June 29, 2015

Insurance Expert Witness On Excess Of Loss Coverage Part 1

What areas may insurance expert witnesses consult on? They may write reports, give deposition and testify on insurance regulations, insurance fraud, reinsurance, and more. In Excess Of Loss Coverage For Self Insurers: Is It Insurance Or Reinsurance?, attorney, mediator, and insurance expert witness Robert M. Hall writes:

I. Introduction

Self-insurance entities often purchase excess of loss coverage from conventional insurers and reinsurers in order to meet the solvency standards of the self-insurers’ supervising authorities. Often it is unclear whether this capacity must take the form of excess insurance or may take the form of reinsurance. The companies that provide this coverage sometimes structure it as reinsurance in order to be free of market conduct and rate and form regulation as well as premium taxes, guaranty fund assessments and other charges involved in direct insurance. However, the manner in which the coverage is styled may not be determinative when problems arise. The purpose of this article is to present selected case law as to whether this insurance or reinsurance is treated in several different self-insurance contexts.

II. Rate and Form Filings and Assessments

Commissioner of Insurance v. American Nat. Ins. Co., 410 S.W.3d 843 (Tex. 2012) involved stop loss coverage provided to qualified, self-funded employee benefit plans sponsored by various governmental and private entities. It is not clear from the opinion whether the relevant coverage documents were styled as policies or reinsurance contracts. However for financial statement purposes, the insurer treated the premiums it received as resulting from reinsurance assumed. During a routine audit, the Texas Insurance Department discovered this practice and alleged that the coverage was insurance rather than reinsurance and that the insurer should have paid premium taxes and complied with other regulatory strictures applicable to insurance.

After a detailed examination of Texas statutes, the court found the insurance code ambiguous on point but decided to defer to the position of the Insurance Department that the coverage was insurance and not reinsurance:

The Department has therefore concluded that stop-loss insurance purchased by a plan does not involve two insurers and is therefore not reinsurance. It is instead direct insurance in the nature of health insurance because stop-loss policies are purchased by the plans ultimately to cover claims associated with their health-care expenses. The Department’s construction is reasonable, was formally promulgated, and is not expressly contradicted by the Insurance Code. We accordingly agree with the Department’s construction and hold that stop-loss insurance sold to a self-funded employee health-benefit plan is not reinsurance, but rather direct insurance subject to regulation under the Insurance Code.


Mr. Hall is an attorney, a former law firm partner, a former insurance and reinsurance executive and acts as an insurance consultant as well as an arbitrator and mediator of insurance and reinsurance disputes and as an expert witness. Copyright by the author 2015. Mr. Hall has authored over 100 articles and they may be viewed at his website: robertmhall.com.

June 26, 2015

The Care and Feeding of Expert Witnesses Part 2

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I've read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest....

3. Documents Sent
Since at deposition he will need to provide a list of all materials that he used and that helped in forming his opinion, you may wish to cover the waterfront and send him everything. When boxes and boxes of materials arrive, he may very well be overwhelmed. Give him some guidance by prioritizing it. I always start with the complaint and get down pat the cast of characters in the case, both individuals and entities. Discuss the allegations of who did what to whom, and when, and guide him to the pertinent documentation on both sides. He needs to understand your opponent's contentions and the bases for them if he is to defend his own and, hopefully, yours. Make sure the deposition transcripts have the exhibits attached or that your expert knows where to locate them. I've run up needless billable hours searching for documents mentioned in deposition transcripts, but not among those sent to me. Discuss with him the reading materials that he has obtained on his own and ask to see them, if practicable. Make sure that he understands the rules of discovery before allowing him to seek advice from his own sources, people or documents. These sources may be invaluable but should first have your approval.

4. Reports
Don't be shy about offering your suggestions after reviewing a first draft of a report. A good expert has (or should have) an ability to see that this report may be instrumental to the case and be willing to make necessary changes or to opine further on stated points without compromising his independent conclusions. In making your suggestions, it is a good idea to preface them with the words, "If you agree. Ö"

5. Preparation for Deposition and/or Trial
Meet with him the day before a trial or deposition to go over all of the points he will make as well as to prepare him for topics that you expect will be asked. You don't want to be surprised at deposition by any of his answers. Meeting on the day before also allows him time to run through in his head all of his conclusions and bases for them and to review again, alone in his hotel room, any discussions you had in preparations that day. Then have him arrive fresh in the morning, early enough for any last-minute conferring with you.

