In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:
THE SEVEN POINT TEST FOR EVALUATING A “BAD FAITH” CASE Here is a quick checklist for looking at the potential for bad faith and punitive damages in an insurance tort case:
1. What is the personal plight of the insured/claimant plaintiff? In short, how sad is the story? Will the story justify “ringing the bell” in the minds of the jury?
A Bellingham, WA, neurosurgeon being sued for medical malpractice testified that modern medicine hasn’t progressed enough to prevent the brain damage his patient suffered at St. Joseph Hospital in October 2004. Dr. David Goldman took the witness stand Thursday, Oct. 1, and told a Whatcom County Superior Court jury he did everything possible to prevent the damage Carol Martin suffered Oct. 7, 2004, following neck surgery. Goldman performed that surgery on Martin, but a blood clot formed in her neck afterward, a rare but known complication. That restricted her breathing, caused swelling and eventually led to severe, permanent brain damage.
“This was a very bad outcome, and we all felt terrible about this tragedy,” Goldman testified. “There is nothing I think I could do. This is the limit of what modern medicine can do. That’s very hard to accept and live with, but that’s my job.” Otorowski and Golden called orthopedic surgeon expert witness Dr. Mark Palumbo to the stand last week to criticize Goldman’s care of Martin and say it was below the standard of care.
Martin, her husband, Stanley, and her children sued Goldman, anesthesiologist John Schroeter and the hospital in 2007. The trial finished its third week Thursday and continues Monday. The Martins’ attorneys, Christopher Otorowski and Thomas Golden, have estimated damages to be $3.7 million to $5.4 million.
In Air Rage, aviation expert witness Capt. Bob Norris writes:
Air rage. It’s a catchy name to encompass a wide variety of behaviors from passengers that pose a serious threat to safety of flight. It is becoming an unfortunate reality that passenger assaults on airline employees have increased significantly over the last several years. Cathy phrase or not, air rage is becoming an unfortunate reality for flight crewmembers to deal with. Thankfully, the vast majority are relatively simple acts of defiance, but sometimes the interference escalates to truly obnoxious behavior or even brutal violence it can have a significant safety of flight issue. With the majority of aircraft being flown by two-pilot cockpit crews, having one of the pilots going into the cabin to assist in resolving a dispute or an altercation can have a significant impact, if the pilot is subsequently incapacitated. With the 9/11 incidents, pilots are no longer allowed to leave the cockpit to assist in an altercation.
Fear mongering reports in the media and popular films frequently leave the impression that the main safety threats to commercial air carrier operations involve bombs, terrorist hijackings, and hazardous cargo. However, the reality belies some of these notions. Pilot and flight attendant reports indicate that passengers themselves are an unexpected source of many inflight safety problems, ranging from the merely annoying, to those that pose serious interference with crew duties and a potential risk to aircraft structural integrity.
In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Though generally straightforward, the expert disclosure provisions of Rule 26 do contain “gray” areas with respect to which counsel should be alert. For instance, parties must disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A). If such a witness either is retained or specially employed to provide expert testimony, or if the witness’s job duties as a party’s employee regularly involve giving expert testimony, the disclosing party also must provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B). Whether and to what extent the report requirement applies to a non-retained witness who also happens to qualify as an expert on some topic, a so-called “hybrid” witness, is not as clear.
The 1993 Advisory Committee Notes to Rule 26 do not provide much guidance. They note that the report requirement of Rule 26 “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.” Id. advisory committee’s notes (subdivision (a)(2)). Thus, a “treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” Id. What is not as clear, though, are the topics on which a non-retained witness who otherwise could provide expert opinion testimony (such as a treating physician), but who did not prepare a Rule 26 report, may testify at trial.
In Medical Malpractice Overview, medical expert witness Eugene DeBlasio explains:
Medical malpractice is negligence committed by medical professionals. For negligence to be “actionable” (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, “but for” the alleged negligence, the harm or injury would have occurred.
