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What to Look for in a Dangerous Drug Lawyer If you or a loved one suffered injuries, illnesses, or death caused by defective medications, you need the help of a Bordas & Bordas dangerous drug lawyer. We could hold pharmaceutical companies accountable and help victims like you secure compensation for medical bills, lost wages, and pain and suffering. Navigating complex liability issues between manufacturers and doctors is not an easy task. Only a few dangerous drug lawyers have the skills and experience to maximize your settlement. Read on to learn what to look for in a dangerous drug lawyer and contact our team for help protecting your rights. What Makes a Drug Dangerous? Even big pharma makes mistakes, and while medications are designed to help, dangerous outcomes like severe side effects, drug-drug interactions, and overdoses are a significant public health issue. Pharmaceuticals may cause harm even when you use them as intended. This can happen due to improper FDA approval, a manufacturing defect, contamination, dangerous interactions with other drugs, undisclosed side effects, improper labeling, or inadequate warnings. Taking these dangerous drugs comes with risks that far outweigh their prescribed benefits and could lead to very serious side effects. From severe allergic reactions and organ failure to neurological damage and birth defects, taking these medications could be life-threatening. What Should You Look for in a Dangerous Drug Lawyer? When you look for a dangerous drug lawyer, prioritize attorneys with specific, proven experience in product liability. It is essential to ensure they have handled cases involving the exact or similar medications and understand the complex scientific and medical data involved. This professional legal advocate should have a strong track record of settlements against Big Pharma, as well as ample resources for complex investigations. Dangerous drug cases are long and costly, and a reputable firm should have the financial stability to handle extensive litigation, hire expert witnesses, and manage massive documentation. Does the Dangerous Drug Lawyer You Hire Really Matter? Yes. The lawyer you hire makes all the difference in achieving the very best outcome in your dangerous drug claim. They should keep you informed and make you feel supported, and not like just another case file number. Poor communication or difficulty reaching the attorney is a red flag that could delay your case or even risk your compensation altogether. If a fair settlement cannot be reached, you need an attorney who is not afraid to go to court and litigate on your behalf. Warning signs may not be easy to spot at first. So, be wary of a dangerous drug lawyer who makes vague promises about the outcome of your case or one who lacks the specialized experience that is essential in these types of matters. Learn What Our Dangerous Drug Lawyers Deliver and Reach Out The dangerous drug lawyers at Bordas & Bordas have won many multimillion-dollar settlements for our clients, and we stand ready to offer you the same quality legal services. With our contingency payment structure, let us take on your claim’s risk while you recover. Schedule an appointment for your free consultation to learn more about what to look for in a dangerous drug lawyer.

According to 26 U.S.C.A. § 7430(c)(1) and I.R.C. § 7430(c)(1), the term “reasonable litigation costs” are defined as follows: (A) reasonable court costs, and (B) based upon prevailing market rates for the kind or quality of services furnished— (i) the reasonable expenses of expert witnesses in connection with a court proceeding, except that no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States, (ii) the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and (iii) reasonable fees paid or incurred for the services of attorneys in connection with the court proceeding, except that such fees shall not be in excess of $125 per hour unless the court determines that a special factor, such as the limited availability of qualified attorneys for such proceeding, the difficulty of the issues presented in the case, or the local availability of tax expertise, justifies a higher rate. In the case of any calendar year beginning after 1996, the dollar amount referred to in clause (iii) shall be increased by an amount equal to such dollar amount multiplied by the cost-of-living adjustment determined under section 1(f)(3) for such calendar year, by substituting “calendar year 1995” for “calendar year 2016” in subparagraph (A)(ii) thereof. If any dollar amount after being increased under the preceding sentence is not a multiple of $10, such dollar amount shall be rounded to the nearest multiple of $10. Corson v. C.I.R., 123 T.C. 202 (2004) addressed what is a reasonable litigation cost and specifically discusses section 7430. The opinion states that section 7430 defines reasonable litigation costs as reasonable court costs and reasonable fees paid or incurred for the services of attorneys in connection with the proceeding. Corson, 123 T.C. at *212 (citing Sec. 7430(c)(1)). Corson involved the review of determining what the fair litigation costs of the prevailing party are in a tax claim. Furthermore, attorney’s fees, which may be considered litigation costs in a claim, are limited by statute and are adjusted for living costs. Id. (citing Sec. 7430(c)(1)(B)(iii)). According to the National Center for State Courts’ Civil Litigation Cost Model, the median costs of litigation broken down by case type are as follows: Automobile $43k, Premises Liability $54k, Real Property $66k, Employment $88k, Contract $91k, and Malpractice $122k. More on this can be found here. As you can see, the cost of litigating a legal claim can be very expensive. A contingency lawyer will generally agree to forgo all attorney fees and litigation costs if there is no verdict or settlement in the client’s favor. It is this factor that will likely benefit a client in various ways. Examples of the same are that the attorney bears all the economic risks associated with the litigation, and the contingency fee substantially ensures the attorney will be diligent and assertive in the handling of the claim, because the attorney will not get paid, if at all, until a successful resolution of the case. A person may want to keep all of this in mind when assessing the legitimacy of the lawyer’s share of the recovery in a successful claim.

Happy St. Patrick’s Day! May your day be filled with good fortune, laughter, and maybe even a little bit of that Irish luck! We recently had a leprechaun, who was convinced his pot of gold was under threat, visit Bordas & Bordas for some legal advice on the best way to protect his pot of gold. Want to see how our attorneys handled this tricky situation? Click here to watch the video. Have a lucky day! Fighting for Justice for 40 Years In 2025, Bordas & Bordas is proudly celebrating 40 years, a testament to our unwavering commitment to serving our community and fighting for justice. Since our founding in 1985 by Jim and Linda Bordas, we’ve grown from a small practice into one of the region’s premier personal injury law firms with offices in Pittsburgh, Pennsylvania, Wheeling and Moundsville, West Virginia, and St. Clairsville, Ohio. The story of Bordas & Bordas Attorneys PLLC began with a unique partnership. Linda, a former hospital pharmacist turned lawyer, and Jim, who has been described by many as a giant in the legal profession, combined their expertise and passion for justice to open the doors of Bordas & Bordas upon Linda’s graduation from law school in 1985. Their remarkable record, including never losing a trial together, fueled the firm’s early success. Linda’s medical background proved invaluable, particularly in medical malpractice cases, where she became a leading force, securing landmark verdicts and expanding patient rights. Jim spent his career fighting battles for his clients that others couldn’t or wouldn’t fight. For over four decades, he built a reputation of success through landmark jury verdicts and settlements. In 2000, the Bordas legacy continued with the addition of Jim and Linda’s oldest son, Jamie, who became the firm’s managing partner in 2005. Jim cherished working alongside Jamie, creating a strong bond, and ensuring the firm’s values would endure. Linda remains a partner at Bordas & Bordas and continues to provide guidance and advice as we continue to fight for justice. Our C ore Values: The Shield of Bordas & Bordas Our logo, a shield with four quadrants and a central cross, symbolizes what we hold dear: Experience: Four decades of dedicated legal service. Family: A firm built on strong family values and lasting relationships. Community: A commitment to serving and giving back to our community. Results: A proven track record of securing substantial recoveries for our clients. Christian Values: The Cross in the center represents the moral compass that guides our work. Our Commitment to You A lot has changed in 40 years, but one thing remains the same: Our reputation for taking on any opponent in the courtroom. This is backed by years of success and record-breaking results, including numerous multi-million-dollar verdicts and settlements across a wide range of personal injury practice areas. We understand the challenges clients face, which is why our cases are handled on a contingency fee basis. This means clients pay no fee unless we secure a recovery for them. We