Lost Compensation

TASER 30-0 in Product Liability Cases

A Dec 28 press release from TASER International (NASDAQ:TASR) announces that a Cook County Court has dismissed a product liability case against the firm.  This marks the 30th case either dismissed or judgment entered in favor of TASER, against exactly zero losses.

As a business strategist, I find it particularly compelling that TASER is sticking to their guns (so to speak) by vigorously defending lawsuits and choosing not to settle.  I notice a trend, one which the executives at TASER most certainly want to be noticed:  they will not roll-over.  They are putting the entire litigation community on notice.  They believe in their product, they do not believe the cases have merit, and they will fight.  That this message did not become clear somewhere in the teens-to-zero count is another point altogether, but the execs continue to bang the drum loudly.  It finally caught my attention back at 28-0.  I wonder if the original inventors of the TASER device envisioned that legal defense would be such an important component of executing their business strategy?

Back to the Cook County case -- the estate of Ronald Hasse had accused TASER of wrongful death, after a county medical examiner had opined that the TASER caused the death.  Hasse had a toxic level of methamphetamines in his system at the time of death.

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Economic Damages Calculator

According to a report by the Mobile Register, a $400K wrongful death lawsuit has been filed by the widow of a 68-year old land surveyor killed on the job nearly 2 years ago.

Using our online damages calculator (basic version), I am able to work backwards from that $400K sum to get a ballpark estimate of the annual loss being claimed.  Assuming that the deceased, Thomas Arnott, was a Caucasian with a high school education, the calculator determines that annual damages in the amount of approximately $125K are being claimed by the plaintiff.

Lost Compensation's online damages calculator uses life expectancy data, cross-referenced by race, gender, and educational attainment, to estimate expected damages.  This amount, by itself, is not useful for testimony in court, and is meant solely as a "compass" of sorts for attorneys, to help them gain their bearings in looking at damage claims.

For example, consider the $125K annual estimate of damages behind the $400K claim above.  Annual damages likely include lost wages, salary increases, employer-paid benefits, and contribution to household services.

Lost Compensation's Basic Damages Calculator is available to attorneys at no cost or obligation, and can be accessed from our Calculator Resource Page.  An Advanced Damages Calculator is also available online, with registration required.

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.

On the Need for Economic Experts

Over at Maryland Injury Lawyer, there is an interesting blog entry dated June 19, 2006 about a problem in dealing with economic experts. The problem, neatly summarized, goes like this:

The problem with economists is that you typically have only a handful of economists in your jurisdiction who: (1) can explain these dry issues to a jury in a meaningful way, and (2) are willing to testify. The few economists who do testify, testify way too often, which hurts their credibility with the jury.

Mr. Miller points out an interesting catch-22. Those who testify, may testify too often – this leaves the appearance of his/her being a “hired gun.” Hired guns lack credibility, independence, and objectivity. Hired guns, by my personal view of the world, whore out their opinion to whoever is writing the check. In stark contrast, economic experts are objective and their opinions are independent, based upon the application of sound economic principles to the facts of the case.

As indicated, finding an economist to testify can be problematic. The first hurdle is not every economist in the world is suited to the task. Testifying at trial can be a stressful event, given the adversarial nature of our judicial system. Not every person has the temperament for such a crucible. Next, there is that small issue of *willingness* to testify. Economists usually already have full-time jobs, whether it is teaching at universities or working for economic consulting firms.

This is a problem which Lost Compensation sets out to solve. We manage a nationwide network of economists. We specifically target those who teach at universities or colleges. We screen for communication skills and, to the extent that is humanly possible, temperament. The result is a pool of economists who are willing to testify and who can speak in a way to be understood.

Lost Compensation solves the problem of finding an economist. If you can find us, you are well on your way.

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.

Former NFL Player file PI suit vs Titans

NFL Quarterback Adrian McPherson, who suffered a knee injury Aug 12 during a pre-season game when hit by a golf cart driven by the Tennessee Titan's mascot, has filed a personal injury lawsuit against the Titan organization.  According to MSNBC.com, referencing records filed in Davidson County Circuit Court, Mr. McPherson seeks $5M in compensatory damages for negligence, and $15M in punitive damages.

After being cut on Sept 2,  McPherson cleared waivers (meaning no other NFL team elected to take him) on Sept 9 and was subsequently placed on the Saints' IR (injured reserve) roster, thereby preventing him from playing for another NFL team.

On the issue of failure to mitigate, McPherson did sign with the Austin Wranglers of the Arena Football League in November and is listed on the 2007 team roster.  It does not take a stretch of the imagination to determine that AFL salaries do not keep up with those of the NFL.

A quick peak at the Saints' depth chart shows Drew Brees at #1, with the capable veteran Jamie Martin at #2.  Perhaps the Saint QB position was simply already filled when the Saints cut him and then placed him on waivers.  On the other hand, that they placed him on IR after clearing waivers indicates to me that the Saints believe there is some value there.

This might be a tough nut to crack, from a legal perspective.  Questions that come to my mind:  does McPherson first have to prove that he would have made the Saints roster, but for the injury?  I am no lawyer, and have no designs on being one.  But I am curious.  Are there any legal beagles out there who can chime in?

