January 2010 Archives

The testimony of New Jersey state-hired psychiatrist Dr. Daniel Greenfield was postponed this week after poor weather and a last-minute motion by the defense combined to push back his planned testimony.  The psychiatry expert will testify Feb.10th in the trial of a drunken driver accused of killing two teenage girls in Kinnelon, NJ.  Eugene Baum, Jr., is accused of running down cousins Mayada and Athear Jafar on April 20, 2006, and faces two counts each of aggravated manslaughter and death by auto. Baum’s BAC level at the time of the crash was found to be .305, nearly four times the limit that a driver is considered legally intoxicated.  Greenfield's report, which the prosecution planned to use to educate the jury about the physiological effects of alcohol, includes graphs and tables representing the relative probability of motor vehicle accidents caused by rising blood alcohol content levels.

For more, see dailyrecord.com.

Jennifer King will argue over the next several weeks to keep her third-grade son, Christopher, who has Down syndrome, included in a regular classroom for the entire school day.  The  special education hearing will take place in West Shore School District, PA.  King believes there are more ways to modify her son’s curriculum within a mainstream classroom and that doing so gives him a better chance of success after schooling. “It is almost inevitable that the expectations drop when the child is moved to a special education classroom,” King said. “My son’s capability could be far, far greater than anybody can imagine right now. I’m careful not to limit what the possibilities would be for him.”

Perry Zirkel, an education and law professor at Lehigh University and a special education expert, said due process hearings have increased nationally over the last two decades, a trend mirrored in Pennsylvania. He said the state ranks among the 10 most litigious in the nation in special education. King will argue to keep her son included in a regular classroom for the entire school day. The district wants to put him in a special education class for two subjects each day.

Parents routinely spend several thousand dollars on attorney’s fees and expert witnesses for a due process hearing that usually spans several days over the course of weeks. Districts can spend as much or more per case for attorneys to review and draft documents, prepare witnesses and see the disagreement through the legal proceeding.

For more, see pennlive.com.

Last Thursday, US District Judge Timothy M. Burgess issued an order for Avis Budget Car Rental LLC to pay Alaska Rent A Car $16 million in damages, following a jury verdict last October. Robert C. Halcro, a 54-year veteran franchisee, started his car rental business in 1955 in Valdez, Alaska.  His legal battle began in 2002 when Cendant Corporation, then parent to the Avis car rental franchisor, acquired and continued to operate competitor Budget Rent A Car. He alleged that the acquisition violated all three of his franchise agreements.

Judge Burgess said of franchise expert witness testimony "The court, having heard the testimony and the evidence presented at trial, independently finds that there was sufficient evidence to support the jury’s verdict.” 

For more, see bluemaumau.org.

CSX Transportation's appeal in a case alleging a Pittsburgh law firm conspired with a radiologist to fabricate an asbestos exposure claim is drawing attention from tort reform groups and asbestos expert witnesses.

Several organizations, including the West Virginia Chamber of Commerce and the American Tort Reform Foundation, are supporting the appeal of CSX. A federal judge granted Robert Peirce's law firm on its motion for summary judgment two weeks before a September trial was to begin.

For more, see legalnewsline.com. 

2½ years ago the Rhode Island’s child advocate sued the state alleging widespread abuse and neglect of the children in its care.  The child advocate’s office convened a panel of child safety experts to investigate and concluded that Department of Children, Youth and Family workers had missed or ignored several warning signs that might have prevented the beating death of a 3-year-old boy in an unlicensed foster home.

The DCYF revamped its licensing of foster homes, purchased fingerprinting equipment and conducted its own criminal background checks to reduce the time lag in evaluating prospective foster parents but child advocate Jametta O. Alston was frustrated with the pace of change at the agency and sued the state.  Last May, a federal court judge in Providence dismissed the lawsuit on the grounds that Alston and the other plaintiffs had no standing. Alston appealed to the First U.S. Circuit Court of Appeals in Boston, which heard arguments earlier this month. Their decision is pending.

