Articles Posted in Experts

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In late March 2008, Fortino Fonseca was working for RG Drywall, a subcontractor hired by Clark Construction Group, LLC. While Fonseca was carrying a 100-pound sheet of drywall, he tripped over an electrical pipe that was on a hallway floor. Fonseca fell and the drywall broke on top of him.

As a result of the fall, Fonseca suffered injuries that required surgery on his back and right shoulder. On Feb. 1, 2010, Fonseca filed a lawsuit naming Clark Construction Group, LLC as a defendant. During the next 14 months after the filing of the lawsuit, some other defendants were added and some were dropped. By April 15, 2011, the defendants who remained were Clark Construction and Maron Electric, which was a subcontractor hired by Clark Construction to do the electrical wiring for the building.

In the lawsuit, Fonseca claimed that Maron chose not to clear the construction area of debris and that Clark had chosen not to property supervise the work that was being done.

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On May 20, 2008, Timothy Balota, 31, was driving southbound on Interstate 55 in Collinsville, Ill., when traffic came to a stop approaching a construction zone near Route 157.  Collinsville is a near east side suburb of St. Louis.  A truck was stopped behind the plaintiff’s car when the semi-tractor-trailer driven by defendant Lewis Casey rear-ended the truck at 20-30 mph.  That crash triggered a chain reaction collision, which included five vehicles. 

At the time of the crash, Balota was on his way to have staples removed from a surgery necessitated by a life-threatening accident just 13 months earlier. 

As a result of the impact of this crash, Balota sustained cervical disc injuries at C5-6, C3-4 and C6-7 with future surgery recommended by his treating physician.  Balota also suffered aggravation of pre-existing conditions in his lumbar and thoracic spine. He claimed past and future lost time as a carpenter of $485,299. 

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It is sometimes overlooked in trial practice or not given enough emphasis that the conduct of a defendant must be proved to have proximately caused the injuries or damages claimed in the pleadings. Also, expert testimony must meet the rules of scientific reliability. 

For example, Gary McCann, an engineer for more than 17 years for the defendant, Illinois Central Railroad, sued the railroad in a 4-count complaint. He claimed damages for carpal tunnel syndrome caused by the railroad’s inadequate and defective cab seats, rough track, oversized ballast and defective switches.

In this case, McCann claimed negligence under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §51 et seq.; negligence per se; violations of the Locomotive Inspection Act, 49 U.S.C. §20701; and negligence for causing his carpal tunnel syndrome.

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For as long as I have been practicing law, now 37 years, the question an expert must always be asked is whether his or her opinion is to a reasonable degree of certainty. Once that question is answered in the affirmative, the burden for the offering expert is whether the opinion that is about to be given improving the strength of the expert witness’s opinion is more probably true than not. That second question must be answered affirmatively as well. 

In a recent deposition of one of my experts, one of the defendants’ lawyers spent a great deal of time badgering the witness about what she believed the term reasonable degree of medical certainty means since it was stated in that fashion in her written opinions. The answer went something like this:  “I have never been asked this before.” The defense counsel argued with the witness, saying that she did not correctly state what he said was the “test in Illinois,” for reasonable certainty.  I am not aware of any law that requires an expert to define what reasonable certainty means before answering, since it is a set of words that are understandable on their face. This witness testified that she believed it was more probably true than not that the injury suffered by the plaintiff was caused by the negligence of the defendants.

To dig deeper in this, “reasonable certainty” is a statement that the opinion is not a guess or speculation, but the product of some scientific method or from the education, background and experience of the expert. 

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John Baugh sustained a severe brain injury when the Cuprum ladder that he was using to clean his gutters buckled and collapsed. Baugh’s wife Sharon filed a lawsuit on his behalf against Cuprum S.A.de C.V. claiming that the defective design and the manufacturer’s negligence was the cause of her husband’s injuries.  John could not testify as to what happened to him because of his injuries.

