Lost Compensation

$2.5M award for WD suit in Houston

A Houston jury awarded a $2.5M judgement against the City and for the plaintiff in a wrongful death lawsuit.  Two years ago, Logan Jones, a 13-year old boy, drowned in a flooded culvert after being sucked down a drainage pipe which had no grating.

Anna Zimmerman, attorney for the plaintiff Sherry Jones, says that the City is likely to request that the $250K cap from Texas tort reform be applied to this award.

State District Judge Levi Benton (presiding) will review to determine if the cap should apply before the award is disbursed.  There is no time constraint for the review.

Madeira v. Affordable Housing

Award for plaintiff undocumented alien, injured on the job, is affirmed in New York.

   Madeira v. Affordable Housing Found., No. 04-3606 (2nd Circuit, November 14, 2006)
Award of lost earnings to plaintiff undocumented alien, calculated partially by reference to U.S. pay rates as compensation for disabling personal injuries attributable to defendants' violation of New York Labor Law section 240(1), and apportioned among defendants and plaintiff's direct employer based on relative negligence, is affirmed over claim that federal immigration law, as articulated in the Immigration Reform and Control Act of 1986 necessarily precluded any damages award under New York law that compensated an undocumented worker for lost earnings, at least to the extent such earnings were based on pay rates in the U.S. rather than in the worker's native country.

For the full opinion:  http://caselaw.lp.findlaw.com/data2/circs/2nd/043606p.pdf

Coal Miner's Widow sues for $65M

The widow of a miner killed in a mine cave-in at Cumberland in August 2005 is suing the Virginia coal companies which had oversight of the mine for $65M.  Claudia Cole has filed a wrongful death lawsuit in federal court against Black Mountain Resources, Harlan Resources, Stillhouse Mining, Cumberland Land Corporation, and Cumberland Resources Corporation.  The suit cites the defendants for negligence, that they failed to properly abide by state and federal safety guidelines at the mine and to train employees in roof support techniques.

The $65M wrongful death lawsuit seeks damages as follows:

• $1.6M = lost wages
• $50M  = punitive damages
• $15M  = compensatory damages for the childrens' loss of their father.

The plaintiff has requested a jury trial.  Tony Oppegard is one of the attorneys representing the family.

$1MM Wrongful Death Verdict

A $1,000,000 verdict was handed down by a Marion County, Georgia, jury in the wrongful death case of a prison inmate.  The 35 year old male was run over by a trash truck while working as a trash collector for the City of Columbus.  $400K for pain and suffering, immediately prior to death, and $600K for wrongful death.

What makes this most interesting is that, according to the Atlanta Injury Law Blog, the largest prior jury award in Marion County was $10,000.  The award was 2 orders of magnitude (!!) higher.

Lost Compensation specializes in economic damages analysis and litigation support services in matters of personal injury, wrongful death, and wrongful termination.  LC manages a nationwide network of economic experts.  To learn more, visit us on the web at www.lostcompensation.com; or register for our quarterly newsletter by sending an email to support at lostcompensation dot com.

Hearsay Exception Video

Now that's comedy.  I wonder how many of you out there are old enough to remember the Saturday morning educational cartoon-commercial "Interjection!", after which this 3:09 video clip is modeled?

Just take a 3 minute break and enjoy a chuckle.
http://www.youtube.com/watch?v=xi5LESZ7_Kc

Texas CP Sec. 74.351

From the Texas Civil Practice and Remedies Code, Section 74.351 EXPERT REPORT (Chapter 74 deals with Medical Liability, under Subchapter H: Procedural Provisions):

(l)  A court shall grant a motion challenging the adquacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).

OK, here is Subsection (r)(6)

'Expert report' means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed

In Chau v Riddle, decided 09/28/2006, the Texas State 1st Court of Appeals affirmed the judgement of the lower court in excluding testimony of the plaintiff's expert and in subsequently providing summary judgement for the defendant.

Taking from the Court's opinion:

Here, the modified docket control order indicated that only one expert per specialty could be designated.  Accordingly the (plaintiff) designated Dr. Ronald Katz as their testifying anesthesiology expert.  In the second supplemental designation of expert witnesses, the (plaintiff) re-designated Dr. Reeves without de-designating Dr. Katz.  The (plaintiff) filed no response to Dr. Reeves and GHA's motion to strike; therefore, we hold that the trial court acted within its discreition when it struck Dr. Reeves as a sanction for the (plaintiffs') failure to timely or properly designate him.

So, in plain English, there are rules to follow in court.  The rules are made by lawyers, for lawyers to follow.  In short, an expert was excluded because rules of procedure were not followed, and without that expert, the motion for summary judgement for the defendant was granted.

