CONNECTION. October Plaintiffs Finding New Ways to Challenge Defendants Medical Expert Witnesses CIVIL NEWS ALSO IN THIS ISSUE: VISIT US ONLINE

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1 CONNECTION CIVIL NEWS October 2011 ALSO IN THIS ISSUE: New Court Rules Regarding Jury Trials Now in Effect Settlements in Elevator Malfunction Suits George Van Antwerp vs. Grosse Pointe Village Grille, Inc. KPDE Case and Trial Highlights Upcoming National Speaking Engagements Indianapolis attorneys Keith Hays and Jeffrey Roberts wrote an article, No Longer A Luxury: Technology as a Vital Tool to Educate the Fact-Finder, which was published in DRI s For the Defense September 2011 issue. To read the article, visit our Firm News section on Plaintiffs Finding New Ways to Challenge Defendants Medical Expert Witnesses written by BJ Brinkerhoff and James Milstone VISIT US ONLINE PRACTICE SPOTLIGHT: Learn more about our Toxic Tort & Environmental Liability Practice and visit our web site for more details. (see page 5) There must be something in the water. Either that, or the Plaintiffs bar has been brainstorming for creative new ways to challenge Defendants abilities to conduct medical expert discovery and to offer that evidence at trial. Two methods used by Plaintiffs attorneys that KPDE has encountered with increasing frequency are Motions to bar Medical Records Review experts from testifying and discovery motions seeking to videotape Independent Medical Examinations (IME). We outline below the basic arguments found in these Motions, as well as our strongest and most successful ways of prevailing in these disputes. Motions to Bar Medical Records Review Experts from Offering Testimony or Opinions at Trial Motions to bar medical experts who perform medical records reviews (MRR) from offering expert testimony are the newest trend from Plaintiffs attorneys. Obviously, it is common practice for insurance companies and defense attorneys to retain physicians to review the records of a claimant or plaintiff in order to provide opinions as to causation or the nature and extent of the claimed injuries. Plaintiffs are now attempting to prevent these experts from testifying at trial (with some known limited instances of success), based upon the theory that a person s medical records are both hearsay and an incomplete history. Further, attorneys will cite to the fact that no interview, history, medical evaluation or examination occurs. Additional argument suggests that the use of an MRR expert violates both Indiana Trial Rule 35, which allows the Court to establish parameters for IMEs, as well as Indiana Rules of Evidence, which require that an expert s opinion be based on scientifically-reliable principles. Plaintiffs argue that under these Trial Rules, the lack of first-hand knowledge from the MRR expert makes the expert s opinions inherently unreliable. Challenging Expert Witnesses...continued on page 3

2 Illinois Legal Corner Settlements in Elevator Malfunction Suits Andrew A. Boros of our Chicago office reports two settlements this month in unrelated cases he is defending involving alleged elevator malfunctions. In the first matter, Mr. Boros represents the ownership and management of a major Chicago Loop office building. The plaintiff, a security officer for an independent security company working in the building, alleged she was trapped on an elevator in the building for over 15 hours on a Sunday. She alleged she attempted to call for help on the elevator intercom but there was no answer. Emergency personnel eventually freed her and reportedly she collapsed upon exit from the elevator. She was seen at a hospital and for counseling for a twelve-month period. Following the depositions of the plaintiff and the building engineer, the parties engaged in a settlement conference. The other defendants in the case were the elevator company and a separate security company in the building. Following negotiations, the plaintiff settled for $24,000, which comprised a contribution of $8,000 each from the elevator company, the security company and from our clients, the ownership and management. Our clients as well as their insurance carrier were very pleased with the outcome. In the second matter, Mr. Boros represented the ownership and management of an Oakbrook, IL office building. The only other defendant was the elevator company. The plaintiff alleged she was getting onto an elevator after making a delivery in the building when the elevator jerked up, she