Articles Posted in Evidence

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In the early morning hours of April 19, 2010, Chantel Jobes was driving a vehicle alone and left the southbound lane of Highway 11, crossed the northbound lane and crashed into a concrete railroad trestle. Jobes was seriously injured and filed a lawsuit against the Norfolk Southern Railway Co., the Mississippi Transportation Commission and the Mississippi Department of Transportation. The trial judge denied the defendants’ motion for summary judgment. The Supreme Court of Mississippi granted the defendants’ request for an interlocutory appeal and that court entered summary judgment in their favor.

Jobes was working at TGI Fridays in Hattiesburg, Miss., when she started her shift as the manager at 4 p.m. on April 18, 2010. She finished her shift at approximately 1:30 a.m. the morning of April 19 and then went directly to a 24/7 gym nearby to work out, which was her normal routine. After about an hour at the gym, she headed to a friend’s house to celebrate his birthday. She does not remember the party, but her friends told her that she “didn’t want to finish the cocktail drink [she] had,” and she wanted to go home.

Jobes left the birthday party and drove toward her home. The crash described above occurred about 4:42 a.m. on April 19. The weather was clear and dry, and the crash injuries were life-threatening. Jobes was driving with a suspended license and was legally intoxicated and also had prescription anti-anxiety medication in her system. Jobes testified at her deposition that she had worked 3 straight weeks without a day off up until the crash. She could not remember a time when she had been more stressed.

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All evidence is required to meet the foundation requirement of admissibility, which would include relevancy, the best evidence rule and hearsay. Under the law, the courts require authentication because before a tangible object or writing can be admitted into evidence, it must be shown that it is in fact what it claims to be. Thus evidence that is not authenticated is not relevant and must be excluded from consideration by the court.

Digital evidence has the same requirements as all other evidence in terms of authentication and foundation before it could be admitted into evidence. Digital evidence is also known sometimes as electronically stored information (ESI). That phrase was made a part of the Federal Rules of Civil Procedure in 2006. The leading case on the application of the Federal Rules of Civil Procedure and adopted by Illinois came to be in the 2007 Maryland case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). In that case, magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland noted that the failure to authenticate ESI “almost always is self-inflicted injury which can be avoided by thoughtful advanced preparation.”

One of the principal problems with digital evidence is that it can be manipulated, changed, fabricated by hackers and other sophisticated software users. It is also difficult to show to the court who was responsible for creating the digital evidence, whether it was on a keyboard on a computer or by cell phone or iPad. In some mobile apps, text messages seem to come from a particular person’s telephone, when in fact they did not. But evidence authentication does not require certainty. People v. Anderson, No. 311448, 2014 W.L.1383399 at 4 n. 3 (Mich. Ct. App. April 8, 2014); State v. Mays, 729 A.2d 1074, 1079 (N.J. Super. Ct. App. Div. 1999). In these cases dealing with authenticity, the parties hired experts to testify about who was the sender or recipient of certain digital evidence.

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Shannon Brown sued the Burlington Northern Santa Fe Railway Co. under the Federal Employers’ Liability Act, 45 U.S.C. Section 51, et seq. Brown started as a laborer and worked his way to foreman, track inspector and machine operator by 2009.

In 2007, he was diagnosed with carpal tunnel syndrome in both wrists and cubital tunnel syndrome of the left elbow. In October 2007, Brown suffered a right shoulder injury but was pain-free in December 2007. In 2007 and 2008, Brown had carpal tunnel surgery to both of his wrists. In 2009, he underwent surgery on his left elbow. In January 2010, Brown returned to work without any medical restrictions. In September 2011, he left his employment at the railroad.

Brown filed a lawsuit in 2009 claiming that the cumulative trauma caused his wrists, elbow and shoulder injuries. During discovery, Brown hired Dr. David Fletcher to serve as his expert witness to give his medical opinion that the railroad caused his injuries. Dr. Fletcher graduated from Rush Medical College in Chicago, obtained a master’s degree in public health and was a fellow in the American College of Occupational and Environmental Medicine. He was also an assistant professor at the University of Illinois and one of two doctors serving on the Illinois Workers’ Compensation Commission.

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The U.S. Court of Appeals in Chicago has affirmed a decision of the U.S. District Court for the Northern District of Illinois dismissing a lawsuit against a Wal-Mart store for injuries suffered by Kristen Zuppardi. She went to the Wal-Mart store in Champaign, Ill., with her brother and her son on June 15, 2010. When she entered the store, Ms. Zuppardi took a shopping cart from the front of the store and then walked down one of the main aisles of the store. Ms. Zuppardi was on her way to the back of the store to purchase milk. As she was walking down the aisle she slipped and fell in a puddle of water on the store’s concrete floors. She filed a complaint against Wal-Mart in state court in June 2012. The case was removed to the Federal District Court by Wal-Mart for diversity of citizenship jurisdiction.

One of the Wal-Mart store’s assistant managers, George Steward, stated that he did not witness the fall, but that he knew that because the fall occurred in close proximity to the store’s back doors, Wal-Mart personnel would have promptly dealt with the puddle even if the plaintiff had not fallen.

Wal-Mart was unable to locate the customer’s incident file of this occurrence and was accordingly incapable of producing any documents related to the investigation other than five photographs depicting the location of the fall and a report submitted to Wal-Mart’s casualty claims administrator. There was no video footage available.

