November 25, 2014

Child Abuse Expert Witnesses & Midwife Neglect Case

Child abuse expert witnesses may advise regarding child abuse and neglect and the physical and emotional mistreatment of children. In the news, South Dakota midwife Judy K. Jones is charged with the death of a Nebraska infant she delivered. Court records state the baby developed medical problems and Jones allegedly failed to provide proper medical treatment. The baby was in grave condition when admitted to the hospital and died after being transported to a hospital in Omaha. Charges include manslaughter, practicing without a license, criminal impersonation, child abuse negligently resulting in death and child abuse intentionally resulting in death. Jones is living in South Dakota and awaiting a 2015 trial in Custer County District Court.

The Federal Child Abuse Prevention and Treatment Act (CAPTA), (42 U.S.C.A. §5106g), as amended and reauthorized by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum:

Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or an act or failure to act which presents an imminent risk of serious harm.” Most Federal and State child protection laws primarily refer to cases of harm to a child caused by parents or other caregivers..

BirthInjuryJustice.org defines midwife negligence:
… Negligent credentials: some midwives do not meet minimum state standards or licensing requirements.

Failure to assess the baby’s condition: midwives may ignore warning signs in an effort to provide a natural birth, at significant risk to the baby or delivering mother.

Failure to have in place and/or follow adequate policies and/or procedures regarding emergency delivery of babies.

November 23, 2014

PTSD Expert Witness Testifies On Clinical Criteria

Post traumatic stress expert witness Mitchell Clionsky testified for the defense in the Springfield, MA, lawsuit against nightclub owner Demetrious Konstantopoulos. Cara Lyn Crncic alleges that a 2011 assault by Konstantopoulos has caused her to suffer from PTSD. However, the psychology expert testified that the defendant’s actions were not violent or threatening enough to meet standards for PTSD and that other incidents in Crncis’s life are contributors to her anxiety. Dr. Clionsky is the Director at Clionsky Neuro Systems, Inc. in Springfield, Massachusetts. He testified that a diagnosis of PTSD must meet clinical criteria.

The National Institute of Mental Health explains PTSD:

PTSD develops after a terrifying ordeal that involved physical harm or the threat of physical harm. The person who develops PTSD may have been the one who was harmed, the harm may have happened to a loved one, or the person may have witnessed a harmful event that happened to loved ones or strangers.

PTSD was first brought to public attention in relation to war veterans, but it can result from a variety of traumatic incidents, such as mugging, rape, torture, being kidnapped or held captive, child abuse, car accidents, train wrecks, plane crashes, bombings, or natural disasters such as floods or earthquakes.

Currently, many scientists are focusing on genes that play a role in creating fear memories. Understanding how fear memories are created may help to refine or find new interventions for reducing the symptoms of PTSD.

Signs & Symptoms
PTSD can cause many symptoms. These symptoms can be grouped into three categories:

1. Re-experiencing symptoms
• Flashbacks—reliving the trauma over and over, including physical symptoms like a racing heart or sweating
• Bad dreams
• Frightening thoughts.
Re-experiencing symptoms may cause problems in a person’s everyday routine. They can start from the person’s own thoughts and feelings. Words, objects, or situations that are reminders of the event can also trigger re-experiencing.

2. Avoidance symptoms
• Staying away from places, events, or objects that are reminders of the experience
• Feeling emotionally numb
• Feeling strong guilt, depression, or worry
• Losing interest in activities that were enjoyable in the past
• Having trouble remembering the dangerous event.
Things that remind a person of the traumatic event can trigger avoidance symptoms. These symptoms may cause a person to change his or her personal routine. For example, after a bad car accident, a person who usually drives may avoid driving or riding in a car.