6. Attitude
This is the most important of all, at least to me. Make him feel he is part of the team and not a "hired gun." Reputable experts bridle at that term and to any vibes they get that they are being thought of that way. Introduce him to the other lawyers on your side and to your client, if you deem it wise. When he is in your office, treat him as you would a client, not as a vendor. If you retain the right person, he is a professional and expects to be treated as one. But while he may be on the team, you are the team captain, and he should not be attempting to try your case for you. If you see tendencies that way on his part, diplomatically suggest that there are legal reasons why you do what you do but that you look to his contributions to those aspects of the case for which you retained him. With a positive attitude on both sides and a clear understanding of his perspective, he should advance your case and help in bringing about a successful result.

Read more here.

June 23, 2015

Finding And Researching Experts and Their Testimony Part 1

In Finding and Researching Experts and Their Testimony, authors Jim Robinson David Dilenschneider, Myles Levin, and Nathan Aaron Rosen write:

Several of us got into some discussions about the need to research experts thoroughly. During those discussions, we exchanged our knowledge of not only the resources to search but also effective strategies on how to use the information found. In the end, we realized that none of us was aware of a truly-comprehensive resource that detailed all the various ways to learn about experts. Accordingly, in the spring of 2007, we wrote the First Edition of this White Paper.

In February 2009, we updated the paper to highlight new resources that had emerged (as well as delete references to older, non-functioning sites), acknowledge new applications and strategies, and relate more failures to vet experts thoroughly.

In the past five years, technologies have changed dramatically, more sites have come and gone, and – of course – failures to vet continue to occur. Accordingly, we have taken it upon ourselves to provide a detailed update to the paper, resulting in this Third Edition.

We hope you find this White Paper to be a valuable resource and return to it regularly.

Introduction

Many years ago, an Arizona trial court judge overturned a jury’s verdict, ordered a new trial and sanctioned the defendant over half a million dollars because the defense expert had lied about his qualifications. Importantly, the judge based his decision to sanction on his expectation that the defendant would have conducted thorough research on its own experts:

This court opined that defendant . . . knew or should have known of the falsity of its own expert’s credentials, but could not conclude that [defendant] in fact knew. This court has been persuaded by plaintiffs’ motion for reconsideration that “should have known” warrants sanctions.”

Expert witnesses are used in a wide range of litigation and their opinions are often viewed as critical – frequently making or breaking a case. As a result, many trials have turned into a battle of the experts. Yet despite their importance, few attorneys take the time to utilize the proper resources to find the right experts, evaluate their credentials, and/or assess the admissibility of their testimony.

The purpose of this article is to suggest various types of online resources that can be used to find experts, gather information about them (whether one’s own or the opposing party’s), and assess the admissibility of their testimony – as well as tips and strategies on how the information uncovered might be utilized. In addition, to assist in research efforts, a few (but certainly not all) potentially-relevant websites have been included. However, note that because many of the resources discussed (e.g. agency opinions, verdict reports, etc.) are available from a wide variety of free and commercial vendors, such as LexisNexis® (see, e.g., Lexis Advance ), Thomson Reuters (see, e.g., WestlawNext), and Bloomberg Law®, generally such providers are not constantly repeated as possible sources of information, unless their being a provider of that specific type of information is not manifestly obvious.

One final note of caution: be wary of outrageous marketing claims. Some vendors will tout that they can provide you all of the information you need to identify, select or impeach an expert. Nothing could be further from the truth. In fact, some products marketed via such claims actually miss relevant, and relatively easy-to-find, information about many experts – providing you with far less than what is promised. The simple upshot is that, although several fairly-comprehensive products, platforms and services exist, we have yet to find one that does it all. So when evaluating resources, adhere to the well-known maxim: “if something sounds too good to be true, it probably is.”

