August 19, 2014

Child Abuse Expert Witnesses Part 2

Child abuse expert witnesses may advise regarding child abuse and neglect, including the physical, emotional, or sexual mistreatment of children. On its website, the Child Welfare Information Gateway describes the process of proving child maltreatment in court. CWIG is a service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services.

Proving Child Maltreatment in Court... Relevant and Material Evidence To be usable in court, evidence must be material and relevant. Evidence is material when it has a logical connection to any of the issues that need to be proved in the case. It should be clear from a particular State's law exactly what must be proved. For example, whether a parent cheated on his/her income taxes would be immaterial to any issue in a child abuse case. Evidence will be relevant when it increases the likelihood that a particular fact in question occurred. For example, the fact that, prior to the incident in question, the parent failed to provide his/her child with adequate medical care is irrelevant to the question of whether he/she molested that child. Evidence must also be competent. This means that the evidence does not violate any rules of evidence and is not more prejudicial (unfairly harmful or beneficial) than it is probative (tending to prove or disprove) on any given issue.

The Hearsay Rule
Although relevant evidence is generally admissible, some relevant evidence that is thought to be unreliable will be excluded from judicial consideration. One such evidentiary rule is the rule against hearsay. Hearsay is a statement made outside the courtroom that is presented in court by someone other than the original speaker to prove the truth of the original speaker's statement. So, the hearsay rule sometimes prevents a witness from testifying about what another person said. In other situations, because the purpose of repeating the statement in court is not to prove the truth of the statement, hearsay may be admissible.

For instance, a witness would not be permitted to testify that he/she heard another person say "I am the President," to show that that person was, in fact, the President. Such testimony could be used, however, to show that the speaker was mentally unstable. In a child abuse case, it is not uncommon for a witness to be told by the child's teacher, neighbor, or relative that "the child gets beaten up at home all the time." However, because of the hearsay rule, that witness may not testify that "Mr. X told me that the child gets beaten up at home all the time," to prove the abuse. If Mr. X has something to say about the child's home life, the judge will want to hear directly from Mr. X, so that Mr. X can be questioned fully, cross-examined, and observed on the witness stand.

There are a variety of exceptions to the hearsay rule which permit the use of some hearsay in court. The underlying reason for these exceptions is that some hearsay statements, when made under certain circumstances that suggest that they are especially trustworthy, are reliable enough to be used in court. The rule against hearsay is tricky, and sometimes lawyers and judges have difficulty applying it correctly.

The following are among the hearsay exceptions most commonly used in child abuse and neglect cases.

Admissions of a Party
When a person accused of some type of wrongful conduct makes an out-of-court admission, it may be testified to by another under an exception to the hearsay rule. For example, an allegedly abusive parent might confess to an investigating caseworker: "I know I hit her too hard but I won't do it again." Although the parent may deny in court that he/she ever made such a statement, the caseworker would be permitted to recount it under this hearsay exception. The reason for this exception is that an admission is considered reliable hearsay, since an alleged wrongdoer (for example, an abusive parent) has nothing to gain from making up such a damaging statement. In addition, the parent probably would not say something contrary to his/her own interests if it were not true.

Excited Utterances
An out-of-court statement that is made spontaneously under extreme emotional excitement is also admissible as an exception to the hearsay rule. The excited utterance is viewed as trustworthy because the speaker's excitement is thought to prevent him/her from reflecting long enough to fabricate a story. For example, in a child abuse case, courts will usually look at the length of time between the startling event and the child's statement when deciding whether it is an excited utterance. However, the time lapse alone is not determinative; it is just one factor among many that the court can consider.

Some States apply a more relaxed standard for admitting excited utterances when they are made by children. Very young children, particularly if they are victims of sexual assault, may be found to remain under the influence of the assault for an extended period of time.72 Thus, for example, the statement of a 4-year-old made several hours after he/she was raped may be considered sufficiently reliable to be admitted as an excited utterance, given the child's very young age, the degree of trauma to which he/she was exposed, and the level of excitement under which he/she made his/her statement. However, a court might find that the same statement, made by an adult rape victim, does not qualify as an excited utterance, since an adult (or even an older child) might be capable of reflecting on and fabricating a story during a time lapse of that length. Even when similar statements are made by children of similar ages and under similar circumstances, courts in different States vary widely as to what they will consider an excited utterance by a child.

