December 16, 2014

School Security Expert Witness On School Shootings Part 1

In Ten Lessons Learned From the Sandy Hook School Shootings, school security expert witness Ken Trump, MPA, President of National School Safety and Security Services writes:

Our team’s analysis of the Sandy Hook Final Report released by the Connecticut State’s Attorney continues with 10 key lessons learned for school security and emergency preparedness. While additional details may be revealed in forthcoming documents from the Connecticut State Police, 10 important lessons from Sandy Hook have emerged based upon the final report, information shared with us by individuals involved with the incident, and other published reports:

1. Invest in the people side of school safety. The principal and school psychologist lost their lives moving toward the shooter. Teachers and teacher aides in two classrooms died with their children. The office staff minimized their visibility and as shots were being fired in the hall still managed to call 911. The school custodian ran through the building alerting teachers to lock down as he helped lock classrooms. People are the first line of defense for student safety. We need to invest more in training and preparing our students and staff for safety, security and preparedness versus skewing our focus on security equipment.

2. Lockdowns work and are still one of the most effective tools available to get students and staff out of harms way. While 26 students and staff sadly lost their lives at Sandy Hook, many lives were saved due to students and staff locking down. The final report indicates that classrooms on both sides of the rooms where the killings occurred locked down and remained quiet with no one harmed. The shooter bypassed the first classroom that was locked down and had a piece of paper covering the window that remained from a lockdown drill the week prior to the shootings.

The principal told everyone to stay put, not to run or attack the gunmen, and one shot staff member made it back into the conference room, locked down, called 911, and activated the PA. Office staff and the school nurse locked down. We have been told that a secretary and nurse locked down so successfully that they went undetected during multiple police sweeps of the building and were detected only after police set up a command center in the office nearby where they were locked down.

The final report indicates the two rooms where the children and educators were killed had unlocked doors, showed no signs of forced entry, and keys were found on the floor nearby one killed teacher. This suggests not that these rooms were locked down and breached, but that they may not have had time to lockdown.

3. Diversify drills and make them reasonable but progressively challenging. Conduct lockdown drills between class changes, during lunch periods, upon student arrival, at dismissal, during staff-only in-service days. Remove the building’s leadership team and office staff to see how drills unfold without them, as was the case at Sandy Hook once the principal and psychologist were killed and the office staff’s ability to act was marginalized by an immediate threat.

4. Engage support staff. While schools are much better at doing so today, many still do not fully engage support staff such as food services, custodial and maintenance, office support staff, bus drivers, and others in training sessions, drills and crisis teams. At Sandy Hook, the custodian heroically ran through the building alerting staff and helping them by locking doors. The office staff members were the first to see the shooter.

5. Train and empower all staff. Prior lockdown drills were reportedly held at Sandy Hook which surely helped many staff quickly do so during the shooting. Evacuation planning, parent-student reunification and other best practices for training and planning are critical to school preparedness. Reasonable student training is also important.



KENNETH S. TRUMP
, M.P.A., is President of National School Safety and Security Services, a Cleveland-based national consulting firm specializing in K-12 school security and emergency preparedness training, school security assessments, school emergency planning consultations, school security officers and school police issues, and related school safety, violence, crime and crisis consulting services.

December 13, 2014

Police Procedures Expert Witness Testifies In Castle Doctrine Case

Police procedures expert witness Ron Martinelli, Ph.D., B.C.F.T., C.F.A., C.L.S., testified in the Missoula, MT, homicide case against Markus Kaarma. The defendant is accused of fatally shooting German foreign exchange student, Diren Dede. The 17 year old was in Kaarma's garage allegedly looking for alcohol when he was shot and killed.

Dr. Martinelli’s testimony described flaws in the investigation and said if he were investigating the case, “there was much more work that needed to be done before they made their decision" in charging Kaarma. He went on to say that officers charged Kaarma precipitously and then worked to “make the evidence fit the charge.”

Dede was not armed but Montana's stand-your-ground law makes it easier for defendants to avoid prosecution in a shooting if they felt an imminent danger at the time of the incident.

Wikipedia explains: In the United States, stand-your-ground law states that an individual has no duty to retreat from any place they have lawful right to be and may use any level of force, including lethal, if they reasonably believe they face an imminent and immediate threat of serious bodily harm or death. Forty-six U.S. states have adopted the castle doctrine, stating that a person has no duty to retreat when their home is attacked.