Finding a Potential Expert

A brief word of advice on the subject of finding a potential expert: do it as soon as you possibly can. From precluding the opposition, to helping frame the issues, to assisting in evaluating the opposing expert, the benefits to be gained from early retention are significant and worth the effort.
A. Learning about the Subject Matter
In order to know what questions to ask a potential expert, one should conduct some basic investigation into the relevant topic of expertise. Of course, such research might also lead to the names of potential experts in that field.
Library Websites
a. Online Catalogs
Library websites are an excellent place to begin the search to find information about the subject matter and to find potential experts. Start by searching libraries’ online catalogs for books and journals on the subject at issue. For example, a search for “handwriting identification” on the Library of Congress’s website will return the names of potential experts, the title and date of their publications, and cross-references to other works by each author. Pay particular attention to this information – someone who writes extensively on the subject at issue may make an ideal candidate to serve as an expert.
Possible Sites: www.Libdex.com; catalog.loc.gov; www.worldcat.org
b. Commercial Databases (Free Access)
In addition to making their own catalogs available online, many public libraries also offer free access to some external “pay” databases. Ordinarily, all you need to access these databases from a computer is a library card and an Internet connection. Just a few of the types of databases offered by some libraries include:

Academic Search Premier ProQuest
Newspaper / Periodical Articles Reference USA
Business Source Premier EBSCO Business Directories (e.g. Standard & Poor’s,
Hoovers, etc.)
Gale’s Biographies JSTOR
Physician’s Desk Reference Marquis Who’s Who

Medical Websites
The National Library of Medicine (“NLM”) is an excellent place to find materials in all areas of biomedicine and healthcare, including biomedical aspects of technology, the humanities, and the physical, life, and social sciences. According to its website, the NLM houses millions of items — including books, journals, technical reports, and manuscripts. Moreover, the site, along with its associated services (i.e. “PubMed” and “MedLine Plus”), contains links to medical encyclopedias, full-text news stories, articles, and free publications, as well as information on how to order those materials.

In addition, every branch of medicine has its own professional association with an accompanying website, oftentimes offering article databases and membership directories. The website of the American Board of Medical Specialties is one of the best places to look for links to these associations.

Possible Sites: www.nlm.nih.gov (PubMed/MEDLINE); www.webmd.com; www.abms.org (requires registration); www.boardcertifieddocs.com (charges organizations to verify physician certifications)...

Articles
Many legal portals provide access to articles by legal professionals that discuss expert witnesses. For example, law.com, the legal portal of American Lawyer Media (“ALM”), provides access to full-text articles from its various publications – but only to its subscribers (while also providing synopses of those articles for non-subscribers and the opportunity for them to view a limited number of articles via free registration).

The Index to Legal Periodicals & Books (H.W. Wilson) and Legal Resources Index (electronic version of Current Law Index (Gale) are searchable electronic indexes of legal periodical articles containing information about experts. Most of the information consists of article citations from major law reviews, bar association journals and legal newspapers. These citations include an article's title, author, source, and subject headings. Various indexes to legal periodicals, along with the full text of articles can be accessed from many library websites and commercial providers.

Articles written by experts may also be found through Google Scholar. Launched in 2009, this service provides a way to broadly search for scholarly literature, including articles, theses, books, abstracts and court opinions. These documents have been collected from academic publishers, professional societies, online repositories, universities and other websites. Google Scholar may be searched with Boolean, proximity, and phrase searching, as well as through its advanced search function.

Some expert witness directories such as JurisPro and Hieros Gamos provide free access to articles written by experts, and many trade associations publish online newsletters and some provide either the full text of or extracts from articles. For example, the Accident Reconstruction Communications (ARC) Network, a professional organization for those in the accident reconstruction industry, has a monthly newsletter with articles authored by experts. This website also has an active discussion forum that includes opinions posted by various accident reconstructionists.

Jim Robinson, Esq.
Attorney, Past Education Chair for the California State Bar Law Practice Management and Technology Section, Founder of JurisPro Inc.

David V. Dilenschneider, Esq.
Senior Director, Client Relations
LexisNexis

Myles Levin
CEO
Daubert Tracker

Nathan Aaron Rosen
Library Research Manager
Dechert LLP

June 20, 2015

Cardiology Expert Witness On Essentials For Attorneys

In Interventional Cardiology Expert Witnesses: Essentials for Attorneys, Dr. Burton Bentley writes that "given the widespread prevalence of heart disease in the US population, issues related to cardiology occur in countless medical negligence cases. Consequently, in the realm of medical expert witnesses, the Interventional Cardiology expert witness is King."

Interventional Cardiology is a subspecialty of cardiology relying upon highly specialized cardiac procedures to diagnose and treat coronary artery disease. Cardiologists who employ these techniques to intervene in the course of coronary artery disease are known as Interventional Cardiologists. Since Interventional Cardiologists have expertise in both the diagnosis and interventional treatment of cardiac disease, issues addressed by Interventional Cardiology expert witnesses may focus on standard of care, breach, and/or harm. Interventional Cardiology experts also opine upon standard practices involving billing, compliance, resource utilization, and observation v. admission status.