August 16, 2014

Corporate Strategy Expert Witness On Marketing Research

In Using Marketing, Business & Competitive Research to Win Cases, business and corporate strategy expert witness Don E. Smith, President, American Consulting Group, Inc., writes that marketing research is a powerful tool that helps lawyers win cases.

Many market research expert witnesses have an undergraduate degree in their specialty (engineering, business, marketing) and an MBA or PhD. They average over twenty years of business experience. Unfortunately, some lawyers do not recognize the value of marketing research...and put their cases at risk. For example, many lawyers bring in an expert to express an opinion based on his/her experiences. In many cases, this experience is narrow; the expert’s testimony is weak. With effective research, numerous facts from a range of sources provide a far more convincing argument.

Advertising effectiveness
Market share
Agent performance
Market size & growth
Best effort evaluation
New product opportunity
Competitive analysis
Profit loss
Dealer performance
Sales loss
Distributor performance
Sales performance
Effectiveness of programs

The keys to the selection and use of marketing research professionals include:
1. Define the hypothesis and the information required to win the case. This
guides you in the selection of your researcher and keeps the research
focused and affordable.

2. Define key words that define the background and experience you
require from your researcher. Such finetuning is now possible through
the use of’s search capability.

3. Use researchers with extensive (a) Business experience and (b) Expert
witness experience. Unfortunately, many market researchers are (a)
Academically strong but do not have in-depth experience in line
management of a business or (b) Not comfortable or practiced in public
speaking and are not effective during the stress of a deposition or trial.

4. One of the strengths of market researchers is attention to detail. This
Can also be a weakness. An experienced researcher recognizes when
details are not required; this saves both time and money.

5. Secure several research-in-progress verbal reports. The information will
provide you with valuable insight to the case and your strategy. It also
helps focus the researcher.

August 14, 2014

Business Expert Witnesses & New York Barclays Complaint

Business expert witnesses may consult on executive management, corporate governance, director duties, and related matters. In the news, Barclays may pay as much as $2B billion in litigation costs and penalties due to litigation filed by New York’s attorney general. This follows 2012 penalties of $450M paid to the US and Britain after conceding that the banks employees manipulated global benchmark interest rates.

On June 25, 2014, New York’s attorney general Eric Schneiderman filed civil fraud charges in the New York Supreme Court, County of New York, alleging that Barclay’s private stock trading platform favored high frequency traders.



This is a case about fraud and deceit by one of the world’s largest banks.

Barclays operates in fifty countries with particularly large business operations in New York and London. The facts in this case concern a major business division in Barclays’ New York office, the Equities Electronic Trading division. In that division, Barclays operates a private securities trading venue known as a “dark pool.” From 2011 to the present, Barclays embarked on a business strategy to dramatically increase the market share of its dark pool, with the goal of making it the largest dark pool in the United States. Barclays accomplished this through a series of false statements to clients and the investing public about how, and for whose benefit, Barclays operates its dark pool. In short, contrary to Barclays’ representations that it implemented special following:

a) Barclays falsified marketing material purporting to show the extent and type of high frequency trading in its dark pool. That marketing material was false and misleading because, among other things, Barclays intentionally excluded from the material the dark pool’s then-largest participant – a high frequency trading firm Barclays knew engaged in predatory behavior in the dark pool. Internally, Barclays acknowledged that it was “taking liberties” with the truth by suppressing the disclosure of this high frequency trading firm, but decided to falsify the analysis in order to “help ourselves”;

b) Barclays falsely marketed the percentage of aggressive high frequency trading activity in its dark pool, asserting to clients and to the investing public that less than 10% of the trading activity in the pool was “aggressive,” while at the same time secretly indicating to at least one high frequency trading firm that the level of such trading activity was at least 25%;