When determining whether the conduct of a member of the general public is negligent, the conduct is judged against a standard of how a “reasonably prudent person” might act in the same or similar circumstance. Conversely, when determining whether a medical professional has been negligent, his or her practice or conduct is judged at a level of competency and professionalism consistent with the specialized training, experience, and care of a “reasonably prudent” physician in the same or similar circumstances. This constitutes the “standard of care” or professional “duty” that a physician owes to his or her patient. If the physician breaches the standard of care and his patient suffers accordingly, there is actionable medical malpractice.
In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:
CAN YOU CONVERT THE CONTRACT CLAIM TO A TORT CLAIM?
It is obvious from the above that either using traditional tort principles or those requisites for the tort of insurance bad faith, it is critical to the recovery of extra-contractual damages to convert the contract claim to a tort. This requires going outside the four corners of the contract and examining carefully the conduct of the insurer in administering and managing the claim.
In Expert Witnessing During the Current Economic Downturn, Hydrology and groundwater expert witness Rick Van Bruggen, P.E., D.WRE, gives advice on for experts in a rough economy:
One thing I would recommend to Experts during rough times is to stay on top of your retainers, especially with plaintiff’s attorneys. Don’t let your bill get too big without frequent invoicing, and don’t put your Expert’s Report, or your testimony, out there without first getting paid. Also, it’s a great time to market your business, install new software, upgrade your computer, or to get those CEU’s through a training course.
I just updated my CV, wrote up two years worth of case descriptions for my Representative Case List, and cleaned up my computer files and company databases. I still hope to write a couple of articles (one down, one to go), go through a new software tutorial, and upgrade a computer O.S. (actually, downgrade: from Vista, back to XP Pro), while I’ve got some extra time on my hands.
Aquatics expert witness and president of a national parasail operators association Arrit McPherson testified in a Coast Guard hearing Friday that he routinely takes two safety steps in his business, either of which may have been critical in preventing the deaths of two women Aug. 28 while parasailing at Ocean Isle Beach. The expert witness told Lt. Chester Warren, the Coast Guard’s lead investigator into the accident, that he has his marine radio on when he takes customers on parasail flights. Before they embark, he has them read safety information that includes how to unhook the harness from the sail if they land in water. That is reinforced verbally and with demonstrations once customers are aboard.
Those steps were not taken for N.C. Watersports customers the day Cynthia Woodcock of Kernersville, N.C., and Lorrie Shoup of Granby, Colo., were killed. Witnesses who were on the N.C. Watersports boat with the victims when the incident occurred said they got no safety information before or during that 1 p.m. trip. The line connecting them to the boat broke and the women were carried to their death near the Ocean Isle fishing pier.
Excerpted from charlotteobserver.com.
In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on expert reports:
By statute, Texas requires expert reports to prosecute various types of lawsuits-most notably medical malpractice lawsuits. This paper will not list every such requirement, but will list a few of these statutes and discuss, in particular, the medical malpractice requirements in some detail.
1. Texas Requires Expert Reports in Medical Malpractice Cases. The most litigated expert report requirement is the one that applies to medical malpractice cases and to other “health care liability claims.” TEX. CIV. PRAC. & REM. CODE ANN. ยง 74.351 (Vernon 2005 & Supp. 2006).
Medical expert witness Dr. Mark Palumbo testified Wednesday in the medical malpractice lawsuit against St. Joseph Hospital, WA, and two doctors. After having surgery at the hospital Oct. 7, 2004, a blood clot formed in Martin’s neck, which restricted her breathing and caused swelling and eventual brain damage. The expert voiced criticism of the care Martin received from neurosurgeon David Goldman and said the brain damage she suffered following surgery was preventable.
“The standard of care was not met for Carol Martin,” Palumbo testified. “It’s a known complication. You must have knowledge of the potential ramifications. I believe the … brain damage was preventable in this case.” Palumbo is one of several expert witnesses to give testimony critical of Goldman, Schroeter and the nursing staff.
Excerpted from www.bellinghamherald.com.