Although I am admittedly curiously, those legal questions are for the lawyer to address.  As for the matter of compensatory damages, that is the domain of an economic expert.  I wonder if there was an economic analysis behind the $5M number?  Now I am curious...

WD suit filed in Natalee Holloway case

We all remember the sad story out of Aruba in the summer of 2005.  Alabama teen Natalee Holloway went missing while on a school trip and was last seen alive on May 30, 2005.

Last week, in California Superior Court in Los Angeles, a wrongful death lawsuit was filed by the parents of the missing teen against Deepak and Satish Kalpoe, brothers from Aruba.  The suit claims willful negligence and unlawful conduct contributing to Natalee's fatal injuries.

Between Punitive and Compensatory Damages

Cornell Law School published a research paper (ssrn.com/abstract=929565) entitled "The Relation between Punitive and Compensatory Awards:  Combining Extreme Data with the Mass of Awards" with some very telling results of statistical analysis.  The report's two primary conclusions are:

1. A statistically significant relationship between compensatory and punitive damages does exist:  over 50% of the variance in punitive awards can be explained by the compensatory award in the same case.
2. There is no increase in punitive or compensatory awards over time in any of the data explored.

These findings are quite telling and fly in the face of the rationale for tort reform.  The authors (Eisenberg, Hans, and Wells) propose that arguments to the effect that awards are increasing over time are based upon anecdotal evidence and "eye-catching" headlines.

The Cornell paper uses 3 datasets in its analysis:

• Hersch-Viscusi (H-V) data, taken from an article by authors of the same name which examined awards in 63 cases from January 1985 to June 2003 and which were for "extreme" punitive awards in excess of $100M;
• National Center for State Courts (NCSC) data of 551 cases, gathered from tort, contract, and property cases tried in 1991-1992, 1996, and 2001, and which represented a random sampling of state court clerk's offices in 45 of the 75 most populous counties in the United States;
• National Law Journal (NLJ) data representing 100 of the largest total (compensatory + punitive) jury trial awards from 2001 to 2004.

Note that 2 of the datasets (H-V and NLJ) were biased to cases with large awards, which the authors note.  The NCSC data was both a larger sample (n=551) and random. The statistical analysis shows 6 different cubic regression models.  A detailed discussion of these models is beyond the scope of this blog, but I am satisfied that they accounted for the selection bias evident in the extreme case datasets (H-V, and NLJ).

In each of the 6 regression models the compensatory award can be used to explain at least 50% of the variation in the punitive damages award, most at a p-value of less than 0.01.  [To the un-statistically-minded among us, that means that such a result would occur from random statistical variation less than 1 time in 100.  Usually, 1 time in 20 (ie, p < 0.05) is considered "good enough" for the courts, so 1 in 100 is more than good -- it's about as solid as statistical-speak as you can get.]  Therefore, a statistically-significant relationship between compensatory and punitive awards exists and is pronounced in each of the 6 models.

Tangentially, there is a little nugget in the report that I find compelling.  It would seem that Exxon (now ExxonMobil) funded the academic research project that produced the H-V data.  Big deal, you say?  Well, the H-V report (ie, NOT the Cornell paper) suggested that, in very large cases (awards > $100M), jury punitive awards bore no relation to compensatory awards.  In other words, H-V were supporting the popular belief that juries were picking punitive awards from thin air.  It was this belief, not necessarily the H-V article, that spurred the demand for tort reform (see earlier comment in this blog on eye-catching headlines).  The Cornell Paper looked at this data and found a contradictory conclusion:  to wit, the awards were not plucked from thin air, that a stat-sig relationship does exist. 

I will leave any further mental cycles on that previous paragraph to the reader.  Exxon --> Funding -->  Article --> Findings (which are subsequently debunked by other academics looking at the same data).  One set of analysts receives funding, the other does not.  Hmm.

But back on point -- this Cornell Paper was very interesting.  It undermines the entire argument for tort reform.  According to Eisenberg et al, punitive awards are not increasing and are not out of control.  And, yes there is a statistically significant relationship between compensatory and punitive damages.

Tell me again why tort reform was needed so badly?  To protect us from runaway juries?  Riiiight.

$50M WD lawsuit against WalMart

I just do not have a category other than Interesting Cases to file this one under.  This one scares the heck out of me because my father is a diabetic and takes daily insulin injections.

From the Frederick News-Post...
A $50M wrongful death lawsuit has been filed in Maryland against WalMart.  Keith Scofield (age not provided) died after receiving his prescription from a Wal-Mart pharmacy.  Mr. Scofield was taking a drug, Humulin u-100 (where the u-100 is representative of the dosage).  He was given u-500.  The lawsuit alleges, in summary, that Wal-Mart had poor process control -- that the employee was ill-trained and that the prescription did not have an adequate warning label.  Upon injecting the medicine, Mr. Scofield reportedly went into a diabetic coma and passed 20 days later.

