Network Firm News

Monday, December 05, 2016

Goodell DeVries Obtains Summary Judgment in Chemical Exposure Case -- January 2016
On January 5, 2016, a judge granted motions to exclude expert testimony and, consequently, a motion for summary judgment filed by Thomas J. Cullen, Jr., Ericka L. Downie, and John D. Maxa on behalf of Crown Equipment Corporation.  Plaintiffs sought damages based on injuries allegedly caused by exposure to chemicals in spray paint manufactured for Crown.  Plaintiffs alleged that the use of the spray paint during planned maintenance of Crown’s material handling equipment caused a rare form of acute leukemia.  Plaintiffs offered two causation experts.  The judge excluded the opinions of both of Plaintiffs’ causation experts, citing their lack of qualifications and failure to rely upon a sufficient factual foundation and reliable methodology.  Accordingly, the judge awarded summary judgment and costs to Crown.

Goodell DeVries Obtains Defense Verdict in Design Defect Case -- February 2016
After a two week trial, Thomas J. Cullen, Jr., Kali A. Enyeart, and Ryan J. Sullivan obtained a defense verdict in favor of Crown Equipment Corporation, a leading manufacturer of material handling equipment.  Plaintiff sustained serious injuries after being struck by a Crown pallet jack operated by his co-employee.  Plaintiff claimed the pallet truck was defectively designed and was not equipped with necessary safety features.  The jury deliberated for less than half an hour before returning a full defense verdict.

Goodell DeVries Attorneys Win Defense Verdict for Physician in Lawsuit Alleging Permanent Nerve Injury -- May 2016
Craig B. Merkle and Shannon M. Madden obtained a defense verdict for their client, an internist and general practice physician.  The minor Plaintiff alleged permanent nerve and tendon injury to his hand following a cryotheraputic procedure in the office to treat a skin lesion.  His alleged damages included chronic pain and lifelong functional impairment.  The defense countered that the treatment procedure was appropriately performed and was not the cause of permanent nerve or tendon injuries, as alleged. 
At the end of a one week trial, the jury found unanimously that the Defendant physician had met the  standard of care and rendered a verdict in his favor.  

Goodell DeVries Attorneys Obtain Injunctive Relief in a Trademark Infringement Action Involving Counterfeit Medical Devices -- July 2016
Richard M. Barnes, Cheryl Z. Lardieri and Matthew D. Kohel obtained a preliminary injunction in favor of Dentsply Sirona Inc., Maillefer Instruments, and VDW, three leading manufacturers of dental instruments, in a trademark infringement action. In granting the injunction, the court accepted all of the facts presented and found “significant evidence of a likelihood of confusion” between the clients’ products and the infringing devices. Notably, the court granted all of the relief requested by the Goodell DeVries attorneys.  In addition to granting the injunction, the court permitted the clients to conduct extensive expedited discovery and dispensed with the need to post a bond as security for the injunction.

Goodell DeVries Obtains Defense Verdict for Pallet Truck Manufacturer -- July 2016
Thomas J. Cullen, Jr. and Kali A. Enyeart obtained a defense verdict in favor of Crown Equipment Corporation, a leading manufacturer of material handling equipment.  Plaintiff was injured while operating a Crown End-Controlled Rider pallet truck.  Plaintiff sustained an above knee amputation, as well as alleged renal complications that led to dialysis.  Plaintiff and his wife brought claims for design defect and loss of consortium.  The trial spanned two weeks and the jury deliberated for thirty minutes before returning a unanimous defense verdict.    

Goodell DeVries Attorneys Win Defense Verdict for Physician in Lawsuit Alleging Death from Esophageal Perforation -- September 2016
Kelly Hughes Iverson and Jared M. Green obtained a defense verdict for their client, a gastrointestinal physician. The Plaintiffs alleged that the physician negligently dilated the Decedent’s esophagus during a procedure to remove her esophageal cancer. This, according to the Plaintiffs, caused an esophageal perforation and ultimately the Decedent’s death. The defense countered that the physician appropriately performed the Decedent's procedure, esophageal perforation is a well-recognized risk of upper endoscopy and the Decedent's death, months after the procedure, was unrelated to the perforation. At the end of a two week trial, it took the jury thirty minutes to unanimously find in favor of the physician.  