For more, see projo.com.  

The executive director of the Oklahoma Department of Environmental Quality testified last week that his organization will follow any plan that the U.S. Environmental Protection Agency develops regarding water quality in the Illinois River watershed, although he expressed skepticism that the effort will be finalized as quickly as the federal agency projects.  Steve Thompson said during his testimony in federal court in Tulsa that the EPA rarely, if ever, meets its initial deadlines in such situations.  EPA Acting Deputy Regional Administrator Miguel Flores sent a letter Oct. 1 to state officials in Oklahoma and Arkansas to inform them that over the next 12 to 18 months, the agency would develop a "scientifically robust model of the Illinois River watershed" to form the basis for a water-quality restoration plan in the area.

The trial began Sept. 24, and the state spent several weeks introducing environmental expert testimony buttressing its claims about the phosphorus, copper, zinc and arsenic in the watershed that it asserts can be traced to the poultry industry.

For more, see waterworld.com.

Completing his testimony and cross-examination in a wrongful-death trial stemming from his tenure as CEO of Pendleton Memorial Hospital, Larry Graham said last week that he was not aware that previous executives at the hospital had documented their concerns about a generator system that would later flood during Hurricane Katrina.  The system's failure is at the core of the negligence claims filed against Methodist and UHS by the family of Althea LaCoste.

The 73-year-old woman, whose ventilator depended on electricity, survived the initial power outage thanks to manual breathing assistance from hospital staff.  But the plaintiffs' medical expert testified that she died some time later because of the strain suffered during that time.  The trial resumed this week, with more testimony from engineer Frank Painter, an expert witness for the LaCoste family. Painter said that Methodist could have opted for a "standard submersible petroleum pump" that would work inside a larger ground tank to facilitate pumping to the generator.

For more, see nola.com.

After months of the state public hearing process, the town of Darian, CT, is one step closer to receiving the final word from the state Department of Environmental Protection on the Baker Park Flood Mitigation Project.  On Jan. 4, state hearing officer Kenneth Collette issued his official recommendation, stating that, after three months of testimony, including the credible testimony of three expert witnesses, evidence, and presentations, it was his recommendation to award the town the necessary permits for the Baker Woods project. According to his recommendation, the Baker Woods project is the “most prudent and feasible alternative” to alleviate flooding in Darien. 

The DEP commissioner has the final say in the proposed project which calls for a new pipe underneath the Noroton Heights railroad tracks and a 3.5-acre detention pond in Baker Park woods to help alleviate the flooding on Heights Road. To create the proposed detention pond, more than 300 trees in Baker Park woods would be cut down which drew opposition from neighbors and led to the state’s public hearings. 

For more, see dariantimes.com. 

A Lancaster County, PA, nurse was convicted Friday afternoon of murdering 11-year-old Brent Weaver, a cerebral palsy patient.  Private-duty nurse Joy O'Shea Woomer, 50, was convicted of third-degree murder and drug delivery resulting in death and delivery of a controlled substance. 11-year-old Brent Weaver died from a lethal dose of morphine in the family's East Hempfield Township home on Sept. 27, 2002. 

Forensic pathology and toxicology expert Dr. Michael Baden testified Wednesday that he believes the fatal dose of morphine was mixed in with the child's food. A licensed practical nurse for 25 years, Woomer, of East Hempfield Township, consistently denied giving the boy any medication.

From lancasteronline.com. 

Insurance experts may write reports and testify on property damages. Justia.com explains how property insurance may affect damages:

Property and automobile insurance may be available to pay some or part of a victim's damage award. Those involved in an accident or other incident resulting in property loss should contact their insurance providers immediately in order to preserve evidence. Insurance companies may choose to settle or litigate a claim for damages on behalf of their clients. An insurance company may also wish to recover its losses by pursuing a claim against a negligent third party.

For more, see http://www.justia.com//.