offer: Free initial consultations. No retainer required. We advance all case expenses. Our work has garnered national attention, with features on programs like 60 Minutes, Inside Edition, and CNN, showcasing our dedication to seeking justice for our clients. Learn more about our results by clicking here. As we celebrate 40 years, we reaffirm our commitment to providing exceptional legal representation and upholding the values that have guided us since 1985. We are grateful for the trust our clients have placed in us and look forward to serving our community for many years to come. Building Strong Co-Counsel Partnerships at Bordas & Bordas At Bordas & Bordas, we deeply value collaborative relationships with fellow members of the trial bar. Our firm’s history is marked by significant successes achieved through strategic co-counsel partnerships. We recognize the strength that comes from combining our resources and expertise with that of other firms. Our firm’s size and diverse team of attorneys, specializing in various practice areas, enable us to effectively handle complex cases. We are particularly well-equipped to collaborate on matters involving: Personal Injury Wrongful Death Insurance Bad Faith Trucking and Auto Accidents Product Liability Medical Malpractice / Nursing Home Injuries Premises Liability We understand the importance of a strong co-counsel relationship and are committed to open communication, shared strategy, and a unified approach to achieving the best possible outcome for our clients. Our law firm’s proven track record against major corporations, including Walmart, Quicken Loans, AEP, American Home Patient/Lincare, and ManorCare, demonstrates our ability to handle high-stakes litigation. We believe that a collaborative approach allows us to maximize recoveries and provide exceptional legal representation. You can learn more about our firm’s capabilities and results at bordaslaw.com. Whether we’ve partnered in the past or are exploring a new co-counsel opportunity, we are eager to discuss how we can work together. Please feel free to reach out to managing partner Jamie Bordas directly at 304-242-8410. We consider it a privilege to collaborate with fellow trial lawyers. What Our Clients Say About Us Hear directly from Tom and Michele McFadden about their experience working with Bordas & Bordas and how we helped them achieve a successful outcome. Click To Watch Video It’s common for people to be shaken up after a car accident, and that can lead to mistakes. Learn the Dos and Don’ts after a car accident: Colin, a West Virginia University College of Law graduate, focuses his practice on personal injury litigation and works out of the firm’s Pittsburgh office. During his time at WVU College of Law, he served as an environmental law research assistant, where he helped draft and edit two published law review articles on coal mining and the opioid epidemic.  As a clinical student at the United States Supreme Court Clinic, his clinic successfully appealed two cases in the Fourth Circuit Court of Appeals. Prior to joining the firm, Colin gained valuable experience through internships at World Green Growth Organization, The Mills McDermott Criminal Law Center, and Bordas & Bordas itself. With a strong foundation in law and a passion for justice, he is committed to advocating for the rights of injured individuals. A Pittsburgh native, Colin is passionate about environmental conservation and environmental law. Outside of the office he enjoys skiing, hiking and camping. Quotes to Live By:

January and February are times of year I’m not too fond of, but things weren’t always this way. The little girl inside me, for instance, has great memories of sled riding. My parents’ backyard was ideal for sledding. When it snowed, the hill was just a blank slate of white, crystal-like fluff, waiting for us to make our tracks. Who would have the fastest or coolest run?nnFor my siblings and I, sled riding was convenient and a great activity we used to enjoy in the winter months for hours at a time. We had no fancy equipment. I used plastic bread bags to line my rubber boots; a bar of Dial soap to make the sled extra slippery; and layers upon layers of clothes. (Honestly telling this story, I see quite a resemblance to little Randy in A Christmas Story.) Carefully though, I ensured not an inch of skin was exposed because I was serious about this. I was ready to embark upon an adventure for the entire day. By the time we were ready to walk out our door, all you could see were eyeballs.nnWe never thought much about the risks involved. There were just a few faux pas. For example, the time my face got wind burned. Of course, the never-ending issue that could quickly become a disaster was when we