fell and sustained $30,000 in medical bills and lost wages. Following the deposition of the plaintiff and elevator maintenance personnel, plaintiff s attorney approached the defendants about settlement. The matter was then settled with a total contribution from the insurance carrier for the property ownership and management of $5,500. UPCOMING NATIONAL SPEAKING ENGAGEMENTS November 9-11, th National Worker s Compensation & Disability Conference & Expo Las Vegas, NV Organized by LRP Publications KPDE Speaker: Partner Tricia Bellich For more details visit: December 5-6, nd National Forum on Defending and Managing Trucking Litigation Hyatt Regency Grand Cypress Orlando, Florida Organized by the American Conference Institute Jim Milstone will be speaking on Settlement Negotiations and Alternative Dispute Resolution: Using ADR to Minimize the Impact of Trucking Litigation. For more details visit: www. americanconference.com

3 Michigan Legal Corner George Van Antwerp, Personal Representative of the Estate of Nancy Van Antwerp, Deceased vs. Grosse Pointe Village Grille, Inc. wrtitten by Melissa Melshenker Ackerman Congratulations to John Eads and Melissa Melshenker Ackerman whose motion for summary disposition was affirmed by the Michigan Court of Appeals. The Court of Appeals held that plaintiff failed to establish evidence to support a claim of negligence in a floor mat case instituted against a restaurant. The suit was heard in Oakland County Circuit Court in front of Judge Daphne Curtis. On the way out of the Village Grille located in Grosse Pointe, Michigan, Mrs. Van Antwerp caught her left foot on a floor mat located at the rear entrance to the restaurant and fell to the ground, striking her head. She was knocked unconscious and apparently remained unresponsive. She was treated by EMS at the scene and transported to Bon Secours Beaumont Hospital. According to the family, she suffered an intervening blood clot in the brain and thereafter a heart attack, and passed away two weeks later. The case was dismissed on a Motion for Summary Disposition under MCR 2.116(c)(10) on the theory that the restaurant was not on actual or constructive notice of any issues with this floor mat. Still photos helped demonstrate that Mrs. Van Antwerp tripped over the rug and did not actually slip. Further, the early retention of Mr. Russell Kendzior, an expert in the proper practices and procedures of running a safe restaurant, as well as his authoritative expert report, greatly contributed to defendant s success. The Court of appeals states: Plaintiff has failed to establish evidence to support a claim of negligence. The affidavit provided by plaintiff s expert offered no factual evidence beyond a hypothetical situation to show an unreasonable risk of harm at the Village Grill. While plaintiff did provide evidence that defendant did not have formal, written procedures for cleaning the floors and mop heads, this evidence alone is not enough to show that defendant was negligent. Furthermore, plaintiff has failed to show more than a mere possibility that the condition of the floor mat was the cause of the deceased s fall. Because plaintiff has failed to establish any evidence to support a claim of negligence, the trial court properly granted summary disposition in favor of defendant. Challenging Expert Witnesses...continued from page 1 Fortunately, Indiana law offers guidance for how to successfully defeat these challenges from opposing counsel. First, Indiana Rule of Evidence 702 provides: (a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, or experience, training, or education, may testify thereto in the form of an opinion or otherwise. (b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable. Ind. R. Evid Accordingly, two requirements must be met in order for a witness to qualify as an expert. First, the subject matter must be distinctly related to some scientific field, business, or profession beyond the knowledge, or experience in that area so that the opinion will aid the trier of fact. Norfolk Southern Railway Co. v. The Estate of Wagers, 833 N.E.2d 93, 101 (Ind.Ct.App.2005). In other words, provided that the expert has the required still level and his opinion is based upon reliable scientific principles, the opinion should be admissible. Challenging Expert Witnesses...continued on page 5

