Expert Witness Blog

Pesticides expert witness Allan Snyder; ACGIH, AIHA, SPCI writes on treatment and control of termites:

Treatment and control techniques vary depending on the species causing an infestation.

Multiple colonies of the same species of termite or more than one species of termite can infest a building.

Subterranean, and less frequently, dampwood termites can have nests at or near ground level, so control methods for these can be similar.

Drywood termites nest above ground and require different treatment methods than dampwood and subterranean termites.

Control methods include:
Excluding termites from the building by physical and chemical means.

Using mechanical and chemical methods to destroy existing colonies.

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

Areas that benefit from marketing research:

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

In Mediation as a Discovery Tool, insurance expert witness Guy O. Kornblum describes the benefits of going to mediation:

So, mediation can be very productive as a discovery tool and opportunity to learn more about your client’s case, and what the other side has to say IF the parties come in good faith, with a view towards getting the important facts on the table. But if one side is attending simply to demonstrate that it is playing hardball and merely wants the other side to capitulate for reasons that are not meritorious, then a mediation is not worth the time or money.

One issue that you face is how much you tell the other side. For example, what if you have significant negative information on the other party, or impeachment potential; do you share that? Maybe not. Maybe it has to be saved to avoid the adverse party being able to defuse this potential damaging evidence. Or, it might be that you can disclose the essence of this information in a private letter to the mediator, and can go over its substance and level of importance in your case in a private caucus. That is a judgment call that you as counsel need to make. If you follow this approach and hold it back or disclose it only to the mediator, the mediator might use it if he or she believes it may result in closure. Again, that is something you and the mediator need to discuss to put together a strategy.

Flooring expert witness Kenneth D. Newson describes the forensic science of floor covering and how investigation begins with discovery. The steps include:

1. Site visit (no geographical limitation)
2. Videography
3. Investigation
4. Document review
5. Dissemination of testimony
6. Development of the "Standard of Practice" with supporting documentation
7. Opinion based on reviewable facts.
8. Presentation of written reports with photos or complete video with narration on VHS or CD-Rom.

Palm Beach Florida and the Florida Department of Environmental Protection are seeking $17 million for a beach project to protect properties vulnerable to storm damage. The town says the beach was damaged by the hurricanes of 2004 and 2005 but it is being challenged by petitioners seeking to block the town's plans to rebuild the Reach 8 shoreline south of Phipps Ocean Park.

Dr. Robert Dean, retired University of Florida professor of civil and coastal engineering, says a full reconstruction is necessary at the Reach 8 shoreline. Dean, author of "Beach Nourishment: Theory and Practice," warns that if the plan is not carried out, the beach is going to continue to erode and there won't be any nesting sea turtles, property protection or recreation. Dean challenged the expertise of two geology expert witnesses expected to testify for the petitioners. Dr. Orrin Pilkey, a geologist at Duke University, and Dr. Robert Young, director of the Program for the Study of Developed Shorelines at Western Carolina University, will testify that it is impossible to predict how renourished beaches will perform.

Dr. Tartaglia of the Stork Climax Research Services testified as a metallurgy expert witness for the defense in a wrongful death suit involving materials testing. The plaintiff alleged that steel making byproduct and manufacturing slag fell from a passing truck and was the cause of death of his client killed in a car accident. The expert for the plaintiff performed an energy dispersive spectroscopy (EDS) elemental analysis on debris found in the car and asserted that the debris was from the truck.

Dr. Tartaglia consulted as an expert witness for the defense in the analysis of the disputed material. He advised that the EDS analysis was insufficient and that a molecular analysis should have been performed with an instrument such as a Fourier Transform Infrared (FTIR) Spectrometer. The case was settled satisfactorily for the defense.

The wife of Morton Scheinbaum has sued Las Vegas Mountain View Hospital over the death of her ex-husband. Linda Scheinbaum claims nearly an hour had passed from the time her husband arrived at Mountain View Hospital while a nurse insisted on getting his Social Security number, emergency contact and insurance information.The Scheinbaums were told to take a seat and wait — even though a delay of just minutes can make the difference between life and death during a heart attack.

Dr. John MacGregor, a cardiology expert witness from San Francisco General Hospital, would say later that Scheinbaum should have been rushed immediately into the emergency room for treatment. And emergency room bystanders would testify to their shock that the hospital staff failed to take his condition seriously.

DuPage County, IL, Judge Dorothy French ordered the Indian Prairie School District's to hand over records they're hoping will show hypocrisy in the school district's objection to reimbursements the Brach and Brodie trusts are seeking over a failed land deal. The records include contracts, bills, invoices and payments for its attorneys and finance expert witnesses as well as documents regarding its legislative efforts to secure quick-take power. The Sun-Times News reports:

The district also is contesting the validity of all fees sought for reimbursement because attorneys and expert witnesses secured by the trusts used "block billing" rather than a "task-based billing" approach that would allow their charges to be scrutinized for "reasonableness."