c) Barclays made a series of false representations to clients about its “Liquidity Profiling” service. Barclays claimed that its Liquidity Profiling service “analyzes each interaction in the dark pool” to “protect [clients] from predatory trading,” to “continuously police . . . trading activity” and to “maintain quality flow” in the dark pool. In reality, and undisclosed to clients, Barclays failed to provide those services, because it (i) failed to remove known predatory traders from its dark pool; (ii) failed to regularly profile traders in its dark pool; (iii) granted liberal “overrides” to high frequency trading firms and to Barclays’ own internal trading desks (which themselves employ “aggressive” trading strategies), in order to make them appear less “toxic” than they really are; (iv) failed to apply the protections of Liquidity Profiling to a significant portion of the trading in its dark pool; and (v) misled clients as to how Liquidity Profiling actually evaluated traders;

d) Barclays falsely represented that it routed client orders for securities to trading venues in a manner that did not favor Barclays’ own dark pool. While representing that Barclays “treat[s] all venues the same based on execution quality,” Barclays, in fact, routed a disproportionately high percentage of client orders to its own dark pool. When a detailed analysis of Barclays’ order routing practices was conducted for a major institutional investor – showing that Barclays was routing and executing the vast bulk of this client’s sampled orders to Barclays’ own dark pool – Barclays senior executives directed that a written presentation to that client include falsified information, in an effort to mask Barclays’ biased order routing practices; and

e) At the same time that Barclays marketed its dark pool to institutional investors as offering protection from high frequency traders, Barclays secretly gave high frequency trading firms informational and other advantages over other clients trading in the dark pool. For instance, Barclays provided detailed information regarding the structure and composition of its dark pool to high frequency trading firms, including information about the identity and trading activity of other traders in the pool. Such information would allow high frequency trading firms to maximize the effectiveness of their aggressive trading strategies in the dark pool. Barclays did not generally provide such information to its brokerage clients. Barclays also charged high frequency trading firms virtually nothing to trade in its dark pool.

The facts described in this Complaint are the result of an investigation by the Office of the Attorney General. The Attorney General’s investigation has been aided significantly by a number of high-level former Barclays insiders, each of whom was in a position to observe much of the conduct described in this Complaint. These witnesses provided meaningful assistance to the Attorney General’s investigation.

As a result of the material misstatements set forth herein and the pattern of fraud and deceit engaged in by Barclays, the Attorney General brings this action pursuant to General Business Law §§ 352 et seq. (the “Martin Act”) and Executive Law § 63(12).

August 12, 2014

Bus Safety Expert Witnesses

What areas of transportation may bus may bus safety expert witnesses consult on? These experts may report and testify on bus accidents, motor carriers, D.O.T. compliance, and more. In the news, eighteen people were hospitalized when a passenger car struck a Massachusetts Bay Transportation Authority bus on August 12. An MBTA spokesman said the driver of the car turned into the bus and may have been under the influence of drugs.

On its website, the MBTA offers safety instructions created through a partnership with the MBTA, the American Red Cross of Massachusetts Bay, the Federal Transit Administration, and the U.S. Department of Homeland Security. The U.S. Department of Transportation’s National Highway Traffic Safety Administration recently proposed a new federal motor vehicle safety standard to protect motorcoach and other large bus passengers in rollover crashes.The proposal aims to improve the structural design of large buses to ensure that passengers are better protected in a deadly vehicle rollover by ensuring that the space around them remains sufficiently intact and the emergency exits remain operable.

Both the proposed test procedure and performance requirements are closely modeled after the European regulations for large buses. In a separate rulemaking action to improve safety even further, the Department is planning on finalizing requirements later this year for stability control technologies in these vehicles, which would help prevent rollovers from occurring.

“The traveling public deserves safer service and peace of mind when they board a motorcoach or large bus,” said NHTSA Acting Administrator David Friedman. “Stronger large bus structures, combined with seat belt use will help keep passengers secured and protected in the event of a crash.”

“Approximately 700 million trips are taken on commercial buses each year. Raising the standard for a motorcoach’s durability, in the event of a crash, is critical to saving the lives of the passengers inside,” said FMCSA Administrator Anne Ferro.

August 10, 2014

Chiropractic Expert Witness On Standard Of Care Part 1

In Defining the Chiropractic Standard Of Care, chiropractic expert witness Richard K. Skala, D.C., writes:
When the Supreme Court of the United States was considering the issue of pornography, Justice Stewart became a greater part of our legal lexicon when he responded in regards to defining pornography saying, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…..” Jacobellis v. Ohio, 378 U.S. 184 (1964).

