November 29, 2008

Construction Safety Expert Witness On Construction Quality Part 1

In Managing Construction Quality, construction safety expert witness Pete Fowler describes how "the good old days" are gone and construction professionals are now living in a new world:

• Consumers expect increasing quality and decreasing prices in all products.
• The building industry is not keeping pace with the quality and price advances many industries are making.
• Consumers are more litigious than ever and there is a proliferation of attorneys.
• The building industry is not attracting the best and brightest young people.
• The built-environment has been altered in the last 20 years, including increased complexity, less fault-tolerant materials, and tighter, slower drying buildings.
• Consumers are more conscious of building-related health issues than ever.
• In some areas, a lack of skilled construction labor makes the construction professional’s job even more critical.

November 28, 2008

ADA Expert Witness On Capacity Part 2

In Assessing the Truth: How Forensic Psychiatrists and Psychologists Evaluate Litigants, Dr. Mark Levy, a Distinguished Life Fellow of the American Psychiatric Association and ADA expert writes:

Unlike a treating clinician whose mission is to alleviate suffering and, thus, when called to testify, is appropriately an advocate for his patient, the forensic psychiatrist and psychologist have a different mission: our task is to determine as accurately as possible what is objectively true with regard to diagnosis, the medical course, treatment and prognosis, based upon clinical evidence. Accurate diagnosis is all important. The other opinions such as course, prognosis and treatment flow from this.

Modern medicine is evidence-based and so too is modern forensic psychiatry. It is no longer enough for an expert to simply rely upon his authority and say, in effect, “I have been in practice for 30 plus years and have earned this and that degree and credential and honor, therefore what I say is true, is true because I say so.” Today, an expert must be prepared to answer the underlying question, “Upon what objective clinical evidence, Doctor, do you base your opinions and conclusions?”


November 26, 2008

Mortgages Expert Witness On Residential Loans Part 1

In Basic Characteristics And “Life” of Residential Mortgage Loans mortgages expert witness J. F. "Chip" Morrow writes:

In today’s real estate mortgage market, it is essential that the expert understand, be fully aware of, and cognizant of the entities involved and their roles in initiating, processing, underwriting and funding all types of prime and subprime residential mortgage loans including ones. In addition, the stages that a prime and subprime residential mortgage loans processes through during its “life” are also crucial...

A mortgage banker underwrites the risk involved in making a mortgage loan to determine whether the borrower satisfies the loan underwriting guidelines for the loan program and to ensure the associated risks are acceptable. After underwriting approval, the mortgage banker funds and closes the mortgage loan. Then the mortgage banker either sells/ships the mortgage loan to the investor or retains it in its own portfolio. In addition, the mortgage banker performs a quality control audit on a statistical sampling of the closed mortgage loans to detect fraud and to insure compliance with policies and procedures.

November 25, 2008

ADA Expert Witness On Capacity Part 1

Dr. Mark Levy, a Distinguished Life Fellow of the American Psychiatric Association and ADA expert writes:

Assessing the Truth: How Forensic Psychiatrists and Psychologists Evaluate Litigants

Forensic psychiatrists and psychologists are mental health professional who have undergone addition training and have obtained advanced credentials in forensic psychiatry and psychology from their respective professional certifying boards. Their practice, like the practice of law, is divided into broad criminal and civil areas. In the criminal arena, forensic psychiatric and psychological experts are usually asked to opine about questions of capacity and sometimes, during sentencing, on mitigation. In the civil arena, forensic practice is more broad, covering, like your Bar Association does, many individual sections of legal practice, from probate to personal injury to family to employment law.

Invariably, in civil litigation, forensic psychiatrists and psychologists are asked to offer opinions on causation and damages. We recognize that the truthfulness of plaintiffs and witnesses is an ultimate question to be decided by the fact finder. Nevertheless, a forensic psychiatrist and psychologist can be helpful in educating the fact finder about issues that bear directly upon questions of truthfulness.


November 24, 2008

Practice Tips On Expert Witness Fees

1. Use a written agreement. If possible, specify a limit the expert cannot go over without your approval.
2. Expert fees will include travel time, travel expenses, and preparation.
3. Note that the expert's fee for testimony may be higher than for reviewing a file and that the rate for appearing in court is usually per diem.
4. Remain in periodic contact with your expert. This is especially important if they are located in another city or state. If the expert becomes unavailable, staying in touch is crucial.