4 New Court Rules Regarding Jury Trials Now in Effect written by Valerie Henning Mock After a two year pilot project where juror experiences were evaluated, in June, 2011, the Michigan Supreme Court adopted proposed changes to many of the Michigan Court Rules affecting the conduct of jury trials, specifically Rules 2.512, 2.513, 2.514, and These amendments took effect on September 1, Many of the changes simply explicitly detail much of the trial procedure that has always been followed by practitioners and the courts. However, the more significant changes allow for a substantial increase in jury involvement throughout the course of the trial. The following is a synopsis of the most noteworthy and controversial amendments. MCR now requires all parties to submit requests for jury instructions as well as their respective statement of the issues at the close of evidence and the jury will be allowed to keep these during deliberations. A party may also submit their theory of the case for the jury s review as well. The rule also specifically provides that the court in its discretion (and without request from counsel) is to instruct the jury at any time during the trial on issues if the court deems it to materially aid the jury in understanding and arriving at a just verdict. MCR now requires that prior to evidence being taken, the court is to provide the jury with pretrial instructions which are reasonably likely to assist it in its consideration of the case. At a minimum, this will include the jury s duties, procedure, elements of all claims/offenses, legal presumptions/burdens of proof and the law applicable to the case. Again, each juror will be provided with a copy of these instructions they can keep and reference. It also allows for interim commentary by any party at appropriate junctures of the trial. Remarkably, it allows the reading of prepared deposition summaries in lieu of actual deposition testimony (with the summaries provided to the jury to read along) and permits the court to allow jurors to ask questions of the witnesses. Also significantly, the rule allows the court to permit jurors to take and reference notes and have interim discussions of the evidence at any time when they are all present in the jury room. Lastly, it allows the court to sum up the evidence for the jury, without commenting on the credibility of witnesses or give a conclusion on the ultimate issue to be decided by the jury. Needless to say, many of the justices on the Court have differed as to the effectiveness of these amendments. Justice Stephen Markman, who supported the adoption of the changes, stated that it is his belief they will enhance the ability of jurors to render intelligent and informed decisions concerning the significance of such evidence... afford jurors a better opportunity to discern the big picture of cases... enhance the quality and accuracy of deliberations... diminish the opportunities for gamesmanship... more deeply engage, and maintain the attention of, jurors in the proceedings...they will render at least somewhat less true Robert Frost s observation that a jury consists of twelve persons chosen to decide who has the better lawyer. By contrast, Justice Diane Hathaway, who opposed the adoption, recognized that some of the changes have a valid place in the judicial system. However, she notes they also contain multiple procedures that are highly controversial and are likely to prove problematic, particularly when litigants are forced to use them by a trial judge. This in turn would increase litigation costs and delays in proceedings. She was especially concerned that since the Court would not review the efficacy of these new rules for three years, there is no way for the Court to evaluate them in the interim other than perhaps anecdotal comments. These changes are all up for review by the Michigan Supreme Court again in the fall of 2014 prior to any re-adoption. It remains to be seen how the trial courts will apply these new rules, particularly those that are discretionary such as summaries of testimony and evidence and interim commentary and deliberations, but it seems certain they will be the subject of many legal challenges and appeals. ABOUT THE AUTHOR: Valerie Henning Mock s practice area is insurance defense litigation with primary focus on defense of professional negligence claims as well as an appellate practice, having filed briefs in the state s highest courts as well as the United States Supreme Court. Val comes from a corporate management background of over twelve years where she was responsible for ensuring both in-house and vendor compliance with performance standards.