Goodell DeVries Appellate Team Secures Trial Court Win Upholding Maryland’s 20% Rule on “Hired Gun” Experts -- September 2016
In a reported opinion, Maryland’s Court of Special Appeals has applied Maryland’s 20% Rule for expert witnesses in personal injury cases and affirmed summary judgment in favor of a prominent OB-GYN practice group. At trial in 2015, Kelly Hughes Iverson and M. Peggy Chu convinced the trial judge that Plaintiff’s expert devoted more than 20% of his professional time to activities that directly involve testimony in personal injury claims. By statute, Maryland limits such experts to 20% to prevent the use of “Hired Gun” professional witnesses in personal injury cases. Finding that the expert did not comply with the 20% Rule, the trial court entered judgment in all Defendants’ favor without a trial. For years, certain expert witnesses have dodged the 20% Rule by obfuscating, testifying inaccurately about their activities, and refusing to produce records that would substantiate (or refute) their signed certificates of compliance. Here, the expert, who has testified in hundreds of cases and earned millions of dollars in litigation as a paid medical-expert witness, fought discovery of how much professional time he spent in activities that directly involve testimony in personal injury claims. He gave vague and inaccurate testimony and produced financial records only after a court order to do so. Even then, his relevant earnings records were incomplete, and he never produced his redacted office calendar, which would have shown how much, if any, medicine he actually practices. On appeal, Plaintiff argued that the trial court had made a legal error. Assisted by Derek M. Stikeleather, Kelly Hughes Iverson showed the appellate court that the ruling excluding the expert was a proper exercise of discretion by a trial judge who was given a “messy and hotly disputed record.” The three-judge panel affirmed that “the burden of persuasion never shifts in a medical malpractice case” and the plaintiff must carry this burden. It is not the defense’s burden to disqualify the plaintiff’s expert. Given the resistance to basic discovery, serious gaps in the records he did produce, and his lack of credibility, the trial court “was well within its discretion to find that” he did not show that he complied with the 20% Rule.

District of Columbia Courts Adopt New Evidentiary Standard Urged by Goodell DeVries on Behalf of Lawyers’ Organization -- October 2016
On October 20, 2016, the District of Columbia Court of Appeals handed down a landmark opinion modernizing the District’s standards for the admission of expert testimony.  Motorola Inc. v. Murray, _ A.3d _, No. 14-cv-1350 (D.C. Oct. 20, 2016) (en banc).  In Motorola, the court adopted the more modern Daubert standard embodied in Rule 702 of the Federal Rules of Evidence and the case law applying the 1993 Supreme Court opinion, Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993).  In doing so, the District discarded the decades-old “Frye-Dyas” standard, derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Dyas v. United States, 376 A.2d 827 (D.C. 1977). Motorola heralds a shift from the limited Frye-Dyas inquiry into whether the expert applied “generally accepted” methodology to a Rule 702/Daubert standard with an “expanded focus on whether reliable principles and methods have been reliably applied.”  The old standard allowed expert testimony if derived from generally accepted methods – even a misapplication of those methods.  Conversely, it excluded expert testimony derived from novel methods – even if reliable and trustworthy.  As the trial judge who certified the Motorola case for interlocutory appeal commented in his assessment of the old standard, “even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.”  By contrast, Rule 702 tends to align the standard for admitting expert testimony more closely to the principles for determining reliability in science: “[I]f a reliable, but not yet generally accepted, methodology produces ‘good science,” Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out.”
In the Motorola case, Goodell DeVries attorneys Kelly Hughes Iverson, Kamil Ismail, Craig S. Brodsky, Erin C. Miller, and Meghan Hatfield Yanacek filed an amicus brief on behalf of the D.C. Defense Lawyers’ Association urging the adoption of the Rule 702/Daubert standard, which it contended would advance one of the DCDLA’s key goals, that of “improving the civil justice system by making it more fair, consistent, and uniform.”  As Goodell DeVries argued on behalf of the DCDLA, the Rule 702/Daubert standard requires trial judges to “independently evaluate the reliability of the opinions proffered by testifying experts,” as it is “reliability, not general acceptance, that should be the sine qua non of expert testimony.”

Goodell DeVries Attorneys Win Defense Verdict for Physician in Lawsuit Alleging Malrotation of Total Knee Components -- October 2016
Donald L. DeVries, Jr. and Meghan Hatfield Yanacek obtained a defense verdict for their client, an orthopedic surgeon. The Plaintiff alleged that the physician negligently malrotated the tibial and femoral components during a total knee arthroplasty. This, according to the Plaintiff, caused the need for a revision surgery and ongoing pain and stiffness. The defense countered that the physician appropriately performed the Plaintiff’s arthroplasty. The defense also argued that the Plaintiff developed extensive scarring - a recognized complication of total knee arthroplasty – that lead to the pain and stiffness. At the end of a two week trial, it took the jury less than an hour to unanimously find in favor of the physician.


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