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, December 27, 2006

Vioxx damages reduced from $32 million to $7.75 million

The $32 million jury award in a Vioxx lawsuit to a woman who lost her retired, 71-year-old husband was reduced to $7.75 million to conform to Texas state law. Merck & Co. was originally ordered to pay $7 million in noneconomic damages and $25 million in punitive damages. Judge Alex Gabert, however, ordered the punitive damages reduced to $750,000 to conform to a 2003 Texas law. The law caps punitive damages at twice the amount of economic damages (lost pay) with a maximum of $750,000 in addition to noneconomic damages. Because the man was retired and was awarded no economic damages for lost wages, Merk & Co. was ordered to only pay the maximum award under Texas state law.

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Monday, December 11, 2006

Solution for Attorney's Economic Damages Catch 22

We were contacted by an attorney last week who believed he was in a Catch 22 regarding economic damages in his case. "I don't think I can get an economic expert to calcualte damages until the court rules on the validity of certain earnings evidence, but if I wait until then, it will be too late to present economic damage testimony." We were happy to inform the attorney that there is a simple solution to this seemingly complex situation.

As economic experts, we have the flexibility to produce reports with multiple scenarios. For example, in this attorney's specific case, there was no doubt that his client sustained injures. There was, however, a dispute regarding if a portion of the plaintiff's earnings after the incident were the result of work he performed prior to or following the injury. The attorney understood the calculation of damages well enough to know that post-injury earnings would be an important part of calculating the plaintiff's future damages. He was pleased to learn that a report could be created that projected the plaintiffs losses in two scenarios that accounted for the potential differences in post-injury earnings.

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Friday, December 01, 2006

Response to UCLA Taser and racial profiling allegations

Are the allegations of racial profiling against the UCLA university police unique to UCLA? Not according to some. To some, the data is suggestive of a larger and bigger problem.

The table below shows the relative search rates for African-Americans and Latinos at some Texas universities in 2004. It shows the times more likely an African-American (B) or Latino (L) is to be searched by the universities police than a White person. For instance, B: 1.5 means that an African-American is 1.5 times more likely than a White person to be searched. >3 means the search rate was more than 3 times more likely.

University

Texas A&M University -- Commerce, University Police Department B: 1.5 L: >3
Texas A&M University at Galveston Police Department B: >3 L: >3
University of Houston Police Department B:2.9 L:>3
University of Texas of the Permian Basin Police Department B: 2.2 L:>3
Eastfield College Police Department B: >3 L:>3
Brookhaven College Police Department B: 2.7 L:>3

Source: Police department racial profiling reports and the Texas campaign to end police racial profiling

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Importance of statistical sampling in legal cases

While courts are becoming more and more accepting of the random sampling techniques in many types of cases, there is still the concern the use of random sampling violates a defendant's right to due process. For instance, in the Republic Servs. vs. Liberty Mut. Ins. Co. case discussed a few days ago in our blog, the court took note of the defendant's argument, but ruled that statistical sampling was useful and allowed it.

Other judges in other cases have ruled, from the bench, that the law simply does not provide for sampling regardless of its accuracy or cost savings.

A post on a listserv, shows a funny exchange between a MD and attorney concerning the use of sampling:

Q. Dr., would you agree that it is always better to make a complete study rather than take a sample?

A. Well, if you ever come to me for a physical, I will be sure to take all of your blood rather than just a sample.

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Relying on the words and works of others

Daubert on the web reports that decision in Linn v. Fossum, No. SC05-134 (Fla. Nov. 2, 2006) limits experts ability to rely on consultations with colleagues and related experts. This cases has the potential to affect the way that economists and vocational experts work together. For more, see:

Experts May Not Testify on Direct to Reliance on Consultations with Colleagues, Florida Supreme Court Rules

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