December 8, 2014

Emergency Preparedness Expert Witness On First Aid Teams Part 1

In First Aid Teams, emergency preparedness expert witness Michael J. Ryan, principal at First Aid Depot, asks the question, “Does your organization need a First Aid Team?”

When you look at the issue of a First Aid Team some thoughts come to mind. One thought is the first aid kit hanging on the wall somewhere, usually only opened for an occasional cold tablet, aspirin or band-aid or maybe you can recall a time when the local fire department or ambulance corps responded to your 911 call. Aren’t these things good enough for most work place emergencies?

Several issues should be considered when you establish a First Aid Team. Is the first aid kit properly stocked for your unique work place emergencies? What would happen if the responding 911 responders were delayed; is it appropriate to transport the patient by private vehicle, etc.? Even in ideal conditions the period of time in which you wait for police and/or an ambulance may be life threatening if the victim doesn’t receive oxygen or other life sustaining interventions such as CPR/AED. The issue of first aid training gained more exposure on December 6, 1991 when OSHA (Occupational Safety and Health Administration) mandated certain types of training to comply with Blood Bourne Pathogen issues in the work place. Additionally, OSHA requires that associates working in certain environments have the ability to be resuscitated in the event of life threatening work place emergencies.

To properly answer the question “does my organization need a first aid team” a review of your organization is necessary. First, assess the actual number of associates in the building and how many are on each shift. If your organization operates in multi-locations or multi-buildings that must also be considered; ideally, all facilities should be trained. Second, human resources should be consulted; they may be able to provide information on the potential sudden illnesses that may be encountered based either on past history or the associates’ medical history, assuming it was shared by the employee. Third, closely review the work place process. If your organization is a manufacturing facility, what types of injuries have occurred in the past and what may occur? Maybe your organization is a packager or distributor; are there dangerous moving equipment hazards? And lastly, most service industries are probably free of hazards, but not the potential for sudden illnesses.

If you determine that your organization can benefit by having several associates trained in emergency first aid procedures to provide prompt treatment the employer must decide what kind of training is necessary. You’ll want to ensure that there is at least one first aider to every 10 associates. This ratio allows for vacation schedules, sick time, etc. while still maintaining proper coverage. Usually, the first aid team is comprised of people interested in assisting in an emergency. These first aiders need to recognize that they will be expected to assist another associate in the event of a work place emergency and the consequences if they do not assist. Certain work place environments will dictate what type of training is necessary. For example, where there may be bleeding, fractures, or sudden illness a First Aid course is needed. If your environment includes the possibility for heart attacks, choking, or breathing problems a CPR/AED course is needed. Any full-service training agency should have a compliment of programs to fit most needs. Typically your organization will dictate the type of training required and the training agency will develop an appropriate training program to comply.

Mr. Ryan's areas of expertise include citizen responders who provide First Aid, CPR and Automated External Defribrillation (AED) treatment; employer responsibility in the work place as it relates to emergency care/preparedness and EMS issues with respect to pre-hospital emergency medicine.

December 6, 2014

Cross-examining the Expert Witness by Dean Brett Part 4

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 three earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination. In Part 4, I will discuss the specific preparation required to undertake an effective cross-examination.

Specific Preparation

After completing these four stages of general preparation, and well before trial, prepare as many specific lines of questioning as possible, each directed at the goal of gathering specific ammunition for use in final argument.

For purposes of suggesting alternative possibilities, these potential lines of questioning are divided into three conceptual categories.

1) The utilizing approach accepts the expertise of the witness, recognizes that he is being favorably received by the jury, presumes that the likelihood of successfully attacking his credibility is outweighed by the danger of jury resentment should you attack and fail to destroy him, and instead uses his expertise to establish positive information supporting your position.

2) The neutralizing approach avoids an attack on the expert’s credibility, but neutralizes the effect of his testimony.

3) The destructive approach aims at destroying the credibility of the opposing expert.

Rather than attempting to “destroy” each expert witness, a difficult and dangerous task, perform a risk-benefit analysis and choose an attainable goal, such as utilizing or neutralizing the expert, depending on the damage done by the testimony, the perceived ability of the witness to withstand a destructive cross-examination, the reaction of the jury to the witness, and your own level of experience at cross-examination and knowledge in the field of expertise.

