Expert Witness Blog

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on how to set a reasonable schedule.

Whenever possible, work with the opposing side to provide experts enough time to perform their analyses and write their reoprts. Leaving only a few weeks for rebuttal reports and depositions can result in rushed work and though plaintiffs often prefer a tight schedule, both plaintiffs and defendants benefit from having time to respond properly.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. Here they give useful tips on scheduling academic experts to fit the time table for your case.

Most academic experts have teaching and research duties that can restrict the time they have available for consulting activities. The more senior academics often teach one semester per year. Identifying this period in advance, and working around it by utilizing the summer and other non-teaching periods, will maximize th expert's availability for your needs.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them.

Plan ahead when considering experts. Some cases may benefit from muliple testifying experts. Start by considering anticipated phases of the case (class certification, liability, damages) when determining the scope of your expert needs. Breadth of consulting support can help you avoid retraining a new support team when new experts are added. For larger litigation, identifying an expert early will lessen the risk of losing the expert's services to another party in the litigation.

Media expert witness Dr. Mary Lynn Young will be heard on Oct. 29 and 30 at the Cornwall Ontario Public Inquiry. Young is the acting director and an associate professor at the University of British Columbia's Graduate School of Journalism. The expert witness will speak on the impact media coverage may have had on the community and whether that coverage influenced institutional response to allegations of child sexual abuse. The Inquiry's task is to research and report on the institutional response of the justice system and other public institutions in relation to allegations of historical abuse of young people in the Cornwall area. CNW Group also writes:

Having nearly completed hearing testimony from witnesses who are victims or alleged victims of child sexual abuse, the Inquiry is now hearing community context evidence. Much of this form of evidence is provided by individuals who were not themselves victims of childhood sexual abuse, but who became involved in issues related to allegations of abuse. Some of the witnesses scheduled to appear have held to the view that there was disregard for - or suppression of - information regarding abuse of children and youth.

A polygraph test was admitted into evidence at a criminal trial in Ohio last week for the first time in more than thirty years. As a result, Sahil Sharma was found not guilty of sexual battery. The main witness for the defense was Dr. Louis Rovner of Los Angeles, California, a renowned scientist and polygraph expert witness. After a polygraph test that lasted more than 2 ½ hours, Rovner concluded that Mr. Sharma was telling the truth when he said that the woman was wide awake and that the sexual encounter was consensual.

The case of Ohio vs Sahil Sharma had been hotly contested for more than a year. Rovner returned to Ohio for the trial and testified in open court, examined first by the defense, and cross-examined aggressively by the prosecutor. During the reading of the verdict, Dr. Rovner’s expert witness testimony was cited as one of the primary pieces of evidence that led to the finding of not guilty.

A Kansas City jury this week convicted Lisa Montgomery of killing Bobbie Jo Stinnett to kidnap Stinnett’s unborn daughter. The defense expert witnesses had testified that Montgomery suffered pseudocyesis, a delusional belief that she was pregnant, and post-traumatic stress disorder. The prosecution's forensic psychiatriy expert witness Park Dietz dismissed the pseudocyesis claim but agreed Montgomery suffered from the stress disorder. He testified that it did not rise to the level of severe mental disorder which would have been key in supportilng an insanity defense in federal court. The Kansas City Star also reports that the federal jury found Montgomery, 39, guilty of one count of kidnapping resulting in death.

Professor Brad Cornell of the California Institute of Technology testified Wednesday for the defense in the Sydney, Australia, class action suit against gaming giant Aristocrat Leisure Ltd. The finance expert witness said only part of the 57 per cent fall in Aristocrat Leisure's share price in February 2003 could be attributed to previously undisclosed bad news. The Sydney Morning Herald also reports:

Brad Cornell, from the California Institute of Technology, said sellers were also affected by the belated discovery that Aristocrat's then management was "dishonest and incompetent". When new executives were installed, the share price partly recovered.

The shareholders' expert witness, the New York econometrician Fred Dunbar, argued that almost all the share price fall could be attributed to the effect on earnings of the new information. He said the share price would have fallen by the same 57 per cent, albeit in stages, if Aristocrat had announced lower - correct - profits in February and August 2002 and if it had righted an inflated profit forecast in December 2002.