From me...
My wife is a pharmacist.  My father is a diabetic.  This hits a little close to home:  I can easily imagine this impacting my life.  For every pharmacy patient out there....please, please check your warning labels and make sure you are getting the appropriate medication.  Be assertive; it is your health on the line.  If you do not have a warning label, then that is a warning sign to you.  Take it up with your pharmacist immediately.  Even if a process flow at a pharmacy is 99.99% correct, then 1 out of 10,000 prescriptions can be misfilled under this hypothetical scenario.  Not every mistake will be life or death, but why take chances?  Please take an active role in managing your care -- here is some advice.

(1) Ask questions.  It is OK to ask.  If something seems amiss, do not be bashful.  The pharmacy staff, regardless of whether it is Wal-Mart, Walgreens, CVS, or whereever, receive a paycheck to take care of YOU.  They are there for you.  Pharamacists play a valuable role in the health care chain.

(2)  Read your warning labels.  If you do not understand something, see Rule (1).

(3)  Know what medicines you are taking.  All of them.  You are not expected to know all of the interactions, but if you do, that helps because you can play a more active role in managing your care.

(4)  To the extent possible, get all of your medication from ONE PHARMACY.  The larger pharmacy chains will typically have an electronic file of all of your medications.  The pharmacist can then see if there are any dangerous interactions etc.

On that last note, you need to understand that your pharmacist is a health care professional.  They are not clerks.  They are not paid to "count to 50 by 5."  Pharamacists today typically will have an advanced doctoral degree called a PharmD.  They are not medical doctors, with all the rigors of medical school, but they are highly educated, highly specialized health care professionals.  They can wax ad nauseum on the details of pharmacokinetics (if I spelled that correctly), etc. etc.  Note that the Pharmacist has an education that the Pharmacy Technician does not.  If you are talking to a  technician and want to speak to a pharmacist, say so.  That is OK.  It is your right.  Your pharmacist is there to help.

Oh, let's just continue this one step further.  Often, either my wife or I are asked, "What good is a pharmacist?  I mean, my DOCTOR prescribed the medicine."  Yes, your doctor prescribed the medicine, and yes, your doctor is also highly educated and went to medical school.  And yet, the answer is two-fold.  First, doctors are human and as humans are prone to error.  In this case, the pharmacist serves as a "quality assurance" step in the patient care process.  Second, you likely see MANY doctors.  Not every doctor knows what the others have prescribed you, and maybe you do not either.  In this case, it is quite possible that one doctor will prescribe a drug that interacts dangerously with one prescribed by another doctor.  Who looks out for you in this situation?  Your pharamacist.  This is why it is SO IMPORTANT to adhere to Rule (4) above.

All of this said, I realize this is all too little, too late for the Scofield family.  None of this is meant as either an excuse for or a condemnation of Wal-Mart, as the facts of the case will determine if there is negligence.  But, because I can emphathize with the Scofield family, I was inspired to write this article this morning.  I am reminded how easy it is to be lulled into a sense of safey in filling my own prescriptions.  I personally renew my commitment to following my own, limited advice above.

Wrongful Death Suit filed in LA Cell Phone Accident

The family of Juan Rojas has filed a wrongful death suit against the driver of an SUV who allegedly lost control of his vehicle while reaching for a cell phone.  The lawsuit claims that William Splitter, 71, was driving in a negligent manner.  The 7-year old victim was killed while waiting at a bus stop with 3 other family members.

The cell phone use makes for an interesting caveat in this unfortunate story.  I wonder how long it will be before hands-free legislation passes?  Admittedly, I do not personally live in LA County, so perhaps this legislation is already in place.  Regardless, I imagine that the cost to manufacture Bluetooth headsets is in rapid decline, so it probably is only a matter of time before one of the cellular service providers jumps ahead of the legislative bodies in local communities by promoting these headsets as value-added safety items.

Switching gears, the LA Times reports that the family also filed a $15M claim against the public agency behind the design and placement of the bus stops.

On Statistical Sampling

Now here is something funny.  A recent post of a maillist illustrates an pithy exchange between a medical expert and attorney, on the topic of sampling:

Counsel:  Dr., would you agree that it is always better to make a complete study rather than take a sample?

Witness (MD):  Well, if you ever come to me for a physical, I will be sure to take all of your blood rather than just a sample.

Ba-dum.

Courts are becoming more accepting of statistical sampling, though I am often told of war-stories where opposing counsel seeks to undermine the value of sampling, presumably in an effort to discredit the testimony of any expert relying upon such sampling. I think the above quote very succinctly pokes holes in such an argument, don't you?

Cincy Atty Seeks to Educate Public on Personal Injury

This caught my eye on the PR wire this morning.  Anthony Castelli, a Cincinnatti personal injury litigator with whom I have no prior relationship, has announced updates to his website.  As indicated in the press release, these updates are intended to educate the layperson about their rights and to provide them with information in determining if they have a personal injury case.

One of Mr. Castelli's articles is "How to Get Complete Compensation for you Injury Claim".  His website is www.castellilaw.com.  If you check it out, please let me know your thoughts by leaving a comment.  As previously stated, neither my business nor I have any prior relationship with Mr. Castelli.  I simply ran across the PR as part of my daily market research activities.

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.