Standards of care relate to the principles, practice, and procedures of Interventional Cardiology. The most frequent Interventional Cardiology procedure is angioplasty, also known as Percutaneous Coronary Intervention, or PCI. During PCI, an Interventional Cardiologist inserts a catheter into an artery and then threads the catheter to the level of the heart. The target artery is one or more coronary arteries perfusing the heart. The Interventional Cardiologist monitors the location of the catheter by injecting dye and viewing real-time images during the procedure. When a coronary artery is determined to have significant narrowing due to atherosclerosis (plaque), the Interventional Cardiologist will perform an “angioplasty”, literally reshaping the interior of the blood vessel. The angioplasty catheter uses a tiny balloon to press plaque against the luminal walls of the artery, effectively opening the internal diameter and improving blood flow. In 70% of angioplasty procedures, the Interventional Cardiologist will also deploy a stent. Stents are tiny metal tubes that remain in place to permanently reinforce the artery wall.

The same PCI techniques of vascular entry and guidewire insertion form the foundation for nearly all Interventional Cardiology procedures. Other procedures include:
Atherectomy: The use of tiny devices such as burrs or lasers to physically remove plaque from coronary arteries.
Balloon Valvuloplasty: The use of balloon catheters to physically open narrow heart valves (e.g. aortic stenosis).
Percutaneous Valve Repair: The use of specially equipped catheters to repair abnormal heart valves.
Transcatheter Aortic Valve Replacement (TAVR): TAVR is a revolutionary non-surgical treatment for aortic stenosis. During TAVR, the Interventional Cardiologist deploys a prosthetic aortic valve that is instantly deployed over the patient’s native valve. The native valve is entirely displaced while the new valve functions in its place.

The most common standard of care allegations include procedural delays, particularly during the treatment of acute myocardial infarction. Other allegations may involve procedural complications such as hemorrhage (e.g. hematoma or retroperitoneal hemorrhage), vessel rupture, nerve injury, device malfunction, embolism, and stroke. Given the complexity of interventional cardiology procedures, only a Board-Certified, full-time practicing Interventional Cardiology expert witness can opine upon the applicable standard of care.

In additional to opining on standard of care, an Interventional Cardiology expert witness is often required to address causation. Causation arguments may arise when an Interventional Cardiologist is alleged to have acted negligently. In other words, did the alleged malpractice result in harm? Interventional Cardiology experts also evaluate causation when a patient suffers a deprivation of care by not being referred to an Interventional Cardiologist in a timely manner. For example, allegations may arise when a primary care provider fails to refer a patient with chest pain, or when an Emergency Medicine specialist delays admission to the cardiac catheterization lab. Such situations mandate meticulous analysis, and only a credible and independent Interventional Cardiology expert witness can connect the dots.

Since Interventional Cardiology experts are also Cardiologists, IC experts are also called upon to determine the existence, nature, extent, and prognosis of cardiac harm. For example, when a patient suffers a myocardial infarction (i.e. heart attack), what is the extent of the injury and how will it impact the patient’s health? Investigating the status and degree of cardiac harm is an essential strategic element is many cases. Once again, a skilled and impartial Interventional Cardiology expert witness will be the key to your case’s success.

In countless areas of medical litigation, from billing and compliance to percutaneous coronary angioplasty, the Interventional Cardiology expert witness plays a pivotal and irreplaceable role. To succeed in your next cardiac case, take the time to properly understand and utilize the knowledge of this mission-critical expert.

ELITE MEDICAL EXPERTS is a physician-based firm specializing exclusively in medical litigation.

From Stanford to Yale, and from every medical and surgical specialty, ELITE MEDICAL EXPERTS secures leading university experts for medical litigation. We work with attorneys for both plaintiff and defense, as well as medical malpractice insurers, to secure the leading medical experts from the nation's top academic institutions.

June 16, 2015

Pharmacology Expert Witness & Cephalon Case

The Federal Trade Commission has reached a settlement resolving the antitrust suit charging Cephalon, Inc. with illegally blocking generic competition to its sleep disorder drug Provigil. Teva Pharmaceutical Industries, Ltd. will make a total of $1.2B available to compensate purchasers, including drug wholesalers, pharmacies, and insurers, who overpaid because of Cephalon’s illegal conduct. The FTC’s pharmaceutical expert witness had previously estimated that the amount could be anywhere between $3.5B and $5.6B.

