Without dissent, the Senate Judiciary Committee approved a measure to repeal the existing laws that require civil suits to be filed within two years of a victim’s turning 18. For incidents that take place in the future, there will be no statute of limitations.

SB 1292 also opens a window for those who were abused in the past 35 years, giving them one year from the time the law takes effect to file suit, even if the time limit had previously run out.

But legislators agreed to extend the time allowed to file a suit only for cases based on a defendant’s “direct or intentional conduct.”

Sen. Amanda Aguirre, D-Yuma, who wrote the legislation, said it would give sex-abuse victims added time to go after both the perpetrator and anyone who knew of the abuse.

But she said it would leave the current time limits in place for lawsuits against churches or school districts for simply being negligent in supervising their employees. And she said it also would bar late-filed lawsuits, even if a victim could show that an organization or even a specific person had suspicions someone was a molester but failed to act.

The measure now goes to the full Senate.

Ron Johnson, who lobbies on behalf of the state’s three Catholic bishops, acknowledged that he has been working to limit the measure from its original scope. But Johnson said any limit is not to shield those responsible. Rather, he said, it would ensure that businesses, churches and schools would be able to buy insurance. Without some limit on litigation, Johnson said, no coverage would be available.

He isn’t the only one pushing for limits. Jack LaSota, who lobbies on behalf of the Arizona School Risk Retention Trust, said school districts that buy liability insurance through his organization want some assurances that the law won’t be changed so much that it would open the door to lawsuits filed after decades solely because someone who turned out to be a molester happened to be employed years ago.

Monday’s vote followed a plea from Pinal County Sheriff Paul Babeau, who told lawmakers last week that he was the victim of abuse as a child. It’s important to provide a civil alternative to those who were abused but could not get justice in criminal proceedings, he said.

But Yuma County Attorney Jon Smith told legislators that it’s often difficult to get a conviction in these cases, unless there is a witness other than the victim, or the assailant confesses. Civil suits have a lower standard of proof, he said.

Jeff Dion, acting executive director of the National Center for Victims of Crime, said: “Pedophiles don’t retire. Even when the victim waits 30 years to disclose the abuse, if the perpetrator is still alive, we find them at 70 or 80 years old, in walkers and wheelchairs, continuing to molest kids.”

Howard Fischer Capitol Media Services
February 23, 2010
Source: Arizona Daily Star

Prados, an ex-Marine, leaned forward in the jury box and asked in a let-me-get-this-straight tone of voice: “He’s brave enough to go out and get shot at by anyone but he couldn’t handle this?” he said of the locker-room taunting.

Fellow jury candidate Robert Avanesian, who had also unsuccessfully sought dismissal on financial hardship grounds, chimed in: “I think severe emotional distress is what is happening in Haiti. I don’t think you could have such severe emotional distress from that,” he said of the allegations in the deputy’s case.

The spontaneous outbursts of the reluctant jurors just as Los Angeles County Superior Court Judge James R. Dunn was about to swear them in emboldened others in the jury pool to express disdain for the case and concerns about their ability to be fair, and to ratchet up the pathos in their claims of facing economic ruin if forced to sit for the three-week trial.

In this time of double-digit unemployment and shrinking benefits for those who do have jobs, courts are finding it more difficult to seat juries for trials running more than a day or two. And in extreme cases, reluctance has escalated into rebellion, experts say.

After three days of mounting insurrection, lawyers for both the deputy and the sergeant waived their right to a jury trial and left the verdict up to Dunn.

“We can’t have a disgruntled jury,” said attorney Gregory W. Smith, who represents Deputy Robert Lyznick in the lawsuit against his former supervisor. He called the panel “scary” and too volatile for either side to trust.

Money woes inflicted by the recession have spurred more hardship claims, especially by those called for long cases, say jury consultants and courtroom administrators. More than a quarter of all qualified jurors were released on hardship grounds last year, according to court statistics. And judges say they have seen more people request such dismissals in the last year.

“There’s a lot of tension, a lot more stress people are dealing with these days,” said Gloria Gomez, director of juror services for the Los Angeles County Superior Court.

In Lyznick’s suit against the county, Dunn granted hardship dismissals for more than half of the 65 people sent to his courtroom. In a neighboring courtroom, where Judge Robert H. O’Brien was about to try an asbestos case, 66 of 107 prospective jurors were excused for financial difficulties before the individual questioning, or voir dire, got started.

“The economic situation has really put attorneys and judges in an awkward position of having to say to someone who is the sole wage earner in a family or someone who is self-employed and doesn’t get paid when they don’t work that they have to serve, and we have more and more of those,” said Jaine E. Fraser, a psychologist and jury consultant who sat in for the asbestos jury selection before the parties settled.

People on the margins of society tend to be more sympathetic with victims bringing suit, and excluding them on hardship grounds can disadvantage plaintiffs, Fraser said. But it’s also risky, she noted, to force people into jury service that will cut deeply into their paychecks.

With shrinking budgets, courts are under pressure to do more with less. Los Angeles County courthouses were summoning 55,000 people a week, at $15 a day each, until the economic crisis imposed more belt-tightening. The county is now making do with 45,000 summonses a week — only about half are even answered — compelling stricter scrutiny of those claiming financial, medical and child-care problems, Gomez said. The county has also tightened sanctions for repeat no-shows, imposing fines of as much as $1,500.

Fraser, who is based in Dallas, said jurors there have been more willing to serve since the city raised daily jury compensation from $6 to $40. California courts have been trying for years to get the daily stipend raised to $40, without success, Gomez said.