3. Hyperarousal symptoms
• Being easily startled
• Feeling tense or “on edge”
• Having difficulty sleeping, and/or having angry outbursts.
Hyperarousal symptoms are usually constant, instead of being triggered by things that remind one of the traumatic event. They can make the person feel stressed and angry. These symptoms may make it hard to do daily tasks, such as sleeping, eating, or concentrating.
It’s natural to have some of these symptoms after a dangerous event. Sometimes people have very serious symptoms that go away after a few weeks. This is called acute stress disorder, or ASD. When the symptoms last more than a few weeks and become an ongoing problem, they might be PTSD. Some people with PTSD don’t show any symptoms for weeks or months.


November 17, 2014

Medical Malpractice Expert Witness On Legal Medical Causation Part 2

In CHIROPRACTIC / MEDICAL MALPRACTICE CAUSATION AND THE DEGENERATIVE SPINE, medical malpractice expert witness Richard K. Skala, DC, writes that the "chiropractic expert will be challenged by the opposing party during deposition and/or trial in terms of the foundation used to come to their conclusions within a reasonable medical probability." (See here for Part 1.)

EXPERTS WEIGH IN The defense chiropractic expert testified, on review of the medical record, noting the lack of full history disclosure on the part of the farmer in regards to prior medical treatment and imaging. Discussing also the DC examination findings and the absence of any red flags during the history and exam, the DC expert concluded that the standard of care had not been violated. The DC expert, relying on training in x-ray interpretation, testified that the initial MD was correct that the degenerative changes were age and occupation consistent. The DC expert also testified that the degeneration indicated a long standing and developing disc condition at L5/S1. Finally, the DC expert noted various treatment guidelines that indicate imaging is not mandatory in the absence of red flags.

The defense expert neurosurgeon testified that it was “unlikely” that the DC treatment significantly caused or worsened the farmer’s disc herniation. The neurosurgeon also testified that muscle weakness following Laminectomy, foraminotomy L5/S1 discectomy was not uncommon and cited multiple studies that listed leg muscle weakness as a risk of the surgery.
It was also revealed during trial by his own testimony that despite the work and activity modifications prescribed to the farmer by the DC that he had ignored these restrictions and continued to work and lift weights without limitations.

VERDICT
The jury unanimously found a verdict in favor of the DC, noting that he was not negligent in his care to the farmer.

COMMENT
The experts in this case for both plaintiff and defense could just as easily have been working on behalf of the opposite parties. Which party prevailed is not what is important. What is important is the variation in apparent understanding and application of simply relying on a conclusion of “reasonable medical probability” versus being able to support conclusions with a foundation, and thus convincing the jury.

SUGGESTIONS
This case demonstrates that proving chiropractic causation of injury is a multifaceted process. Experts on both sides made conclusions to reasonable medical certainty. The difference in who was able to better support the foundations in arriving at their conclusions was clear to the jury.
My observations have led me to suggest the following to counsel in chiropractic malpractice cases:
1. Have your expert review all of the medical records and give concise comments on findings, observations and questions.
2. Explore the foundations of all expert conclusions / opinions and look for each element of their foundations.
3. Come to a good understanding of the opposite side’s theories of causation on a medical, factual and, when possible, statistical basis.

A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater.

November 15, 2014

Automotive Expert Witnesses & Hyundai, Kia Settlement

Automotive expert witnesses may opine on automotive design, automotive technology, fuel economy and related aspects of the automotive industry. In the news, automakers Hyundai and Kia have agreed to pay a $100 million civil penalty to resolve alleged Clean Air Act violations. An EPA investigation found that the companies touted lower gas mileage and greenhouse gas emissions on 1.2M vehicles than test results showed. In a large number of tests, both Hyundai and Kia chose favorable data rather than average results. In certain cases, Hyundai and Kia relied predominantly on data gathered when test vehicles were aided by a tailwind.