Oral argument Tuesday at the 11th U.S. Circuit Court of Appeals centered on a pharmacology expert witness who contends the acne drug Accutane causes inflammatory bowel disease. DailyReportOnline.com writes:

Three trials over an alleged link between the acne drug Accutane and serious gastrointestinal problems have resulted in verdicts of more than $20 million in New Jersey and Florida state courts. Hundreds of other such cases have been filed in New Jersey, and several of those are scheduled for trial this fall. But at oral argument Tuesday at the federal appeals court in Atlanta, it looked like plaintiffs proceeding in federal court may have a much harder time....

Arguing for the drug company defendants, Paul W. Schmidt of Covington & Burling in Washington argued that a key flaw in the expert's approach was that he homed in on select evidence, making "leaps of faith based on these data points."

In Industry Standards, Technology Associates, the forensic engineering expert witness company discusses cases where there may be no significant amount of “good” custom and practice within an industry.

...where there is no good custom and practice within the industry, the need for dispassionate engineering judgment is even greater. Further, the engineer should be familiar with relevant techniques outside of the industry in question, so as to determine whether such techniques can be used to improve custom and practice within the subject industry. As a case in point, consider the application of a “dead-man” control to lawnmowers, for the purpose of automatically stopping the rotating blade when the operator takes his hands off the push-bar, for clearing a clump of grass which has become lodged in the structure of the lawnmower at a point dangerously near the blade. The dead-man concept, although long used in other types of machinery, has only recently received substantial (and badly needed) acceptance in lawnmowers.

In summary, in contrast to formal standards as defined above, an industry standard based on custom and practice may be relatively indefinite, requiring engineering analysis, judgment and explanation (especially in the area of human factors) in order to be used as a valid criterion for safe design and practice.

Ray Everett-Church has been appointed Director of Privacy and Industry Relations at Responsys, a leading global provider of on-demand email and marketing automation solutions. Mr. Everett-Church, an internationally recognized author and expert witness on privacy and technology policy issues, has spent nine years at the forefront of industry efforts to increase trust and relevance in email and interactive marketing. The computer security expert is co-author of "Internet Privacy for Dummies" and "Fighting Spam for Dummies." He serves as an expert witness on privacy and security matters and is a frequent commentator on privacy and technology policy issues.

Dan Springer, Chief Executive Officer of Responsys, has this to say on computer security: "The adoption and use of new trust and privacy enhancing technologies is one of the biggest issues facing the marketing industry today."

On August 15, attorneys for the Detroit City Council submitted a witness list to Governor Jennifer Granholm for the removal proceedings against Detroit Mayor Kwame Kilpatrick. A supplemental witness list includes Wayne State Law School professor Peter Hammer who will serve as a contracts expert witness. WXYZ.com reports:

Most of the names on the list are attorneys who have been in the media since the text message scandal broke in January. Also on the list is attorney Valdemar Washington, who was the facilitator over the settlement agreement between the city and the Detroit police officers who sued because they say they were fired for working on investigations that may have revealed the alleged affair between Kilpatrick and his former chief of staff Christine Beatty...

The Council has asked Granholm to remove Kilpatrick from office for allegedly using public funds to secretly settle the officers’ lawsuit. The case settled for $8.4 million.

The Texas Forensic Science Commission is investigating negligence and misconduct complaints against forensic labs and has agreed to look into allegations that Cameron Willingham was convicted and sentenced to die on fire officials' faulty testimony. Willingham was executed four years ago for the 1991 murder of his 1-year-old twins and 2-year-old stepdaughter in a house fire.

A five-member panel of national fire experts, who conducted the analysis, found much of the trials' expert testimony relied on outdated, invalid investigative criteria and called for improved training of fire investigators and prosecutors who handle such cases. Chron.com also reports:

"These two cases in Texas are just the tip of the iceberg," Innocence Project co-director Barry Scheck said in an e-mail statement. "Across Texas and around the country, people are convicted of arson based on junk science that has been completely discredited for years."

Michael Stephen Gorbey, 38, was sentenced Friday to 22 years in prison in the Superior Court of the District of Columbia following his conviction on multiple weapons charges, including possession of explosives and the attempted manufacture or possession of a weapon of mass destruction near the U.S. Capitol in January 2008. The weapons expert witness who examined the homemade bomb in Gorbey's car found what appeared to be a small hole in the can that could have been used to hold a fuse for the bomb. The expert witness testified that if detonated, the device could have caused death or serious bodily injury to multiple people.

