Episode 7 of Jersey Justice Podcast: How NJ Workplace Injury Lawyers Navigate a New Jersey Injury Case with a Missing Expert Witness

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Welcome to Jersey Justice, a civil law podcast that shares

practical tips and stories about personal and workplace injuries.

Joined two of the brightest New Jersey injury attorneys, Gerald Clark

and Mark Morris of Clark Law Firm.

As they take you behind the scenes of.

Justice and civil law.

But first, a quick disclaimer.

The information shared on this podcast is for general information purposes only.

Nothing on this site should be taken as legal advice for any

individual case or situation.

This information is not intended to create and does not constitute

an attorney-client relationship.

All right everyone.

Welcome back to Jersey Justice, and today we're gonna continue the

conversation on expert witnesses.

And we're gonna dive in.

We're gonna start the conversation off with Jerry and he's actually

going to be sharing some information about a particular case.

Thanks, dimple.

Yeah, we've been talking about experts.

And I remember in, I think it was the last episode, I said I would give like

kind of an example of a case and how it actually, you know, translates to

selecting experts and how experts play into proving a case and everything.

So I'm gonna, I'm gonna see if I could share my screen here.

What I'd like to do is I kind of want to talk about a case that we had.

It was a trial that we did in Middle sixth County, New Jersey.

Mark and I did it together and.

Just to give people an idea about how experts can impact the

case about selecting experts and how they fall into everything.

So the case was called Silva Verse, Jacobs Engineering, and

there was some other defendants.

And basically the story of the case is that Silva was a worker

who was resurfacing the turnpike.

He was working on a turnpike resurfacing job in near Hackensack, New Jersey.

And he had gotten backed up on by this truck, and the truck was driven

by his boss on the job that day.

And what happens is when you're working on the turnpike, the

trucks have to go forward and then they have to back up backwards.

They can't do a U-turn because then they would be shining the

light into the oncoming traffic.

So he gets backed up on by the truck and we, he came to us and we looked at

the case and we consulted with experts.

And the experts say that the safety rules require the back, the

truck to have a backup alarm, and also preferably a backup camera.

And the rules also say that the company in charge of the job,

you know, the contractor, the engineering firm that's hiring.

The people on the job and that can set the rules for the job and

is supposed to enforce the safety rules is supposed to require this.

And so the big defense in the case by the company that was running the job

is that that truck did not need to have a backup alarm or backup camera on it.

And it's funny in these cases because when you have these defense experts

that get up and testify and often say the most ridiculous things, they're

never advocating for like a safer world.

Everything is okay as it is.

They're never advocating for more safety.

They're basically always advocating for less safety.

So for example, and this is a perfect example of it.

This card did not need a backup alarm.

That's what the case was about.

And under osha OSHA's the safety law for workers, OSHA requires backup

alarms on work trucks if there's an obstructed view out the back.

So the defense also hired this other expert.

He's works almost exclusively for defendants and insurance companies.

And he testified that there's no obstructed view at his deposition.

And what's funny about this, like, so the obstructive view means the driver,

his view looking out back is obstructed.

And if it's obstructed, there should be a backup alarm on the

truck to warn people behind it.

And also, as I said, preferably a backup camera.

Remember I said, these defense experts, because they're being paid

by the insurance company, will often say the most ridiculous things.

So this expert said there's no obstructed view, you know, and

we circled all the obstructions.

So if you're sitting in there as the driver, this is a wheel.

You can't see out the back.

Now, an obstructive view doesn't mean you can't see anything out the back.

It just means your, your view is blocked by, by anything.

And he testified nothing's blocking his view, despite there being a tire

there and despite there being work tools and these toolboxes on the

side are clearly blocking the view.

And you'll, there's reports in the case where they said, The reason he ran

over the worker is because his view was obstructed, you know, and here's kind of

the dash cam from the scene, and this is a report on the case by one of the companies

on the job that said the immediate cause of what happened is equipment.