Texas lawmakers heard complaints from medical expert witnesses about the Texas Medical Board on Tuesday. During the proceedings, legislators questioned the board about former member Dr. Keith Miller, who resigned in August after a law was passed banning board members from acting as expert witnesses in malpractice cases. The Statesman reports:

The House Appropriations regulatory subcommittee, led by state Rep. Fred Brown, R-Bryan, has heard repeated charges that the board expends time and money chasing violations that have little to do with patient care, Brown said.... Dr. Roland Chalifoux, a former neurosurgeon in the Fort Worth area, said the board unfairly took his license after a patient died, forcing him to leave the state. If he is a danger to patients, he asked lawmakers, why is he allowed to teach and practice in Wheeling, W.Va.?

William "Billy'' Nichols Jr. is charged with double counts of DUI manslaughter and vehicular homicide in the deaths of two nurses, Nancy and Holly Cummings, on Nov. 26, 2004. Nichols had a blood alcohol level of 0.13 to 0.15 when he lost control of his Ford F-250 truck. The legal limit is .08. The defense contends that Nichols has a medical condition that results in a high blood alcohol level in his stomach hours after drinking but toxicology expert witness for the prosecution, Dr. Mark Montgomery, testified Thursday saying "You can't fool mother nature or the brain when it comes to alcohol. Ocola.com goes on to report:

The defense is not contesting the blood results but is alleging a medical condition caused alcohol to sit in Nichols' stomach and not metabolize, which would cause the blood alcohol level in Nichols' stomach to rise after the crash. (Expert witness) Montgomery disputed the claim. "I've never seen any piece of data that suggests ... fluid sitting in the stomach and magically starts getting absorbed," Montgomery said.

DNA testing puts Orange Taylor III at the scene of the sexual assault and murder of Eastern Michigan University student Laura Dickinson. DNA expert witness Heather Vitta testified that Taylor's DNA is a perfect match to semen stains found in her college dorm room. Expert witness Vitta, supervisor of the biology and DNA unit at the Michigan State Police Northville lab, testified in Washtenaw County Court. The Detroit Free Press also reports:

Taylor’s DNA perfectly matches samples taken at the scene, and the odds of finding another match would be one in quadrillions or even quintillions, Heather Vitta, supervisor of the biology and DNA unit at the Michigan State Police Northville lab, testified in Washtenaw County Court.

With these kinds of numbers, she said: “I certainly would expect to see it only once in the entire population of the world.” Dickinson was killed early Dec. 13, prosecutors say, by then 20-year-old Taylor. Taylor now is 21 years old. Blaine Longsworth, Washtenaw County assistant prosecutor, called the attack “every woman’s worst nightmare come true.”

Lisa Montgomery is on trial in federal court in Kansas City for killing Bobbie Jo Stinnett in December 2004 and cutting her baby from her womb. Vilayanur Ramachandran, a brain expert witness researcher and California university professor, testified that Montgomery suffered from a delusion that she was pregnant. People with this condition, known as pseudocyesis, will go as far as manufacturing evidence to cling to their delusion, the expert witness said. The Kansas City Star also writes:

First Assistant U.S. Attorney Matt Whitworth questioned Ramachandran about all the evidence against Montgomery and the inconsistent statements she gave about her alleged pregnancy in the months leading up to Stinnett’s killing. He testified that “fluctuations” in a person’s stories would be consistent with an emotionally disturbed person in a delusional state.“Despite all this evidence you contend that she didn’t know it was wrong?” Whitworth asked. “That is correct,” Ramachandran answered.

The National Association of Criminal Defense Lawyers says a judge erred in barring a defense expert witness while allowing two similar experts for the prosecution in the criminal conviction of Qwest Communications chief Joe Nacchio. The NACDL said the judge's decision allowed government experts to be "effectively unchallenged." CNNMoney.com also writes:

Allowing Nacchio's conviction to stand would 'create an uneven playing field, especially in complex criminal trials such as white-collar cases, in which experts are increasingly important,' according to the document.