5 Our Toxic Tort and Environmental Liability Practice attorneys have been handling multi-jurisdictional toxic tort litigation for decades. We have considerable experience in cases involving personal injury, wrongful death, products liability, premises liability and environmental property damage. We have handled every aspect of these types of cases from pre-suit negotiation, discovery, trial and appeal. The toxic tort and environmental attorneys specialize in asbestos, silica, and chemical litigation throughout Illinois, Indiana and Michigan. We represent manufacturers of industrial paints and solvents, pesticides, silica flour and asbestos-containing products. We represent landlords in lead poisoning cases and manufacturing of products, which incorporate or produce toxic agents. We have successfully defended against junk science claims and we have experience defeating such theories by appropriate pre-trial motions. We also have experience defending novel theories of damages, including chemically induced AIDS, fear of contracting cancer in the future and recovery for medical monitoring. Our attorneys are members of numerous insurance company-approved panels for this area of litigation. We also represent litigants in cases arising out of environmental issues, including Superfund clean-up, and litigation arising out of insurance coverage related to such matters. We act as monitoring counsel for insurance and self-insured companies in environmental litigation. Our goal is to provide the client with the best result possible on a cost-effective basis. Challenging Expert Witnesses...continued from page 3 The arguments made by Plaintiff suggest instead an argument about the foundation and/or factual basis for the MRR expert s opinions. Again, Indiana s Rules of Evidence and case law are very liberal with respect to the information an expert can use to support his or her opinion. Indiana Rule of Evidence 703 states: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field. Ind. R. Evid Rule 703 simply means that provided there is some basis to support the expert s opinion, a lack of factual foundation, which may be brought out on cross-examination, goes to the weight to be given the expert s opinion and not its admissibility. See, Estate of Wagers, 833 N.E.2d 93, 104 (Ind.Ct.App.2005). Since medical records are reasonably relied upon by physicians treating the same patient, there is no reason under Rule 703 that an MRR expert cannot rely upon those same medical records. Medical experts, as well as experts from other fields, routinely rely on the statements or records of other professionals. For example, in the case of Whitaker v. Becker, the Indiana Court of Appeals overturned the dismissal of a case based upon a discovery sanction, after the trial court found that Plaintiff s alleged concealment of an impending surgical procedure grossly prejudiced the Defendant s ability to obtain and IME and offer a causation defense at trial. Whitaker v. Becker, 946 N.E.2d 51 (Ind. Ct. App. 2011). One (of several) arguments the Court of Appeals found convincing was Plaintiff s citation to Rules of Evidence 702 and 703 as allowing for medical experts to provide opinions on causation by conducting a records review. Whitaker, 946 N.E.2d at 56. Similar decisions are found throughout Indiana case law. For example, in an opinion based on a review of photographs of the area, deposition testimony describing the area, as well as the expert s education and experience, was found to be properly admitted, and that any lack of personal examination went to weight and credibility, and not admissibility. Scott v. City of Seymour, 659 N.E.2d 585 (Ind.Ct.App.1995). Additionally, an expert s opinion that exposure to herbicide had caused plaintiff s medical problems was deemed admissible, given the fact that expert had reviewed plaintiff s medical records and his opinion was supported by his own education and experience. Hottinger v. Truegreen Corp., 665 N.E.2d 593, (Ind.Ct.App.1996), vacated on other grounds. When faced with these types of challenges from opposing counsel, precedent in Indiana provides compelling arguments that Plaintiffs motions are not well taken. The Rules of Evidence and Trial Rules provide a strong basis for Defendants to assert both their rights to have an MRR performed, as well as to offer any opinions at trial. Contests to an MRR expert are appropriate via cross-examination, questioning the facts relied upon and the methods employed (in-person examinations vs. records review, e.g.). However, provided the expert has the necessary qualifications and basis their opinion on scientifically-reliable principles, Defendants should be successful in combating these Motions. Challenging Expert Witnesses...continued on page 6