As part of the settlement, Teva also has agreed to a prohibition on the type of anticompetitive patent settlements that Cephalon used to artificially inflate the price of Provigil. Teva is the largest generic drug manufacturer in the world, and this prohibition applies to all of its U.S. operations.

The May 28th FTC.com press release states:

The settlement stems from a 2008 FTC lawsuit, which charged that Cephalon unlawfully protected its Provigil monopoly through a series of agreements with four generic drug manufacturers in late 2005 and early 2006. The FTC alleged that Cephalon sued the generic drug makers for patent infringement and later paid them over $300 million in total to drop their patent challenges and forgo marketing their generic products for six years, until April 2012.
This type of settlement, in which the generic drug firm agrees not to market its product for a period of time and the brand name drug manufacturer pays the generic— whether in monetary or non-monetary form – is commonly referred to as a “reverse-payment” patent settlement. In 2013, in FTC v. Actavis, the Supreme Court confirmed that reverse payments can violate the antitrust laws.

Trial in the case is scheduled to begin June 1 in the U.S. District Court for the Eastern District of Pennsylvania. If approved by the court, the settlement will resolve the FTC’s charges.

June 13, 2015

The Care and Feeding of Expert Witnesses Part 1

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I've read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest.

1. Selection Process
Start your search early. I'm always amazed when I receive frantic phone calls from attorneys saying they must designate an expert that day or the next day. Allow time to find an expert, to connect, (considering the usual telephone tag delays), to chat, and to get a feeling for the chemistry between you, and to briefly discuss your case. Ask the potential expert's experience in the course of his career with matters germane to your case, and ask whether he has ever testified on anything similar. Get his general feelings about your case while keeping in mind that he now has only a thumbnail sketch of the issues involved. Tell him up front your time constraints, if and when a written report is required, and the dates of trial and probable deposition. Make sure he has the time to devote to your case. You don't want him "squeezing you in" between other pressing cases. Discuss fees and retainers. Ask him to fax you his most recent CV and a list of prior testimony, along with the names and firms of attorneys who have retained him. Check him out. If he's smart, he'll probably be looking you up in Martindale-Hubbell within minutes of getting off the phone. If not time- and expense-prohibitive, arrange a meeting either at your office or his. If he is going to come to you, make it clear that you will pay for his time and expenses. There may be experts who are willing to give up a day or more to meet with you for free, but they are not going to be the ones whose time is very valuable and thus probably not the ones you want. I've had attorneys who expected me to crisscross the country for an interview with no more compensation than an airline seat. I politely but firmly terminated those inquiries. The first hour of this expert's time is usually free. After that the meter runs, as it does with lawyers.

2. After Retention
Detail as much as possible the areas and questions upon which you are asking him to opine. Obviously, you cannot and should not tell him what his opinions are. After he has had a chance to review materials you have sent, you may certainly ask his opinions and, just as importantly, the bases for his opinions. Challenge him politely to defend them. Your opponent certainly will do so in deposition and at trial! Pick his brain and let him talk. I've had attorneys discover a whole new tack they may decide to take because of what they learned about how things really operate in my discipline. Now that you've retained him, all that he knows and has experienced is at your disposal. Take advantage of it.

Part 2 to follow. Read more here.

June 10, 2015

Keeping Internet Searches to Yourself

In Keeping Internet Searches to Yourself, internet guru, attorney and law librarian
Carole Levitt writes:

For those who are more and more concerned with privacy when researching on the Internet, here’s one of my ABA TECHSHOW tips: Consider using DuckDuckGo.com. It enhances users’ privacy by not storing your search history, IP addresses or user agents, and not passing along your search words to the site you visit when you click on a link in the results list. But, what if you love using all of Google’s advanced search features/instructions (or Bing’s or Yahoo’s)? Well, you can still use them and protect your privacy if you precede your search with what DuckDuckGo calls a “bang,” which is an exclamation point and the first letter of
the search engine where you want DuckDuckGo to submit your search. For example, to submit your search to Google and limit your results only to PDFs that have the name “carole levitt” as a phrase, your search would look like this:

!g “carole levitt” filetype:pdf

Carole Levitt (@CaroleLevitt) is President of Internet For Lawyers. A frequent speaker on topics such as investigative and legal research, Google search, social media research and legal ethics, Carole spoke at the TECHSHOW session “Bingoogleduckyahoo!"

