Readers of our blog have probably noticed that I have a special interest in sports-related legal issues (see https://www.videntpartners.com/blog/sports-law), which of course arises from my strong interest in all sports, both professional and collegiate. As a University of Kansas alum, I have a uniquely strong interest in the KU basketball team, which I have been following since I was an undergraduate in the early Cenozoic Period. Unfortunately, there is now a nexus between my interest in sports law and my interest in KU basketba
A couple of months ago, I wrote about the division of opinion among state courts as to whether Amazon can be held strictly liable for injuries caused by third-party sellers’ defective products. https://www.videntpartners.com/blog/2020/amazon-liable-third-party-sellers%E2%80%99-defective-products.
Your response to that title is “Tell me something I don’t know,” right? This is black-letter law! Unfortunately, as every litigator knows, sometimes trial judges make decisions that are simply incomprehensible – decisions that fly in the face of well-known legal principles. Fortunately, appellate courts (usually) set things right.
When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
Like all of us, I have experienced bad times for our country over the course of my life. I can recall years of fear and misery. I can recall decades of chaos, drugs and war. I’ve lived through violence and plague. And the overwhelming fear of nuclear holocaust shadowed the world for such a very a long time that it hardly seems credible from today’s perspective.
This is a tricky one. In Hirchak v. W.W. Grainger, Inc., https://ecf.ca8.uscourts.gov/opndir/20/11/192642P.pdf (8th Cir. 11/17/2020), the plaintiff was injured at work when a web sling broke and dropped a load of steel tubing on him. The plaintiff couldn’t sue the manufacturer, Juli Sling Co. Ltd., because it’s a Chinese company, not subject to the jurisdiction of American courts. So he sued W.W. Grainger, Inc. (“Grainger”), which had allegedly sold the Juli sling to the plaintiff’s employer, Weiler, Inc.
Most of the attorneys who contact us are looking for a testifying expert. Presumably that’s because many experts won’t testify (for all kinds of reasons), but are willing to assist attorneys in understanding and preparing cases for litigation, which makes finding consultants easier for attorneys than finding testifiers. Nevertheless, sometimes attorneys do need our help obtaining a consulting expert, and sometimes they even want one of each.
As we prepare for Thanksgiving 2020, I think we all can be thankful that we are approaching the end of this strange year. At one point in late spring I researched the prophecies of Nostradomus to see if he had predicted a year of disasters in 2020 – but alas, he did not. In fact, I have been unable to locate a single prediction of doom for this year anywhere, although several science fiction stories, novels and films have treated this era as one fraught with danger, both earth-based and coming from outer space.
I’ve been in the expert referral business for 15 years, during which I’ve recommended consulting and testifying experts to hundreds of attorneys. I’ve had my share of misses – i.e., either the attorney didn’t engage an expert I recommended, or an expert failed to satisfy the attorney and was replaced. But in the large majority of cases, the expert I recommended was retained and met or exceeded the attorney’s expectations.
I recently had occasion to refer a neuro-ophthalmologist to Jason Rubin, a plaintiffs’ attorney in New York who is one of my regular clients. The plaintiff/patient had increased intracranial pressure (the reason is not important here) that was affecting her optic nerves, with resulting visual impairment. She eventually had a ventriculoperitoneal shunt inserted to relieve the pressure, but by that time she had very significant vision loss that got even worse postoperatively, and she ended up with severe, permanent vision loss. The issue requiring the expert’s opinion was whether earlier p