In a 11/03/2014 press release, the EPA states: United States Reaches Settlement with Hyundai and Kia in Historic Greenhouse Gas Enforcement Case

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice today announced an historic settlement with the automakers Hyundai and Kia that will resolve alleged Clean Air Act violations based on their sale of close to 1.2 million vehicles that collectively will emit approximately 4.75 million metric tons of greenhouse gases (GHG) in excess of what the automakers certified to the EPA. The companies will forfeit GHG emission credits in order to put the companies in the place they would have been had they accurately reported the GHG emissions from these vehicles in the first place. The companies also will take measures to prevent future violations. On November 3, 2014, the EPA and the U.S. Department of Justice (DOJ) announced this settlement, and lodged a consent decree embodying the settlement in the United States District Court for the District of Columbia. The California Air Resources Board joined the United States as a co-plaintiff in this settlement.

Additionally Hyundai and Kia gave consumers inaccurate information about the real-world fuel economy performance of many of these vehicles. Hyundai and Kia overstated the fuel economy by one to six miles per gallon, depending on the vehicle. Similarly, they understated the emissions of greenhouse gases by their fleets by approximately 4.75 million metric tons over the estimated lifetime of the vehicles.

The EPA subsequently investigated the coastdown test protocol Hyundai and Kia used to measure the road load force of their vehicles. That protocol appears to have included numerous elements that, once aggregated, generated inaccurately low road load forces. For example, Hyundai and Kia restricted their testing to a temperature range where its vehicles coasted farther and faster and prepared vehicle tires for optimized results. In processing test data, Hyundai and Kia chose favorable results rather than average results from a large number of tests. In certain cases, Hyundai and Kia relied predominantly on data gathered when test vehicles were aided by a tailwind.

November 10, 2014

Trial Consultant Expert On "Crafting Your Case"

In 4 Corners of Your Case, trial consultant expert Molly M. Murphy shares her strategies to get the jury to understand and connect with your case.

Craft the story of your case in a manner that touches the senses of right and wrong. Our listening filters hear what makes sense and what seems right in our own mind. We bring our childhood through adulthood memories in to play when they are called upon through smells, sights, sounds, words, phrasing, tone, images and colors. Our senses are the key promoters to remembering an event or experience. Our attachment to a story leads to a connection. We are all storytellers so we view others’ story with a discerning eye. Question if the storyteller is telling the truth, making it up or worse, trying to be deceptive. The jury is faced with two parties telling them that their side is right and the other side is not admitting to their wrong doing.

There are four main points that you want the jury to understand and connect with your case. You should be able to tell your story with these main points.

The first corner is the “Why” behind the story. What is this case about without all the nuances of the details? Tell the story in the time frame that the events happened. Let the jury know the issues that they will have to resolve. Describe the events, injury and the damage caused. The time frame of events and the witness’s knowledge is critical to get the jury interested and involved in your case.

The second corner is the “History” of the story. Introduce the background of the characters in the case: individuals, corporations, company, departments and divisions and establish the connection of these players. Jurors like to know who the characters in the story are and how they fit in the case. When jurors feel a connection to a witness from the opening statement there may be a heightened interest when that witness testifies. Help the jury connect with the witnesses through photos, stories and vividly place them in the storyline.

The third corner is the “Details” of the story. The devil is in the details. What facts tie together and supports your story. Introduce the specific dialog of the key and intriguing witnesses. Do not interrupt your story with your opponent’s story. This is your time with the jury. Be aware if you are telegraphing any fears, weaknesses, witness problems or lack of strong evidence. This is your opportunity to present your storyboard. Present a visual story with a timeline, milestones, photos, graphics etc. Highlight favorable and honorable characteristics of your case.

The fourth corner is the “Summation” of the story. How the facts and the nuances fit together making your story credible and believable. Highlight the issues that you want the jury to pay attentions to during trial. Present with the notion that common sense is connected to the facts of the case and it will lead the jurors to do the right thing. Most importantly do not tell them how to think!


