Verdicts

Appeals Court Says Plans to Use Past Expert Testimony In Cross Need Not Be Disclosed

A New Jersey appeals court says that although attorneys must disclose that they have accessed an opposing expert witness's testimony, they need not indicate whether they plan to use it or not because decisions about cross-examination “involve the attorney's mental processes” and therefore they “are inherently work product.” Dalton v. Crawley, et al., Superior Court of New Jersey No. 4033-12T3.

The plaintiff's decedent died at the age of 39 from Community-Acquired Methicillin Resistant Staphylococcus (CA-MRSA), and the plaintiff sued the hospital where the deceased was treated. When the plaintiff's attorney deposed one of the defense witnesses, it became apparent to the defense that the attorney was working with transcripts of testimony the defense expert had given in a previous case. The defense's side then demanded copies of those transcripts, and the plaintiff's lawyer refused to hand them over, saying his strategy concerning examination of the expert was his work product.

Standard MRSA is generally acquired in hospitals. CA-MRSA, on the other hand, is found in those who have not been hospitalized or treated medically. According to one defense attorney in the case, very few otherwise healthy people contracted CA-MRSA prior to the mid-2000s. The danger in allowing impeaching testimony that an expert gave prior to this period was that the landscape has changed. Thus, cross-examination using this old testimony might be unfair to the witness and the party who produced the expert. The trial court determined that each side must produce information about the use of prior expert testimony, including whether such prior testimony was likely to be used in cross-examination.

The appeals court, in an unpublished opinion, held that the work-product privilege was not absolute, but also that the defendants had “not demonstrated a compelling policy consideration or other reason to have plaintiff disclose the mental impressions of her attorney in culling from the transcripts in her possession those that her attorney will or might use to cross-examine defense experts.” The court thus concluded that while each side must tell the other which transcripts they had gathered, including the name of the expert, the docket number and the name of the prior case from which the transcript was taken, but they need not disclose which prior testimony they might use in cross-examination.

Stroke Victim Awarded Nearly $14M from Doctor Who Prescribed Yasmin

A jury has awarded almost $14 million to a Chicago woman who sued her doctor for prescribing the birth control medication Yasmin, which the woman blamed for a disabling stroke and permanent brain injury. Following a two-week trial before Cook County, IL, Circuit Judge Edward Washington II, a jury of four women and eight men returned a verdict on April 18 against defendant Dr. Zbigniew Aniol, finding that he was negligent in his medical treatment of Mariola Zapalski and that his negligence caused her injuries.

Zapalski was 37 years old when she visited Aniol in the Resurrection Medical Center in September 2007, complaining of abnormal uterine bleeding, Zapalski's attorneys with Clifford Law Office said during a press conference. Aniol advised treating Zapalski with Yasmin, an oral contraceptive containing estrogen that has been linked to a high risk of stroke, particularly when other risk factors are present, said Bradley Cosgrove, an attorney for Zapalski. She had a history of risk factors that included smoking, obesity and high cholesterol, he said. “Yasmin was an inappropriate and dangerous drug choice for Mariola given her underlying risk factors,” Cosgrove said.

Cosgrove argued in court that the doctor was negligent because he never provided Zapalski with informed consent about the risks of and alternatives to oral contraceptives containing estrogen, such as a progesterone-only pill that Cosgrove said is safer.

Zapalski, originally from Poland, claimed that after taking Yasmin for 13 days, she suffered a stroke that paralyzed her left side and caused brain damage. She uses a wheelchair and requires 24-hour care, Cosgrove said. She and her husband, Rafal Zapalski, filed a lawsuit in 2009 containing counts of medical negligence and loss of consortium and naming as defendants Aniol and the hospital where he worked. The defendants denied all of plaintiffs' claims.

The plaintiffs offered to settle the case pretrial for $1 million, but that demand was rejected, Cosgrove said. Instead, the jury gave a net award of $13.9 million, including $6.9 million for future medical care. The plaintiffs settled with the hospital, Resurrection Medical Center, in March for $2.5 million, Cosgrove said. ' Laura Castro, law.com.

