In a recent Lawyers’ Weekly article “David Can Now Challenge Goliath”, the issue of taking on a party who has access to unlimited resources is addressed.  JustKapital, a litigation funder that offers finance to plaintiffs on an international basis, argues that the lack of funding often deters plaintiffs from pursuing legitimate claims.  “Disbursement Funding” can even the playing field by allowing plaintiffs to defer payment of third party costs until settlement.  This can slow upfront payments, for funding of medico-legal reports, or the payment of Radiology Expert Witnesses.

It can often be that a firm is cash-strapped and not able to fund a report, which can result in the case being put on hold.  JustKapital argues that disbursement funding allows a plaintiff to fire back against the defense, and maintain the momentum of the case. With disbursement funding, capital constraints can be lifted, and firms can take on more cases and generate more revenue.

In the article, a case was cited where a man was involved in a head on car crash.  He was hospitalized for months, and had a lengthy period of treatment, recovery, and rehabilitation.  During this time, the plaintiff obtained a suite of Expert Witnesses who created medical and radiology reports to strengthen the case. This lead to a successful monetary outcome, with the insurance company accepting liability and paying damages and other compensation.  Without disbursement funding, the plaintiff would not have been able to pursue their claim as the cost of the radiology reports and other third party reports were sizable.

Plaintiff sued defendants after a motor vehicle collision alleging negligent driving and negligent supervision and training of defendant’s employer.  Plaintiff hired a mechanical engineering expert witness to assist in the collision reconstruction.  Defendant filed a motion to exclude, which was denied.

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In the Matter of Isaac C. (Isom C.), it was alleged that a child under eighteen years of age was was abused.  The New York County Family Court found that during pertinent time period respondents lived together in the home of the paternal grandparents. On December 23, 2015, the parents brought Isaac to Mt. Sinai Hospital after noticing swelling in the child’s leg. Examination and tests at Mt. Sinai revealed a transverse femur fracture and, according to Mt. Sinai physicians, a classic metaphyseal fracture (CML) and a distal radial buckle fracture.

The trial upon the petition encompassed nine days from May to August 2016.  Dr. O’Hara and Dr. Henrietta Rosenberg, Radiologist-in-Chief at Kravis Children’s Hospital at Mt. Sinai Hospital, testified for petitioner as an Radiology Expert Witness. All respondents testified on their own behalf and Dr. Grimm (via subpoena), Dr. Levenbrown and Dr. Michael Holick, who was qualified as an Endocrinology Expert Witness, Vitamin D and metabolic bone disease, testified as experts for respondents. Dr. O’Hara presented brief rebuttal testimony. The primary issue at trial was whether or not ACS carried its burden of proving abuse in light of expert testimony proffered by respondents asserting that Isaac’s injuries resulted from the conflation of extreme Vitamin D deficiency and metabolic bone disease.

The court concluded that that Isaac’s fractures, given his underlying medical conditions, resulted from normal handling. Dr. Levenbrown testified that Isaac’s bone fragility was such that even holding his hand or hugging him normally could have resulted in fractures. The three Expert Witnesses called by respondents testified that the deep tissue swelling on the child’s right leg was consistent with accidental injury, most likely from minor weight bearing. To the extent that the limited scientific literature introduced into evidence had direct relevance to Isaac’s fractures, it contained support for the possibility of this child’s injuries being caused by his underlying medical conditions. Dr. Levenbrown’s and Dr. Holick’s expert testimony as to Isaac’s vitamin D deficiency and rickets and how these conditions likely manifested themselves as the child’s fragility fractures appear sound to the court and as more nuanced, more thoroughly conducted analyses of the subject child’s fractures.  Even if, as petitioner posits, a relatively small fraction of children with rickets suffers the number and types of injuries occurring herein, the one of ten, one of a hundred, or even one in a thousand cases involve at least once child. The preponderance of the credible evidence indicates that this appears to be that case.