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On Nov. 25, 2008, Thomas J. Hagerman was driving westbound on Route 6 in Morris, Ill., when the defendant, Betty Leake, who was attempting to make a left turn onto Lisbon Street, chose not to yield the right-of-way. Instead, Leake turned directly in front of Hagerman’s truck, causing Hagerman to T-bone her vehicle.

Hagerman was 43 years old at the time and suffered injuries to his cervical and thoracic spine, which resulted in a three-level cervical discectomy and fusion surgeries. He lost one year of work as a security guard and warehouse worker.

Hagerman was able to return to his job, but later underwent two bilateral knee replacements unrelated to the crash. He has not been able to work since the knee replacement surgeries.

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In a case that has been labeled one of first impression, the wife of a victim of mesothelioma has prevailed after the defendant, Tennessee Valley Authority, moved to dismiss the case. The case was heard in the U.S. District Court for the Northern District of Alabama.

Barbara Bobo brought this lawsuit against nine defendants, eight of whom were dismissed pursuant to stipulation for dismissal leaving only her claim against the Tennessee Valley Authority (TVA). The plaintiffs were the co-personal representatives of the estate of Barbara Bobo who maintained a variety of claims against the TVA based on her contraction of pleural mesothelioma from washing her husband’s work clothes. It was alleged that the work clothes contained asbestos dust originating from his job duties at TVA’s Browns Ferry Nuclear Power General Facility in Limestone County, Ala.

In this case, the principle issue was the causation of her contraction of mesothelioma. Before the court was a motion to exclude specific causation opinions of doctors. The motion to exclude the specific causation opinion was found to be moot and the motion to exclude specific causation opinion of another doctor was denied.

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Several dietary supplements are being tested again in the United States and the Netherlands because of a new synthetic stimulant widely used in these products. The stimulant has been untested on humans. Federal regulators have taken no action, although the government has been urged by scientists to look closer.

The chemical DMAA, a stimulant as labeled by the U.S. Food and Drug Administration (FDA), is illegal when mixed with dietary supplements or any other product consumed by humans. DMAA is an ingredient that carries the risks of heart attacks, seizures and neurological problems. That compound is also listed on labels as AMP Citrate. AMP Citrate is a close relative of the compound DMAA.

Pieter Cohen, an assistant professor at Harvard Medical School and a co-author of an article of the scientific journal Drug Testing and Analysis, stated, “We want the FDA and we want the stores to immediately remove these products from the store shelves,” referring to products sold to the public containing DMAA. According to the research published, 14 products were tested that listed AMP Citrate, 4-amino, 2-methylpentane citrate or some of the other chemical names used to describe the new stimulant. According to Cohen, these are marketing names.

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A nationally recognized art critic and historian, Gerald J. Nordlund, visited the Art Institute of Chicago at 111 S. Michigan Avenue on Sept. 5, 2009. He was 82 at the time. After leaving the Art Institute, Nordland stepped onto a retaining wall, which separated the sidewalk along Columbus Drive from a driveway serving the Modern Wing at the east side of the museum.

Nordland alleged that the height differential between the top of the retaining wall and the adjoining sidewalk caused him to fall as he attempted to step back down to the sidewalk. He struck his head and suffered facial injuries and a subdural hematoma and permanent sight loss.

The defendant, Interactive Design Inc., argued that the design of the retaining wall met the architectural standard of care and that Nordland’s contributory negligence was the proximate cause of his fall. The defense at trial also denied that his vision loss was related to this occurrence.

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Stephen Wolkoff, 65, rented a self-storage unit from Sunshine Storage Inc. There was a loft storage unit above Wolkoff’s storage unit. The floor of the loft comprised the ceiling of Wolkoff’s storage unit. When Wolkoff was inside his unit, the ceiling above him collapsed crushing him beneath 3,000 pounds of material.

Wolkoff suffered a fractured pelvis, ruptured urethra and nerve damage to both of his legs. Wolkoff underwent open reduction surgery and reconstruction of his entire pelvis, procedures to reconnect his urethra and implant an artificial sphincter to drain his bladder and surgery to repair nerve damage in his legs.

Wolkoff also required a colostomy and wore the bag for three years. In addition, Wolkoff suffered complications, including infections to both ankles. Blood loss from the injuries caused permanent vision loss in his left eye and partial loss in his right eye. Wolkoff’s medical expenses totaled $3.2 million.

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Khalil Bell and his mother, Kimberly Street, lived in a Chicago area apartment. On March 10, 2008, the heat in their apartment was off. To warm the apartment, she turned on the stove and put pots of water on the burners to create steam. After the water had reached the boiling point, she took the pots off the stove.

According to her deposition testimony, one burner was left on and uncovered when she went to take a shower. While Street was showering, her son Khalil, who was living with her, walked into the kitchen. When he did so, his shirt caught on fire burning him severely. On behalf of Khalil Bell, a minor, Street filed a lawsuit against the landlady and building manager, Helen Bakus and Nimo Rasho.

The lawsuit alleged that the building owner, Bakus, and the building manager, Rasho, had been notified about the unsafe placement of the stove in the apartment and about the lack of heat in the apartment. Street testified at her deposition that neither of the problems were remedied.

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