Evidence: it’s rather useful

I once saw an Articled Clerk appearing for a plaintiff in a mention before the Melbourne Magistrates Court.  The Magistrate asked her “what’s the estimated duration of the hearing?”

AC: “I don’t have instructions on that, Your Honour”

Court: “Well, how many witnesses do you intend to call?”

AC: “We don’t propose to call any, your honour” [presumably the actual strategy was to negotiate at the door of the court]

Court (looking curious): “ok … how do you propose to prove your case if the defendant exercises its right not to call any witnesses?

A recent appeal out of California suggests how such a scenario might play out.

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You don’t expect to come out of a yoga class injured. Relaxed maybe. Even chilled out. But not injured. It isn’t work out that way for Ms Webster. During a yoga class on 11 October 2014 her position was twice adjusted by the instructor. She alleged that these adjustments injured her neck. She sued the school operators alleging negligence.

The defendant sought summary dismissal of the claim which was granted: Webster v Claremont Yoga (L.A. Co. Sup. Ct, Nieto J, 3 October 2016, unreported).  The plaintiff appealed.

The Court of Appeal noted the need for expert evidence in cases of professional negligence, unless a matter lay within a jury’s common experience.   The only expert evidence available in this case was supplied by the defendant.  It said that he had observed the relevant standard of care.

Plaintiff argues that an expert’s testimony is not determinative, even when uncontradicted, because a jury may reject it. … But even if a jury rejected Simons’s opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. In the absence of an expert, she could not show a triable issue of material fact, and defendants were entitled to summary judgment.

The court went on to consider the plaintiff’s doctor’s notes, which recorded complaints of  injury which she associated with yoga.  These were not considered sufficient to raise a causation issue for a jury to resolve.

Webster v Claremont Yoga (Calif. Ct of Apeal, 31 July 2018)

Don’t wait!

Lorenza Kopacz was 80 years old when she came to the emergency room at Banner Health in Arizona. She complained of chest heaviness and shortness of breath. One of the facility’s doctors examined her and recommended cardiac catheterisation. The procedure was performed in 23 December 2013 by way of an incision in the right groin allowing access to the femoral artery.

Mrs Kopacz did not enjoy a good result. Severe pain, bleeding and swelling of the groin followed, spiralling into cardiogenic shock, atrial fibrillation, severe sepsis and hypotension. There was a succession of hospital care and rehabilitation. Her condition stabilised between March and July 2014.

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On 21 January 2016 Mrs Kopacz issued proceedings in negligence against the hospital in Maricopa County Superior Court. the hospital sought dismissal of the claim on limitations grounds. The application was granted: Kopacz v Banner Health (Maricopa Co. Sup. Ct, Brnovich J, 2017, unreported). Kopacz appealed.

The appeal was dismissed. Arizona law provided that a medical negligence claim accrued when the plaintiff had reason to connect their injury with some causative factor in a way that would put a reasonable person on notice to investigate whether the injury may be someone’s fault. Once that intellectual threshold was crossed, the plaintiff had two years to commence a claim.  Mrs Kopacz knew or should have known of a possible claim by 27 December 2013. She responded that her medical condition prevented her understanding what had happened and its cause. While Arizona law allowed for a limitation period to be delayed while a claimant was “of unsound mind”, hard evidence of incapacity was required. The plaintiff’s self-report was insufficient, even when supported by an affidavit from a family member. Accordingly, Mrs Kopacz had issued out of time.

Kopacz v Banner Health (Arizona Court of Appeals, 5 July 2018)

Say what, now?

Nobody could say Jay Chandler didn’t give it a his best shot.  It still wasn’t a winning strategy to change stories at the last minute.

Golden Grove Remand Prison (Image from CaribFlame website)

On 8 October 2004 Jay Chandler was an inmate at Golden Grove Remand Prison in Trinidad and Tobago.  He was involved in a fight with another inmate who was shortly afterwards found to have sustained a fatal stab wound.  He was charged with murder.

Chandler’s first trial in the High Court of Trinidad and Tobago ended in a hung jury*.  He was retried, convicted and sentenced to death**.  His appeal to that country’s Court of Appeal was dismissed***.  On each of the three proceedings he denied having stabbed the victim.  He appealed to the Privy Council where he sought for the first time to admit medical evidence supporting a defence of diminished responsibility.

By a 3-2 majority the Board dismissed the appeal.  The Supreme Court of Judicature Act 1962 (Trin. & Tob.) §47 provides that

For the purposes of an appeal in any criminal cause or matter, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice … receive the evidence, if tendered, of any witness …

Previous cases had established that any fresh evidence should be capable of belief and that a reasonable explanation be given for the failure to present it at trial, but that an appellate court had an overriding power to admit new evidence if it were in the interest of justice.  In this case the majority (Lords Carnwath, Sumption and Reed) found it significant that the new evidence directly contradicated the case proffered at trial.  There was no explanation of the change in position.

Crucially, in the Board’s view, there is no evidence that the failure to advance a case of diminished responsibility at the trial was anything other than deliberate, and indeed a fair reflection of the appellant’s own position. … [T]here is no evidence even now that the appellant has himself changed his position, or would do so if there were to be a retrial.

The minority (Lords Kerr and Lloyd-Jones) considered that unless there was a sound basis for concluding that the Chandler knowingly neglected to advance this defence, it should not be presumed that he deliberately chose not to raise it.

Strikingly, no member of the Board considered that the death sentence on its own made a possible new defence significant enough to warrant a retrial in the interests of justice.  This may reflect the rarity with which Trinidad and Tobago actually carries out the death sentence.

Chandler v The State (2018), Privy Council, 12 March 2018.


* The State v Chandler (2009) Trinidad Express, 2 April 2009.
** The State v Chandler (2011) Trinidad Guardian, 19 August 2018; Trinidad Express, 17 August 2011.
*** Chandler v The State (2013) Trinidad Express, 16 December 2013.

Dr Judge, I presume?

Most personal injury practitioners see a string of radiological records in every case. A recent decision from the US Seventh Circuit is a reminder of the hazards of reading them without adequate training.

MRI meme
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Ms Akin applied for Supplemental Security Income. She alleged that she became disabled in 2011 as a result of fibromyalgia, back and neck pain and headaches. She saw a number of treating doctors and underwent an MRI. She was also assessed by two medicolegal examiners. The latter concluded that she was fit for sedentary work. Her claim was rejected by the Commissioner of Social Security. She appealed to an Administrative Law Judge (ALJ). The ALJ preferred the opinions of the medicolegal examiners and found that Ms Akin was not disabled because she was fit for sedentary work. The ALJ also said that the MRI scans (which the examiners had not seen) were consistent with Akin’s impairments but did not support her allegations of pain.

Ms Akin appealed to the US District Court which upheld the decision. She appealed to the United States Court of Appeals for the Seventh Circuit. Her appeal was upheld. The Court considered that –

… the ALJ’s evaluation of Akin’s MRI results is flawed because the ALJ impermissibly “played doctor.” … The ALJ stated that the MRI results were “consistent” with Akin’s impairments and then based his assessment of her residual functional capacity “after considering … the recent MRIs.” But, without an expert opinion interpreting the MRI results … the ALJ was not qualified to conclude that the MRI results were “consistent” with his assessment.

The ALJ’s decision was vacated and the matter remanded for further proceedings.

Akin v Berryhill (2018), US Court of Appeals for the Seventh Circuit, 4 April 2018.