Forensic pathology and toxicology expert Dr. Michael Baden testified Wednesday in the case of 11-year-old Brent Weaver who died from a lethal dose of morphine.  Joy O'Shea Woomer, the private-duty nurse who was hired to care for the cerebral-palsy-stricken boy on the night he died,  is on trial in Lancaster County Court, and accused of homicide. 

Woomer, 50, of East Hempfield Township, PA, denies the charges and denies giving the boy any medication.  After listening to several medical experts called by the prosecution on Tuesday, the jury heard Wednesday from Baden who says he believes the fatal dose of morphine was mixed in with the child's food.

For more, see http://lancasteronline.com/. 

Damage assessment experts may opine on the value of property damage:

The amount at which property is valued for purposes of recovery depends on whether the property may be repaired, or whether the property has been destroyed completely. If property may be repaired for a reasonable cost, compensatory damages will cover the costs of repair, as well as any consequential damages suffered in connection with the loss. If the property has been completely destroyed, or if the cost of repair is more than the fair market value of the property, compensatory damages may be limited to the property's fair market value. Fair market value is measured by the value of the property directly before the loss.

For more, see www.justia.com.

Jopseph Hotz of Rushville, NE, convicted of second degree counts of murder and attempted murder and four other charges, will spend 21 years in the Nebraska Department of Corrections before he will be eligible for parole.  Hotz’s attorneys, Jeff Pickens of the Nebraska Commission on Public Advocacy and Dawes County Public Defender Paul Wess, argued that Hotz should be found not guilty by reason of insanity.

Their forensic psychology expert witness, Dr. Daniel Wilson, testified that Hotz suffered from a drug-induced psychosis after ingesting mushrooms. The state's expert witness Dr. Park Dietz, who did not testify, wrote in his report that Hotz suffered from a drug induced psychosis but said that he was still capable of forming intent – including the intent to kill Pfeiffer.

For more, see http://www.thechadronnews.com/chadron/front/.

Damages experts may opine on these forms of recovery for property damage:

• Compensatory Damages. Compensatory damages are designed to place a victim in the position he or she would be in if the defendant's wrong had never occurred. Compensatory damages include the amount needed to replace or repair the lost or injured property, as well as any costs flowing from the injury (known as consequential damages). Consequential damages may cover the costs of interim replacement property (such as a rental car) as well as any lost profits resulting from the injury.
• Incidental Damages. Incidental damages compensate victims for various expenses incurred as a result of property loss. Incidental damages may include the costs of phone calls, shipping, transportation, etc.
• Punitive Damages. Punitive damages are not awarded to compensate victims for their losses, but rather to punish defendants and deter others from engaging in similar behavior. Punitive damages may not be awarded without compensatory damages and typically cannot exceed ten times the amount of compensatory damages. However, because punitive damages are intended to punish defendants, a jury may consider a defendant's total wealth when calculating a punitive damage award.

 

For more, see http://www.justia.com//.

 

Several potential expert witnesses will appear in federal court this week in a civil fraud case pending against five former Qwest officials, including former chief executive Joe Nacchio.  Hearings will be held from Tuesday to Thursday to determine whether the experts will be allowed to testify during trial. The potential witnesses are Sharon K. Black, Sally L. Hoffman, Elliot Lesser and Scott C. Chandler, according to court documents.

Black and Chandler would testify as telecom experts for the defense, said attorney Kevin Evans, who represents co-defendant James Kozlowski, a former Qwest accountant. Hoffman and Lesser would testify for the Securities and Exchange Commission as accounting experts.

The SEC accuses Nacchio, Kozlowski, former Qwest president Afshin Mohebbi, former chief financial officer Robert Woodruff and former accountant Frank Noyes of orchestrating a fraud that inflated the Denver company's revenue by $3 billion from 1999 to 2002.