Molly M. Murphy is a Trial Consultant and a Mediator in Santa Monica, California. Over the last 20 years, Ms. Murphy has consulted on well over 600 cases throughout the country, including civil, criminal and class action

November 5, 2014

Child Abuse Expert Witnesses

In What is Child Abuse? Childhelp.org states: “Child abuse consists of any act of commission or omission that endangers or impairs a child’s physical or emotional health and development. Child abuse includes any damage done to a child which cannot be reasonably explained and which is often represented by an injury or series of injuries appearing to be non-accidental in nature.” Child abuse expert witnesses are effective advocates for children and may advise regarding child abuse and neglect, child maltreatment, and child sexual abuse. At Forensic Pediatrics Consultants.com, board certified doctors and experts in child abuse, pediatrics, and forensic interviews describe Forms of Child Abuse:

Physical abuse
Any non-accidental injury to a child. This includes hitting, kicking, slapping, shaking, burning, pinching, hair pulling, biting, choking, throwing, shoving, whipping, and paddling.

Sexual abuse
Any sexual act between an adult and child. This includes fondling, penetration, intercourse, exploitation, pornography, exhibitionism, child prostitution, group sex, oral sex, or forced observation of sexual acts.

Neglect
Failure to provide for a child’s physical needs. This includes lack of supervision, inappropriate housing or shelter, inadequate provision of food and water, inappropriate clothing for season or weather, abandonment, denial of medical care and inadequate hygiene.

Emotional abuse
Any attitude or behavior which interferes with a child’s mental health or social development. This includes yelling, screaming, name-calling, shaming, negative comparisons to others, telling them they are “bad, no good, worthless” or “a mistake.” It also includes the failure to provide the affection and support necessary for the development of a child’s emotional, social, physical and intellectual well-being. This includes ignoring, lack of appropriate physical affection (hugs), not saying “I love you,” withdrawal of attention, lack of praise and lack of positive reinforcement.

Expert witnesses at Forensic Pediatrics Consultants describe the content of a child sexual abuse forensic interview:

A forensic interview should not take the form of an interrogation. Note the child’s affect while discussing these topics and be tactful in helping the child manage anxiety. Young children may not be able to report all of the relevant information and disclosures commonly emerge over time. The examiner should explore the following:

whether the child was told to report or not report anything;
what relationship the child has to alleged perpetrator was;
what the alleged perpetrator did;
where it happened;
for multiple occurrences that are reported, when the abuse it started and when it ended;
number of times the abuse occurred;
if and how the child was initially engaged and how the abuse progressed over time;
if and how the alleged perpetrator induced the child to maintain secrecy;
whether the child is aware of specific injuries or physical symptoms associated with the abuse;
whether any photography or videotaping took place.

The Stepwise Interview Components and Protocol
Build Rapport
Ask the Child to Describe Two Specific Past Events
Establish the Need to Tell the Truth
Reach an agreement with the child that in this interview only the truth (not “pretend” or imagination) will be discussed.
Explain to the child that it is fine not to know the answer to a question. It is fine to correct the interviewer.
Start with general questions such as “Do you know why you are talking with me today?” Proceed, if necessary, to more specific questions such as “Has anything happened to you?” Drawings may help initiate disclosure.
Elicit a Free Narrative
Pose General Questions
Pose Specific Questions if Necessary
Conclude the Interview


Read more: Forensic Pediatric Consultants

November 2, 2014

School Safety Expert Witness On Playground Standards

The Centers for Disease Control and Prevention reports that each year in the United States, emergency departments treat more than 200,000 children ages 14 and younger for playground related injuries (Tinsworth D, McDonald J., Special Study: Injuries and Deaths Associated with Children’s Playground Equipment. Washington, DC, U.S. Consumer Product Safety Commission, 2001). Tinsworth also reported that approximately 45% of playground-related injuries are severe – fractures, internal injuries, concussions, dislocations, and amputations. In QUESTIONS, ANSWERS and FALLACIES ON PLAYGROUND SAFETY, school safety expert witness Scott A. Burton, Safety Play, Inc., writes on ASTM standards s for the American Society for Testing and Materials.

ASTM creates safety standards for many industries, including playgrounds for public use, home use, children under two, soft-contained playgrounds, playground fencing, playground & sports surfacing, trampolines, sports equipment and facilities, amusement rides, etc.
Some or all of the playground safety standards are law in some states, and for some entities who have adopted it into their bylaws.