Barbara Bergman, a University of New Mexico law professor and president of the group, said the expert was Daniel Fischel, corporate law expert witness, who was to testify about Qwest's guidance and its impact on the financial markets during 2000 and 2001.

Dr. Charles Yancey is suing the American Academy of Ophthalmology and two doctors who filed a complaint against him for allegedly giving inaccurate testimony. Ophthalmology expert witness Dr. Yancey claims all three conspired to defame and intimidate him so he wouldn't testify in other cases, according to the lawsuit filed in July. American Medical News reports:

It was the first time Dr. Yancey had served as a medical expert witness, and "he felt an ethical obligation to step forward and do this," his lawyer, Michael A. Zimmer, said. But the fact that Dr. Yancey received the faxed letter the day before his deposition in a subsequent trial on damages in the case, "was clear evidence that this complaint was filed ... to try to get him to alter his testimony," said Zimmer, who practices in Minneapolis.

Former OK state Sen. Gene Stipe's mental competence could have significant ramifications beyond an effort to revoke his probation. A recent indictment against him on new charges also could be affected. Stipe's competence is being questioned after a federal judge said Monday that a prison psychologist found Stipe to be incompetent.
NewsOK.com also writes:

U.S. District Judge Ronald White made the statement during a 20-minute hearing on a defense motion to delay the octogenarian's mental competency hearing. Stipe's lead attorney, Clark Brewster, requested the hearing, saying he received Dr. Robert Denney's report on Stipe only last week. Brewster said that didn't give him ample time to study it and find expert witnesses who might possibly challenge the report's conclusions.

While some may think expert witnesses are paid to say what lawyers wants them to say, these experts tell the real story:

DNA expert witness Dr. Richard Saferstein says the legal system could not work without expert witnesses. "Expert witnesses such as myself are an important safeguard in the judicial system. If there's a problem, we hopefully can find it. And we can discourage the government from going overboard," says Saferstein, a defense expert in criminal cases for 15 years.

Dr. Joseph Willner, chief of neurology at Englewood Hospital and Medical Center, says "What [an IME] should be is a person who has no ax to grind, no bias ... who essentially gives a second opinion."

Dr. Frank Tinari, a forensic economics expert witness, predicts what people would have earned the rest of their lives had they not been killed or injured. Tinari says most experts can't get away with pandering to clients, "While there might be suspected bias on the part of each side's experts, the adversarial process is a good way of getting to the truth and exposing any exaggerations or abuses."

For more, see Expert at earning big paydays by John Petrick at NorthJersey.com

Bristol University's Institute of Child Life and Health is releasing a study this week which found that 9 out of 10 mothers whose babies suffered SIDS smoked during pregnancy. The study says women who smoke during pregnancy are four times more likely than non-smokers to see their child fall victim to SIDS. Ms. Angela Cannings, from Salisbury in Wiltshire, maintained her babies died from SIDS but was jailed for life in April 2002 after she was found guilty of smothering her two sons. At her appeal, Professor Robert Carpenter, a medical expert witness specializing in statistics, said the babies had been at a "substantially increased risk" of SIDS because they may have been exposed to cigarette smoke. The Independent also writes:

The comprehensive report will make a strong case for the Government to increase the scope of anti-smoking legislation. It even suggests a possible move to try to ban pregnant women from getting tobacco altogether. The study, produced by Bristol University's Institute of Child Life and Health, is based on analysis of the evidence of 21 international studies on smoking and cot death. The report, co-authored by Peter Fleming, professor of infant health and developmental physiology, and Dr. Peter Blair, senior research fellow, will be published this week in the medical journal Early Human Development.

Scientists are working to the theory that exposure to smoke during the pregnancy or just after birth has an effect on brain chemicals in the foetus or in infants, increasing the risk of SIDS.
Speaking about the new report, Dr Blair said: 'If smoking is a cause of SIDS, and the evidence suggests it is, we think that if all parents stopped smoking tomorrow more than 60 per cent of SIDS deaths would be prevented.'

