Metier Legal Newsletter August 2017

can businesses be held liable fo 1024x576 - Metier Legal Newsletter August 2017This past month, the courts looked at a few procedural questions: What expert testimony should be admitted, how is joint responsibility determined between attorneys for the purpose of dividing fees, and when can laches be used in a family law case? In other recent cases, the court decided what kind of warning is sufficient in a products liability case, and should Nebraska adopt the concept of “loss of a chance” in a medical malpractice case?

When Determining Whether to Admit Expert Testimony, What Is the Standard and How Is It Applied? In Keaschall v. Altec Industries, Inc., United States District Court, D.of Nebraska answers the question. The decedent, Kurtis Keaschall, suffered fatal injuries while working as lineman for Dawson Public Power District in 2012. Under the Federal Rule of Evidence 702, and controlling cases call for the liberal admission of expert testimony. It calls the Court’s role, a gatekeeper of sorts, and says that role should not take over the jury’s responsibility to decide issues of credibility and to determine the weight that should be given to the evidence. The Court applied the established standards to examine the two expert witnesses being proposed.

What Does “Joint Responsibility” Mean in Colorado Contingency Cases? The Colorado Court of Appeals took on this assignment when it tried to untangle how fees should be divided in Larson v. Grinnan, (2017 COA 85). In this case, a general practitioner ended up with a personal injury case he was not prepared for. He signed up a PI attorney, became an associate in the case, and a huge settlement was made. The problem was, there was vague language in the representation agreement between the attorneys and the court had to step in and try to define how much responsibility each party had in the case, how much work, and therefore, how much of the fees should each get.

Is Laches Available as a Defense to A Long-Overdue Spousal Maintenance Award? The Colorado Court of Appeals addressed the question of laches in the case: In re Marriage of Kann, (2017 COA 94). This case goes all the way back to a divorce in 1989. After 28 years, is it appropriate for a spouse to demand a lump sum of the maintenance she was owed for the past three decades, after never even mentioning the money owed? The court held the equitable defense of laches was available and remanded the case.

How Much Warning Is Enough in a Pharmaceutical Products Liability Claim? The United States Court of Appeals for the Tenth Circuit took on this challenge in Cerveny v. Aventis, No. 16-450 (10th Cir. 2017). Alexander Cerveny was born more than 20 years ago, with birth defects. Defects his parents blame on the fact that his mother took Clomid prior to getting pregnant. The parents sued the manufacturer, saying the warnings on the drugs were not sufficient. The district court granted summary judgment to Aventis based on federal preemption, saying the FDA would not have approved the drug warnings the Cervenys say are required under Utah law. The state law tort claim conflicts with federal law and is preempted. The district court granted summary judgment to Aventis on all of the Cervenys’ claims.

Should the Loss of a Chance of Achieving a Favorable Outcome or of Avoiding an Adverse Consequence Be Compensable and Should the State of Nebraska Adopt That Doctrine? The Nebraska Supreme Court took on this complicated question in Cohan v. Medical Imaging Consultants, (297 Neb. 111).   Mary Cohan and Terry Cohan (“Cohans”) brought a medical malpractice action against Medical Imaging Consultants (“MIC”). They alleged that negligent treatment caused Mary’s breast cancer to progress undiagnosed for 1 year and that her delayed treatment caused physical and mental suffering, a shortened life expectancy, loss of consortium for Terry, and an increased risk of recurrence, entitling the Cohans to damages. The loss-of-chance doctrine is applicable in some states, and it allows a plaintiff to obtain damages from a defendant for a heightened risk of death or injury—especially if the plaintiff relied on what the defendant did or did not do. Currently, it is not recognized under Nebraska law. Although the court did not adopt the loss of chance doctrine, it did find the directed verdict to be in error and remanded for the jury to assess whether any damages were appropriate.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.



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