had to run inside to use the restroom by dismantling all those wet frozen clothes just in the nick of time. We’d beg our Mom to yank the frozen boots off our feet so we could make a mad dash through the house. We always waited until the very last minute because sledding had to be taken advantage of while it lasted.nnSometimes, my older brother and my neighbor would build snow ramps. They always included me, but their idea of including me was assigning me jobs. And one job was very important. I was the tester. What’s this you ask? The tester is the first one to try something out to let everyone know if it has met safety protocol and was ready for use. Little did I know, I was, in other words, an experiment.nnAnticipation and anxiously eager to just hang with the boys, I didn’t object. I just jumped in and complied. That snow ramp they built – yes, I can attest the landing spot was right onto my parents’ patio – was sometimes without enough snow. I couldn’t say a word because the wind was knocked out of me, but that soon passed. There were the briar bushes – well, yes of course, you should bail because they are able to scratch you through your mittens.nnOh, and the snowball fights (yes, adding water to make ice balls does sting much more when hit).  Then, as they yell bail, I am thinking I am so wrong, They ARE looking out for me, keeping me safe – or, as I soon learned they just wanted to ride alone. That’s okay because they felt bad and to make up for it, they would always let me drag the sleds back up the hill. These were the benefits of being the little sister.nnSounds somewhat comical and probably very similar to many childhood memories, but things didn’t seem so serious back then.  We never really thought about what could go from fun to a disaster in an instant.nnWe had all the wrong approaches and just got lucky nothing too severe ever happened. Yet that’s exactly what it was – luck.nnSeriously, thousands of emergency room visits every year are the result of sled riding accidents. Broken bones, cuts, bruises, and serious head trauma are very real risks.  Some of those accidents are rather serious and can, unfortunately, even be deadly, leaving families shocked from what began with all smiles and innocent fun that suddenly turned into a nightmare.nnSafety tips: Do not stand on a sled. You should single ride a sled unless it’s a smaller child that needs an adult. Keep arms and legs inside the parameter of your sled and certainly don’t follow in my footsteps and jump off ramps and try to maneuver obstacles. Wear a helmet, which is something we never thought about eons ago. They say even a scarf can strangulate someone sled riding if it manages to tangle in just the right spot. I never, ever, thought of those things.nnAlso, use an actual sled, not a garbage can lid. If there aren’t enough sleds, just wait your turn. Yes, we were just really lucky. You better believe I got wiser as I got older and sure have thanked my lucky stars. Beware though, luck may not be on your side.nnTake the safety steps to end the day with stories, smiles and hot cocoa by the fireside instead of sitting in a waiting room for hours wondering if your loved one is going to be okay.nnIf I haven’t scared you straight enough, my next point on this topic is this: premises liability.  Ever think about that?nnYou may need to re-think letting all the kids gather at your house for a fun day in the snow because when accidents happen -- and they always do -- you could potentially open yourself up for legal woes. Depending on certain criteria in your state, personal injury on your property just may land you in court.nnCheck your homeowner coverages and be sure your space is in tip-top shape with no dangerous hazards that could possibly contribute to someone’s personal harm. Premises liability depends on the state where the injury occurred. Some consider not only property condition, but the actions or inaction of the property owner and/or the injured person. Was the person invited? Did they just decide to sled on your land without your consent? It might not matter depending on the laws in your state. You may still be liable.nnDuty of care particularly involving children is always a consideration even if you may not know the child was there to enjoy your land for the day. The uncertainty and worry of where that may place you in a potential lawsuit should be enough to be diligent and take proper care. In the end, concussions, fractures, severed digits or limbs can’t be changed once they happen. So, as you and your family have fun on these upcoming wintery days, be safe and take proper precaution. Don’t take that wrong turn because you don’t want to find out what started as innocent fun turned into a disaster in an instant.

