the exposure, the higher the risk of getting a disease,” Lemen said. “The risk is how much a person takes into their body, as their body accumulates these indestructible fibers, that’s when we see disease.”  Lemen was allowed to testify Monday only as an expert epidemiologist after Judge Donald Molloy ruled that the prosecution could not also offer him as an expert industrial hygienist because they did not previously disclose him as one. Lemen served in the U.S. Army assessing health issues before going on to a decorated career in the Public Health Service, reaching the highest non-politically appointed position in the agency.

The Insurance Research Council has found that an alarming number of drivers are dropping auto insurance coverage to save money in the recession. The council believes the numbers will increase from one in every ten motorists to one in six by next year.

Premiums are far higher for drivers who have been uninsured than they are for insured motorists seeking a new policy.  "When the time comes and they want to get coverage back in force, it forces the insurance company to look at them as though they are an uninsured driver and that is very illegal in the state of Indiana," said insurance expert Stephen Nealon of State Farm Insurance.

Excerpted from WISHTV.com.

Environmental expert Jay Exum testified last week that pulling as much water as Niagara Bottling proposes to do in south Lake County, FL, could reduce the size of the area's wetlands over the long term.  Exum was called as an expert for Groveland during an administrative hearing into the city's challenge of a water permit for the California-based bottler.  OrlandoSentinel.com reports:

Niagara is applying for a permit from the St. Johns River Water Management District to draw as much as 484,000 gallons a day, bottle the water and then sell it. Groveland is fighting the request, saying it is not in the public interest.

Groveland called Charles Drake, an Orlando geology expert, to testify about the possible impact of Niagara pulling water from the aquifer.  Drake said Niagara's permit would diminish groundwater resources -- wetlands and lakes. But under cross examination by Niagara he agreed that the drawdown could be as minimal as 1.2 inches.

In The Effect of Winter Rains on the Stability of Slopes, geology expert Joshua Feffer, R.G., C.E.G. writes a primer on the general types and causes of slope failures and the role that geologist’s provide as investigative consultants.

Shallow Failures

Shallow or surficial failures are the most common type and are commonly called mudflow or erosion failures. Shallow failures occur when the upper few feet of fill or “colluvial” soil on a slope becomes saturated; that is, the internal pore spaces within the soil are filled with water. This weakens the internal strength of the soil and may cause the soil to behave more like a liquid than a solid causing the soil to “flow”. Most commonly, these types of failures occur on steep slopes, slopes that have sparse vegetation, or in areas that have a concentrated flow of water.

Downhill homeowners tend to bear the brunt of these failures when the soil and debris flow onto their properties and often into their homes resulting in substantial property loss and potential injury. These failures can be caused by triggering events such as broken pipes, poor drainage from upper properties, and from construction defects such as slopes that were built too steeply or inoperative or poorly maintained drain lines.

In The Effect of Winter Rains on the Stability of Slopes, geology expert Joshua Feffer, R.G., C.E.G. writes a primer on the general types and causes of slope failures and the role that geologist’s provide as investigative consultants.

Types Of Slopes

Slopes vary in shape (mainly steepness), origin of the underlying soil (fill, cut, natural), and type of geology or soil (clay, sand, bedrock). As a general statement, the steeper and higher the slope and the weaker the soil or bedrock, the more prone the slope is to failure.

Slope Gradient

Slopes vary in their steepness. Most current fill and cut slopes (manufactured slopes) are graded to have a 2:1 (horizontal to vertical) gradient; that means for every one foot up, the slope extends 2 feet out. Steeper slopes were either constructed before about 1985 or are natural slopes that have not been graded. A natural slope can be near vertical. Many older graded slopes were built to a gradient of 1.5:1.

Jerry Johns, President of Southwestern Insurance Information Services in Austin says  Oklahoma’s insured property losses from last week’s wildfires could reach $20 million. The insurance expert said property owners have been somewhat slow to file claims but experts are expecting those claims to be “catastrophic and huge.” Johns said a better estimate of insured losses would be available within a week, but “it won’t be significantly lower than $20 million.”

The state Insurance Department declared an emergency after fires claimed more than 100 homes, clearing the way for insurance companies to bring in out-of-state adjusters to handle the workload with temporary state licensing.

