Real-Time Court Decisions and Other Developments in Asbestos Litigation.
Jurisdiction: United States District Court for the Southern District of New York Plaintiff Scott Keller alleged that he was exposed to asbestos during his employment on ExxonMobil Oil Company vessels and that he developed lung cancer as a result. Exxon eventually moved for summary judgment and sought to preclude the opinions and testimony of plaintiff’s … Continued
Court: Supreme Court of the State of New York, Appellate Division, First Judicial Department The Supreme Court of the State of New York, Appellate Division, First Judicial Department recently determined that a causation expert widely used by plaintiffs in talc litigation, Dr. Jacquline Moline, must identify the subjects of her talc causation studies. Johnson & … Continued
Court: United States District Court for the District of Utah This case arises out of decedent John C. Riegler’s diagnosis of mesothelioma, which plaintiff alleges stems from decedent’s work at a service station, including the performance of brake services. Plaintiff alleges defendants’ automotive-friction products exposed decedent to asbestos and caused his mesothelioma. Before the court … Continued
Most jurisdictions require that a plaintiff establish allegations of accounting malpractice through expert testimony. Moreover, accounting experts are often relied upon to establish damages. Accordingly, the vast majority of litigators, even those outside of the malpractice community, will encounter a CPA expert witness. This may be daunting for attorneys. Fortunately, there’s a handy, but underutilized, guide. The special reports to the AICPA Code of Professional Conduct include ethical standards required of every CPA. The reports provide a readymade guide for evaluating the efficacy and admissibility of a CPA expert’s testimony. Using these standards as a benchmark should help practitioners retain and oppose an accounting expert.
In many states a litigant cannot proceed with a professional liability lawsuit without an appropriate affidavit of merit. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. Simply filing an AOM though is not always enough. Ensuring that the AOM has been prepared by the appropriate professional and addresses the issues of the particular case is critical to surviving a potential motion to dismiss. Take for example two recent cases out of New Jersey.
A key issue in most professional malpractice cases is whether the professional complied with the applicable standard of care. Given that this standard is defined by individual professional communities, an expert is almost always needed to assist the fact-finder. Not just any expert will do. Rather, an ideal expert must be in a position to opine whether the questionable conduct complied with the standard upheld in the defendant’s jurisdiction. This issue was recently raised in Delaware when an expert’s opinion was ignored because he lacked an understanding of the locale at issue.
Expert witnesses play a key role in professional liability matters. The perfect expert will work with counsel to identify and address issues during discovery and later will effectively condense complex issues to a jury in layperson terms. As a result, attorneys must carefully consider who they select and how to best utilize the expert. In a sense, an expert witness is just another tool available to the professional malpractice practitioner; an expensive and unwieldy tool if not vetted and monitored properly. Often, it is the attorney who may be left to answer for poor results arising from an expert’s misconduct.
Attorneys must communicate with expert witnesses to define the scope of the engagement, to prepare for trial, and to evaluate the evidence. Depending on the jurisdiction, some or all of that communication may be protected from disclosure pursuant to the attorney work-product doctrine. In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court considered the extent of the privilege in this context and reached a bright-line rule in favor of non-disclosure.
Attorneys and litigants would love a peek behind the curtain to develop a better understanding of their adversary’s case. Of course discovery provides the parties with various tools to identify and narrow the issues prior to trial. But discovery can only reach so far. In light of various privileges and exceptions, litigants often grapple over those materials that are discoverable and those that remain protected. In a recent New Jersey Superior Court decision, the court evaluated the extent of the attorney work-product doctrine as it pertains to expert testimony.