For more tips like these, you can purchase her book, The Cybersleuth's Guide to the Internet: Conducting Effective Free Investigative & Legal Research on the Web, 13th edition (2015) at: http://linkon.in/cyberjurispro.

June 7, 2015

Medical Malpractice Expert Witness On The Malpractice Case

In How To Select A Medical Expert Witness: Mission-Critical Steps for Success, medical malpractice expert witness Dr. Burton Bentley writes:

The expert witness is the foundation of any medical malpractice case. From analyzing the elements of negligence to testifying at deposition and trial, your strategic success depends upon competent medical insight. Given the pivotal role played by medical expert witnesses, it is surprising how often the search for an expert is left to chance. Choose incorrectly and you’ve made a common and costly mistake that may prove fatal to your case. Secure the right expert, however, and you’ll build a solid strategy and partnership from the outset. Rather than leaving the decision to chance, the following steps will immediately improve your chance of success:

Assure Board Certification

For medical malpractice cases, your expert must be Board Certified by the American Board of Medical Specialties (ABMS). Although other “boards” exist, only ABMS is universally recognized as the official certifying body governing all medical and surgical specialties. The key is to choose an expert whose ABMS certification and active practice identically match the issues in the case.

Know Your Expert

Perform a background check to learn about credentials, experience, prior testimony, and conflicts of interest. Confirm that your expert was in full-time clinical practice, with a spotless professional record, both before and during the time of the alleged negligence in the case. Before agreeing to proceed, speak with your expert to assure that he or she is a good match with your personal style and case requirements. Since the expert has not yet been formally retained, use the time to meet the expert rather than ask case-specific questions. Knowing that your professional relationship with an expert may span a period of years, invest the time to vet your candidates closely.

Avoid Referral Services

Expert witness referral services rely upon preexisting lists of professional experts. These services simply match the medical specialty required by your case (e.g. Cardiology) with a random expert (e.g. Cardiologist) from a predetermined list. Rather than hand-selecting unique experts with qualifications, interests, and expertise chosen for your specific case, referral services are really selling you a random name from a list of subscribing experts. Experts on referral lists typically have suboptimal credentials, advertise on the internet, and can be located without using a referral service at all. A better strategy is to rely upon established consulting firms, ideally staffed by physicians and nurses, who utilize their resources to locate and hand-vet specific experts uniquely suited for your case. Such experts are true experts, typically serving at the professorial level at major medical universities. Professors of Medicine and Surgery have top-tier credentials and never advertise their expert services. Since university experts are generally inaccessible to the public, you will require assistance in securing an ideal candidate for your case. Only trust reputable and recommended firms with established success working for both sides of the bar. Such firms utilize proven practices that respect the critical importance of transparency and discoverability.

Build a Winning Relationship

The key to winning your case is a rock-solid theory supported by an articulate expert. Start that relationship by relying upon your expert’s honest and independent interpretation of the medical facts. Provide all documents, theories, and questions that you wish, but then let the expert do the work of determining whether the facts support the requisite elements of negligence. If the expert’s opinion is positive, take the time to understand every facet, including strengths, weaknesses, and the likely theory of any opposing expert. If the opinion is negative — a common occurrence in randomly screened plaintiff cases — take a similar amount of time to understand the flaws in your case theory. Although the natural inclination is to feel disappointed, experienced attorneys recognize that a well-reasoned negative opinion saves vast amounts of money and time. When you can confidently rely upon your expert, any opinion holds tremendous value.

Bottom line: Maximize your return on investment and winning success by securing an optimal expert witness early in your case.

Dr. Bentley is the President and CEO of ELITE MEDICAL EXPERTS. With over twenty years of clinical experience, he has provided emergency care to over 60,000 patients. He is also the principal physician of Emergency Medicine Litigation Analysts, Inc., where Dr. Bentley has consulted upon countless claims of potential medical negligence for both plaintiff and defense.