Hopefully, the question of what constitutes a breach of the Chiropractic Standard of Care can be better defined. However, one must consider that the chiropractic profession contains a wide range of variability in terms of philosophical adaptation on the part of the individual chiropractic physician as well as a wide range of legal definitions from state to state in so far as what the scope of chiropractic practice is. This article will not address the 50 state variability, but suffice it to say the various scope of practice regulations range from the very limited (Michigan) to California, long known as a state with a broad scope (which is now undergoing a regulatory challenge with the forced importation of the California Board of Chiropractic Examiners into the California Department of Consumer Affairs – which is attempting to limit the scope of practice of the chiropractic physician in California to a 1923 standard!) and most recently in states such as New Mexico. where the more recent “advanced practice” regulations allow limited prescription and injections as a part of the scope of chiropractic practice.

An Internet search in regards to “chiropractic standards of care” reveals a number of “treatment guideline” or “clinical guideline” documents which are more suited for determination of treatment plans that are reimbursable by third party payors. There is no universal “Standard of Care” document or binding reference to be found in such a search. A few states have various “standard of care or practice” documents on the web sites of state chiropractic associations and or licensing boards.


Clearly there is a disconnect between the medical legal determination of Standard of Care and guidelines to clinical practice.

Many of the so-called clinical guidelines offer a narrowly confined approach to clinical management based on the influence of the insurance industry and what they are willing to pay for as opposed to what the chiropractic physician should in fact do to assure his/her own standard of care.

In as much as there is wide diversity amongst the 50 states as to scope of practice, any regulatory body statements or published “scope of practice” standards cannot be used as a “Standard of Care” reference.

Thus the question defaults to this: What is the medical legal definition of a “Chiropractic Standard of Care?” Most of the definitions of Standard of Care have a few common threads. Here is what several sources have to say:

The Free Dictionary: The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ. (See: negligence, duty of care)

Black’s Law Dictionary: Degree of care a prudent and reasonable person will exercise under the circumstances.

Nolo: The degree of care (watchfulness, attention, caution, and prudence) that a reasonable person should exercise under the circumstances. If a person does not meet the standard of care, he or she may be liable to a third party for negligence.

Most of these definitions also cross reference to “duty of care”. - duty of care: A requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.

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.

August 8, 2014

Forensic Accounting Expert Witness On Asset Misappropriation Part 1

In Preventing Damaging Effects of Asset Misappropriation, forensic accounting expert witness Alan D. Lasko and accountant Bradley Kaye write:

Employees across the country at all levels of power and in all types of companies, engage in some form of asset misappropriation on a daily basis. Though often these actions may seem insignificant, over a period of time they can create severe long-term damages.

Asset misappropriation is a general term used to describe when someone takes an asset of a company, such as cash or supplies, for personal use at the expense of a company. Examples of this are as simple as checking a personal email, to as damaging as skimming or borrowing for oneself from cash reserves.
Small businesses are more susceptible to these problems than large businesses. This is because the internal accounting controls are usually weaker in small businesses than large businesses. Generally, by creating a system of checks and balances within a company, this will serve to reduce the instance of fraud, and increase the likelihood that the perpetrator will be caught.

If there is an internal audit staff, they could work along with the executives of a company to help see that the financial statements are correct and that any suspicious transactions be further investigated.

For large corporations, the Securities and Exchange Commission has taken certain steps necessary in an attempt to combat fraud in publicly traded companies. The Sarbanes-Oxley Act passed in 2002 is an effort to combat upper level fraud. This mandate is to reflect that the rest of the company understands that any skimming or larceny will be caught more readily, even if it is coming from the highest levels. However, even with this law the percentage of fraud that was uncovered by audit firms jumped from 7 percent to 29 percent in recent years.

Fraudulent actions can occur at any level of personnel and could go unnoticed by people familiar with the employees or the accounts at hand. Companies try to minimize this by utilizing random independent internal audits to try to uncover any asset misappropriation or fraud, before it becomes too damaging to the company. If a company allows for too much time between these types of internal audits or creates a regular schedule of review, the damages from potential fraud could cause monetary shortfalls or even bankruptcy as dishonest workers may adapt their strategies to not be caught by the audit.