Excerpted from TulsaWorld.com.

The 2005 Chippewa High School band bus crash will go to a Chippewa County Circuit Court jury trial in May.  In October 2005 Michael Kozlowski overturned his semi, blocking both lanes of I-94 north of Osseo and the bus struck the semi. The defense maintains 78-year-old bus driver Paul Rasmus should have seen the overturned truck and been able to stop in time.  Rasmus, band director Doug Greenhalgh, his wife Therese, their granddaughter Morgan, and student teacher Branden Atherton were killed.

The defense relied on the testimony of an accident reconstruction expert in Kozlowski’s acquittal of criminal negligence but that expert has since died.  An accident reconstruction done in the days immediately following the crash by state and national investigators will likely be included in the civil trial.

For more, see TheChippewaHerald.com.

Vasilios Manousiouthakis, a professor of chemical and biomolecular engineering at the UCLA Henry Samueli School of Engineering and Applied Science, has been awarded $2.1 million in grant funding to build a state-of-the-art hydrogen fueling station on the UCLA campus.  A $1.7 million grant from the California Air Resources Board (CARB) and a $400,000 grant from the state's Mobile Source Air Pollution Reduction Review Committee (MSRC) will go toward the construction of one of the largest hydrogen fueling stations in California, with a capacity to produce 140 kilograms of hydrogen a day for use in hydrogen-powered vehicles...

Major energy providers and automotive manufacturers view hydrogen-powered fuel-cell vehicles as the most sustainable mobility solution in the long term. Manousiouthakis, a systems engineering expert who focuses on the development of novel hydrogen production methods, believes that hydrogen production based on the reforming of natural gas - a process that involves the endothermic transformation of natural gas and water into hydrogen and carbon dioxide - is the most economical route for hydrogen production today.

Excerpted from ImperialValleyNews.com.

InjuryBoard.com on medical malpractice experts and ethics complaints:

Despite the importance and accepted use of expert testimony in medical malpractice actions, there appears to be a growing trend of national medical associations creating ethics complaint procedures meant to scrutinize experts' testimony. An article in Lawyers USA reported that plaintiff's experts feel they are being singled out and the growing number of ethics complaints may have the "chilling effect" of reducing the number of experts willing to testify in malpractice cases. In response to ethics complaints, some medical experts are filing lawsuits alleging witness intimidation, defamation, and interference with business contracts. According to John Vail, the plaintiff's attorney in a recent defamation case, doctors receive very little money for testifying as an expert witness but could be subject to upwards of $50,000 in costs to defend an ethics complaint. Some doctors, such as Vail's client, Dr. Charles Yancey, are fighting back and are winning.

Posted by Steve Klearman at InjuryBoard.com.

Shares of large U.S. life insurance companies initially surged Wednesday following news they may receive aid from the government's $700 billion financial industry rescue program. But the Treasury Department said only life insurers that own banks or saving and loans qualify for assistance, and that no new programs for the industry were being considered.

If every life insurer holding a federally chartered bank does get aid, that could remove "conceivably all" of the mounting uncertainty in the industry, said Robert Litan, an economist and senior fellow at the Brookings Institution.

It also should resolve industry fears about "bank run" scenarios in which the companies don't have the ready cash to pay out policies for people who have lost confidence in the system, Litan said.   But other experts warn that instability in the passed-over companies could endanger the industry - a staple of consumer confidence and security - and pose grave threats to the broader financial system.

"It is fairly likely ... that we will see a few major life insurers that don't qualify for aid either fail or enter state receivership," said Kent Smetters, an insurance expert and professor at the University of Pennsylvania's Wharton School.

Excerpted from BismarckTribune.com.
      

Springfield aldermen have hired appraisal expert Charles Randy Johnson for up to $30,000 for “expert advice and testimony” in the trial of developer David Maulding.  The trial will determine how much the city of Springfield must pay the developer for breaking an agreement to subsidize a west-side warehouse development.  Maulding says that when Springfield aldermen failed to approve his plan to build warehouses near Interstate 72 in late 2003, the city breached an agreement to give him federal community development block grant money and caused construction delays that cost him millions of dollars.

Maulding has said the city’s actions cost him more than $18 million, but the amount the city owes will be determined by Sangamon County Circuit Judge Patrick Kelley.