Environment, and it said there was an operational light tower, 50 yards

facing North was making difficult to see behind him, and there was light

shining in the mirrors as he backed up making difficult to see behind.

And it also said the vehicle contains toolboxes on either side, which may

have added additional blind spots and.

It also said the vehicle was not equipped with an audible rev reverse alarm, which

may have given the worker an advanced warning the vehicle was approaching.

So despite all this, the defense expert says there's no obstruction

and a backup alarm wasn't needed.

And then at the, in the opening statement for the lawyer hearing, Why?

Why would the defense expert say that?

I mean, cuz I know our audience is wondering.

And also for the audience, if you're listening to the audio

right now, we will link this video so you can watch it on YouTube.

Go ahead.

Yeah.

Why would they say that?

Well, they would say that because they're hoping the jury believes

it, and then the company that didn't manage safety on the job.

And more importantly, it's insurance company.

Doesn't have to pay out the claim.

And, and so this worker who's like severely injured, doesn't get a recovery.

And the worker wasn't doing anything wrong other than resurfacing the turnpike.

So we don't have potholes to drive over and supporting his family in the process.

So that's why they would say that we believe.

And then in the opening statement for the, lawyer, for

the defendant running the job.

They said, you're gonna hear from this expert and he's gonna tell you

that the view out the back of the window from where this photograph

was taken was not obstructed.

And that's what they said.

That's what they said in their opening statement.

So I wanna give you a little backstory.

What happens is in these cases is we will often we'll take the

deposition of the expert in the case.

And I remember we were driving to the expert's office to take his deposition

and I said, The guy's like, you want to get dropped off in the front or the back.

I say, you know what, pull in the back.

So, so I don't know if it was intuition or what I said pull in the back.

I just want to see this place.

So I pull in the back and, and I see in the parking lot.

Yeah.

We pull in the back of the expert's office and I see this parked

in the back and he is like, oh.

Well, that looks a lot like the truck that we're talking about.

And I noticed these two little holes here, right here on the truck.

I don't know if you can see them.

So we snapped this picture and then we went to the office of the expert and

I emailed the picture to his secretary and said, Hey, would you mind printing

this out for me for the deposition?

And she's like, sure.

So we printed out for the deposition and I asked the expert, What's this truck?

He goes, oh, that's my truck.

And I said, what do you use that for?

Oh, we go to accident sites and we use it on the highways and stuff.

And I said, does that have a backup alarm on it?

And he's like, yes, it has a backup alarm.

And I said, does it have a backup camera?

And he says, yes, it has a backup camera.

So, And then we ask him, well, why does it have a backup alarm

and a backup camera on that truck?

He goes, well, it's safer so you don't run over anyone.

Like, you can't make this stuff up.

So in the opening statement for the defense lawyer, in that case, as I

said, he said that you're gonna hear from this expert and the expert's

gonna tell you that there was, that there was no obstructive view.

So we go through this trial, and the trial was like two weeks or so.

It was like two and a half to three weeks.

And they ended up not calling the expert a trial.

So they told the jury, they said, you know, you're gonna hear from

this expert, but they actually never called the expert a trial.

So as we're discussing this to the jury, we kind of put up this

like, where's Waldo kind of thing.

Like where's the expert?

You know, why didn't they ever call him?

Because the judge wouldn't let us show that he had the same truck.

So, We had to just like imply to the jury like, they, you were gonna

hear this and the guy was gonna say this most ridiculous thing.

So that's an example of like experts and how it all swings into it.

And it's certainly a behind the scenes thing because the jury never knew

that he ha he was gonna get up there and say the truck didn't need it.

I think in his report he even said that it would have made the truck

more unsafe to have a backup alarm and a backup camera, but, You know,

it's not like an isolated thing.

Like we see this so much in cases.

We especially see it in medical cases where these doctors will just

say the most crazy absurd thing.

I mean, that's absurd.

Like how can they say that?

I'm like sitting here as like a non-lawyer.

Like that's absurd that they're saying that, and it's like, seems

like they're gonna try to say whatever to see who's gonna buy into it.