The current version of the ASTM Public Use Playground Standard is #F1487-11, published in November 2011. The current version of the ASTM Public Use Playground Fencing Standard is #F2049-11.

Although ASTM is a voluntary, non-profit organization, the Standards themselves are considered by some to be "voluntary" yet by others to be the "standard of care" (and are adopted into law in some states!). ASTM is always looking for potential members from various sectors. Interested parties are always welcome to attend meetings. They can become a member and learn the extensive process that we go through to make a Standard. Member categories include Manufacturers ("Producers"), Owner/Operators ("Users"), Consultants and General Interest. It is a forum for all concerned parties to express their own interests and ideas so that we can all come to an agreement on each issue at hand. This is a time-consuming process where, like laws, changing them reduces injuries and saves lives.

CPSC stands for the (United States) Consumer Product Safety Commission.
CPSC created the U.S. - CPSC Safety Guidelines on Public & Home Playground Equipment. CPSC also issues a checklist on Soft Contained Play Equipment (SCPE), as well as recalls of specific products of all kinds.
The CPSC "Public Playground Safety Handbook" #325 ("Guidelines") are law in some states and for some entities who have adopted it into their bylaws.

The original version of the CPSC Guidelines #325 was first published in 1981. The next revision was published in September of 1991. The revision after that was published in September of 1994. The revision after that was published in September of 1997, but was re-released in November of 1997 with minor corrections. The next revision was released on April 21, 2008. The current revision was released in November, 2010.


Read more: Scott Burton.

October 30, 2014

Contract Manufacturing Expert Witness On Contract Planning Risks

In Frequent Contract Planning Risks, contract manufacturing expert witness Robert G. Freid writes on the importance of the contract prior to the start of work.

- Customers have their greatest negotiating leverage before start of work. Once work starts it is often difficult to reverse course because of time constraints and resources.
- About a third of my outsourcing consulting services involves work as a consultant in legal disputes between customers and suppliers, and millions of dollars in damage claims. In most cases, no contract existed between the parties – at best, only an MOU. I've recently been an expert witness in such a matter with 10,000 pages of depositions and 1,000 exhibits from both sides. Very expensive.
- Contracts can take only a short time to complete. Time is reduced if the customer has a draft contract proposal ready when the supplier is selected, and if the draft proposal T&C's are within the range of industry practices.

Do not underestimate the project requirements
- Attitudes such as "what we need is not rocket science" or "the service provider is the expert" too often results in weak contracts and eventual unsatisfactory performance.
- Even major corporations make this mistake. For example, Boeing Aircraft said in a news article in the Seattle Times a couple years ago that the 787 program delay was due largely to their over-estimating key off-shore supplier capabilities.
- Also, be sure that your project requirements of the supplier comprehend the sometimes extensive requirements of your key customers.

Avoid using the bidder / supplier's templates
- Best practice contracts for the customer will in many cases, be almost entirely different than the bidder "standard" contract template.
- Bidder templates are often highly favorable to the service provider. Terms important to the customer either weak or missing entirely - for example: influence in selecting supplier's project manager (often a key factor for project success), contract termination restrictions on the bidder, liability limitations for the customer, comprehensive and relevant performance measures.

Plan for RFP language to be incorporated into the contract
- Be sure to consider how supplier responses will be incorporated into the contract. For example format of costing detail, expected PO lead-times, warranty, prices for potential future services – important if a multi-year contract.


Read more: Robert G. Freid.

October 26, 2014

Cross-examining the Expert Witness by Dean Brett Part 3

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes on what he describes as "one of the trial attorney's most difficult tasks."

In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.

In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.

General preparation for cross-examination of a defense expert involves four stages:

1) Learn the expert’s subject;

2) Scout the expert;

3) Use your own expert;

4) Establish realistic goals.

Learn the expert’s subject

With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.

Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.

It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.

Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.

If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.

If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.