June 4, 2015

Asbestos Expert Witnesses & ExxonMobil Case

A Northern District of Illinois jury ruled in favor of defendants ExxonMobil and Owens-Illinois and against plaintiff Charles Krik. The retired pipefitter claimed his lung cancer was caused by exposure to asbestos from the 1970 to the 1990s while working in refineries in Illinois and Indiana where asbestos was present. However, the jury ruled that the plaintiff’s asbestos expert witnesses, Dr. Arthur Frank, Dr. Arnold Brody and Frank Parker, needed to offer more specific testimony pertaining to Krik’s potential exposure to asbestos, rather than the effects of asbestos exposure in general. They also found that his cigarette smoking was the “sole proximate cause” of his lung cancer.

In CHARLES KRIK v. CRANE CO.; EXXONMOBIL OIL CORPORATION; OWENS-ILLINOIS,INC.; and THE MARLEY WYLAIN COMPANY, Case No. 10-cv-7435 Judge John Z. Lee writes:

Krik nevertheless asserts that because the precise exposure to asbestos cannot be calculated, even de minimis exposure satisfies the substantial contributing factor test. The Court disagrees. As the MDL court explained in its opinion denying Crane’s summary judgment motion, under maritime law, “[a] mere ‘minimal exposure’ to a defendant’s product is insufficient to establish causation.

June 1, 2015

Business Expert Witness On Negative Interest Rates Part 2

In The New Frontier of Negative Rates and Banking, business expert witness Douglas E. Johnston writes:

How Are Other Financial Institutions Responding to Ultra Low and Negative Rates?

Eurofi, a European-based think tank chaired by former IMF Director Jacques de Larosiere which carries the support of ECB President Mario Draghi, has the stated goal of ‘fostering growth in a highly indebted EU environment.’ In remarks prepared for the April 23-25 Eurofi High-Level Seminar and delivered on behalf of the Basel-based Bank for International Settlements (often known as the central banks’ central bank), 20-year BIS veteran and Deputy General Manager Herve Hannoun recently addressed the growing phenomenon of negative interest rates among a ‘Who’s Who’ of central bankers, international banks, insurance companies, financial market makers, rating agencies and regulators. Eurofi’s many activities have included the pursuit of a possible new Capital Markets Union (CMU) under the recent leadership of Lord Hill of London. Among its initiatives, Eurofi is addressing the technological and regulatory framework for new growth-oriented lending and capital market mechanisms across Europe. Given the recent emergence of crowd-funding, P2P (Peer-to-Peer) financial activities, and promising new technology and delivery platforms, one possibility before Eurofi is to reconsider the traditional role of how commercial banks have functioned as intermediaries between depositors and business borrowers. With negative rates, the linkage between expanded business lending activity, increased monetary velocity and broad economic growth now appears clearly to be a higher priority for European central banks and regulators.

As the BIS’ Hannoun noted in his published remarks, “An experiment is under way in continental Europe to test the ‘boundaries of the unthinkable’ in monetary policy…The main aim of an ultra-low interest rate policy is to deter saving and encourage borrowing.” Interested US-based banks and institutions were amply represented at the Eurofi Seminar, and they will no doubt give due consideration to growth mandates and possible banking developments on this side of the Atlantic as well. As noted, the full implications of negative rates are still unfolding. For the present, one result may be that banks do more than ever before to enhance economic growth. Institutions, private investors and those interested in alternative investments around the world will be following this story, and to assess where to invest. As NYT best-selling economist and author Jim Rickards has recently noted, “in a world of negative interest rates, gold (becomes) a ‘high yield’ asset.” An environment of negative interest rates, if it continues, seems likely to produce other emerging issues.

Doug Johnston (through Five Management, LLC) is an expert witness in banking/lending and an investigative business consultant specializing in Commercial Banking & Lending, Private Equity, and International Banking.



May 29, 2015

Automobile Air Bag Expert Witnesses & Takata Recall

Automobile air bag safety expert witnesses may consult and testify on automobile airbags, air bag deployment, and other automobile safety systems. In the news, BMW, Ford and Mitsubishi have provided lists of vehicles that are affected by the recent expansion of the Takata air bag recalls. While the vehicle identification numbers included in these recalls are not available on the National Highway Safety Administration’s VIN lookup tool or the manufacturer’s website as of yet, the NHTSA is continuing to provide updates.