The Utilizing Approach

Where the expert is honest, impressive and liked by the jury, attempt only the utilizing approach to establish information favorable to your case such as:

(a) General principles of the expert’s discipline with which all experts agree – such as principles of anatomy and physiology on a medical issue, or;

(b) Points of agreement between the adverse expert and your expert (taken from the deposition you have conducted to pin down these points of agreement after your own expert has delineated them for you.)

Again, the advantage of this approach is that you can prepare for it in advance and it is therefore less apt to end in disaster.

Several excellent examples of a utilizing approach with medical witnesses are found in Marshall Houts Art of Advocacy: Cross-Examination of Medical Experts, at Section 107 through Section 1.13.

Generally the utilizing approach is less risky, so it can be used with a strong expert who would likely withstand a destructive cross but who must be “examined” so as to give the impression of confrontation to “soften the impact.” It is less abrasive, so it can be used where the jury seems to like the expert and would resent a destructive approach. It is easier to perform, so it can be accomplished by a well-prepared novice trial lawyer. But it may be inadequate to save the case where the expert’s testimony has destroyed an essential element of the case. In that situation, a riskier cross must be undertaken unless you have foreseen that situation in pre-trial preparation, in which case you should have considered settlement and avoided the problem altogether.

The Neutralizing Approach

Where the expert is honest, impressive, and well-liked by the jury – but mistaken in his conclusions, use a neutralizing approach to take away the effect of his testimony without attacking his credibility. Here is where your work with your own expert to find the error in the adverse expert’s opinion pays off. A jury is more likely to reject the adverse expert’s theory than to reject him as a person as a result of destructive cross-examination attacking his credibility. Jurors are reluctant to believe a witness, even an expert witness, is motivated by prejudice or personal interest.

Where two experts testify to opposite conclusions, the lawyer who attributes the disagreement to the bias, prejudice, or corruption of his opponent’s expert will likely lose to the lawyer who accepts the opposing expert as a nice person who has simply made a mistake – a mistake that is clearly and simply explained in final argument (not in cross-examination) after the ammunition for the analysis is obtained through neutralizing cross-examination.

An expert can be neutralized by an examination obtaining his admission that his opinion is derived from certain facts or assumptions. It is not necessary to force the expert to admit that the facts or assumptions are incorrect. That can be left to direct or cross-examination of other witnesses. In final argument, you then neutralize the expert by pointing out that the expert may be qualified and may have properly reasoned to his conclusions – but from facts or assumptions demonstrated to be untrue.

For example, the loss of earning capacity conclusions of the expert economist can be shown to be based on certain facts and assumptions regarding life expectancy, proper discount rate, earning capacity prior to injury, and degree of vocational limitation imposed by the injury, the last factor usually based on the testimony of an expert vocational rehabilitation consultant. Once the economist has admitted his conclusions are based entirely on his acceptance of the conclusion of the vocational rehabilitation consultant, the economist (perhaps admired and accepted by the jury) can be neutralized by an attack on the supporting conclusions of the underlying vocational rehabilitation expert (who may not be as impressive or as well liked.)

An expert can be neutralized by obtaining his support for the truth of propositions which are either demonstrably untrue or contrary to the beliefs of a majority of the jurors. The propositions need not even be central to the claim, so long as in final argument you infer that any expert who believes the known falsehood to be true is probably also wrong on his central conclusion. Conclusions of experts who do not use “common sense” are easily disregarded by juries.

Another classic neutralizing technique is “the wedge” whereby the expert is enticed to concede that his field, unlike physics or mathematics, is an imprecise area where reasonable people – including expert witnesses – can come to honestly held differences of opinion. Ultimately this admission allows the jury to disregard experts from both sides and decide the issues based on other facts developed in the presentation.

The neutralizing approach, like its utilizing counterpart, is less risky than the destructive approach because it does not involve a toe-to-toe confrontation with the expert witness, a dangerous zero-sum game with a clear winner and a clear loser. It is harder to implement with a court-wise expert than a mere utilizing technique, but when successful it allows the jury to decide in your favor without having to reject an honest, impressive, well-liked expert witness.