November 23, 2008

Hydrology Experts On Kauai Deaths

A Kauai grand jury indicted retired auto dealer Jimmy Pflueger last week on seven counts of criminal manslaughter in connection with the 2006 Kaloko Dam collapse that killed seven people on Kauai’s North Shore. Pflueger is accused of altering an earthen dam that led to the breach on March 14, 2006, which sent floodwaters rushing down Wailapa Stream. The flood tore several homes off their foundations and washed away seven victims as they slept.

Lawyers said they have photos and witnesses to show Pflueger blocked a spillway for excess water even though he was warned not to. Pflueger testified he was aware that there was seepage through the Kaloko Dam and "that is a very major problem according to our experts," said attorney Rick Fried. Earlier this year a dam expert said that the state should appoint an inspection team to evaluate dams so people living downstream know what the risks are.

For more, see BirminghamBusinessJournal.com.

November 21, 2008

Mold Expert Witness Answers FAQ Part 2

Allan Snyder, mold expert witness and principal of AFC Forensic Consulting, answers Frequently Asked Questions:

Q: What is Stachybotrys Chartarum?
A: Stachybotrys Chartarum (also known as Stachybotrys atra) is a type of mold that has been associated with adverse health effects in humans. Stachybotrys is a greenish-black mold that can grow on materials with a high cellulose content, such as drywall, ceiling tiles, and carpeting/padding that become chronically moist, or water-damaged, due to water leaks, or flooding.
Q: How can you tell if Stachybotrys Chartarum is present in your home?
A: Many molds are black in appearance, but are not Stachybotrys. Stachybotrys can be positively identified only by specially trained professionals who prepare mold samples and send the samples to a laboratory for a microscopic exam, or culture.
Q: How can Stachybotrys Chartarum affect your health?
A: Health problems include allergic rhinitis (cold-like symptoms), dermatitis (rashes), sinusitis, conjunctivitis, and aggravation of asthma. Some related symptoms are more general, such as inability to concentrate and fatigue.
Q: What should you do if mold is present in your home or apartment?
A: Visible mold can be sampled by an environmental consultant and/or analyzed by a laboratory specializing in microbiology. However, there may be mold spores that are not visible. These spores can best be samples by air sampling and laboratory analysis of the media used to trap the mold spores during the sampling.
Q: How should mold be cleaned?
A: The New York City Health Department Guidelines that were published in 1993 recommend procedures for remediating mold.

November 19, 2008

Mold Expert Witness Answers FAQ

Allan Snyder, mold expert witness and principal of AFC Forensic Consulting, answers Frequently Asked Questions:

Q: Are all species of mold fungi?
A: Yes.
Q: Are all species of fungi mold?
A: No. A major subdivision of fungi is mold. Molds grows in long, tangled strands of cells that give rise to visible colonies.
Q: What is mold and where is it found?
A: Mold (fungi) is present everywhere - indoors and outdoors. There are more than 100,000 species of mold. At least 1,000 species of mold are common in the U.S.
Q: What species of mold are commonly found in structures in the United States?
A: Some of the most commonly found species of mold are Cladosporium, Penicillium, and Aspergillus. Mold is most likely to grow where there is water or dampness - such as in bathrooms and the interior of walls.
Q: How can mold affect your health?
A: Most types of mold that are routinely encountered are not hazardous to healthy individuals. However, too much exposure to mold may cause or worsen conditions such as asthma, hay fever, or other allergies.
Q: What are the common symptoms of mold exposure?
A: The most common symptoms of exposure are cough, congestion, runny nose, eye irritation, and aggravation of asthma. Depending on the amount of exposure and a person’s individual vulnerability, more serious health effects - such as fevers and breathing problems - can occur.
Q: How can you be exposed to mold?
A: When moldy material becomes damaged or disturbed, spores (reproductive bodies similar to seeds) can be released into the air. Human exposure can occur if people inhale the spores, directly handle moldy materials, or accidentally ingest it.

