Fairfield Connecticut Building Expert Directory

Expert Medical Science Causation Testimony Improperly Excluded under Daubert; ID of Sole Cause of Medical Condition Not Required

April 15, 2014 — R. Bryan Martin & Whitney L. Stefko - Haight Brown & Bonesteel LLP
On April 4, 2014, in Messick v. Novartis Pharmaceuticals Corp., the United States Court of Appeals for the Ninth Circuit reversed the district court's summary judgment in favor of Defendant Pharmaceutical Corporation because the district court improperly excluded expert testimony. The three-judge panel held that the district court erred by excluding causation testimony offered by Plaintiff's expert it found to be irrelevant and unreliable. Plaintiff was diagnosed with breast cancer in 2000. In response to her development of osteoporosis after chemotherapy, Plaintiff treated with the drug Zometa for several months in 2002. Zometa is a bisphosphonate, a class of drug commonly used to treat multiple myeloma. Such drugs are generally used to reduce or eliminate the possibility of skeletal-related degeneration and injuries to which cancer patients are particularly susceptible. Novartis Pharmaceuticals Corporation produces Zometa, which was approved by the FDA in 2001 and 2002. In 2005 after encountering issues with her jaw, it was discovered that Plaintiff had osteonecrosis near three of her teeth. The oral specialists treating Plaintiff did so under the assumption that she was suffering from bisphosphonate-related osteonecrosis of the jaw ("BRONJ"), a condition recognized by the American Association of Oral and Maxillofacial Surgeons ("AAOMS"). Plaintiff's BRONJ healed in 2008 - three years after beginning treatment. Thereafter, Plaintiff brought suit against Novartis for strict products liability, negligent manufacture, negligent failure to warn, breach of express and implied warranty, and loss of consortium. In support of her claims, Plaintiff offered her expert's testimony on ONJ and BRONJ, and on the causal link between plaintiff's bisphosphonate treatment and later development of BRONJ. Novartis filed a Daubert motion to exclude the specific causation testimony of Plaintiff's experts and a motion seeking summary judgment. The district court granted both motions on the basis that Plaintiff's expert testimony was irrelevant and unreliable. Reprinted courtesy of R. Bryan Martin, Haight Brown & Bonesteel LLP and Whitney L. Stefko, Haight Brown & Bonesteel LLP Mr. Martin may be contacted at bmartin@hbblaw.com; Ms. Stefko may be contacted at wstefko@hbblaw.com Read the court decision
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TLSS Partner Burks Smith and Associate Katie Keller Win Summary Judgment on Late Reported Water Seepage Case in South Florida

November 18, 2019 — Burks A. Smith, III & Kathryn Keller - Traub Lieberman
On July 9, 2019, Traub Lieberman Straus & Shrewsberry LLP Partner, Burks A. Smith, III and Associate, Kathryn A. Keller, secured Summary Judgment on behalf of a major homeowners’ insurer in a breach of contract action in the United States District Court for the Southern District of Florida. See Lehrfield v. Liberty Mutual Fire Insurance Company, 2019 WL2994270 (S.D. Fla. 2019). The underlying claim involved a water loss at the Plaintiffs’ residence allegedly resulting in $91,147.32 worth of damage to their home. The claim was reported eight (8) months after the alleged date of loss, and during the inspection, the adjuster observed rot, decay, mold, and warping wood, prompting the carrier to deny the claim based on the Seepage Endorsement. The Plaintiffs filed a breach of contract action alleging that the insurer breached the Policy by denying the claim. Mr. Smith and Ms. Keller argued that Plaintiffs’ Policy with the insurer imposes a duty on the Plaintiffs to comply with the Duties After Loss conditions of the Policy, including the requirement to provide prompt notice of the loss and show the damaged property. As mentioned above, the Plaintiffs provided notice of the claim eight (8) months late, and performed various repairs prior to notifying the insurer of the claim. After the close of discovery, Mr. Smith and Ms. Keller filed a Motion for Summary Judgment on behalf of the insurer based on the late reporting, and further argued that the Plaintiffs had the burden of proving direct physical loss to property within the first 13 days of the loss, given the recent decision of Hicks v. American Integrity Insurance Company of Florida, 241 So.3d 925 (Fla. 3d DCA 1018). In Florida, when an insured fails to comply with their Duties After Loss, a presumption of prejudice to the insurer arises. Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985)). In order to recover, the Plaintiffs bear the burden of overcoming the presumption, and must prove that no prejudice existed. Id. Mr. Smith and Ms. Keller’s comprehensive arguments successfully proved to the Court that the Plaintiffs’ failure to timely report the claim prejudiced the insurer by prohibiting the insurer from being able to independently validate the loss, or distinguish between multiple causes of loss. Mr. Smith and Ms. Keller further argued that Plaintiffs did not meet their burden to prove that the insurer was not prejudiced by the Plaintiffs’ failure to comply with the Duties After Loss provision of the Policy. The Motion cited numerous cases and extensive analysis supporting the insurer’s position. Reprinted courtesy of Burks A. Smith, III, Traub Lieberman and Kathryn Keller, Traub Lieberman Mr. Smith, may be contacted at bsmith@tlsslaw.com Ms. Keller may be contacted at kkeller@tlsslaw.com Read the court decision
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Ninth Circuit Reverses Grant of Summary Judgment to Insurer For Fortuitous Loss