September is National Courtesy Month. With all the negativity in our world today, we could all use a little courtesy and kindness.nnAccording to the Merriam Webster Dictionary, courtesy is “behavior marked by polished manners or respect for others.” My parents taught me at a very young age it was always good to be courteous and kind, even in the face of someone being unkind or discourteous.nnRalph Waldo Emerson spoke about the value of courtesy when he said, “Life is short but there is always time enough for courtesy.” So many of us miss on opportunities to be courteous to others because we are so consumed with our own busy lives and things that really don’t matter.nnAlthough we should be kind and courteous every day, this month serves to remind us kindness and courtesy are both important and rewarding. Here are some small, but impactful ways we can show courtesy to others:n n Greet people with a smile; n Show gratitude; n Remember to say please, thank you, excuse me and you’re welcome; n Practice good manners in person and online; n Send a handwritten note; n Listen to others and don’t interrupt; n Apologize when you do something wrong; n Be patient and wait your turn; n Give sincere compliments to others; n Allow others to go first; n Hold the door open for someone; n Treat others with respect; n Be on time; n Share with others; and n Be charitable. n nThere are many ways to show courtesy to others. So, don’t forget this month and the rest of the year to spread courtesy and kindness. It is sure to brighten everyone’s day.nnHappy National Courtesy Month!

Abraham Lincoln signed the Emancipation Proclamation freeing the slaves. On January 1, 1863, the Emancipation declared that all enslaved persons in the Confederate States of America in rebellion and not in Union hands were freed. However, the word did not reach Texas. Slavery had remained relatively unaffected in Texas—until U.S. General Gordon Granger stood on Texas soil and read General Orders No. 3 on June 19, 1865.nnGeneral Orders No. 3: “The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor. The freedmen are advised to remain quietly at their present homes and work for wages. They are informed that they will not be allowed to collect at military posts and that they will not be supported in idleness either there or elsewhere.” nnThe name “Juneteenth” is a blend of two words: “June” and “nineteenth.”nnThere are many stories of enslavement but I’m going to share one dealing with the Ohio Valley. Prior to West Virginia joining the Union, slavery was in the Ohio Valley. In 1852, Sara Lucy Bagby was purchased for $600. This purchase was made by slave trader John Goshorn of Wheeling while he was visiting in Richmond, VA. The slave trader then gifted Sara to his son William S. Goshorn. In October 1860, she escaped from Wheeling and made her way to Cleveland via the Underground Railroad. Her owner pursued her there, had her arrested, declared his property and returned to Wheeling by train in January 1861. Why is this notable? Sara was the last slave captured under the Fugitive Slave Act (The Fugitive Slave Act, the federal law, which declared that runaway slaves must be returned to their owners.) nnWhen we celebrate Juneteenth it’s a celebration of freedom and mourning the lives lost in slavery. Celebrate our progress and keep moving forward. There are plenty of ways to celebrate Juneteenth. There are lots of events taking place in your area. Even if you do not attend an event take a moment to reflect. I hope you all have a wonderful Juneteenth!

As an attorney, I often meet with potential clients who have never had to retain an attorney.  Many times they have never even spoken with an attorney or visited an attorney’s office, so the idea of meeting with an attorney can be very overwhelming and scary.  Being prepared for an initial consultation can often help to alleviate some of those fears.  There are several things a potential client can do in preparation for a successful first meeting with an attorney.  The following are just some of the tips that I have found to be most helpful:n n Bring a pen and paper with you to take notes; n Have some questions written out for the attorney prior to your meeting; n Bring any documents, that are relevant to your case, with you to the meeting; n Bring any photos, that are relevant to your case, with you to the meeting; n Ask ahead about any consultation fees, so you are aware if you need to pay for the initial consultation; n Bring your driver’s license or other form of ID; n Depending on the type of legal issue you are meeting about, you may want to bring your health insurance card and/or applicable insurance declaration page; n Bring names, addresses and phone numbers of any witnesses and/or any written witness statements you may have; n If relevant, bring copies of any police reports; n Ask questions and discuss attorney fees; and n Be honest and give the attorney as many details as you can. n nHopefully, if you follow these tips it will help make your initial consultation with an attorney a success.