Scout the Expert

If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:

(a) for contradictory statements for use in impeachment,

(b) for general principles supportive of your theory, and

(c) for embarrassing quotations about the limits of the expert’s knowledge.

It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.

Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.

Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.

Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.

The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.

Use Your Own Expert

Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.

Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.

If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.

Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.

Establish Realistic Goals

From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.

Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.

Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”

The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.

The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.

In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

October 21, 2014

Expert Witness Marketing Consultant Rosalie Hamilton On Expert Pay

In her special report EXPERT PAY DISCUSSION, Rosalie Hamilton, the leading authority on expert witness marketing and founder of Expert Communications, writes:

You May Enjoy Your Work, But Don't Work for the Fun of It — Make Sure You Get Paid!

A common refrain among expert consultants is, "How do I make sure I get paid?"

The most important step in getting paid is planning to get paid. Being compensated for your work is too important to leave to chance, hope or optimistic confidence in the decency of your clients. It's business, for goodness' sake!

Do attorneys like to sign payment agreements? Usually not, particularly plaintiff attorneys. But you should ask yourself why. If the fees are agreed upon, and you are obligated to do the work just as the client is obligated to pay for the work, why should putting that agreement in writing be a problem?

My recommendation is to use an agreement that lays out simply and clearly, at a minimum, your rates for review, deposition, court appearance, travel time, and expenses, as well as your required retainer. I also recommend that you include a cancellation policy so you are not left holding an empty bag along with an empty waiting room or office when deposition or court appearances are postponed or cancelled. There should be signature lines for you and the client and dates for both signatures.

In your engagement agreement, you can also choose to spell out your expected payment schedule and other details. You can specify additional elements as venue in case of disagreement, although some experts do not wish to bring up the negative.

Your engagement agreement can be called a Fee Schedule, Litigation Consulting Agreement or Contract, or it can be part of an engagement letter (see examples of engagement agreements in The Expert Witness Marketing Book).

The most important points in getting paid are:

1) Do not begin reviewing files until you receive a retainer for the estimated time of the review.
2) Do not deliver your written report until your invoices are brought current.
3) Do not leave your office for a deposition without having received payment from (usually opposing) counsel covering estimated testimony time.
4) Do not leave your office for a court appearance without having received payment from retaining counsel covering estimated testimony time and bringing all other invoices current, unless you have an established relationship with the law firm.

You will notice in my recommendations, (which are based upon many true stories with unhappy endings), the absence of the words, "having received a promise that counsel will have your check when you arrive to testify."

In working with our expert clients on their fees and collection procedures my policy is this: If you are assertive, you will rarely have to become aggressive. For most people, having to be aggressive is not a pleasant experience, especially when dealing with attorneys. Avoid this situation by handling the administrative, invoicing and collecting procedures of your practice in a business-like manner — that is, clearly, consistently, and as early as possible.

Excerpted from The Expert Witness Marketing Book by Rosalie Hamilton. Read more: http://www.expertcommunications.com/

October 12, 2014

Medical Malpractice Expert Witness On Legal Medical Causation Part 1

In CHIROPRACTIC / MEDICAL MALPRACTICE CAUSATION AND THE DEGENERATIVE SPINE, medical malpractice expert witness Richard K. Skala, DC, writes:

Proving or disproving Legal Medical Causation is based on testimony by expert witnesses regarding the “proximate” cause of negligence to a standard of reasonable medical probability. The plaintiff bears the burden of its expert being able to conclude to this standard that indeed negligence occurred and thus damage ensued. The defense expert bears the opposite burden of concluding to the same standard that there was no cause of negligence and thus no damage.

Regardless of which side of the argument an expert speaks to, their conclusions must be persuasive in terms of causation. The standard of reasonable medical probability essentially means that “it is more probable than not” that a chiropractor did or did not do something negligent during the course of treating a patient that resulted or caused some degree of damage. Experts on both sides of the arguments must be able to demonstrate that the conclusions they pose as “within reasonable medical probability” have enough evidentiary weight to convince a reasonable person that their conclusions are in fact correct.