Right.

And that's what they're doing.

They're gonna, they're trying to get some type of buy-in.

So then in the same case, we can keep going.

And so he was run over by the truck.

Okay.

And they then hired damage experts.

Real quick, mark.

I didn't know where you're going.

Yep.

Yeah, go ahead.

Yeah, go ahead.

I just don't wanna cut you off, but I just wanna, you know, we talked about

marrying it to standards and, and things.

I mean, the OSHA standard on that.

Was it needs a backup alarm, if there's any like obstructions to the rear.

And in their def, in their, I guess clarifying comment of

what constitutes obstructions.

They say like, you know, the body of the truck.

And we circled that's what those circles were.

We circled the tool boxes.

Like the, the member, the toolboxes on the truck were an obstruction.

The next thing they gave are any tools or things sticking up in the

back that might cause, you know, difficulty seeing outta the rear.

We circled those.

It said any job site lighting that may also cause, you know,

difficulty seeing out the back.

We circled that and I think the defense guy, I'm trying to remember

if you actually did this at the dapp or what, but I think his testimony

was that unless the entire back of the truck was obstructed, it didn't need a

backup camera and he took a sharpie and basically, Blacked out almost the entire

thing, except for one little sliver.

And then he was like, oh yeah, then it would need it.

And it dimple.

It doesn't end there.

So then this is our guy after being run over by the truck in the hospital.

I mean, it, it's crazy.

And so then the insurance company looks like he had a

ton of stitches on his head.

Wow.

Go back to that photo for the audience one more time.

Yeah.

So yeah, the injuries were bad.

And, and it was largely, it was like, it was a lot of head injuries.

These, all these photos and everything were shown before the jury and everything.

It was all , public information, but, The insurance company and the defendant

in the case actually hired experts that said he had no real permanent injuries

and that he was faking his injuries.

Like, like they hired experts like this to give these like bogus psychological

tests to say that he was malingering and faking his head injury and that he had no

real, I mean, and, and the sad thing is, So what this is about is you say, well,

it must be easy to be a plaintiff's lawyer because they make such crazy arguments.

It's not easy because.

To fight those arguments in the litigation, not even the trial, it

costs tens of thousands of dollars to research 'em, to take their depositions.

To have your expert respond to their crazy statements, it costs like a ton of money.

And beyond that, you have to fight them in court because they'll make motions and

they'll try to weigh you down in paper.

The insurance companies do this like in.

Almost every case I've seen, they delay.

They don't follow the rules.

They say crazy things and you have to fight all this stuff

and then you go to trial.

And they will still say crazy things and they'll make all kinds of legal

maneuvering and jockeying and motions to, for one simple thing, which is to

get away from paying and it's just crazy.

But I guess if it was easy, anyone, anyone could do it.

You know?

So that's a little vignette or a story of how experts fall into get, so then we have

to get experts to say, no, that's crazy.

And, and then we have to pay.

Tens of thousands of dollars to have experts to come into court

and say, oh no, he is injured.

And no, it is a legitimate brain injury.

And, and yes, he fractured all the ribs and he was basically, he crushed.

And you have to go to a three week trial and you have to take up all

the time of the judge and you have to take up all the time of the jurors and

everything just because the insurance company doesn't want to pay the claim.

So that's what it's about.

So anyone that wants to be a lawyer or an expert, that's

what you can look forward to.

Yeah.

For all the law students out there, you know, it is kind of an, an exciting

world, but there's a lot involved and behind the scenes, you're getting to

get a little bit of a glimpse at it.

Mark, what are your thoughts on all this?

Jerry said it.

I, I remember obviously that case.

Vividly.

And just to add on to that, not only then do you have to fight all these forces and

they make you go out and spend tens of thousands of dollars, but then when you're

making your case, the defense attorneys sometimes will act in incredulous and

shocked at the things you're saying.

I remember, I think it was the orthopedic doctor, someone who's trial testimony.

I, I took, we took his videotaped testimony and.