Excerpted from The State Journal Register.

The Arizona Supreme Court in March upheld the constitutionality of a 2005 law establishing minimum qualifications for medical liability experts.  Amednews.com reports:

The high court rejected arguments from the state trial bar that it was up to the courts -- not lawmakers -- to set rules governing expert witness testimony and that the statute violated the separation of powers between the legislature and the judiciary.

Instead, justices in a 4-1 opinion found that the expert requirements were not merely a procedural matter pertaining to how judges conduct trials -- an area traditionally left to the courts. Rather, the expert qualifications formed a "substantive component" of establishing proof in a medical liability claim in the first place -- an area the legislature was free to address, the court said.  Because Arizona's constitution prohibits any type of cap on damages in liability cases, "this is a very important decision for us," said Chic Older, Arizona Medical Assn. executive vice president.

Jury selection begins today in the trial of a former volunteer firefighter accused of starting a fire that killed a mother and her three children in 2005. Frederick Anthony Robinson, 54, may face  the death penalty for setting the fire that killed a longtime friend of his, Crystal Johnson, 40, and her three children.  A judge on Friday denied the defense attorneys request for a delay in order for them to seek a new arson expert witness.  The judge also declined to allow testimony by an expert witness on false confessions.

A state trooper testified in 2005 that Robinson acknowledged setting the fire and said voices in his head told him to do it. 

Information from: Pittsburgh Tribune-Review, http://pghtrib.com

David Tuffin helps lead the expert witness team for the building consultancy firm Tuffin Ferraby Taylor and authored In my expert opinion: How to pick an expert witness:

Cross-examination

Whether on the stand or around a negotiating table, an expert witness’ testimonial will come under close scrutiny and the witnesses will be cross-examined on their reports. You need to be confident that your expert can withstand this process and has the nerve to stand by their findings and coherently explain the reasoning behind each factor.

Specific expertise

Ask yourself: “Just how much of an expert is my expert?” Most disputes occur over a very specific point and it is therefore to your advantage to find an expert who has a specialist understanding of the issues involved. If, for example, dealing with a building defect on a shopping centre, look for someone who not only has surveying experience in working with defects with the same building material, but who also has practical experience in the retail market so that they can show an understanding of the building in its correct context.

The fact is that the greater the knowledge of your witness, the stronger their testimony will be. The opposing party will more than likely have its own expert, so it is important that your witness can provide a watertight argument backed up by an authority on the subject.

More to come from: http://www.building.co.uk/.

An Akron 9th District Court of Appeals panel has ruled that visiting Common Pleas Judge Ted Schneiderman overstepped his bounds by ordering the medical examiner to remove specific language from the autopsy and death certificate of jail inmate Mark D. McCullaugh Jr.  McCullaugh, 28, died Aug. 20, 2006, after what Summit County sheriff's records described as a ''violent struggle'' with deputies in his cell in the jail's mental-health unit.

The medical examiner, Lisa J. Kohler, ruled in October 2006 that McCullaugh's death was a homicide caused by asphyxia from multiple blunt-force blows and the ''combined effects of chemical, mechanical and electrical restraint.''  Medical expert witnesses said the stun gun ''did not contribute in any way'' to the death of McCullaugh.  Wednesday’s decision was a victory for Taser International Inc. because the court ruled that Schneiderman was not wrong in ordering Kohler to remove specific Taser references from McCullaugh's autopsy and death certificate.

Excerpted from Ohio.com.

As the economic crisis deepens, it has become clear that AIG's problems extend across its massive life insurance and retirement services operations, which reported an $18-billion quarterly loss this month.  InsuranceNewsNet.com writes:

So far, some of the biggest companies have suffered sharp drops in their stock prices, and many of them are asking for federal assistance. Industry conditions last year were the worst in memory and are expected to grow deeper this year amid credit rating downgrades, declining revenue and investment losses, according to credit rating firm A.M. Best Co.  The worst-case scenario is that a second financial crisis is looming if these life insurance companies come under too much stress.

"It was essentially a house of cards at AIG," said Donn Vickrey, a forensic accountant and co-founder of Gradient Analytics in Scottsdale, Ariz. "I would characterize other life insurers as suffering varying degrees of risk."