Small companies are not obliged to follow this sequence, nor do they employ enough people to have a strong system of checks and balances to combat fraud internally. Only one person may be trained to accurately analyze the accounts to find instances of fraud. In these cases, the owner of the firm must be familiar with some signals of fraud. These often include:

• Forged or altered documents
• Unexplained differences in cash accounts
• Undocumented transactions and advances
• Duplicate or phony and unreasonable expense reports
• Fake companies involved in transactions (sometimes based on employee's initials, or with the same home address)
• Consulting companies not previously utilized by the company

Alan Lasko
Alan D. Lasko & Associates, P.C.
Certified Public Accountants
29 South LaSalle Street, Suite 1240
Chicago, Illinois 60603

August 5, 2014

Child Abuse Expert Witnesses & Proving Maltreatment In Court Part 1

Child abuse expert witnesses may advise regarding child abuse and neglect, including the physical, emotional, or sexual mistreatment of children. On its website, the Child Welfare Information Gateway describes the process of proving child maltreatment in court. CWIG is a service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services

Proving Child Maltreatment in Court This section applies to both civil and criminal cases. However, some significant differences between the two types of proceedings exist; these differences will be noted throughout the discussion.

The Process of Proving Maltreatment
To succeed in a child maltreatment case, sufficient evidence must be presented to the court to prove that: the child has been harmed or threatened with harm; and in a civil trial, the parent either inflicted an injury on the child or failed to protect the child from harm; or, in a criminal trial, the defendant was the perpetrator of this harm. These elements may be proved by direct evidence alone, such as the child victim's testimony; but usually additional evidence, such as expert testimony, is needed to establish the facts to a sufficient degree of certainty.

When the alleged offender asserts some type of defense or extenuating circumstances (e.g., reasonable use of parental discipline), it is his/her burden to establish this defense, and rebuttal evidence then may be introduced.

The Rules of Evidence: Why They Exist
The rules of evidence control what information may be introduced in court to convince the judge to reach a particular decision. Because some types of testimony, documents, and records are less reliable and more prejudicial than others, special evidentiary rules are necessary to allow the judge to consider some evidence in his/her fact-finding process, while excluding other evidence from consideration.

How Evidentiary Rules Affect the Caseworker
Anyone who investigates or gathers facts in a child abuse case should have a general understanding of the rules of evidence. Although in most States few cases in a CPS caseload actually go to court, it is important to treat all investigations as if they might. The manner in which a caseworker should practice (i.e., conduct investigations, take notes, and preserve tangible evidence) is significantly affected by these rules.

Types of Evidence
There are several types of evidence that may be admissible in court. The caseworker should be able to sort out the information contained in his/her case narrative/dictation according to the type of evidence it represents.
Direct evidence is evidence which is based on personal knowledge or observation; generally, testimony by an eyewitness to an event.

Real or demonstrative evidence usually takes the form of documents, photographs, or x rays. It is an object (rather than testimony) that is offered to persuade the judge of the facts in question. The rules of evidence require that before real or demonstrative evidence may be presented to the judge, a foundation must be laid that establishes the relevance and authenticity of that object. This is generally accomplished by the testimony of someone who has had control over the object. (See "Getting Records Into Evidence.")

Circumstantial evidence is often used when no or little direct or real evidence is available; it is indirect evidence from which certain inferences can be drawn. This would include testimony by a neighbor who heard a child crying and an adult shouting, or by a teacher who noticed that the parent often smelled of alcohol and slurred his/her speech. The judge will not take this as absolute proof of abuse or neglect, but together, these details may create a probability that the abuse or neglect occurred. Although circumstantial evidence is the least persuasive type of evidence, it is particularly useful in child abuse cases, where eyewitnesses and clear evidence of inflicted physical injury are rare. Expert witnesses may also provide circumstantial evidence by testifying in court. (See "Expert Testimony.") For example, expert testimony that a child's injuries are inconsistent with the parents' explanations for them may be permitted to infer that the child is, in fact, a battered child.