The Destructive Approach

The destructive approach directly attacks the credibility of the expert. It therefore will be most vigorously opposed by the expert, and if the witness is liked by the jury, an unsuccessful attempt at destroying the expert will be resented.

How to impeach the expert is best covered in Younger’s The Art of Cross-Examination.

One must prepare in advance of the cross-examination any attacks on an expert for inability to perceive, recollect or communicate; for bias, prejudice, interest, or corruption; for prior convictions, prior bad acts, or prior inconsistent statements; and for a poor reputation for truth and voracity. Never “fish” for answers on credibility at trial, the expedition is too obvious, both to the witness and the jury.

Direct attacks on inconsistencies in the testimony of the expert witness fall into two categories: the testimony may be internally inconsistent or externally inconsistent. External inconsistency, where statements of the witness are shown to be contrary to demonstrable facts or widely held beliefs, was explained under the neutralizing approach.

Examining for internal inconsistency is much more difficult because both contrary propositions come from the expert witness himself. Unless you are careful the expert will withdraw one statement, modify one, or claim that your lack of understanding of his field prevents you from understanding of his field prevents you from understanding that the propositions are not inconsistent. Approach obliquely, at separate parts of the cross, first the least strongly stated proposition (to lock it in, or failing that, to abandon the line of questioning) then establish the proposition more central to the expert’s position. Do not confront the expert with the inconsistency. Save analysis of the internal inconsistency for final argument, merely obtain the ammunition in cross-examination.

Before using the destructive approach consider two warnings.

First, Gerry Spence, perhaps the greatest trial lawyer of our time, and certainly a man capable of destroying an expert where there is any opportunity for attack, warns us never to kill the witness without the jury’s permission. Just because you can destroy the expert does not mean you should. Firs the expert must do, or be led to do, something which allows the jury to understand why his credibility must be directly attacked.

Second, from Machiavelli, never strike at the King unless you can deliver a fatal blow. If you use the destructive approach, prepare well in advance and be sure you have your facts assembled before you begin. A trial is a contest to develop and keep credibility. At the end of a direct attack on the credibility of the expert witness, someone’s credibility will be destroyed – the expert witness’ or the attorney’s.

Destroy reluctantly, but thoroughly.

In the final part of the article series, I will discuss the final preparation and the “Ten Commandments” in conducting a cross-examination.

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.

November 28, 2014

Trial Consultant Expert On "Crafting Your Case" Part 2

In Discovery “Story Boarding trial consultant expert Molly M. Murphy shares her strategies to get the jury to understand and connect with your case.

A case comes into your office. If you are a defense firm you receive the filed complaint, so you know what the cause of actions are being alleged. If you are a plaintiff firm, a client comes in with the story of being wronged. Plaintiff presents the case and defense picks up the story and begins the discovery of how to defend their client. Whether you are a plaintiff or a defense attorney you both have the responsibility of building your case.

The initial step of working your case up begins with, "What is this case about?" Each side will have their own version of what happened, why it happened and was it avoidable.
Too often the nuances of the details are ignored during the process of discovery.

An effective tool is to story board your discovery. The trial team can share the storyboard. The lead lawyer will be updated with the evidence as it comes in allowing for guidance and a platform for building the story of the case. It is also a great tool to use for preparing your witnesses. You will have mapped out the witnesses and what you anticipate their testimony to be in deposition and in trial. This technique will assist the trial team in building the case with a story that is supported with evidence. There will be no overlaps or cumulative evidence or testimony. The storyboard is also useful in determining the line up of the witnesses for trial.

The storyboard is a spring board to create your visual presentation of the your case. You can create a timeline of dates, events and add the photos that support your case. It is important to help the jury understand who knew what and when. You can highlight favorable and honorable characteristics of your case.

It is during discovery that you develop your themes, banners and strategy. If you can see the big picture of your case then the presentation will be clear and reasonable.

Themes are designed to brand the issues giving a descriptive message. They are also used to provide milestones and give a time frame. Themes and banners will guide and connect the jury to your case. They describe the intentions of the case and will keep the jury focused on your story not the opponents. You want the jury to understand the intelligence of the case.

Additional tools to use in discovery are Focus Groups/Mock Trials and Internet Surveys. They will give you an opportunity to get feedback regarding your trial strategies, themes, case value and credibility of witnesses.

Note: The key to success in working up your case is to "Think outside the Box."


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 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.