Maine's Public Advocate Office has proposed conditions for a deal in which Fairpoint would acquire Verizon's northern New England landline business. The 23 conditions were developed based on the examination by Public Advocate attorneys, their four expert witnesses, and thousands of pages of documents, and testimony in the case. Telecommunications expert witnesses testified in the telephone utility acquisition case where PUC attorneys said "The risks presented by this case are enormous, and all potential adverse impacts must be addressed now." Seacoast Online also reports:

A key element of the Public Advocate's recommendations requires a restructuring of the agreement between Fairpoint and Verizon so that Verizon, in effect, is paid a lower price. That change would allow Fairpoint to operate with less debt. 'Because, under Maine law, Verizon does not have the right to abandon service without the commission's approval, the Public Advocate believes it is appropriate for the commission to require Verizon to lower its price in order to ensure Fairpoint's long-term financial viability. Without a significant reduction in the price, this proposal will not work for Maine's residential and small business customers,' Davies emphasized. If Fairpoint and Verizon are unable or unwilling to perform on all of these recommended conditions, the Public Advocate will recommend that the transaction be rejected by the PUC.

Former Adelphia executives John and Tim Rigas filed a petition Wednesday to have their case heard by the U.S. Supreme Court. Adelphia former chairman John Rigas was sentenced in 2005 to 15 years in prison and his son, former chief financial officer Timothy Rigas was sentenced to 20 years in prison as a result of their 2004 convictions on 18 counts of fraud and conspiracy. The Rigases contend that the government erred by not calling accounting expert witnesses during the criminal trial. Broadcast Newsroom also reports:

'Plaintiffs who bring civil securities fraud cases are subject to a clear and well-established rule. If the case turns on accounting issues outside the knowledge of lay jurors, the plaintiff as the party bearing the burden of proof must call expert witnesses,' the Rigases attorneys claim...

The Rigases claim the lower appeals court made a mistake in holding that GAAP rules 'do not govern' in a securities fraud case and that compliance with GAAP is relevant only as evidence on an issue of good faith. The Rigases contend those statements contradict rulings in several different courts that 'the SEC requires companies to prepare their public financial statements in conformity with GAAP.'

Stewart Dimmock accused the British government of "brainwashing" children by requiring that Al Gore's movie An Inconvenient Truth be shown in schools. A judge in Britain's High Court has ruled in the case that Gore's apocalyptic movie on climate change should come with a warning that it promotes "partisan political views" and is riddled with errors. The government's environmental expert witnesses found that many of the movie's "facts" are incorrect. For example, Gore portrays the ice cover in Antarctica as melting when in fact it is increasing according to expert witnesses. Judge Michael Burton did not ban the movie but ordered the government to rewrite its guidelines to highlight the movie's falsehoods. Canada.com writes more on Gore's portrayal of the environment.

Gore's claim: A retreating glacier on Mount Kilimanjaro in Tanzania is evidence of global warming. Finding: The government's expert witness conceded this was not correct.

Gore: Ice core samples prove that rising levels of carbon dioxide have caused temperature increases. Finding: Rises in carbon dioxide actually lagged behind temperature increases by 800-2000 years.

Gore: Global warming triggered Hurricane Katrina, devastating New Orleans. Finding: The government's expert accepted it was "not possible" to attribute one-off events to global warming.

Gore: Global warming is causing Africa's Lake Chad to dry up. Finding: The government's expert accepted that this was not the case.

Gore: Polar bears had drowned due to disappearing Arctic ice. Finding: Only four polar bears drowned, due to a particularly violent storm.

Gore: Global warming could stop the Gulf Stream, plunging Europe into a new ice age. Finding: A scientific impossibility.

Gore: Species losses, including coral reef bleaching, are the result of global warming.
Finding: No evidence to support the claim.

Gore: Melting ice in Greenland could cause sea levels to rise dangerously. Finding: Greenland ice will not melt for millennia.

Gore: Ice cover in Antarctica is melting. Finding: It is, in fact, increasing.

Gore: Sea levels could rise by seven metres, causing the displacement of millions of people.
Finding: Sea levels are expected to rise by about 40 centimetres over 100 years.