That's a good motto for litigation and other matters.
The papers today have articles about a new report published by the National Academy of Sciences on the health problems caused by mold. The 380 page report costs about $50 and can be purchased here.
The synopsis of this publication, from the National Acadmey of Sciences site, is as follows:
Almost all homes, apartments, and commercial buildings will experience leaks, flooding or other forms of excessive indoor dampness at some point. Excessive dampness is not only a health problem by itself, it is also contributor to several other potentially problematic types of challenging situations. Molds and other microbial agents favor damp indoor environments, and excess moisture may initiate chemical emissions from damaged building materials and furnishings. This new book from the Institute of Medicine examines the health impact of exposures resulting from damp indoor environments and offers recommendations for public health interventions.
Damp Indoor Spaces and Health covers a broad range of topics. The book not only examines the relationship between damp or moldy indoor environments and adverse health outcomes, but discusses how and where buildings get wet, how dampness influences microbial growth and chemical emissions, the ways to prevent and remediate dampness, and the elements of a public health response to the issues. A comprehensive literature review finds sufficient evidence of an association between damp indoor environments and some upper respiratory tract symptoms, coughing, wheezing, and asthma symptoms in sensitized persons. This important book will be of interest to a wide-ranging audience of science, health, engineering and building professionals, government officials, and members of the public.
Later: Thanks to Blog 702 for pointing to where you can get the full text of this report on the NAS site.
I recently read an article on trial practice in which the author, whose name I don't recall, recommended that lawyers who deal with medical issues take a course on anatomy if they have not had one already, even if only in an audit status. Sounds like a great idea. However, even auditing a course can be very expensive, and then there are the scheduling difficulties of traveling to and attending the lectures.
Luckily, there is another solution. The Teaching Company is offering a course on Understanding the Human Body: An Introduction to Anatomy and Physiology, which consists of 32 lectures, each 45 minutes long, on DVD or videotape. It is currently on sale, until June 24, for $129.95. I ordered it myself, and I can say that the lecturer is engaging and the technical quality of the DVD video and graphics are excellent. They also recommend an Anatomy and Physiology textbook to be read in conjunction with the lectures.
[Later: Above I was referring to an article by Alan T. Radnor, "What To Do Before Deposing A Doctor", The Practical Litigator, Vol. 11, No. 6 (Nov. 2000), in which the author recommends a variety of ways to gain knowledge of anatomy.]
An interesting article in the FDCC Quarterly: Loss Of Privilege: The New Discoverability Of Reinsurance Information by Mitchell A. Orpett.
There's a new science museum in Washington, D.C. There is a $5 admission fee for adults, $3 for children. Here's some background:
Opening April 2004, the Marian Koshland Science Museum will feature state-of-the-art exhibits that present the complexities of science in an engaging and accessible way to the general public. Best enjoyed by visitors ages 13 and older, the museum will explore current scientific issues at the core of many of the nation’s public policy decisions, as presented in reports by the National Academies.
Two of the museum’s three exhibits will be temporary and on view at the Koshland Science Museum for approximately two years before traveling to other museums across the country. The museum’s inaugural exhibits include:
Wonders of Science: the Koshland’s permanent exhibit features animations of groundbreaking research and includes an introductory film about the nature of science.
Global Warming Facts & Our Future: reveals the science behind global warming and examines the possible implications of this phenomenon for the quality of life around the world.
Putting DNA to Work: details several current applications of DNA sequencing, from tracking the origin of SARS to criminal forensics.
A distinguished group of museum advisors, including experts in the fields of biology, geoscience, climatology, genomics, medicine, astronomy, physics, environmental sciences, and science education, have participated in exhibit development to ensure scientific accuracy and objectivity.
The Marian Koshland Science Museum is named for Marian Koshland, an immunologist and molecular biologist who conducted groundbreaking research in the behavior of antibodies. The museum has been developed through a gift from her husband, Daniel Koshland, a molecular biologist specializing in the study of enzymes and bacteria.
Backup Man, or Spotter, For Tractor Trailer, Held By Virginia Supreme Court To Be Covered By Tractor-Trailer's UIM Coverage After Spotter Struck By Third-Party Tortfeasor's Vehicle
In Slagle v. Hartford Ins. Co., a construction manager was acting as the backup man, or spotter, for one of his firm's tractor-trailers which was delivering a piece of construction equipment. The tractor-trailer was insured by Hartford. While standing 10 to 30 feet back and directing the tractor-trailer back, the plaintiff was struck by a third party's vehicle. The third party's insurer tendered its policy limits. However, Hartford denied that the plaintiff was an insured covered by its underinsured motorist coverage. The plaintiff filed a declaratory judgment action against Hartford. The trial court found no UIM coverage for the plaintiff under the Hartford policy.