For example, a caseworker's narrative/dictation on a child abuse investigation might contain the pieces of information listed below.

1.A teacher kept a log of the days that the child came to school with bruises.
2.A neighbor heard a child's screams.
3.A pediatrician reported the case after examining the child and found multiple bruises, both old and new, on his/her back and buttocks. The doctor says that the location, number, and severity of the bruises, as well as the presence of old bruises in the same place, suggest that the child's injuries did not occur accidentally, but rather were intentionally inflicted.
4.Medical records.
5.Photographs of the bruises taken by a police officer called by the doctor.
6.The child said that his/her parent beat him/her with a belt.
7.A belt.
A classification of the evidence should look something like this:

Direct evidence: the child's testimony.
Real or demonstrative evidence: the teacher's log (supported by his/her testimony); the medical records (supported by the doctor's testimony); the photographs (supported by the officer's testimony); and the belt.

All of this evidence might not be used in court, but caseworkers (aided by their attorneys) will want to sort out and consider it all initially. Once a caseworker has categorized all his/her information, the strengths and weaknesses of the case will become clearer. With the attorney's help, the caseworker may be able to fill in any gaps in the evidence by further investigative work and case preparation.71

August 3, 2014

Environmental Expert Witnesses & Blue-Green Algae

Environmental toxicology expert witnesses may consult on pollutants, ecological systems, forensic toxicology, ecology, and related topics. In the news, the blue-green algae toxin microcystin has tainted the water in the Ohio counties of Lucas, Wood and Fulton. Gov. John Kasich declared a state of emergency and officials told residents not to drink or boil the water. It should only be used to bathe and wash hands. Consumption may cause nausea and impair liver function

The Ohio Environmental Protection Agency, website answers the questions:

What is a harmful algal bloom?
A harmful algal bloom (HAB) is a large growth of bacteria that can produce toxins. These toxins may affect the liver, nervous system and/or skin.

What causes HABs to form?
Some factors that can contribute to HABs include sunlight; low-water or low-flow conditions; calm water; warmer temperatures; and excess nutrients (phosphorus or nitrogen). The primary sources of nutrient pollution are runoff of fertilizers, animal manure, sewage treatment plant discharges, storm water runoff, car and power plant emissions and failing septic tanks. The State of Ohio is currently working on a statewide nutrient reduction strategy that will document ongoing nutrient reduction activities and identify areas where more work is needed.

How dangerous are HABs?
If you touch HABs, swallow water with HAB toxins or breathe in water droplets, you could get a rash, have an allergic reaction, get a stomach ache, or feel dizzy or light-headed. HABs also are toxic to pets.

Always look for HABs before going in the water. Check for HAB advisories. Ask the park manager if there has been a recent HAB because colorless toxins can still be in water.

How will I know if there is a HAB?
HABs have different colors and looks. Some colors are green, blue-green, brown, black, white, purple, red and black. They can look like film, crust or puff balls at the surface. They also may look like grass clippings or dots in the water. Some HABs look like spilled paint, pea soup, foam, wool, streaks or green cottage cheese curd.

What should I do if I see a HAB?
■Stay out of water that may have a HAB.
■Do not let your children or pets play in HAB debris on the shore.
■After swimming or wading in lake water, even where no HABs are visible, rinse off with fresh water as soon as possible.
■Never swallow any lake or river water, whether you see HABs or not.
■Do not let pets lick HAB material from their fur or eat HAB material.
■Do not drink or cook with lake water.
■See a doctor if you or your children might be ill from HAB toxins. If your pet appears ill, contact your veterinarian.

July 31, 2014

Business Valuation Expert Witness On Clippers Deal

In Does the Clippers $2 Billion Deal Make Sense?, business valuation expert witness Donald Erickson ASA , writes:

In recent court testimony, Bank of America – Merrill Lynch (“BoA”) revealed its bid book (“Project Claret”[1]) prepared for potential buyers of a NBA franchise, the Los Angeles Clippers (“Clippers”). We are going to analyze elements within the Project Claret document with a particular focus on the revenue estimate of the local media contract renewal in 2014.