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Appeals Court Says Plans to Use Past Expert Testimony In Cross Need Not Be Disclosed

A New Jersey appeals court says that although attorneys must disclose that they have accessed an opposing expert witness's testimony, they need not indicate whether they plan to use it or not because decisions about cross-examination “involve the attorney's mental processes” and therefore they “are inherently work product.” Dalton v. Crawley, et al., Superior Court of New Jersey No. 4033-12T3.

The plaintiff's decedent died at the age of 39 from Community-Acquired Methicillin Resistant Staphylococcus (CA-MRSA), and the plaintiff sued the hospital where the deceased was treated. When the plaintiff's attorney deposed one of the defense witnesses, it became apparent to the defense that the attorney was working with transcripts of testimony the defense expert had given in a previous case. The defense's side then demanded copies of those transcripts, and the plaintiff's lawyer refused to hand them over, saying his strategy concerning examination of the expert was his work product.

Standard MRSA is generally acquired in hospitals. CA-MRSA, on the other hand, is found in those who have not been hospitalized or treated medically. According to one defense attorney in the case, very few otherwise healthy people contracted CA-MRSA prior to the mid-2000s. The danger in allowing impeaching testimony that an expert gave prior to this period was that the landscape has changed. Thus, cross-examination using this old testimony might be unfair to the witness and the party who produced the expert. The trial court determined that each side must produce information about the use of prior expert testimony, including whether such prior testimony was likely to be used in cross-examination.

The appeals court, in an unpublished opinion, held that the work-product privilege was not absolute, but also that the defendants had “not demonstrated a compelling policy consideration or other reason to have plaintiff disclose the mental impressions of her attorney in culling from the transcripts in her possession those that her attorney will or might use to cross-examine defense experts.” The court thus concluded that while each side must tell the other which transcripts they had gathered, including the name of the expert, the docket number and the name of the prior case from which the transcript was taken, but they need not disclose which prior testimony they might use in cross-examination.

Stroke Victim Awarded Nearly $14M from Doctor Who Prescribed Yasmin

A jury has awarded almost $14 million to a Chicago woman who sued her doctor for prescribing the birth control medication Yasmin, which the woman blamed for a disabling stroke and permanent brain injury. Following a two-week trial before Cook County, IL, Circuit Judge Edward Washington II, a jury of four women and eight men returned a verdict on April 18 against defendant Dr. Zbigniew Aniol, finding that he was negligent in his medical treatment of Mariola Zapalski and that his negligence caused her injuries.

Zapalski was 37 years old when she visited Aniol in the Resurrection Medical Center in September 2007, complaining of abnormal uterine bleeding, Zapalski's attorneys with Clifford Law Office said during a press conference. Aniol advised treating Zapalski with Yasmin, an oral contraceptive containing estrogen that has been linked to a high risk of stroke, particularly when other risk factors are present, said Bradley Cosgrove, an attorney for Zapalski. She had a history of risk factors that included smoking, obesity and high cholesterol, he said. “Yasmin was an inappropriate and dangerous drug choice for Mariola given her underlying risk factors,” Cosgrove said.

Cosgrove argued in court that the doctor was negligent because he never provided Zapalski with informed consent about the risks of and alternatives to oral contraceptives containing estrogen, such as a progesterone-only pill that Cosgrove said is safer.

Zapalski, originally from Poland, claimed that after taking Yasmin for 13 days, she suffered a stroke that paralyzed her left side and caused brain damage. She uses a wheelchair and requires 24-hour care, Cosgrove said. She and her husband, Rafal Zapalski, filed a lawsuit in 2009 containing counts of medical negligence and loss of consortium and naming as defendants Aniol and the hospital where he worked. The defendants denied all of plaintiffs' claims.

The plaintiffs offered to settle the case pretrial for $1 million, but that demand was rejected, Cosgrove said. Instead, the jury gave a net award of $13.9 million, including $6.9 million for future medical care. The plaintiffs settled with the hospital, Resurrection Medical Center, in March for $2.5 million, Cosgrove said. ' Laura Castro, law.com.

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