6 KPDE TRIAL & CASE HIGHLIGHTS: September 8, After 4 hours of jury deliberation, in a trial handled by Indianapolis Partner Christie Seifert, the jury awarded a $9,500 verdict. The plaintiff had filed a QSO for $10,000 prior to trial. Christie s direct examination of the plaintiff was noted by the client. September 2, Congratulations to Mark Dolin whose trial victory appeared in Michigan Lawyers Weekly. To read the summary, visit The keys to the success of the auto negligence trial were use of sudden emergency argument (granted on emergency motion from the Michigan Court of Appeals) and demonstrating that the no-fault carrier was misled by its insured. August 26, Farmington Hills Partner, John Eads, won a Dec Action MSD in Kent County based on an indemnification agreement in the amount of 3 Million Dollars. For more details, see our Michigan Corner in this issue. July 28, Farmington Hills Associate, Cheryl Ronk, won a motion for summary disposition in a provider lawsuit where the provider was claiming medical expenses, interest and attorney fees. Our client had denied the claimed benefits based on priority as it felt the alleged injured party had not provided enough evidence to establish our client was the appropriate provider. Cheryl obtained depositions to find another appropriate insurer then defended against current Michigan case law that indicates that an insurer must pay attorney fees and interest when denying on priority. July 22, South Bend Partner, Joseph Forte, successfully completed representation of a foreign corporation that acquired a multi-million dollar musical instruments company in Elkhart. The transaction involved dealing with the Royal Bank of Scotland on a complicated financing arrangement including factoring. The transaction was difficult, and ultimately closed over several days. The business did not have to lay off employees or have an interruption in operations during the sale. Challenging Expert Witnesses...continued from page 5 Motions to Videotape or Attend Independent Medical Examinations A more common discovery dispute encountered by our attorneys at KPDE are Motions from Plaintiffs attorneys to videotape or even attend their client s examination by an Independent Medical Examiner on behalf of a Defendant. We are unaware of any instances where these Motions have been successful, but nonetheless it is important to be well-prepared to contest these requests. The typical motion filed by opposing counsel sites Trial Rules 26(C) and 35, which allow the Court to set parameters for discovery, including IMEs, as a tool which assists the Court s evidentiary gatekeeping function. Counsel will almost always site to Jacob et al. v. Chaplin, 639 N.E.2d 1010 (Ind. 1994), where the Indiana Supreme Court found that a trial court did not abuse its discretion by allowing Plaintiff s request to audio-record an IME. Plaintiffs argue that allowing an IME to go unrecorded or unattended by a witness will allow for a de facto crossexamination by an agent of the Defendant. For these reasons, they seek permission to record or attend the IME. Our successful challenges to this request have followed a consistent outline. First and foremost, the application of the Chaplin case is almost always misguided. In Chaplin, the Court noted that discovery parameters are set by the Court not arbitrarily, but upon good cause shown. Chaplin, citing Ind. Trial R. 26(C). The Plaintiff in Chaplin allegedly suffered from mental injuries to his cognitive abilities, due to a head injury, and therefore there was concern over his ability to understand questioning from the examiner. Id. In other words, there was cause shown for the trial court to allow the audio recording. This was a fact-specific finding, and should not be interpreted as a blanket endorsement for all recordings of IMEs. Second, in our experience Courts are often persuaded by noting that an audio recording is distinguishable from a video recording, the latter of which essentially allows counsel or a jury to attend the examination post facto, in lieu of relying on the examiner s expert testimony. By watching the examination, even without being present, attorneys are likely to over-analyze each question, test, test result, etc. that is conducted by the examiner, as opposed to deposing the examiner through depositions as already provided for by the Trial Rules. Moreover, a jury is just as likely watch the examination and draw its own conclusions about the tests performed, the examiner s demeanor, and the examinee s physical condition without considering the examiner s actual opinion or evaluating testimony. Further, Courts have expressly forbidden attendance by an attorney at a medical examination. Wheat v. Challenging Expert Witnesses...continued on page 7

