Segal McCambridge Legal Blog

Wisconsin has recently enacted tort reform measures that the American Tort Reform Association (ATRA) called “necessary and reasonable” by placing limits on civil liability that would “invariably help boost the state’s economy.”

According to ATRA, the new legal reform law brings Wisconsin into line with other states by limiting product liability to assist small businesses and manufacturers. It also adopts the higher, federal court standard for the admission of expert testimony, requiring such opinion to be based on sound, per-reviewed science.

“Importantly, the new reform package also overturns an onerous Wisconsin Supreme Court decision that established a so-called ‘risk contribution’ theory, which allowed personal injury lawyers to sue any and all lead paint manufacturer that had sold paint in the state decades ago without having to prove which products actually caused harm.

“Lastly, the new limit on awards for punitive damage will help reduce trial lawyers’ incentive for bringing some of their less meritorious lawsuits, which of course cost just as much to defend against as do more meritorious lawsuits.�

Here is a link to the Wisconsin tort reform bill

The ATRA article is here

The Eleventh Circuit recently affirmed a district court’s Daubert ruling favoring the defense in one of the cases alleging that a bupivacaine shoulder pain pump caused chondrolysis (a breakdown of the cartilage in the shoulder joint). The U.S. District Court (S.D. Florida) rejected a general causation opinion proffered by Dr. Poehling, a “an accomplished Board Certified orthopedic surgeon, author, professor, teacher, and lecturer” under Daubert. The District Court also rejected his specific causation opinion.  The Eleventh Circuit affirmed.

The Eleventh Circuit opinion begins:

This is a negligence and products liability action involving the use of a pain pump manufactured by Breg, Inc. for use during and after surgery. The Plaintiff, Douglas Kilpatrick, claiming to have been injured by one of Breg’s pumps, proffered a single expert witness on the issue of causation – Dr. Gary Poehling, M.D. The district court determined that the methodology used by Dr. Poehling to reach his conclusions was unreliable and, therefore, his testimony was inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Without the testimony of Dr. Poehling, the district court further determined that Kilpatrick could not establish the causation element in any of his claims, and final summary judgment was granted in favor of Breg. Kilpatrick appeals the exclusion of Dr. Poehling’s testimony. Upon a review of the record and this Circuit’s precedent establishing a highly deferential standard of review applicable to evidentiary determinations, we find that the district court did not abuse its discretion in excluding Dr. Poehling’s testimony.
We therefore affirm.

A copy of the Eleventh Circuit opinion, Kilpatrick v. Breg, Inc., No. 09-13813 (11th Cir. Aug. 12, 2010) can be found here

“Quintessential expert for hire,” Plaintiff’s expert, Dr. John Maddox excluded.

Orders from a middle Georgia judge throwing out an expert witness and the asbestos suit his testimony was going to support have defense attorneys celebrating and plaintiffs lawyers bearing down for an appellate battle.

At issue is a June 29 decision by Ocmulgee Judicial Circuit Superior Court Judge John Lee Parrott. He barred the testimony of John Maddox, a pathologist who claims that asbestos caused the lung disease that killed the plaintiff’s husband.

The problem, Parrott said, is the doctor’s opinion that any exposure to asbestos causes injury. That opinion, the judge said, “is not practically testable and has not been tested,” thereby violating one of the prongs of Georgia’s 2005 law governing the use of expert witnesses.

“[T]he courtroom is not the place for scientific guesswork, even of the inspired sort,” Parrott wrote, quoting a 1996 decision from the 7th U.S. Circuit Court of Appeals.

Lawyers who defend companies from asbestos cases hailed Parrott’s decision as great news and predicted it could influence other judges around the state.

The entire article can be found at Law.com

Courtesy of the Electronic Discovery Law blog

Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010)

Finding “willful� spoliation of 43 hard drives “in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary steps to do so�, a special master ordered a jury instruction which allowed the jury to infer that the destroyed evidence was unfavorable to plaintiff and for the parties to split the cost of defendants’ litigation of the spoliation issue. Upon a motion to modify the order, the magistrate judge affirmed the imposition of the jury instruction, but found plaintiff should pay all of defendants’ reasonable expenses and ordered payment of $89,365.88.

The blog post with link to a copy of the order is here