Let’s look at BoA’s estimate of local media revenues primarily related to television content. BoA forecasted television rights payment in June 2014 year-end at $25.8 million from the current contract projecting it to $125 million for a new local media contract. Michael Ozanian of Forbes recently estimated the 2014 new contract amount to most likely be closer to $75 million. I agree with Mr. Ozanian for the following reasons:

1. If the Los Angeles Lakers (“Lakers”), back in 2011, signed a local media television rights contract for $5 billion over 25 years, then the average is approximately $200 million a year. Typically these contracts have annual escalation clauses and if the total payout is $5 billion, then the amount in 2012 is close to $100 million for the Lakers. You need to escalate that to about $110 million in 2014.

2. The television ratings of the Lakers are multiples of the Clippers and cable subscribers ultimately pay for the right’s fees. So if you are a sophisticated buyer of sports content, like Fox Broadcasting Company or Time Warner Cable, are you going to pay the same dollar amount for the Clippers as you did for the Lakers? The Clippers have ½ the television ratings of the Lakers (1.28 vs 2.72) in the current year. To quote a recent Variety article, “This is believed to be the closest the Clippers have come to the Lakers in television ratings since the 1999-2000 season”[2]. Additionally, the Lakers experienced a very poor[3] win/loss record in the 2013-2014 season. If one analyzed their historical results, the Clippers have less than 1/3 of the viewership as the Lakers (121,000 vs 390,000) last year.

Therefore, how much will the Clippers realistically get in 2014 with the new contract? $75 million is approximately 68% of our estimated Lakers deal amount and seems generous based on the raw ratings numbers. However, if we utilize the Forbes estimate of $75 million in 2014 and the other BoA revenue estimates for game admissions ($62.3 million[4]) and other team revenue ($136.8 million[5]), the total revenue estimate for the Clippers would be $274.1 million in 2014 versus the $324.1 million utilized in BoA Project Claret.

If one assumes a multiple of 5x revenues, which is the high end of multiples paid for an NBA team to date, the indicated enterprise value estimate is $1.370 billion, a far cry from $2 billion. Additionally, many times when dealing with estimates of future results (in this case an estimate of future revenue) the valuation multiple applied should be lower than actual transaction multiples. These multiples are calculated based on historical revenues, which are usually lower than future estimates.

It seems clear to us that based on the data available the $2 Billion price from Steve Ballmer is a good deal for the Sterling Trust.

[1] Project Claret = Preliminary indication of valuation considerations by Bank of America/Merrill Lynch dated May 25, 2014.

[2] “Lakers’ television ratings down nearly 50% from the prior season”, March 17, 2014, Variety Media LLC.

[3] IBID

[4] Project Claret = Preliminary indication of valuation considerations by Bank of America/Merrill Lynch dated May 25, 2014.

[5] IBID

Donald Erickson is the President of Erickson Partners, Inc. a valuation and advisory firm based in Dallas, Texas. He has managed over 1,500 valuation, lost profits and damage engagements in over 40 years in the profession. These engagements have been conducted for the purposes of litigation, merger and acquisition, financing, allocation of purchase price, estate and gift taxes, employee stock ownership trusts, and business planning.

July 29, 2014

Aviation Safety Expert Witnesses & Southwest Airlines $12M Fine

Aviation safety expert witnesses may consult on aviation accident analysis, aerospace engineering, aviation maintenance, and related matters. In the news, a July 28th Federal Aviation Administration press release stated that the FAA plans to fine Southwest Airlines $12M for repair violations on some of its Boeing 737 aircraft.
From the FAA website:

The U.S. Department of Transportation’s Federal Aviation Administration (FAA) is proposing a $12 million civil penalty against Southwest Airlines for failing to comply with Federal Aviation Regulations in three separate enforcement cases related to repairs on Boeing 737 jetliners operated by the Dallas-based airline.

The FAA alleges that beginning in 2006, Southwest conducted so-called “extreme makeover” alterations to eliminate potential cracking of the aluminum skin on 44 jetliners. The FAA conducted an investigation that included both the airline and its contractor, Aviation Technical Services, Inc., (ATS) of Everett, Wash. Investigators determined that ATS failed to follow proper procedures for replacing the fuselage skins on these aircraft. FAA investigators also determined that ATS failed to follow required procedures for placing the airplanes on jacks and stabilizing them. All of the work was done under the supervision of Southwest Airlines, which was responsible for ensuring that procedures were properly followed.

