Massachusetts Federal District Court precludes manufacture and design defect and causation testimony from plaintiff’s expert and grants summary judgment where expert’s only training and experience were in accident reconstruction

In Morse v. Ford Motor Co., 2010 WL 2733607 (D. Mass. July 9, 2010), plaintiff, a passenger in her husband’s automobile, was injured when he lost control of the car and struck the guardrail. Plaintiff sued the car’s manufacturer in the United 3 States District Court for the District of Massachusetts alleging negligence, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute). In support of her claims, plaintiff offered the opinion of a single expert to testify that the accident was caused by a defective tie rod assembly in the wheel and that the failure of the passenger-side air bag to deploy aggravated plaintiff’s injuries. Defendant moved to disqualify the expert and for summary judgment.

The court granted defendant’s motions, finding the expert unqualified to offer opinions as to manufacture and design defects of the car or the cause of plaintiff’s injuries. The court first noted the two fundamental criteria for admission of expert testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993): (1) the expert must be sufficiently qualified by knowledge, skill, experience, training or education; and (2) the expert’s testimony must be relevant, reliable and helpful to the fact-finder. As to the first requirement, the court found plaintiff’s expert unqualified. Although by his own description he had substantial experience in accident reconstruction as a Registry of Motor Vehicles employee and had testified as an expert in hundreds of cases in Massachusetts, he did not have even a college degree and had no education or experience in the area of safety or mechanical engineering or the design and manufacture of automobiles. Similarly, his expert testimony in prior cases had involved only accident reconstruction and never safety engineering or product liability. In addition, the court found that the expert’s opinions were not reliable as he had no knowledge regarding the design of the vehicle’s airbag system and he had not reviewed any Ford engineering or manufacturing documents, design specifications or an exemplar tie rod assembly. Because the disqualified expert was the only expert identified by plaintiff, the court granted summary judgment for the defendant.


Nursing Home Negligence

Falls in Nursing Homes

Litigators who work with cases involving long term care know how significant the issue of falls can be. Falls are the leading cause of injury and death by injury in adults over 65. Approximately half of the 1.6 million nursing home residents in the U.S. fall each year, and a report by the Office of the Inspector General found that about 10% of Medicare skilled nursing residents experience a fall resulting in significant injury; and, more than 1/3 of hospital falls result in injury. In the rehab setting, rates are often higher – for example, fall rates among stroke patients have been shown to be very high. Immobility and falls can lead to poor outcomes.

Fear of falling is defined as a geriatric syndrome. It not only occurs in older adults who have fallen, but in those with impaired mobility and is associated with decreased physical ability and depression. Care of older adults requires that clinicians be aware of the myriad of issues related to falls including knowledge of this syndrome, increased risk and interventions needed to prevent injury related to falls.

Just about every resident in a long term care setting, including assisted living and sub-acute rehab, is at risk for falling. Between medications, functional and medical issues and advancing age, older adults in most settings are prone to falling.

There are well established standards of care related to fall prevention; but, as I continue to review records related to issues like falls, I am amazed at how often these basic standards are not being practiced. The basics of a fall prevention program include assessment and ongoing reassessment of risk, ensuring a safe environment, medication review, providing therapy as needed, individualized interventions, and staff education.

Basic nursing practice includes assessment, planning (Care plan), putting interventions in place and then evaluating outcomes to determine if those interventions are appropriate and effective. Assessment includes completing fall risk assessments on admission and then as needed. Very often, the fall risk assessments completed by nurses in LTC are inaccurate. The tools utilized in long term care typically include these risk factors: history of falling, use of ambulatory aids, gait/balance issues, medications, secondary diagnoses (i.e. diabetes) and mental status. Care planning is the next step in nursing care - it is the standard of care that as the resident’s status changes, assessments and care plans must be updated, and often, are not. For example, with each fall, there should be updates, or if there is a new diagnosis, i.e. stroke, or worsening dementia, updated interventions should be put into place, with ongoing evaluation of effectiveness.

Care planning and interventions very often are generic and not individualized. For example, a toileting schedule that includes only after meals and before bedtime may not be appropriate. If a resident has issues with constipation or incontinence, this may lead to the need for more frequent toileting to prevent falls. The “make certain call bell is within reach” for residents with dementia is an example of a generic intervention. Older adults with dementia may not recognize a call bell or remember to use it. The debate about use of bed and chair alarms go on – they are a part of an individualized care plan, not a solution to preventing falls. Often, I see delays in putting interventions in place, i.e. with the resident who is incontinent NOT being put on a toileting plan immediately. The other common issue I see when reviewing records is the lack of updating care plans as the resident’s status changes – with every fall, with worsening dementia, physical decline, or new medical diagnosis (i.e. Parkinsonism).

Nurses reviewing records need to pay attention to the MDS, risk assessments, care plans and Interdisciplinary notes with attention to where the standard of care is not being met.
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7 days ago  ·  

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