Marketwatch.com reports:

This case marks the first time that the U.S. Attorney's Office for the District of Columbia charged a person with attempting to manufacture or possess a weapon of mass destruction based upon the local District of Columbia statute that was passed in response to the terrorist attacks of Sept. 11, 2001.

This week a jury found that a forklift manufacturer was not liable for a 1999 tip-over accident in which the operator was thrown from a forklift resulting in catastrophic injuries. The injured party lived seven years as a quadriplegic. Massachusetts U.S. District Court Judge Reginald C. Lindsay presided over the five-week trial in which the jury returned its unanimous verdict. The forklift manufacturer's engineering expert witness successfully argued that the accident was caused by operator error, not a breach of warranty or any defect present in the forklift.

The defendant faced great exposure because the parties stipulated to more than $2 million in economic damages. The plaintiff also sought damages for pain and suffering, punitive damages under the Massachusetts Wrongful Death Statute and multiple damages under G.L.c. 93A.

For more see Massachusetts Lawyers Weekly.

In Strategic Security Management: A Risk Assessment Guide for Decision Makers, author and security expert witness Karim H. Vellani provides a "definitive text on security best practices, introduces the concept of analysis for security decision making, and discusses advanced threat, vulnerability, and risk assessment techniques that you can apply to your organization’s security program." The first two chapters include:

Chapter 1, Data Driven Security, sets the tone for the rest of the book with its discussion of a relatively new security concept, using data to drive the security program. Security professionals, only recently, have started using quantitative data to determine appropriate security levels. This chapter provides some of that food for thought mentioned above as well as a “howto” for developing security metrics.

Chapter 2, Asset Identification and Security Inventory, discusses the first two steps of the risk assessment process, the identification and categorization of organizational assets and the itemization of existing security measures. Critical assets, those that are integral to the organization’s mission, are the focal point of the first half of this chapter, while three types of security measures are discussed in the latter half. Also included in this chapter is a list of definitions so we’re all speaking the same language as we progress through the book.

In Post Loss Underwriting is an Oxymoron, attorney and insurance expert witness Barry Zalma, Esq., CFE, discusses "post loss underwriting." His firm's practice emphasizes the representation of insurers and those in the business of insurance.

In California there is much publicity for what the plaintiffs' bar calls "post loss underwriting" as a pejorative way of speaking of the equitable remedy of rescission. Post loss underwriting does not exist. Underwriting is a decision making process. It is made before insurance is issued. Rescission is an equitable remedy when an insurer is deceived regarding a material fact. If the rescission is improper the insured is not without a remedy.

As the Court of Appeal stated in Imperial Casualty & Indemnity Company v. Levon Sogomonian, 198 Cal. App. 3d 169 (1988), "Our conclusion here should not result in an assumption by insurers that policy liability can, with impunity, be avoided or delayed by assertion of a claim for rescission. That is a tactic which is fraught with peril. Where no valid ground for rescission exists, the threat or attempt to seek such relief may itself constitute (1) a breach of the covenant of good faith and fair dealing which is implied in the policy (citations omitted) and/or (2) the commission of one or more of the unfair claims settlement practices proscribed by Insurance Code section 790.03, subdivision (h)."

More to follow from Mr. Zalma.

Properly preparing the medical expert witness is vital to a successful deposition. The expert witness will then be able to perform with little assistance from the attorney in the case. This preparation is particularly important when the deposition is recorded on video. Since a common use for video depositions by opponents is impeachment at trial, counsel should treat the video deposition as if it were taking place in the courtroom.

When the expert's deposition comes up at trial and objections are made as to the competency of the deponent, counsel does not have the right to instruct the expert witness not to answer questions but may advise the expert not to when appropriate.

In Mediation as a Discovery Tool, insurance expert witness Guy O. Kornblum describes the benefits of going to mediation:

So the case does not settle at mediation! Disappointment perhaps, but there are other benefits to going to a mediation. One of them is the exchange of information that takes place between or among the parties. This is particularly true of a mediation that takes place early in the case, or at a certain point in time after the parties have exchanged limited information. Even though a mediation takes place, it is sometimes the case that the parties simply do not know enough about the other side’s position or the facts of the case; therefore, productive negotiations just don’t happen. Or, it may be that the perception of the parties is just quite different and more information needs to be exchanged before settlement can be reached.

In Strategic Security Management: A Risk Assessment Guide for Decision Makers, security expert witness Karim H. Vellani writes in his introduction:

While researching this book, I sought out the wisdom of others and came across a quote by William O. Douglas which I think captures the essence of Strategic Security Management: “Security can only be achieved through constant change, through discarding old ideas that have outlived their usefulness and adapting others to current facts.” I think that pretty well sums up the intent of this book.

In Anatomy of a Witness List, Hon. Michael L. Stern writes that "each witness should tell the next part of your story and move your case forward."

While most cases are reso