July 01, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit reversed the district court's issuance of summary judgment regarding coverage for damages when the insured's plant had to be shut down due to an accident. Ingenco Holdings, LLC v. Ace American Ins. Co., 2019 U.S. App. LEXIS 10946 (9th Cir. April 15, 2019). Ingenco operated a gas purification plant which converted raw landfill gas into usable natural gas. The final step in the purification process involved the removal of excess nitrogen from the landfill gas. The gas was directed through adsorbent beads, to which nitrogen adhered, contained within pressure vessels.The beads could not withstand the direct pressure of the landfill gas inflow. which, if untreated, could grind the beads down into dust. To reduce the force of the gas flow on the beads, a "diffuser basket" was suspended from the top of each bead-filled pressure vessel. The diffuser basket acted as a shield that prevented the full force of the incoming landfill gas from striking the beads directly. In 2010, metal brackets securing a diffiuser basket broke. This resulted in damage to other components and an eventual shutdown of the entire facility. The plant remained idle for several months as Ingenco investigated alternative nitrogen filtration options and undertook repairs. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Highest Building Levels in Six Years in Southeast Michigan

December 11, 2013 — CDJ STAFF
Macomb Township in southeast Michigan has had $122 million in new development in 2013, all of which helped the region reach its highest building levels since 2007. The wider area saw 398 permits issued for single-family homes in the last twelve months, fifty-two more than in the twelve months prior. “The improvement is economically driven,” said Michael Stoskofa, the CEO of the Home Builders Association of Southeast Michigan. As employment improves in the area, “more people are willing and able to purchase a home,” he said. Home inventory in the area is also at a record low. As a result, projects that were put on hold in 2008 are active again. Read the court decision
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Canada’s Largest Homebuilder Sets U.S. Growth Plan

April 01, 2015 — Beverley BevenFlorez-CDJ STAFF
According to Builder magazine, after conquering the Canadian market, Mattamy Homes seeks to build more homes in the U.S. Mattamy’s Jim Leiferman had been asked to promote the company in the Orlando-area, however, “he went above and beyond that mission, growing the company’s footprint well beyond the metro area.” Brian Johnson, COO of Mattamy, told Builder, “[Jim Leiferman] was promotable, like any division president, but Jim proved to really, in a very short period of time, have a very strong in understanding of the business. He’s thoughtful and goes beyond our expectations.” Read the court decision
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Home Buyers Lose as U.S. Bond Rally Skips Mortgage Rates

September 03, 2014 — Jody Shenn – Bloomberg
Potential home buyers watching this year’s plunge in 10-year Treasury yields can be forgiven for wondering why their borrowing costs aren’t falling at the same pace. The last time the benchmark Treasury rate fell as low as the 2.34 percent level reached last week, in June 2013, interest rates on typical mortgages were almost 0.2 percentage point less than they are now. There are a number of explanations: Yields on five-year Treasuries, which also help determine loan rates, have actually increased. And lenders that cut staff aren’t competing as aggressively by adjusting their pricing. No matter the cause, the effect is that a potential catalyst to get the faltering U.S. housing recovery back on track is failing to materialize. With home-loan rates stagnating at about 4.1 percent during the past three months, a renewed boom in refinancing also sits just out of reach. Read the court decision
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Reprinted courtesy of Jody Shenn, Bloomberg
Ms. Shenn may be contacted at jshenn@bloomberg.net

Real Estate & Construction News Round-Up (09/21/22) – 3D Printing, Sustainable Design, and the Housing Market Correction

October 17, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
The first 3D-printed home is under construction, construction contractors could face liability for not securing employee data, the housing market correction continues, and more.

Sustainable home design has become key focus of builders and homeowners, helping reduce carbon emissions and other environmental impacts. (Kristi Waterworth, U.S.News)
Construction contractors could face legal consequences for failing to manage employee data correctly. (Robyn Griggs Lawrence, Construction Dive)
The home price correction continues to spread across the U.S., with an interactive map showcasing local housing markets that have been impacted. (Lance Lambert, Fortune)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Real Case, Real Lessons: Understanding Builders’ Risk Insurance Limits

August 12, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
In the recent case of 5333 Mattress King LLC v. Hanover Insurance Company, the United States District Court for the District of Colorado provided significant insights into the limits of builders’ risk insurance policies. Mattress King LLC, a warehouse owner, faced a substantial loss when a subcontractor drove a crane over and damaged the warehouse’s concrete floor slab during construction. Despite having a builders’ risk insurance policy with Hanover Insurance Company, coverage was denied, leading to litigation. Applicable Policy Provisions The policy in question was a Commercial Marine/Commercial Lines Builders’ Risk insurance policy. Builders’ risk insurance is designed to cover direct physical loss to covered property during construction unless the loss is excluded or limited by the policy. Key exclusions of the policy at issue included losses caused by faulty, inadequate, or defective:

Planning, zoning, surveying, or development
Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, or compaction
Materials used in construction or renovation
Maintenance of the covered property

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES