Expert Witness Blog

When researching a machinery expert witness, look for the expert who can provide analysis, reports, exhibits, and testing facilities. Eckstine & Associates, Inc., advises that the testing facility should be capable of conducting detailed experiments, performing accident reconstruction, conducting complete testing, and verifying failure analysis. Since trial exhibits and visual aids play an important part in contributing to the understanding of the facts of any case, look for CAD design and manufacturing of mock-ups and trial exhibits as well as conventional drawings, animations, displays, warning, charts and models.

For more, see http://www.eckstine.net/

Antiques, art, and collectibles appraisal expert witness Lisa M. Barnes is co-owner of Thomas Charles Editions, LLC. She describes the professional appraisal process:

An appraiser uses a variety of tools: reference works, online electronic databases, and historical documents; and may consult with additional specialists in the field. Based on the analysis of the research, the appraiser produces an appraisal report detailing the appropriate valuation of your personal property.

It is best to get an appraisal before you need one. You will need an appraisal for:

Donations and Gifts - An appraisal allows you to knowledgeably plan your gifts and donations. In some cases a qualified appraisal is required for tax and other purposes.

Determining Your Net Worth
You may need to know your exact net worth in order to meet a business or investment need. The appraised value of your personal property - art, antiques, furniture, etc., - increases your total net worth through accurate documentation.

Division of Property
Your personal property may require division due to dissolution of marriage, bankruptcy or death. A current appraisal provides you with the necessary information and documentation to assure equitable distribution.

More to come from: http://rareart.net/index.html

There are several advantages to having your expert witness talk to the client directly. If your expert's opinions will be based on the client's observations and thoughts, the expert should meet and talk with that individual. For example, when the recollection of the plaintiff is crucial to the accident reconstruction expert witness's opinion, and the plaintiff's attorney fails to have his own expert meet the client, then the expert must rely on information the attorney gleaned at the deposition. If the expert only sees a summary of the client's statement or deposition, there is no opportunity for the expert to ask pertinent questions directly.

After having researched and hired your expert witness, expect to give them the original or copy of every significant writing on which their opinion will be based. For example, in a neurology medical malpractice case, the neurology expert witness should be provided with complete copies of all the plaintiff's medical records. While they may not have time to read all the records, the expert should be relied upon to determine which records are relevant. It may turn out that the expert finds relevant information in materials that the attorney believed to be of little value in his case.

Hiring a construction expert witness early on in your case is advantageous for several reasons. These expert witnesses may opine and write reports on construction investigations, construction standards of care, construction cost estimates, general contractors, licensed contractors, and construction disputes. They can also help:

Prepare discovery requests;
Prepare other witnesses and clients for their depositions;
Provide answers to discovery;
Support & oppose summary judgments.

If your case warrants it, it may be advantageous to hire more than one expert witness. For example, in an airplane case, you may need to select from the following types of aviation expert witnesses:

aircraft accident reconstruction expert witnesses
aviation training expert witnesses
aviation accident analysis expert witnesses
aviation security expert witnesses
air traffic control expert witnesses
aircraft accident investigation expert witnesses
aircraft contract manufacturing expert witnesses
aircraft design expert witnesses

As much as possible, the experts should be instructed to avoid contact with each other to ensure that one will not "contaminate" the other(s).

Be sure to research and give serious consideration to the area of expertise you will need in an expert witness for your case. A few hours on cases analysis and background reading can save wasted time and money later down the road. If the case warrants it, it may be advantageous to hire more than one expert. For example, in an accident reconstruction case, this will allow you to:

1. Have the accident reconstruction expert witnesses compete and select the stronger one to testify at trial

2. Designate both as trial experts but keep one in reserve

3. Keep one expert as a consultant for testing untried theories

An aviation expert witness may have experience as an aviation engineer. Aeronautical engineers are responsible for the design and testing of commercial aircraft, special purpose aircraft, missiles, space vehicles, and satellites and may opine on aircraft loss of control and airworthiness. Aerodynamic or thermodynamic engineers work on the development of systems and may testify on flight dynamics/aerodynamics and aircraft system-subsystem/failure analysis. Other engineers focus on more specific aspects of aircraft design such as battery technology and propeller design and may report on product liability and accident investigation and reconstruction.

Metallurgy expert witness Dr. R. Craig Jerner, Ph.D., PE, describes the metal failure analysis process:

The title, Metallurgical Failure Analysis, aptly describes the process, i.e., the analysis of a metal failure. In deference to my mechanical engineering friends, a metallurgist or metallurgical engineer is best equipped to analyze a metal failure. An accident or failure of a metal component, whether it is a simple consumer product such as a hammer or chisel, or a complex multi-component machine such as an airplane or a space shuttle, will normally not be a "simple" failure. Failures are normally complex. Often two, three or more separate but necessary circumstances or events are required to cause the failure or accident. Solving such a complex problem is much like solving a multi-piece jigsaw puzzle.

Guessing about a jigsaw puzzle picture from one or two puzzle pieces will usually lead you to a wrong conclusion. Guessing prematurely from one or two "facts" about the cause of a failure or accident will also usually lead to a wrong conclusion. A series of accident events and evidence will usually fit exactly with another set of events and evidence thereby allowing more of the true picture to be revealed.

A metallurgist's analysis of a metal failure may include many of the following: accident scene/site examination and documentation (including photo documentation), evidence preservation, library/standards/literature review, laboratory examination and testing, exemplar testing, engineering calculations, data and file analysis and synthesis, report preparation and expert witness testimony.

Accident investigation expert witness Dr. R. Craig Jerner, Ph.D., PE, also specializes in metal failure analysis which he defines here:

Metallurgical Failure Analysis is a scientific process in which a cracked or fractured piece or weld is analyzed to determine the cause of failure. The metallurgical failure analysis process involves cutting samples from fractured or cracked samples, conducting a microscopic examination of the fracture or crack, cutting, mounting and polishing samples for scanning electron microscopy (SEM), energy dispersive spectroscopy (EDS), microstructural examination, microhardness testing and profiling, chemical analysis, etc. The goal of the process is usually to ascertain why the component cracked or fractured, i.e., causation of the crack or failure.

Admiralty & maritime expert witness Henry S. Woods, III has this to say on causation of maritime accidents:

Maritime accidents of all stripes — great and small — occur in a wide range of circumstances and conditions. The common thread that is usually found in the proper investigation and analysis of these accidents is not a sudden or mysterious failure of a system or item of equipment. Nor is it the lack of a properly functioning system or item of equipment. With the exception of product/vessel defects, the common cause of most maritime accidents are aspects of human error and human factors. The most crucial of these are:

maintaining a proper lookout,
observing a safe speed,
preserving night vision,
following the maritime Rules of the Road,
adhering to proper right-of-way rules,
the timely interpretation of aural and visual data, and
maintaining a situational awareness.

In order for a vessel operator to successfully and safely perform such vessel operation tasks, he / she must possess and use normal aspects of memory, visual acuity, aural function, and human cognition. These are the most basic and important requirements of human performance in the various maritime operating environments.

Premises liability expert witness Fred Del Marva explains standard of care in premises liability cases.

It is common knowledge that premises owners are not the insurers or guarantors of their invitees' safety. The duty imposed on them is to provide a safe and secure environment, and to provide reasonable care.

This duty is achieved by requiring premises owners and operators to develop and implement policies, procedures, and protocols that will either prevent or deter what is reasonably foreseeable.

Operational practices, including policies, procedures, and protocols that might be reasonable for one business or location might not be adequate for others.

In medical malpractice cases, the central issue is whether the defendant doctor had applied the degree of skill, knowledge, and care ordinarily exercised by other members of the medical profession under similar circumstances. Although this is left to the trial judge's discretion, a physician or surgeon must usually have some occupational experience in the particular field at issue in order to testify as an expert witness. In a neurology malpractice case, the neurology expert witness would be expected to be experienced in issues such as ruptured aneurysms, seizures, spinal cord injury, head trauma, and strokes. Special qualifications may be required in emergency room physician cases. For example, in California the court can admit expert medical testimony only from a doctor who has had substantial professional experience within the previous five years as a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department.

Residential real estate expert witness Steve Cohen writes this on mold:

Most types of mold that are routinely encountered are not hazardous to healthy individuals. However, studies have shown that too much exposure to mold may cause or worsen conditions such as asthma, hay fever, or other allergies. Common symptoms of overexposure are cough, congestions, runny nose, eye irritation and aggravation of asthma. In those who are more vulnerable, more serious health effects such as fevers and breathing problems can also occur. Some molds produce chemicals called mycotoxins. Mycotoxins may cause illness in people who have sensitivity to them.

According to the EPA, "A major concern associated with exposure to biological pollutants is allergic reactions, which range from rhinitis, nasal congestion, conjunctival inflammation, and urticaria to asthma". The most effective way to control mold is to control moisture. It is recommended that humidity levels be reduced to 30-60% to reduce the possibility of mold growth.