The Tao of Moving

I have newfound respect for the old Baltimore Colts franchise, who managed to move to Indianapolis in one night.  My family and I moved into our new home this past weekend.  I am reminded why the last time I moved I was:  (a) 8 years younger, and (b) single.

Moving is lots of things:  exciting, invigorating, joyous.  And stressful.  Ahhhh...stress.  Throw into the mix a 92-lb spaz of a yellow labrador and a 5+ mos. pregnant wife.  The interaction between the two is quite something to behold, as is the interaction's impact on me.  Adding to the stress?  Apparently what stresses one person, may not stress another, and therein is where the fun lay.

We have about...5...neighboring properties, each, judging from the playscapes in each of the respective backyards, having 2.2 kiddos.  One might be tempted to conclude that this is a good thing, given that our first is on the way.  If you are suffering from the throws of hormones thrust upon your body by the state of pregnancy, apparently, this is, in fact, not a good thing.  You see, the new thing to worry about, ranking #2 out of 127 trackable and measurable Items of Worry (you do NOT want to know #1) is if the dog will bark at the neighbor kids through the fence.  Not really high on my list, but very high on that of other occupants of the house.  This means we have to drive to PetsMart and buy a bark collar, when I could be working (work does not stop) or unpacking boxes.  Boxes, for some reason, stress me out.  I cannot explain it:  it is just corrugated cardboard.  Whatever.

Incidentally, I would say #2 on my list is that my pregnant wife should NOT be lifting boxes of any kind.  I fought that one hard over the course of the weekend.

Anyway, I am happy to report that the lovely and talented Mrs. Dr. Bosworth is very happy in her new digs.  The dog loves the neighbor kids which he has met (and kissed, in only the way a 92-lb labrador knows how to great the little people).  The pile o' boxes is dwindling.  The master suite is in order.  Mail keys have been secured.  Cable TV and broadband internet are lit up.  And surround speakers are wired.  My beloved bride is settling in, and things are approaching steady state.

To celebrate, I enjoyed a beer on our new and spacious back patio last night.  And our yellow dog did not even wear his bark collar.  Shhh.  Don't tell.

And the boxes will wait until another day.

Dismal Economic Analysis

Economics is known among the trade as the "dismal science."  The bloggers over at Science Evidence today posted an interesting expose on a economic valuation analysis which the New York court viewed as, well, dismal.  See In re Med Diversified, Inc., 346 B.R. 621 (E.D.N.Y. 2006). The court rejected the plaintiff's economic expert as being unreliable and misusing standard valuation methodology.

What I find most interesting is the bankruptcy court's assertion that the expert applied such a "deliberate, manifest, pervasive, and systematic bias" in applying the standard valuation methodology "in order to accomplish his client's implicit bidding notwithstanding his protestations of objectivity."

This is just one more example underscoring the importance of independence of opinion from your expert.  The Court simply could not believe the expert's findings.

Get Those Expert Reports in on time...

The Texas Court of Appeals affirmed a trial court's ruling to dismiss because the plaintiff's expert failed to file a timely report.  In the medical malpractice matter of Lopez v. Sinha (#14-05-00606-CV), the appeals court affirmed the lower court's judgment that the expert's report was neither filed timely nor represented a good faith effort to comply with the definition of an expert report under section 74.351.

I found this interesting because this underscores the need to give your expert time to review the facts of the case, to formulate a thoughtful and expert opinion, and to document same.  I am not saying that this is what happened in Lopez, but I can imagine such a scenario.

At Lost Compensation, we are setup to help manage this time tension.  The unique design of our business processes are such that you do not have to play phone tag with an expert economist, wasting valuable time as your deadline rapidly approaches.  Moreover, our online collaboration software streamlines the exchange of case documents.  As a result, your economic damages report gets back to you more quickly.  If you would like to know more, please contact us.

Experts & The McCowen Murder Trial

Over at the Cape Cod Times, Eric Williams has been blogging on the daily progress in the C. McCowen Murder Trial, held in Massachussetts Superior Court.  Friday's goings-on uncovers a tricky issue for the Superior Court Judge Gary Nickerson:  will a forensic psych expert for the defense be allowed to testify on false confession?

Judge Nickerson does not question the expert's qualifications.  He questions whether, at this stage in the trial, the topic of whether the confession is "false" or not is a matter for the jury to decide.  Now that is a compelling question.  Ultimately, he did allow the expert to testify on matters common to false confessions.

Notably, the forensic psychologist is charging the State of MA $250 per hour for his time.  Seated in the back of the courtroom is another forensic psych expert, who had testified earlier, and who charged $200 per hour.  Upon being notified of this expert's presence, Judge Nickerson inquired to assure that he was, indeed, off-the-clock.