The Supreme Court of Virginia reversed, holding that the plaintiff was using the tractor-trailer in a manner contemplated by Code § 38.2-2206(B) and, thus, was an insured entitled to the underinsured motorist coverage applicable to that vehicle. This decision will have a wide impact, as almost every commercial vehicle requires a backup man or spotter to back up safely (since these vehicles have large blind spots behind them). There was a strong dissent.
The majority of the Court reasoned as follows:
In Yates v. Walmart, the U.S. District Court for the District of Maryland awarded summary judgment to Walmart, on the grounds that the plaintiff has no evidence to establish a requisite element of Walmart's liability, i.e., that it had actual or constructive notice of the leaked shampoo upon which the plaintiff slipped. The Court reasoned as follows:
Plainly, Ms. Yates has not marshaled any evidence, aside from her own speculation, to establish how long the dangerous condition was present. Evidence is legally sufficient to warrant the submission of a case to a jury only if it rises above speculation and conjecture. Moulden, 239 Md. at 232. See Carter v. Shoppers Food Warehouse MD Corp., 126 Md. App. 147 (1999) (where plaintiff slipped and fell in produce department and claimed the cause was store’s negligent maintenance of a mat in allowing edge to become turned up, court reasoned that plaintiff failed to present evidence that store owner had actual or constructive knowledge of the condition where it was not clear how long the mat was turned up before the fall). The mere fact that the spilled shampoo had spread to a diameter of from eight to ten inches simply does not support a rational inference as to the length of time the condition existed. Because defendant has no continuing duty to inspect and plaintiff cannot present any evidence as to how long the shampoo was on the floor, she is unable to establish a prima facie case of negligence.
In Anderson v. USAA, the Court required the plaintiff to filed an amended complaint to state her claims of negligent misrepresentations against an environmental remediation company with more specificity. The factual background of this suit is as follows:
In May 1999, the plaintiff entered into purchase agreements with the Millennium defendants for two newly-constructed units in the Ritz-Carlton Residences, which later were combined into one unit (“the unit”). . . . The plaintiff began to occupy the unit in January 2001, after which time she began experiencing “a variety of flu-related symptoms, such as nasal congestion, burning eyes and fatigue.” . . . The plaintiff maintains that she had no known history of such health problems before she resided in the unit, and that her symptoms would subside whenever she left the premises. Id. . . . In February 2002, black-colored mold became visible along the walls of the unit. . . . From February through May 2002, defendant NuChemCo, Inc. (“NuChemCo”) performed air-quality tests that revealed additional mold throughout the unit. . . . The Millennium defendants contracted defendant TEG, a purveyor of environmental investigation and remediation services, to perform the remediation of mold-contaminated areas throughout the building. . . .
The remediation was completed, however, plaintiff's health allegedly further deteriorated as she experienced “severe headaches, blurred vision, difficulty breathing, coughing, congestion, nausea, vomiting, diarrhea, swelling and cognitive deficiencies.” The plaintiff attributes her maladies to various toxic molds growing within the walls of the building as a result of “serious and reoccurring leaks and flooding” that took place during construction. The plaintiff’s doctor ordered her to move out of the unit, and she has not returned since her departure.
In Kombein v. Gali Service Indus., Inc. the U.S. District Court for D.C. took the fairly unusual step of granting summary judgment to the defendant cleaning company based on the plaintiff's contributory negligence in a slip and fall case. As the Court noted, "This is the rare and exceptional case, with evidence so clear and unambiguous that the court must find contributory negligence as a matter of law."
Here, the plaintiff, who is an attorney, noted that the floor had been freshly mopped, noting both the wet floor signs and the wet surface of the floor itself. She admitted that she knew that wet floors were slippery, and that she could have avoided the wet floor by taking a different route to her office. The Court found no disputed issues of material fact with regard to the plaintiff's contributory negligence.
The defendant real estate management company, which had hired the cleaning company, had moved for summary judgment based on the plaintiff's assumption of the risk. Ironically, the Court denied that motion without prejudice, finding a disputed issue of fact as to assumption of the risk. However, if the cleaning company obtained summary judgment on contributory negligence, surely the management company should as well.
In Stearman v. State Farm, the Maryland Court of Appeals held that for all private passenger motor vehicle liability insurance policies and binders issued, delivered, or renewed in the State on or after January 1, 2005, insurers must offer liability coverage for claims made by family members in the same amount as the liability coverage for claims made by a nonfamily member. That was a change made by statute. The Court declined to extend that change by judicial mandate.