Independent medical examinations expert witness Dr. Charles Wetli testified Friday that Renee Javier Perez could not have been fatally injured in the time frame that ex-cop George Bubaris is accused of killing him. LoHud.com reports:

'He did not sustain this injury after 11 o'clock p.m.,' said Dr. Charles Wetli, who was the chief medical examiner for Suffolk County for more than 11 years. Wetli testified at the state Supreme Court Homicide trial of Bubaris, a former Mount Kisco police officer charged in Perez's death.

Wetli is th last defense witness in Bubaris' manslaughter trial and is the second medical expert who refuted findings from the Westchester County Medical Examiner as well as a new York City medical examiner, both of whom previously testified that Perez was mortally wounded after 11 p.m. the night of April 28, 2007.

Residential real estate expert witness Steve Cohen writes this on mold:

Mold (fungi) can be found indoors and outdoors and is present everywhere. Of the more than 100,000 species of mold, at least 1,000 species are common in the U.S. Some of the most commonly found species are Cladosporium, Penicillium, and Aspergillus.

Molds reproduce by producing tiny spores. The spores float through the indoor and outdoor air continuously. When spores land on a damp area indoors, they may begin growing and digesting the material they have landed on in order to survive. Molds can grow on a variety of materials, but the most common are wood, paper, carpet and food. When excessive moisture or water accumulates indoors, mold growth often occurs.

There is no practical way to eliminate mold spores from the environment. In fact, mold plays a vital role in breaking down moist decaying materials in nature. Health problems with mold can occur when it is present indoors and spores are inhaled by those with immune related sensitivity.

To read more, go to http://www.litigationbusters.com/

Neurology expert witness Michael I. Shevell, M.D writes in "The Pediatric Neurologist as Expert Witness with Particular Reference to Perinatal Asphyxia,"

The situation in which a pediatric neurologist is most likely to be requested to act as an expert is that of a child whose impairment and resulting disabilities and handicaps are the result of an alleged perinatal asphyxia secondary to obstetrical management. Within this setting, the expertise of a pediatric neurologist is focused on the following four main issues:

1. Causation and precise determination of etiology—is asphyxia the root cause for the child's observed disabilities?
2. The timing of the asphyxia—is it antenatal, perinatal (i.e., intrapartum) or postnatal in origin?
3. The precise description of the child's disabilities and handicaps.
4. The estimated life expectancy of the child/plaintiff."

When selecting an expert witness, choose the one best qualified and make sure that the expert's work on the case is better than that of the opposing expert. When possible, the expert witness should adhere to the scientific method by testing and confirming each underlying fact or premise in your case. For example, the anesthesiology expert witness testimony should be based on similar observations and tests as opposed to mere thoughts. This has two advantages. It allows you to test the expert's thesis for accuracy and it provides a firm basis for arguing why the judge or jury should accept the proven opinions of your expert.

The most common use of photographs in court are those that depict physical injuries, damage to automobiles, and the appearance of complex products and objects. While we are told that "the camera doe not lie," it is also true that photographs can present distorted images, so be watchful for photographic techniques that tend to distort reality. A photography expert witness can help you determine which photographs are accurate and therefore likely to be admissible into evidence. These expert witnesses can explain photographic techniques that can be used to distort the appearance of objects.

Tucson copper producer Asarco LLC is suing its former parent company Americas Mining Corp over the value of the company's investment in Peruvian mining operations. Asarco alleges fraudulent transfer of Asarco's majority share in two Peruvian copper mines and related facilities. Asarco contends that the loss of that revenue led to its 2005 bankruptcy. Americas Mining Corp mining expert witnesses testified about the value of the Peruvian mines question. AMC asserts that Asarco's bankruptcy occurred more than two years after the transfer.

German Larrea, one of Mexico's richest men and chief executive and chairman of Grupo Mexico, parent company of AMC., testified Tuesday that he acted in the best interest of Asarco when he shifted its most valuable asset to one of his other subsidiaries.

Former NYPD detective James M. Gannalo is a forensic firearms consultant, firearms and ballistics expert witness and President of Stria Consulting Group. Here he describes aspects of firearms identification:

3) Laser Trajectory Analysis of Bullet Paths - use of a portable scientific laser and inclinometer to determine the direction and angle of a bullet's flight. This method is also used to accurately determine the origin of a gunshot.

4) Gunshot Residue Distance Determination - creating and analyzing test specimens to illustrate the approximate distance a firearm was discharged from an individual. This test can produce crucial evidence when assessing the validity of witness statements.

5) Operability and Microscopic Report Review and Evaluation - professional review of case notes, case files and scientific reports relating to firearms operability and conclusions based on microscopic examination. This is also utilized as an assessment of methodology and procedures relating to established laboratory protocols.