NHTSA.com provides this information:

Consumer Information on Takata National Air Bag Recalls
Takata’s expansion of their previous recalls has nearly doubled the potential number of vehicles affected to almost 34 million. Automakers are still working to verify accurate and complete lists of these vehicles; this process could take several weeks. Until the lists are complete, vehicle owners affected by the expanded recall will not be able to use their VIN to determine if their vehicle is part of this recall. As manufacturers verify their affected vehicles to NHTSA, we will provide real-time updates to our database, including lists of makes and model years affected and notifying consumers when they can begin to use NHTSA’s and manufacturers’ VIN look-up tools. NHTSA is coordinating with Takata and automakers to uphold its commitment to ensure that motorists receive information as soon as it is available.

As this recall progresses, NHTSA will organize and prioritize the replacement of the defective air bag inflators to ensure that defective inflators are replaced with safe ones as quickly as possible.

For example, NHTSA has received the list of vehicles from Mitsubishi that are affected by the recent expansion of the Takata air bag recalls. The vehicle identification numbers (VINs) included in these recalls are not yet available on NHTSA’s VIN look-up tool or the manufacturer’s Web site, but NHTSA will continue to provide updates as this information becomes available. If your vehicle is affected by this recall, follow up with the manufacturer to get interim guidance.

Recall 15V-321 for defective front passenger side air bag inflators includes:
2004-2006 model years Mitsubishi Lancer/Lancer Evolution
2004 model year Mitsubishi Lancer Sportback

May 26, 2015

Insurance Expert Witness Reports

What areas may insurance expert witnesses consult on? They may write reports and testify on the insurance industry, commercial insurance, insurance carriers, insurance policies, and more. In Experts - They May Know What To Do and How To Do It - But Do They Know How To Deliver? , Houston attorney Nyanza Moore writes:

In a time where expert reports are more the norm than the exception, it’s important to remember that a great expert report is only as good as the expert delivering it. Delivery here is being used in the sense of delivering a timely, well written report and verbally delivering a succinct explanation of the methodology used to reach the conclusions at a deposition.

Of course, every expert isn't expected to be Johnny Cochran - with the flow of speech that leaves the trier of fact mesmerized. It is well known that public speaking ranks high on the top ten fears most people have. Preparing an expert for a deposition should be used getting them comfortable speaking about the methodologies so they avoid giving rambling answers that draw a Daubert motion to exclude the opinion. For the engineers, meteorologists, public adjusters, CPAs, and economists helping policyholders prove their claims, here is a refresher on what the attorneys, judges and juries are looking for when they read and hear your opinions:

A Daubert motion is a specific type of motion in limine. It is raised before or during trial, to exclude the presentation of unqualified evidence to the jury. Daubert motions are used to exclude the testimony of an expert witness that does not possess the requisite level of expertise or uses questionable methods to obtain or evaluate data.

A Daubert motion is the outcome of a 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals.1 Rules 702 and 703 of the Federal Rules of Evidence govern the admission of scientific evidence in federal court. The rules allow expert witnesses greater leniency in their testimony because it is presumed that the expert will have a reliable basis in knowledge and expertise in his field. The Court in Daubert required that trial judges act as a “gatekeeper” and determine the scientific validity of scientific evidence before admitting it. The guidelines in the decision have been expanded to include technical and specialized knowledge testimony.
The testimony of an expert witness must pass two tests for a judge to accept:

1) Reliability:
• Empirical testing: the theory or technique must be falsifiable, refutable, and testable.; subjected to peer review and publication.
• • Known or potential error rate.
• Whether there are standards controlling the technique’s operations.
• Expert’s qualifications.
• Technique and its results be described with plain meaning.

2) Relevancy:

The relevancy of an expert's testimony is subject to the type of question. For example, a meteorologist may be an expert witness to tell the jury there was a hurricane on the night of the alleged date of loss. However, the expert witness cannot be used to tell the jury that the insurance company adjuster is a lunatic because there was obviously a hurricane that hit the property in question. The judge must act as a gatekeeper to rule out bad testimony.

After the decision in Daubert, Rule 702 was amended to include the additional provisions which state that a witness may only testify if:
• the testimony is based upon sufficient facts or data;
• the testimony is the product of reliable principles and methods; and
• the witness has applied the principles and methods reliably to the facts of the case.
Once certain evidence is excluded by a Daubert motion because it fails to meet the standard, it is unlikely that it will be used again in another trial. Even though a trial court’s ruling on a Daubert motion is not binding on other courts, if some evidence was found lacking, other judges may be persuaded by the trial court reasoning.

1 Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993).

Ms. Moore’s areas of practice are insurance and commercial litigation. She may be reached at nmoore@moorelawgroups.com.
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