Being involved in an automobile accident can be a traumatic event for an individual, especially those who also sustain serious injury. When one thinks of the injuries that someone incurs as a result of an accident, PTSD is not usually at the top of their minds. However, PTSD from an automobile accident is a very real injury that many people suffer from and experience. Post-Traumatic Stress Disorder is defined as “a disorder that develops in some people who have experienced a shocking, scary or dangerous event.” The symptoms of PTSD include not only having flashbacks of the traumatic injury – whether that be by reliving the trauma over and over again or experiencing a racing heart when thinking about the incident, but also having bad dreams or frightening thoughts about the same. If one experiences these symptoms it can seriously impact that person’s everyday routine and the ability to move forward with living a normal life after the trauma is in the past. For example, injured motorists who experience PTSD may avoid driving the same route they took on the day of the accident or may opt to take a longer or less efficient route simply to avoid the accident scene. Injured motorists may also be easily startled or feel tense or stressed when they see a vehicle that resembles the one that caused the accident. Moreover, some injured motorists may experience PTSD so severely that they refuse to drive a vehicle. While anyone can experience PTSD, there are several factors that increase the risk of PTSD: 1.         Having experienced another traumatic event or events in the past; 2.         Having a lack of support after the traumatic event is experienced; 3.         Genetic factors; and 4.         Lack of treatment when the symptoms of PTSD have become apparent. If you are represented by an attorney in regard to an accident or some other traumatic event that you have experienced, you may feel nervous or embarrassed about telling them or explaining to them the post-traumatic stress you are dealing with. However, this type of injury is very real and should be made known to your attorney during your representation so that this injury can be fully evaluated.

Most people are aware that a dog owner can be sued if their dog bites someone. According to the Centers for Disease Control, 885,000 people are bitten by dogs each year, and one out of every five of those require medical attention.  But, what if a dog doesn’t bite you, but instead knocks you down or scratches you causing injury?  Under Pennsylvania law, the owner of a dog may still be liable for the actions of their dog, even if the dog didn’t bite someone. Pennsylvania law does not impose strict liability on dog owners if their dog bites someone.  The Dog Law holds dog owners liable for damages if they failed to keep their dog in the house or yard, on a leash, or “under the reasonable control of some person.”  3 P.S. § 459-305.  An unexcused violation of Pennsylvania’s Dog Law is negligence per se.  However, liability will only attach, for a per se violation of Pennsylvania’s Dog Law, if the violation is a substantial factor in bringing about the injuries sustained. In Miller v. Hurst, 448 A.2d 614 (Pa. Super. 1982), the Pennsylvania Superior Court held that if a dog owner is found to have violated Pennsylvania's dog confinement law, the owner is liable for any injuries that result, even if the owner had no way to know that the dog would act aggressively or had ever acted aggressively before. Pennsylvania law treats dog attacks differently if the dog involved is deemed a “dangerous dog”.  According to Pennsylvania's Dangerous Dog Law, 3 P.S. § 459-502-A, a dog is a "dangerous dog" if: the dog has injured a person, without provocation, on public or private property, the dog has killed or injured a domestic animal without provocation, while off the owner's property, the dog has attacked a human being without provocation, or the dog was used to commit a crime. In addition to any of the above elements, the dog must also have a history of attacking either humans or domestic animals, or a "propensity" for attacking either humans or domestic animals without provocation.   It is important to know that a propensity to attack may be proven by a single incident, even if it is only the first attack. A Pennsylvania dog owner typically has two defenses to a dog bite claim: provocation and trespassing.  Pennsylvania's dog bite laws specify that in order for the owner to be held liable for injuries, the dog must have caused injury " without provocation." If the dog owner can show that the injured person provoked the dog, the owner may not be held liable. In addition, an owner may not be liable if the injured person was trespassing on the owner's property at the time of the bite. Section 459-507-A of the Dog Law specifies that Pennsylvania's dog bite laws do not apply if the injured person was committing a "willful trespass" at the time of the injury. The provisions of the Dog Law related to “dangerous dogs” applies to both the owner and a keeper of the dog. 3 P.S. § 459-507-A(3).  This has been used to impose liability upon landlords for injuries caused by their tenant’s pet if it can be shown that the landlord knew of the presence of the dog and the dog’s violent propensity. Underwood v. Wind, 954 A.2d 1199 (Pa. Super. 2008). Because dog bite law and liability can be confusing, it is important to document what occurred and the aftermath.  It is also important to determine not only who owned the dog, but also who owns the property where the dog lived and if the dog owner is a renter, commercial tenant or guest of the property owner.  After suffering a dog attack injury, you should immediately seek medical attention and contact the police or Dog Warden in your area to make a report of the incident.

