Insurance Defense Blog

Eight signs that point to nonorganic back pain

This medical journal identifies eight signs that point to nonorganic back pain.  Thanks to Karen Shelton at the Trial Lawyer Resource Center for the link.

Virginia Supreme Court Reverses JNOV In Food Poisoning Case

In Bussey v. E.S.C. Restaurants, the Virginia Supreme Court reversed the trial court's award of JNOV to the defendant in a food poisoning case, and reinstated a jury verdict of $111,765.25.

The trial court granted the JNOV because it found that the testimony of the treating physician as to causation lacked sufficient factual basis because of “the non-contemporaneous medical examination, the lack of laboratory testing, and the discrepancy in the timeline.”

The Supreme Court rejected that, and among other things found that although the treating physician did not use laboratory testing to definitely identify food poisoning, Virginia law has never required such testing.  In this case, it was enough for the treating physician to have excluded other causes of the symptoms, and to have relied upon other factors.  The Court summarized the relevant Virginia law as follows:

In the context of unwholesome food, the proof necessary to sustain a cause of action based upon negligence or breach of warranty is the same. "[T]he burden requires the plaintiff to show ‘(1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant’s hands.’ " Harris Teeter v. Burroughs, 241 Va. 1, 4, 399 S.E.2d 801, 802 (1991) (quoting Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975)). The implied warranty of wholesomeness applies to the sale of food by restaurants. Levy v. Paul, 207 Va. 100, 106, 147 S.E.2d 722, 726 (1966). With regard to proximate causation where there is no direct proof, the circumstantial evidence must be sufficient to show that the causation alleged is "a probability rather than a mere possibility." Southern States Coop. v. Doggett, 223 Va. 650, 657, 292 S.E.2d 331, 335 (1982).

The Court concluded in this case that there was sufficient credible evidence of record to support the jury's verdict.

In Re Silica Products Liability Litigation

Judge Janis Jack's 245 page opinion has received widespread publicity, but it is hard to find a link to the full text of it.

The D.C. Examiner had an informative editorial about the decision today.

Blog 702 also has a link to the opinion.

Virginia Supreme Court Requires New Trial Where Plaintiff's Damages Expert Based Opinion on Fictional Assumptions

In Vasquez v. Mabini, the Virginia Supreme Court reversed a $2 million judgment in favor of the plaintiffs in a wrongful death case, and remanded for a new trial limited to the issue of damages.  The sole issue on appeal was whether the verdict had to be overturned because it was based on speculative opinions of plaintiff's damages expert, Richard B. Edelman, a Professor Emeritus at American University.  The assumptions made by the expert included an assumption that the decedent's dependent adult son would have continued to live 24 years into the future even though the witness knew that he had died before trial. 

The Court found that the following assumptions made the Edelman opinion inadmissible:

The economic value of the decedent’s lost income was projected from a base of $16,000 per year, beginning the day after the accident and continuing until retirement, based upon an assumption of full-time clerical work with added annual increases and fringe benefits. On cross-examination, however, the expert admitted that Mrs. Mabini had little experience as a clerical worker, had earned less than $1000 the previous year and that her annual earnings for the preceding several years had never exceeded $7000. She had been seeking full-time clerical employment since  moving to Virginia, but had been unable to find anything but part-time work. The record does not show that she had ever held fulltime employment or received any fringe benefits.. . .

. . . .

The expert’s assumption that the decedent would have received a 3.7% retirement benefit in addition to her salary was premised on his further assumption that she would have found full-time clerical employment the day after the accident. He testified: “most full-time employees get that.” His conclusion, however, was based only upon a statistic applied to facts entirely unrelated to the personal circumstances of the decedent. Similarly, his assumption that her income would have increased 4.25% each year until retirement was based upon a statistical projection of wage rate increases applied to the unfounded assumption of fulltime employment.

In calculating the value of Mrs. Mabini’s lost services, protection, care and assistance, the expert made the assumption that her son, Pomeroy, would have lived throughout his mother’s remaining life expectancy, an additional 24 years, and that he would continue as an adult dependent throughout that time. In fact, the expert was aware that Pomeroy had died before trial, less than six months after his mother’s death.

How to Look Up Professional Licensing Information in D.C.

I just came across this website maintained by D.C. Department of Health, where you can look up a health care professional and obtain the professional's licensing information.

Maryland Court of Special Appeals Finds Orthopedist Qualified Under Md. Rule 5-702 To Render Opinion As To Cause of Erectile Dysfunction Resulting From Slip and Fall

In Samsun Corp., t/a Singer Exxon v. Bennett, the Court of Special Appeals upheld the trial court's discretionary ruling to admit expert testimony by the plaintiff's treating orthopedist on the issue whether a slip and fall injury caused the plaintiff's erectile dysfunction. The trial court had denied a motion in limine to exclude the expert testimony, and then had denied a motion for judgment based on the grounds that the plaintiff had failed to prove causation between the accident and the injury.

The Court of Special Appeals held, in part, that:

In the case sub judice, the lower court permitted Dr. Osteria, a licensed physician practicing in the field of orthopaedics, to offer an expert medical opinion concerning appellee’s erectile dysfunction. Dr. Osteria, we think, had the requisite knowledge in order to form an expert opinion concerning appellee’s erectile dysfunction. Although Dr. Osteria, unlike a urologist, is not a specialist in the area of erectile dysfunction, his knowledge, skill, experience, training, and education as an orthopaedist render him capable of testifying as a medical expert in the area. As Dr. Osteria explained, his field includes the diagnosis of spinal injury and the related symptoms of spinal injury, such as erectile dysfunction. Dr. Osteria offered the opinion that appellee’s erectile dysfunction was related to the lower back injury suffered at the Singer Exxon. His opinion, therefore, was consistent with his professional experiences and training. Thus, we conclude that the lower court did not abuse its discretion by denying the motion in limine and allowing Dr. Osteria to testify.

Mold Detection Canines

I first heard about this today at my dentist's office, as my dentist and his assistant were joking about mold sniffing dogs and how mold is going to be the next asbestos. So I googled mold sniffing dogs and got this and this. Also this profile of mold dog. There is even a website called mold-dog.com, which can help you find a mold dog and which has a streaming video available showing a mold dog in action.

Fourth Circuit Upholds Exclusion of Expert Testimony That Exposure To Picloram Caused Cancer

Plaintiffs used fertilizer contaminated with the chemical picloram. They alleged that the picloram caused them to develop cancer. The Fourth Circuit affirmed the District Court's exclusion of plaintiff's expert testimony on this issue.

Check Blog 702 for more on this case.