As he struggled with the mounting pleas for dismissal, Dunn alluded to pressures on the court “to be very diligent in reviewing excuses.”

High school teacher Sharon Friedman told the judge she had no savings and would lose 60% of her February pay. Substitute teacher Martine Tomczyk argued that she needed to be free to take work days when they surfaced. Freelance producer Robert Thatcher said he could lose contracts to competitors if he missed deadlines while on the jury.

As excuses were flying and Dunn struggled to maintain order, one of the few jurors who hadn’t sought dismissal interrupted the questioning to offer his take on the unusually passionate resistance.

“I think with what is going on in the country, there are a lot of angry people,” said retired Broadway actor Sammy Williams. “Money is such an issue and to give money to someone for results of a case, it’s really important that they’re getting it for a real reason, an important reason.”

The Los Angeles Times

by Carol J. Williams

February 15, 2010

Source: LATimes.com

As a consequence of her Dec. 30 ruling, the defendants in Crawford v. American Legion Ambulance Association, 08-cv-2338, will not have to pay more than $600 per hour when they depose the plaintiff’s medical expert, leaving the plaintiff to pick up the difference unless the expert agrees to lower his rate.

The expert, John Ratliff, an assistant professor of neurosurgery at Thomas Jefferson University Medical College in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter.

His court appearances also come at a high price: $12,000 per day and rising to $15,000 when he has to go out of state, as in this case.

Plaintiff Vernon Crawford claims he was rear-ended by an ambulance in 2007, resulting in myelopathy and loss of spinal function. He was treated by Ratliff, consulted with him about the possibility of surgery and has designated him as a medical expert.

Lee Eckell, of Post & Schell in Princeton, N.J., who represents the defendants, American Legion Ambulance Association and ambulance driver Robyn Crispin, wants to depose Ratliff.

Under the Federal Rules of Civil Procedure, the party seeking discovery is the one who has to pay for the deposition. But Rule 26(b)(4)(C) requires discovery seekers to pay only a "reasonable fee for time spent."

Crawford’s attorney, David Heim, of Bochetto & Lentz in Philadelphia, moved on Aug. 21, asking for a ruling that Ratliff’s charges were reasonable in light of his qualifications and highly specialized expertise.

Heim’s certification described Ratliff as a "well respected author, lecturer and researcher" with 15 peer-reviewed publications to his credit and "subspecialty expertise in peripheral nerve disorders, as well as neurosurgical evaluation and treatment of nerve compression syndromes and peripheral nerve trauma, including complex reconstructive peripheral nerve surgery."

The fees to be paid Ratliff were from a schedule provided by Thomas Jefferson University’s Department of Neurosurgery, which said those rates had been paid in other cases, without reduction, stated Heim.

He also related his efforts to obtain other expert fee schedules for comparison by calling around to other area hospitals.

The Hospital of the University of Pennsylvania and Temple University Hospital both informed him their neurosurgeons do not do expert witness work, while two other places, Hanehmann University Hospital and the Washington Brain and Spine Institute, said they would check but never got back to him, he wrote.

Cooper University Hospital, however, provided an expert fee schedule for David Clements, a board-certified orthopedic surgeon who does spinal surgery. Clements charges $8,500 for in-court testimony and up to $4,500 for a deposition, rates Heim argued are commensurate with Ratliff’s.

Eckell countered with 3rd Circuit precedent that set reasonable expert fees at $200 to $500 per hour, though none of the cases involved a neurosurgeon.

He also highlighted the disparity between Ratliff’s fees and those for two other plaintiffs’ medical experts, one who charged $1,500 for the entire deposition and the other $500 per hour.

U.S. Magistrate Judge Karen Williams acknowledged that neurosurgery is a highly specialized area of practice and, thus, "a reasonable fee for a neurosurgeon may be well above a reasonable fee for other types of experts." She also called it surprising that neither side had provided information about deposition fees charged by a neurosurgeon with credentials similar to Ratliff’s.

She called "immensely instructive" a case from the District of Colorado she found through own research, Grady v. Jefferson County, 249 F.R.D. 657 (2008), which held that a neurosurgeon’s published fee of $2,000 per hour for deposition testimony was grossly excessive. The expert, Richard Spiro, chief of spine surgery at the University of Pittsburgh Medical Center, was willing to reduce his fee to $1,000 per hour for the case, a prisoner’s civil-rights suit alleging inadequate medical care, where the two Colorado surgeons acting as defense experts were charging $450 per hour. The Grady court found a reasonable hourly rate for Spiro was no more than $600 per hour.

Williams chose that same amount, noting Spiro practiced in the same state as Ratliff and had equally impressive credentials.

To avoid having to pay Ratliff’s hefty court appearance fee, Heim had also requested permission to videotape Ratliff’s trial testimony right after the deposition.

He argued that the contrast between the court appearance charge and the $2,000 per-hour cost of obtaining canned trial testimony right after deposition qualified as "exceptional circumstances" under Rule 32(a)(3)(E).

Williams denied the request, finding it would result in immense prejudice to the defendants. They would have to jump right into trial questioning without the chance to review the deposition transcript or refer to it and would have less time to prepare for cross-examination, she pointed out.

Heim says the fee set by the court is more than the $250 to $350 per hour courts typically allow for medical expert testimony and more than the defense was initially willing to pay. He hopes Ratliff will agree to accept the $600 rate, since his client will have to pay any overage.

Eckell declines comment.

New Jersey Law Journal
by Mary Pat Gallagher
January 06, 2010
Source: Law.com