About three months before the beginning of the trial, the defendant, Cuprum, informed plaintiff’s attorney that it intended to use an exemplar of the actual ladder at the jury trial. The exemplar ladder was new, but had been built to the exact specifications to the ladder that Baugh had used. In a pretrial conference on Feb. 1, 2011, Cuprum’s exemplar ladder was marked as an exhibit “for Demonstrative Purposes.”  The plaintiff’s counsel objected to any use of the new exemplar ladder at trial. Discovery had been closed for two years. The ladder had not been included in Cuprum’s expert disclosures. 

In response to the objection, Cuprum argued that the exemplar ladder was for demonstrative purposes and that it would be used during direct examination of its expert witness. It was not intended to be substantive evidence.  Cuprum also argued that the exemplar ladder would be used to demonstrate and help the jury understand the expert’s testimony. 

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A district court judge in Chicago granted the motion of defendant Ryobi Technologies Inc.  to exclude an expert witness as unreliable and irrelevant. Purportedly, it would have cost Ryobi $50 to $150 to install an automatic braking system on the table saw that sliced off Brandon Stollings’s index finger and portions of several other fingers in a “kickback” incident.

Under Illinois law, it is required that expert testimony is necessary to prove that a product was unreasonably dangerous.  Stollings wanted to call John Graham as his expert to testify that each saw sold without the safety device burdens society with an average of $753 in accident costs. The basis of Graham’s opinion was that the automatic braking system would have been 90 percent effective.

After this appeal was taken, the U.S. Court of Appeals reversed ruling that the district court judge’s exclusion of Graham’s testimony on reliability grounds was an abuse of discretion because it “intruded too far into the province of the jury.” Graham’s expert opinion was relevant as to whether the Ryobi saw was unreasonably dangerous. 

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On May 8, 2010, James Choragwicki was driving southeast on Willow Springs Road in Willow Springs, Ill., when the defendant, Marek Szkodon, was traveling southwest in his car on Archer Avenue and went through a red light. This resulted in a T-bone collision with the front of the plaintiff’s vehicle striking the passenger side of the defendant’s vehicle.

The plaintiff, age 52, claimed the crash caused cervical strain and aggravation of his pre-existing lumbar degenerative disc disease. Choragwicki was not treated by paramedics at the scene and did not go to the hospital after the crash. He first sought medical treatment three days later when he went to his primary care physician complaining of neck, back and left wrist pain.  Physical therapy was prescribed by his doctor. 

Plaintiff began experiencing radiating low back pain into his right leg for the first time several weeks after the crash. He did have  pre-existing degenerative disc disease, which was without symptoms prior to the accident. Plaintiff underwent 4 months of physical therapy, receiving one epidural injection into his lumbar spine in December 2010 and made a full recovery by January 2011 with no complaints since that time. Plaintiff missed 4 ½ weeks of work as a UPS truck driver. 

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A recent Illinois Appellate Court decision provided additional clarification regarding the admissibility of photographic evidence. At issue was whether or not a judge had correctly allowed photographs taken at the scene of an accident to be admitted into evidence during a Cook County personal injury trial. The appellate court ruled that judge had and upheld the jury verdict in Patricia Williamson v. Luis Morales, 2012 IL App. (1st) 110324-U.

Williamson involved a 2006 car accident in which the defendant Luis Morales rear-ended the plaintiff Patricia Williamson’s vehicle. And while Morales admitted to having caused the accident, there was some debate as to the extent of Williamson’s injuries. Williamson refused treatment by paramedics at the accident scene, but then did head to the Christ Medical Center Emergency Room just one hour later. And even though her x-rays did not show any fractures, she continued to experience pain and treatment with a chiropractor for four to five months following the accident.

When Williamson brought her personal injury claim against Morales he denied that the car accident was responsible for the extent of Williamson’s injuries and her lost time from work. And when Williamson’s attorney attempted to produce photographs from the accident scene as a way to demonstrate the severity and nature of the car accident, Morales’s attorney objected on the basis that they were not relevant and could not be introduced unless in conjunction with expert testimony. The court agreed and stipulated that the photographs could not be introduced unless the defendant first opened the door to their submission.

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