7 Challenging Expert Witnesses...continued from page 6 Biesecker, 125 F.R.D. 479, 480 (N.D. Indiana, 1989) (holding that the issue is left to the discretion of the trial court, and only upon a showing of good cause for attendance at the IME). The Court in Wheat cited to cases from multiple jurisdictions that found attorney attendance inappropriate, much less any other potential witness connected to the Plaintiff. See, Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543, 546 (S.D.N.Y. 1978) (labeling the plaintiff s claimed right to have his physician present frivolous ). Moreover, attendance at the examination subjects the attorney to being a witness during trial. Wheat, 125 F.R.D. at 480. A final compelling argument highlights that allowing a video recording of the examination is tantamount to attendance at the examination itself. We anticipate scenarios where opposing counsel may attempt to qualify the way his client answered questions, state unofficial objections to what he believes were irrelevant questions, or attempt to present evidence to the jury about the way the examination was conducted. These types of restrictions are not considered by the Trial Rules and would wholly defeat the purpose of the examination, especially considering that the Defendant was never afforded the same opportunity for review of Plaintiff s treatment sessions with his providers, and is limited to depositions and other discovery to determine those opinions. Plaintiffs should not be afforded any greater access to recording the IME than what was available to the Defendant while Plaintiff was treating for his alleged injuries. Though trial courts have the discretion to permit audio or other recording of and IME, rare is the case where the good cause required by the Trial Rules found by our judges. Instead, these efforts are frivolous challenges by Plaintiffs attorneys to thwart Defendants rights and abilities to obtain and present medical expert evidence in opposition to Plaintiff s claimed injuries and damages. Fortunately, Indiana law continues to prevent these challenges from succeeding, provided the appropriate arguments as outlined above are used. Conclusion Just as Plaintiffs attorneys have been vigilant in their attacks on common defenses to personal injury claims, we too have been creatively battling these types of discovery disputes. The arguments above are just some of the ways we have successfully defeated the challenges presented to our efforts to dispute claimed injuries and damages which we often feel are unrelated to the incidents that form the basis of lawsuits. These arguments are not meant to be exhaustive but are common examples of what we can anticipate from our adversaries in future litigation. Fortunately, Indiana law presently supports our efforts to present these defenses, provided the parameters of the Trial Rules and Rules of Evidence are satisfied. ABOUT THE AUTHORS: William J. ( BJ ) Brinkerhoff is a trial attorney specializing in defense of liability lawsuits against companies ranging from small, family-owned businesses to Fortune 500 companies. He is a member of the construction, products liability and retail defense practice groups at the firm, and has extensive experience in employment defense in state and federal Courts. BJ has handled several jury trials, and his cases include multi-million dollar employment claims, wrongful death matters and complex construction litigation. James H. Milstone has been practicing law in Indiana for the past 22 years with a primary focus on civil litigation. He has handled matters including product liability, trucking, construction, bankruptcy, environmental, employment, civil rights, insurance coverage, first-party coverage disputes, alleged bad faith, and general commercial litigations. Having handled over 30 trials, with demands as high as $4,000,000, Jim s strong trial skills have resulted in obtaining on average settlements 25% less than demand for his clients. He has also handled numerous appeals in both the state and federal court systems, litigating in the Seventh Circuit Court of Appeals as well as the Indiana Court of Appeals and Supreme Court. He has considerable experience with bankruptcy and creditors rights litigation. KPDE Connection is prepared and published by Kopka, Pinkus, Dolin & Eads. The articles are of a general nature and they are not intended to be interpreted as advice on specific legal issues. Editors of this newsletter include: Andrew Boros - Ilinois BJ Brinkerhoff - Indiana Melissa Melshenker Ackerman - Michigan Kopka, Pinkus, Dolin & Eads is a multi-state law firm dedicated to the defense of litigated matters in Indiana, Illinois and Michigan. Exceeding our clients expectations is at the core of the firm s practice in insurance defense, commercial litigation, workers compensation, bankruptcy and creditors rights, employment law, mediation, municipal litigation, product liability, professional liability, restaurant and retail, trucking and railroad, and toxic tort and environmental liability. If you have any questions on the content of this newsletter, please send us an at info@kopkalaw.com. Kopka, Pinkus, Dolin & Eads, LLC 100 Lexington Drive, Suite 100 Buffalo Grove, IL Tel: Fax: