August 31, 2008

Pesticides Expert Witness On Termites

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.

August 30, 2008

Marketing Expert Witness On Marketing Research

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
Competitive analysis
Dealer performance
Distributor performance
Effectiveness of programs
Market share
Market size & growth
New product opportunity
Profit loss
Sales loss
Sales performance

August 29, 2008

Insurance Expert Witness on Mediation - Part 2

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.

August 28, 2008

Flooring Expert Witness On The Forensic Science of Floor Covering

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.

August 27, 2008

Geology Expert Witnesses On Palm Beach Project

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.

August 26, 2008

Metallurgy Expert Witness Testifies In Wrongful Death

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.

August 25, 2008

Cardiology Expert Witness On Emergency Room Death

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.

August 23, 2008

Finance Expert Witnesses & Failed Land Deal

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."

August 22, 2008

Pharmacology Expert Witness On Accutane

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. 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."

August 21, 2008

Forensic Engineering Expert Witness On Industry Standards Part 3

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.

August 20, 2008

Computer Security Expert Witness At Responsys

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."

August 19, 2008

Contracts Expert Witness Selected In Detroit Mayor Case

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. 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.

August 18, 2008

Fire Expert Witnesses On Fire Officials Faulty Testimony

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. 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."

August 17, 2008

Weapons Expert Witness Testifies On Weapon Of Mass Destruction

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. 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.

August 16, 2008

Engineering Expert Witness Testimony On Forklifts

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.

August 15, 2008

Security Expert Witness On Risk Assessment Part 2

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.

Vellani is President of Threat Analysis Group, LLC.

August 14, 2008

Insurance Expert Witness On Post Loss Underwriting Part 1

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.

August 13, 2008

Preparing The Medical Expert Witness

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.

August 12, 2008

Insurance Expert Witness on Mediation - Part 1

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.

August 11, 2008

Security Expert Witness On Risk Assessment

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.

Vellani is President of Threat Analysis Group, LLC.

August 10, 2008

The Order of Expert Witnesses At Trial - Part 2

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 resolved short of a trial, it is important to view each as a potential trial situation. This starts early in the life of a case. Even at an initial client interview, witnesses are named, areas of factual and legal inquiry are outlined, and the necessity of retaining expert (witnesses) may be considered. Pretrial discovery broadens the scope of witness identification and eventually allows refinement of a trial witness list. This is a time-consuming and hugely expensive process. Failure to focus early on the truly important witnesses to call, and what each may contribute to winning, can be fatal to ultimate success.

From Advocate Magazine, June 2008.

August 9, 2008

Cross Examination of Expert Witnesses Part 2

Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers includes a chapter by Cook County criminal lawyer Sam Adam entitled Eight Lessons From a Lifetime at 26th Street. Lesson #1:

Look at the trial itself as an entity rather than as a collection of witnesses. Remember that the ultimate purpose of cross-examination is to get those gold nuggets for closing argument. Know every fact about the case - and perhaps especially your opponent's case - before you plan your cross-examination. This should usually include viewing the scene. A well-prepared lawyer who has a superior knowledge of the facts has an enormous advantage going in.

More to come from Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers

August 8, 2008

The Order of Expert Witnesses At Trial

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."

The order in which witnesses are called at trial can make or break a case. The process of preparing a witness list, including careful consideration of who to call, when and why, may forecast a verdict even before counsel step into the courtroom for trial.

It is vital to determine which witnesses will provide maximum impact at different points int a trial. Each (expert) witness must be evaluated as a potential "opener," "closer," or "sleeper." Some witnesses can persuasively establish or refute liability on damages issues. Others are better for introduction of documentary or other exhibits. Sometimes witnesses must be called adversely for essential information or taking the edge off problem areas. Above all, calling any witnesses requires strategic thinking, not simply conjuring up an arbitrary list of persons with potential testimony.

From Advocate Magazine, June 2008.

August 7, 2008

Cross Examination of Expert Witnesses

In Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers leading trial lawyers illustrate essential rules including:

*Never ask a question to which you do not know the answer - unless it doesn't matter, or you have nowhere else to go.

* Always listen to a witness's answer before asking your next question.

* Never ask the one question too many that will allow the witness to explain away a damaging answer he's already given.

* Forget Perry Mason. The purpose of cross is not to win the trial at once, so much as lay the foundation for closing argument, or for the testimony of other witnesses.

* Know when you've accomplished enough and sit down.

More to come from Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers

August 6, 2008

Forensic Engineering Expert Witness On Industry Standards Part 2

Wikipedia tells us that "forensic engineering is the investigation of materials, products, structures or components that fail or do not operate/function as intended, causing personal injury for example. In Industry Standards, Technology Associates, the forensic engineering expert witness company has this to say on industry standards.

Because custom and practice is (by definition) something that is actually in existence, and is therefore accepted, there is an understandable tendency to consider it “acceptable.” This conclusion is not automatically justified, however, for two reasons. First, custom and practice within a given industry generally varies over a wide range, from bad to good, from unsafe to safe. For example, although many punch presses are fitted with two-hand controls to prevent the operator from having either hand in the dangerous area as the ram of the press descends, it is common for the operator—or his employer—to “tie down” one of the controls so that the press can be operated with only one hand, leaving the other hand free to inadvertently enter the dangerous area as the ram descends. (The reason for this dangerous practice is that it speeds up production.) Thus, this form of custom and practice is not acceptable as an industry standard. It follows that only good custom and practice should be used as an industry standard.

August 5, 2008

Equipment Expert Witness On Machine Guarding Part 2

In Machine Guarding: The Second Alternative, equipment expert witness Albert Rauck, P.E., CSP, writes on machinery safety devices:

The second alternative can, when used in conjunction with the design consideration, be very effective in eliminating the dangerous condition. Safety devices include the whole range of machine guarding techniques such as fixed or automatic mechanical guards, safety mats, light curtains, safety gates, machine interlocks etc. Care must be taken to assure that machines guards are not removed for maintenance and not reinstalled or the guards are not defeated by workers in an effort to speed up the process.

The third alternative should be employed when the first and second alternatives cannot be used to
eliminate the dangerous condition. The provision of warning devices should alert the exposed people to the specific danger and be consistently applied. These devices include signage, warning alarms (horns and lights), warning strips and ropes etc.

August 4, 2008

Forensic Engineering Expert Witness On Industry Standards

Wikipedia tells us that "forensic engineering is the investigation of materials, products, structures or components that fail or do not operate/function as intended, causing personal injury for example. In Industry Standards, Technology Associates, the forensic engineering expert witness company has this to say on industry standards.

A standard can be defined as a document issued by a recognized agency, and dealing with design and/or safety requirements relating to a specific product or type of activity. Such agencies include the U.S. Occupational Safety and Health Administration (051-IA) and the American National Standards Institute (ANSI). OSHA standards are generally legally binding for an employer, while ANSI standards are generally of an advisory nature. The term “industry standard,” however, is ordinarily taken to have a broader meaning, including formal standards as just defined, and also including designs and procedures not required in formal standards, though prevailing in a specific industry, and which represent generally accepted custom and practice.

August 3, 2008

Equipment Expert Witness On Machine Guarding

In Machine Guarding: The Second Alternative, equipment expert witness Albert Rauck, P.E., CSP, writes on machinery safety devices:

The first thought should be given to the design of the process. Remember the danger results from the combination of hazard and exposure. Eliminate either one and the dangerous condition no longer exists. Is it possible to eliminate the human from the process through automation? Can the operator be relocated to a safer position? Can the process be changed to eliminate the hazard? Obviously the ideal time to make these decisions is during the design of the process but other opportune times are during a renovation, machine rebuild etc. Often it is not possible to completely design out the dangerous condition but it is possible to greatly reduce the risk to a more acceptable level. The reason that this is the highest priority is that it eliminates the dangerous condition whereas the other alternatives do not.

August 2, 2008

Construction Expert Witness & Multiple Delays Part 2

In When the Going Gets Tough – Analyzing Concurrent Delays, Thelen Reid's Andrew D. Ness writes that "Proving or disproving a construction delay claim is a substantial undertaking in the best of circumstances. But the analysis of construction delays takes a major leap in difficulty when there are multiple sources or causes of delay with interrelated effects." The construction expert witness can opine on what Ness describes as:

Multiple Activities – Multiple Delays

The level of complexity steps up considerably when the situation involves different causes of delay acting on different activities, whether at the same time or at different times during the project. For example, take a building project where the owner has delayed structural steel delivery by making late design changes. The contractor has had difficulty excavating the site in order to begin the foundations. How is the overall project delay from these two causes to be apportioned between owner and contractor? Which one is really delaying the project, or are both causes delaying completion?

August 1, 2008

Hazardous Materials Expert Witness Services

KHB Consulting Services Kenneth H. Brown, Ph.D., provides hazardous materials expert witness and consulting services to attorneys and insurance professionals for cases involving chemicals, paint & coatings and other products which contain chemicals. As an expert witness, Brown:

'Translates' chemical jargon into easy-to-understand language so that you can understand the implications.

Recommends what additional documents, information or materials are needed to help with the case.

Conducts field site visits to investigate at the scene of accidents or incidents.

Tests or analyzes products and chemicals if that is deemed necessary.

Write technical reports of preliminary findings.