In my last posts, I talked about how the law forces a medical-malpractice plaintiff to hire an expert who must then use a series of magic words to identify the key facts supporting her opinion.  Having done so, what happens next?  In any complex case, there will be thousands and thousands of individual facts.  Hundreds of lab results.  Hours of testimony.  Dozens and dozens of pages of nurses’ notes.  All of them potentially important to the jury that will have to decide the case. Generally speaking, the rules of evidence allow the admissibility of any evidence that is relevant.  The rules state that “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”  Given that juries decide the facts of the case, this is obviously meant to be a rule for them.  Relevant to who?  Relevant to the jury, of course. What happens in a malpractice case, though?  The defense attorneys know that the law requires the plaintiff’s expert to say exactly what the deviations from the standard of care were and to describe exactly how those deviations from the standard of care caused harm.  In advance of trial, the defense attorneys will ordinarily file a motion to exclude any fact they don’t like if that fact was not exactly and precisely relied upon by the plaintiff’s expert.  We’ve translated the rule from “Relevant to the Jury” to “Relevant to the Experts.”  Any fact not relevant to the experts, who speak, act, and think like the doctors they are, is in danger of being shielded from the jury who might have a different notion of what’s important or relevant. In most other cases, we trust the jury with all the relevant evidence.  If an expert will assist the jury in explaining or understanding those facts, so be it, but the jury gets the facts and they make up their own minds about what is important and what is not.  In medical malpractice cases, however, we run a real danger of turning this entire fact-finding operation over to the experts in a way that was never intended under our system of justice. In a malpractice case against doctors other doctors try to decide what facts the jury gets to hear. That was never the intent of the rules. We are lucky in this area to have some of the best trial judges in the country.  We are also lucky to have hard-working and fair citizens who would decide cases the right way if we let them.  When it comes to malpractice cases, though, I wonder if we have taken the trust that we’ve justifiably placed in our judges and juries and turned it over to the experts.

In my prior posts, I argued that in medical negligence cases, the jury only gets to hear facts that have been pre-filtered by medical experts.  In this post, I’ll explain the mechanics of how that happens.  In a civil case, the plaintiff bears the burden of proof.  In a civil case, as opposed to a criminal case, the burden of proof is what’s known as the “preponderance of the evidence.”  It just means more likely true than not.  51% certain.  Another way to say that is “probably.”  In a civil case, the plaintiff wins if she can prove what probably happened.  In the same was medical malpractice law translates “carelessness” into “deviation from the standard of care,” the same law translates “probably” into a magic-sounding phrase known as a “reasonable degree of medical probability,” which supposedly means the same thing.  The complexities are now piling up on one another.  Properly understood, the jury should decide whether a doctor was probably careless.  Now, however, the jury is tasked with deciding “whether, to a reasonably degree of medical probability, the defendant physician deviated from the accepted standard of care.”  Those things are supposed to mean the same thing, but we can see how the phrasing makes things seem more complicated and, thus, harder to prove.  What’s worse, the law says that only an expert gets to decide things like “reasonable degree of medical probability” and “deviation” and “standard of care.”  The case will never even get to a jury unless the plaintiff’s expert speaks these magic words. That brings us to the deposition of the plaintiff’s expert witness.  As part of all medical negligence cases, the plaintiff has to disclose experts that will testify on his behalf.  The defense attorneys get to put that expert under oath and ask her detailed and, in many instances, confrontational questions about her opinions.  This expert is, in almost every case, an extraordinarily busy medical professional focused on her own patients.  What’s worse, she doesn’t speak the language required by the law.  Doctors do not walk around the halls of the hospital talking to each other about “reasonable degree of medical probability” and “deviation from the standard of care.”  However, they must now use that language in the deposition, at the risk of costing the plaintiff his entire case. Seasoned defense attorneys know this drill well:  The plaintiff’s attorney must be able to state, to a reasonable degree of medical probability, how the defendant deviated from the standard of care with absolute precision.   What exact test should have been ordered?  What precise lab value should have been recognized?  What exact medication, timing and dose, should have been administered?  But even that’s not enough.  Not only must the plaintiff’s expert be able to say exactly what the defendant did wrong, using all the magic language, the expert must be able to testify, again with the magic language, that these deviations caused the harm. If the defense attorney is lucky, the plaintiff’s expert will slip up.  She might use the dreaded word “maybe” or “possibly.”  One utterance of these words in any context could spell the end of the case.  Even if the defense attorney is unlucky, he should at least leave the deposition with the plaintiff’s expert committed to an exact narrative timeline where each step is contingent on the many steps before.  That is, the plaintiff’s expert will have been forced to comb through the chart identifying every single “deviation from the standard of care” and the exact facts that support that deviation.  She will have also been compelled to say exactly how, when, and why some different course of action would have led to a better outcome, to a reasonable degree of medical probability.  At the end of the deposition, there will be two kinds of facts: (1) Those that are absolutely central to the opinion of the plaintiff’s expert, assuming all the magic language was used and (2) Facts that are not absolutely central to the opinion of the plaintiff’s expert.  These facts in category 2 may be very important.  They may provide a great deal of context to what happened.  They may be just the kind of facts that the jury would want to know and that, in other cases, we would trust them with.  In my next post, I’ll talk about the next steps.

In my prior posts, I discussed the proper use of expert witnesses in civil cases. Experts are meant to be used only to help the jury understand complex issues.  They were never meant to be used as a substitute for the collective wisdom of the citizens who sit on our juries. Do experts still play that helper role in medical negligence cases? Again, because the law is similar in most states, I will use West Virginia as an example.  According to West Virginia law, a doctor is responsible for any injuries caused by his or her negligence. The negligence standard is the same one we use to determine most civil cases involving an injury. It simply means a lack of due care.  Negligent drivers can be held responsible for the injuries they cause and the same should be true of physicians. However, things quickly get more complicated. In a medical negligence case, it’s not enough to simply say “carelessness,” which is a word that everybody understands and can use.  We all know what it means to be careful and we all know what it means to be careless. We could trust a jury made up of people from all walks of life with that decision. However, in medical negligence cases, “carelessness” gets translated and defined to mean a “deviation from the standard of care,” which is technical jargon supposed to mean the same thing. As the law attempts to explain to us, juries that ordinarily and effectively make determinations about “carelessness” simply cannot be trusted to determine what the “standard of care” means. So the law vests that determination exclusively to expert witnesses. That is, the case can only proceed if an expert says what the standard of care is and describes exactly how the defendant deviated from that standard.  I have no problem accepting the obvious fact that in many scenarios, ordinary citizens would have difficulty understanding what is supposed to happen in a complex surgical procedure, just as those same jurors might have a hard time understanding complex mechanical engineering issues or the types of fire science issues that come up in explosion cases. For that reason, I have no problem if experts come in to help the jury understand those issues, as the rules are designed. In malpractice cases, however, the law requires experts to do far more than simply help. The medical expert can’t simply help. He or she must establish with an exactitude that is often very challenging exactly what was supposed to happen and why it didn’t. This is no longer just help. It’s the replacement of the jury with experts. To be sure, the jury still exists, but it no longer filters through the facts itself with the possible assistance of experts.  Instead, one expert tells the jury her version of pre-filtered facts and another expert tells the jury his version of pre-filtered facts. The jury is left to determine which version of pre-filtered facts seems more correct, but the filtering has already been done.