Scientist Victor Bierman, an expert witness for Oklahoma poultry companies, testified in federal court Thursday that a study by the state showing phosphorous pollution in a sensitive watershed was incomplete, rife with errors and "not scientifically defensible." The testimony targeted Oklahoma's closely watched case against 11 Arkansas poultry companies in a trial that began in September.

Bierman's testimony focused on a report by state expert Bernard Engel, a Purdue University professor who tried to estimate the tons of poultry manure dumped in the Illinois River watershed each year and its effect on the environment.

For more, see wtop.com. 

In Is Mold Causing Your Indoor Air Quality Problem?, environmental health and safety expert James L. Unmack, PT, CIH, CSP, REA, writes:

But how does this process occur in the first place? When carpets, dust, wall board, wallpaper, insulation, or other organic products become wet or saturated with water, they become breeding grounds for spores or growth parts (hyphae). The original materials for colony formation are in the air we breath, just in smaller concentrations (we call these Colony Forming Units or CFUs). Because fungi reproduce so rapidly (even after a period of dormancy), the concentrations of spores in ducts or walls or carpets escalate accordingly, thereby increasing the concentrations of fungal reproductive materials in the air we breath.

As microorganisms compete for food and space, they have developed several forms of defense that prevent or retard other microorganisms from growing on the same food source. Human engineering has taken advantage of this condition.

A New York City jury has awarded almost $19 million to the family of a 76-year-old nursing home patient that the family says developed more than 20 pressure sores due to nursing home neglect. The family of John Danzy filed the lawsuit against the Brooklyn Queens Nursing Home after  Danzy died in 2003 of an infection allegedly caused by the nursing home six months after he was removed from the facility.

The verdict, which included $15 million in punitive damages, was the first in New York state history to result in punitive damages against a nursing home, according to the New York Post. The award also included $3.75 million in compensatory damages.

The lawsuit accused the nursing home of falsifying records to make it appear that they had been taking proper care of Danzy. An FBI medical records review expert witness said that it appeared that nursing home staff went back into the records and changed skin check logs to make it look like they had found the pressure sores.

For more, see aboutlawsuits.com.

After more than three years of investigation into an online pharmacy based in Mobile,AL, the trial of 10 men charged in a steroids conspiracy is set to begin this week.  Brett Branch, who ran a health company that authorities contend illegally sold steroids, is one of 12 people named in the 198-count indictment.  Branch and business owners stand accused of recruiting doctors to write bogus prescriptions for anabolic steroids, which Applied Pharmacy Services filled. Authorities contend that the pharmacy, where Branch once worked as a salesman, filled thousands of prescriptions outside legal parameters.

Pharmaceutical experts Paul Doering, a professor at the University of Florida's College of Pharmacy; and Dr. Gary Wadler, who has a sports medicine and internal medicine practice in Manhasset, N.Y., and serves as a professor of clinical medicine at the New York University School of Medicine will testify for the prosecution.

For more, see blogal.com.

Kenneth Wells, 56, is tentatively scheduled for trial Jan. 26 for growing marijuana in his home in unincorporated St. Charles County, MO. Wells' defense suffered a serious setback last month when Circuit Judge Nancy Schneider ruled that she will not allow evidence at trial of Wells' medical condition or medical history.  Jurors won't know of Wells' health problems or that marijuana limits the number of his seizures and lessens their severity.

Defense attorney Wayne Schoeneberg had planned to call neurology expert witness - Dr. Denis J. Petro, a neurologist and clinical drug researcher in Arlington, Va.  According to Petro's sworn statement, here's what he would have said if allowed on the stand:

"Marijuana is safe and effective in the treatment of seizure disorder as manifest in this case. In patients who have not obtained adequate seizure control with conventional therapy, cannabis offers a rational alternative at least as safe as conventional therapy for intractable chronic epileptic seizures. Mr. Wells has been exposed to multiple medications over the past 26 years to treat his seizures with risks far higher than with cannabis."

For more, see suburbanjournals.stltoday.com