The defense cross-examined him and said, well, isn't it true that the

injured worker smoked cigarettes?

And isn't it also true that he was, you know, in his fifties and the natural aging

process results in degeneration to the.

To the body and on redirect, I said, doctor, are the injured workers

injuries from smoking cigarettes in the natural aging process?

Or are they from being run over by the truck?

And the defense attorney was like, objection, that, that's object.

That's a mischaracter.

And they were shocked.

But what they're saying is that, oh, this guy's not hurt from getting backed over

by a two ton vehicle, that his injuries are out from all these other things.

I've had cases where, The client gets rear-ended, she's got neck pain,

and they try and blame it on a deer tick bite she had when she was a

kid, say, oh, one of the symptoms of Lyme's disease could be neck pain.

It's, you know, it's, they'll do absolutely anything like Jerry said,

to try and avoid paying a claim.

See it's, it's funny because when I, like when I was in college, I was like

really conservative and then I worked for Bob Dole in Washington as like

an intern in college for a semester.

And one of the reasons I went to law school is because I wanted

to like end all these frivolous lawsuits, is the funniest thing.

And then, and then I worked for a judge, judge damico in

Monmouth County as a clerk.

Kind of helping him decide cases and motions.

And I thought my mission was to like throw cases outta court

because they were all frivolous.

And the more I worked with the judge and he showed the law and he

showed the facts, I kind of learned.

And then I did defense work after that working for insurance companies

because I wanted to like do good in the world, which was to get

rid of all the frivolous lawsuits.

But I, as I realized and went through it, I'm like, I don't see

any frivolous lawsuits, whatever.

But that was me and that that wasn't that unusual.

I mean, that kind of thinking, like we find that basically when you go to court

and you have a jury, a pool of jurors, you know, they give you like a hundred jurors,

and from that you gotta pick about.

Seven or eight to decide your case in that pool of a hundred jurors.

A third are gonna be like me the way I thought when I was in

law school that all cases are frivolous and should be thrown out.

A third are kind of like, don't really care either way, and a

third are in your favor before they hear anything about the case.

So, I think dimple, you asked why would the experts say that?

They say it because a third of the jurors will believe it, like I

probably would have back in college.

So this is, this is the stuff that you have to, that you have to deal

with, and they just want to give them something to hang their hat on to.

Either decide for the defendant, you know, to decide for the defendant,

even if they decide for the plaintiff to award a little bit of money.

So that's how it works.

That's fascinating.

And these are the things like the general public doesn't know all of this happens,

and this is exactly what happens behind the scenes that they don't, now they know.

Thanks to, you know, Jersey Justice Podcast, but see, dimple trials

are the funniest thing because as I said, at least for us, if we

don't think the case is good, we're not gonna take the case to court.

So like if this is, if this is your case, like this piece of paper is the whole

case and everything about it, right?

The juror is only gonna hear about about that much.

You know, just, just this little part is what they're gonna hear.

They're not gonna see the whole big picture.

And we find the big picture is generally better for the plaintiff in our cases.

And the defense is always trying to, no, don't tell the jury that.

And Oh, you can't tell the jury that.

And we need to, so the case, the jury actually sees, it's like

this nice package, sterile thing.

Because you don't want to award too much money, you know?

So we have to, and then they'll object.

I was at a trial one time and I think the objections were like 200

to about four, where the defense objected 200 times throughout the

course of like a two week trial.

And I objected like four times and we ended up winning that trial and yeah,

because they got a lot to hide, you know?

So.

That's the stuff that we have to deal with.

Yeah, absolutely.

Anything else you guys wanna share today?

No, I mean, I, I think we're good.

We're talking about experts.

There's a lot of experts really useful and it's a big fight on

both sides, just how it's, yeah.

And I think that was, yeah, thanks Mark.

And I think that was a great example that Jerry, you know,

you shared for our audience.

So I guess we will see everyone on the next episode, unless you

guys have any last thoughts.

I'm good.

Thanks Dimple.

Good.

Thank you.

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