Southwest returned the jetliners to service and operated them when they were not in compliance with Federal Aviation Regulations, the FAA alleges.

July 28, 2014

Oncology Expert Witness On Malpractice Insurance Part 2

In Malpractice Premiums Drop for 6th Straight Year, oncology expert witness Dr. Judy L. Schmidt writes:

86% of Rates Decreased or Did Not Change

The MLM survey analyzes malpractice insurance rates charged by carriers in markets that range from entire states to single counties. The publication asks insurers to quote their standard rates for policies with limits of $1 million for an individual claim and $3 million in any given year for all claims. Rates published by MLM, effective as of July 1, are not necessarily what physicians pay, because insurers apply a variety of credits, debits, and other factors that raise or lower the dollar amount.

Insurers lately have been liberal with credits, reducing rates for physicians who take a risk-management seminar or use an electronic health record system, said Karls. Such credits probably have lowered rates by an additional 2 or 3 percentage points in 2013.

MLM collected hundreds of premium quotes that represent 65% to 75% of the medical liability insurance market. In a virtual replay of 2012, 57.6% of the 2013 quotes remained the same from the year before, 28.8% decreased, and 13.7% increased, usually by less than 10%.

The survey includes rate information for 7 states with patient compensation funds designed to lower the cost of malpractice coverage. Every physician in the state pays a surcharge into the fund in addition to buying minimal coverage from a private insurer, said MLM editor Michael Matray. Acting essentially as a reinsurer, the compensation fund boosts the coverage — in some states to the $1 million/$3 million level. The rates that MLM reports for these states are the sum of physician surcharges and premiums.

Rates for Internists Range From $3375 to $47,707

As in previous years, the MLM report reveals where malpractice litigation is red hot and where it is blue-green cool. Premium rates, after all, are based on an insurer’s claims experience in a given locale.

The most expensive premiums for a $1 million/$3 million policy for internists once again turned up in Miami-Dade County, Florida. There, the Doctors’ Company quoted a rate of $47,707. The nation’s lowest rate for internists was $3375, quoted by ProAssurance Wisconsin Insurance for the entire state of Minnesota.

The New York counties of Nassau and Suffolk on Long Island are home to the highest rates for obstetrician-gynecologists — $227,899 from Physicians’ Reciprocal Insurers. On the low end is a quote of $16,240 from Cooperative of American Physicians (CAP) for ob/gyns in mid-California. The quote is on top of CAP membership dues of $440 each year.

For general surgeons, quoted rates range from $190,829 from the Doctors’ Company for Miami-Dade County to $10,868 from MMIC Group for Wisconsin.

Information on prognostic risk and a treatment for advanced RCC
A self-guided learning program will discuss profiles adapted from actual poor-risk patient cases, clinical trial data, and resources for you and your patients.

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July 21, 2014

Child Sexual Abuse Expert Witnesses On The Forensic Interview Analysis

In Child Sexual Abuse – Forensic Interview Analysis, child sexual abuse expert witnesses at Forensic Pediatrics Consultants – Child Abuse & Child Safety write:

The objective of a forensic interview in the context of child sexual abuse is to provide an objective measure to understand what a child potentially experienced. A forensic interview may be the tool utilized by protective and/or prosecuting authorities in a case of potential sexual abuse. Therefore, assuring the quality of the interview is an integral component to evaluating a potential case of abuse. A poor interview does not discount the possibility of sexual abuse. However, standard protocols exist to minimize the possibility of leading questions, and to assure as truthful and accurate information as possible.

Core components to forensic interview analysis include:

Documentation – Was the interview transcribed, audio-taped or videotape?

Number of interviews – Was the child interviewed before and how may that impact the forensic interview?

Types of Questions – Were there repetitive questions, either/or questions, and/or multiple questions that may lead to suggestive techniques?

Experience – Was the interviewer objectively and properly trained to conduct the interview?

Protocol – Were standard protocols utilized in the interview? These include:
• Building Rapport
• Establish the Need to Tell the Truth
• 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

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