The Witness Box

Commenting on expert evidence, economic damages, and interesting developments in injury, wrongful death, business torts, discrimination, and wage and hour lawsuits

Wednesday, November 29, 2006

Stats experts live to analyze another day...

On 10/3/2006 in Holster vs. McMaster-Carr Supply Co., Judge Garret Brown ok's plaintiff's statistical analysis of termination data in a RIF action.

In Republic Servs. vs. Liberty Mut. Ins. Co., Judge finds the use of statistical sampling of workers compensation claim files to assess defendant's liability and damages is valid and does not violate the defendant's rights. (10/2/2006)

Go to dauberttracker.com to learn more...

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Monday, November 27, 2006

Damages for the Holidays? Lost earnings exist when vacation/sick time used for injury recovery

The experts at Lost Compensation were recently contacted by an attorney seeking advice on whether or not he should take a case. The plaintiff was injured in a typical slip and fall incident. The plaintiff incurred damages due to medical expenses, but the attorney was unsure if he should take the case because he didn't believe lost wages were recoverable. While the plaintiff was unable to work during his recovery time, his absense from work was fully covered by the vacation and sick time he had accrued over his years as an employee.

After our brief discussion, the attorney learned that although the plaintiff did not have a loss of earnings visible in his pay statements, he did in fact have recoverable damages in that area. Vacation and sick time provided to an employee in a work agreement has a real, and usually easily measured, dollar amount value. The loss of vacation and sick time can be valued at the rate the employee would have been paid had that time been spent working. That time is part of the benefits of the employment agreement and when an individual is unable to utilize that time as he wished due to an injury that another is repsonsible for, the losses are recoverable.

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Monday, November 20, 2006

Follow-up to Attorney Buzz...

Follow-up to the Buzz: Daily UCLA Taser video





Here is the actual UCLA taser event (from the UCLA student newspaper website) that has attorneys talking.

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Friday, November 17, 2006

The Buzz: Attorneys debate claim for damages in UCLA taser incident

Things became heated today on a popular attorney listserve as opinions were expressed about the lawsuit and claim for damages expected to come out of UCLA police using a stun gun on the 23-year-old UCLA student of Iranian descent, Mostafa Tabatabainejad. A high-profile attorney has been hired to file a police brutality suit. Civil rights attorney Stephen Yagman, who frequently brings actions against law enforcement agencies, also plans to file a federal civil rights lawsuit on the student's behalf, accusing UCLA police of false arrest and "brutal excessive force."

Attorneys across the country are voicing their opposing opinions. Some made posts supporting a possible claim of damages including pain and suffering while others scoffed at a potential claim for damages and applauded the UCLA police for using what they deem to be appropriate force.

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Thursday, November 16, 2006

Are these losses economic losses?

Case background:

Plaintiff's lost their parents in a plane crash due to a airplane defect. The parents had a very large estate and as a result the estate taxes that the children had to pay when the deceased parent's assets were transferred to them amounted to several million dollars.

It is argued by the children's attorneys that had the parents not died the parents would have transferred the estates to the children over time and in a more tax advantageous way. According to the children the parents were in the process of doing that at the time they died.

Should the childern's estate tax bill be considered a loss in the economic damage calculation in the airplane products liability lawsuit?

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Female editor wins major wrongful employment termination lawsuit

A federal jury in Manhattan ruled on Monday, October 23 in favor of former editor-in-chief of The Source, Kimberly Osorio, in her sexual harassment and gender discrimination suit against the magazine and its founders, David Mays and Raymond "Benzino" Scott.

The jury awarded her $400, 000 in lost back pay and front pay and a total of $15.1 million for the relatalition. The judge later lopped off nearly half of the $15.5 million verdict fired-editor Kimberly Osorio won.

The plaintiff's were represented by high profile New York plaintiff's attorney Kenneth Thompson of Thompson Wigdor & Gilly.

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Friday, November 10, 2006

Claim for damages made by Chamber of Commerce President who has fought “frivolous” lawsuits

The West Virginia Trial Lawyers Association (WTLA) has expressed its displeasure with state Chamber of Commerce President Steve Roberts after filing a personal injury lawsuit related to an injury his daughter sustained when hit in the eye with a paintball by another child. Mr. Roberts is suing for damages related to medical bills, loss of income and travel expenses as well as a claim for non-economic damages.

"For years now, Steve Roberts has led the charge to restrict access to West Virginia's courts," said Jeff Jones, the WVTLA President. "Over and over, he has characterized lawsuits filed by injured workers, people hurt by dangerous products, and people who were being cheated by insurance companies as 'frivolous.' He claims that these victims were trying to hit the 'lawsuit lottery' jackpot."

Mr. Roberts claims the lawsuit has nothing to do with any of the restrictions for which the state Chamber lobbied.

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Friday, November 03, 2006

Attorney argues misapplication of Daubert is killing the jury trial

Allan Kanner of Kanner & Whiteley PLLC, new paper, "Daubert and the Disappearing Jury Trial", argues that Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. He argues that the decision was meant to liberalize the standards for admissions of proof. However in practice the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

The paper can be found at:
Working Paper 1851. http://law.bepress.com/expresso/eps/1851

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Thursday, November 02, 2006

Verdict against Amtrak has attorneys talking

The recent $24 million verdict ($1.6 million in economic losses) against Amtrak has many attorneys talking. The following are listserv post by attorneys commenting on the case.

'What I find curious is that we rarely, if ever, hear about run-away juries going in the other direction--where there was, to common public perception, a legitimate and grievous injury, but the jury came back with nothing. Statistically, if there are instances of juries apparently going absurdly high, then there should be an equal number of juries apparently going absurdly low. That we hear only of the former is a possible indicator of media bias. '

-attorney, Atlanta, GA


'The verdict that was rendered was the work of 12 good men and women, I
suppose. Every time I hear about a runaway jury, I go back and think
that each juror is just like me. ...Verdicts like this do not usually come out of nowhere. They happen usually because a defendant has time and time again ignored an obvious problem that could have been fixed. '

-attorney, Atlanta, GA

'... NEVER EVER EVER take a burn case to trial. I mean, damages are awarded for PAIN AND SUFFERING. If a person gets money for a broken bone, how much more do they get for a burn? ... I think the defendant is so bound up with the liability analysis, they forget to step back and think how a jury is going to react to a guy with burns over 75% of his body. Their stomachs turn, they wince in fear to even imagine such a thing happening, they don't want to look at him and then they feel guilty... and they open up [the defendant's] pocketbook

-attorney, Pasendena,CA

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