The chiropractic expert will be challenged by the opposing party during deposition and/or trial in terms of the foundation used to come to their conclusions within a reasonable medical probability.

THE FARMER AND HIS DEGENERATIVE LUMBAR SPINE
In a recent case involving a 50 year old male farmer with no prior history of back pain who injured his low back in a fall and had low back pain he initially treated with his family physician (MD) for one month. The MD took x-rays and noted age/occupation consistent signs of degeneration at L5/S1. The treatment plan of medications and exercise provided no relief. After 4 weeks of failed treatment the farmer presented to a chiropractor with his complaint of low back pain. The farmer did not inform the DC of his prior MD treatment. The DC exam revealed only loss of motion and some muscle guarding. There were no abnormal orthopedic or neurological findings. No x-rays were taken. A treatment plan of side posture manipulation of the lumbar spine was initiated with three visits per week for three weeks. The farmer was also told not to perform his usual weight lifting routine and not lift more than 10 pounds or perform any forward bending motions. During the course of this plan the farmer indicated improvement and after four weeks, the symptoms were rated as slight, there was restoration of lost ROM and the farmer was discharged from the DC’s care. Four weeks after discharge the farmer returned to his family physician and provided a history of ongoing low back pain that had become worse, indicating that the worsening was directly related to the DC’s treatment. The farmer’s condition worsened, involving leg pain with numbness and tingling, which led to a referral to a neurosurgeon. The neurosurgeon had an MRI done with revealed L5/S1 disc herniation impinging the right S1 nerve root. Laminectomy, foraminotomy L5/S1 discectomy was performed. Post surgically the farmer suffered from permanent motor loss in the right leg. The farmer sued the DC for malpractice.

The plaintiff offered a chiropractic expert who testified that the DC had violated multiple standards of care. The basis of these conclusions was largely based on review of the medical records of prior MD treatment. The plaintiff also offered a neurosurgical expert, who testified that the DC treatment “significantly contributed to and likely caused the disc herniation,” basing these conclusions on professional experience and observations over the course of many years.


A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater.

October 9, 2014

Economic Damages Expert Witness On Future Earnings Part 1

In Personal Injury Litigation - the Difference Between Future Earnings and Future Earning Capacity, economic damages expert witness Ronald T. Luke, JD, PhD and Mary L. Hoane, CPA/CFF, MBA write:

This paper discusses one of many issues that can arise in calculating economic damages in personal injury litigation. The issue is the important distinction between projecting a person’s future earnings and a person’s future earning capacity. Earnings are defined as remuneration of a worker for services performed during a specific period of time. When projecting future earnings the economist is projecting the amount the person would have earned but for an injury. When projecting future earning capacity the economist is projecting the amount the person could have earned if he had chosen to maximize his earnings.

In litigation where the injured party remains alive and able to receive a damages award, the correct measure of damages is loss of future earning capacity; the amount the injured party could have earned had the injury not occurred less the amount he could earn given the physical or mental limitations resulting from the injury. When the injured party is deceased, the measure of damages in a wrongful death case is the amount of support the survivors would have received from the injured party. The starting point in calculating the amount of support is the projected earnings of the deceased: the amount the deceased would have earned and from which support could have been paid to the survivors.

Whether the difference between projected earnings and projected earning capacity is large or small depends on the demographic characteristics of the individual (e.g., age, gender, education, race/ethnicity, aptitudes, interests, physical limitations) and their individual life choices (e.g., child care, retirement plans, choice of occupation). When the injury is to a young person who has not established a career and perhaps has not completed his formal education, the economist must rely more heavily on statistics for the average person with the demographic characteristics of the injured party. When the injury is to an older person who has a lengthy work history and who has expressed his retirement plans, the economist can base his projections more on the specific characteristics of the injured party and rely less on statistical averages.

Dr. Luke and his colleagues have been accepted as expert witnesses in state and federal courts and before administrative agencies in more than 25 states.