November 18, 2008

Expert Witness Marketing Consultant Tip

A reminder from expert witness marketing consultant, strategist & coach Rosalie Hamilton:

Expert Witness Websites - Contact Info?
I hate to bring this up again, but --- please include contact information on your website! I had a friend contact me recently for help in finding an expert witness in a particular area of expertise. I found four and went to their websites. Two (TWO of the four!) had NO contact information whatsoever. One had a "Contact" form with several lines of required information. Only one had a phone number, address, and email listed.

An attorney is not going to take the time to search for how to reach you; he or she is simply going to move to the next expert on the list. Nor will they fill out a "Contact" form.

The point of having a website is to help potential clients find you when they need your services. If they can't then contact you and retain you, why bother?

November 17, 2008

Medical Expert Witness On Accepting the MedMal Case Part 5

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in medical negligence cases.

To summarize ... consider not taking medical negligence cases in the following instances:
6. The defendant is a well-known and highly respected physician that most reputable medical experts refuse to testify against. It will be very difficult to find an appropriate expert; and even if one is found, because of the defendant's standing in the medical community, it may be more difficult to obtain a judgment against him. Also, if the procedure, treatment, or medical subspecialty is rare, then it will be very difficult finding a medical expert witness to testify.

7. The case hinges only on informed consent or misrepresentation issues. This often pits the health care provider against the plaintiff in terms of credibility and honesty. Furthermore, it will be difficult to convince a jury that the plaintiff would not have agreed to the procedure or treatment if properly informed of its risks.

8. If the issue of causation can not be satisfactorily established. Cases will be lost in these situations even when care was grossly negligent.

9. A plaintiff has exacerbated the damage by not following the physician's instructions. For example, did the plaintiff add to the damage by walking on a leg despite non-weight bearing orders?

10. When a shortened life-expectancy existed anyway from non-related conditions. For example, even though a 40 year old man bled to death on the operating room table due to physician error, this patient had terminal lung cancer and a very short life-expectancy.

November 16, 2008

Utilities Expert On Turbine Wind Farm

The Massashusetts Energy Facilities Siting Board opened hearings on Wednesday into the request by Cape Win Associates LLC for a composite permit for transmission lines that carry approvals on five state and four local permits. If Cape Wind secures the remaining permits and the almost inevitable legal challenge, the company will get to build its 130-turbine wind farm in Nantucket Sound.

The composite permit, if approved by the siting board, would allow the long-delayed wind turbine project to collapse whatever further wait is involved in obtaining the state and local permits.The company presented two expert witnesses: Craig Olmsted, the vice president for project development at Energy Management Corp. and the Cape Wind project manager, and Christopher Rein, senior vice president and principal of ESS Group, the lead environmental consultant on the wind farm project.

Excerpted from CapeCodToday.

November 15, 2008

Medical Expert Witness On Accepting the MedMal Case Part 4

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in medical negligence cases.

To summarize ... consider not taking medical negligence cases in the following instances:

1. The medical issues are complex. The more complex the medical issues, the more difficult it will be to convince the jury that the doctor committed malpractice. If a case involves multiple physicians, some of whom committed no negligent acts, it may be exceedingly difficult to separate out the truly negligent care. Jurors may view this kind of lawsuit as an unwarranted attack on everyone. Plus the more doctors who are involved, the more costly the undertaking, in terms of obtaining more medical experts.

2. The patient underwent a medical procedure for cosmetic rather than medical reasons. Jurors often believe that these people are vain and that they assume all the risk of a bad outcome.

3. The plaintiff's condition is such that delayed or misdiagnosis did not result in significant additional injury and would not have changed the prognosis. Jurors often find the "so what" defense compelling enough to excuse negligence.

4. When the defense medical experts include the follow-up care physicians. Their credibility usually exceeds the credibility of the plaintiff's experts.

5. Damages resulting from the injury are too small to justify the time and expense of litigating the claim.


November 14, 2008

Police Expert Witness Supports Former Felon

Former paratroopers argued before New York Justice Henry Kron this week that Specialist Osvaldo Hernandez deserved to have his civil rights restored. Hernandez served a year on Rikers Island for illegal gun possession before joining the Army and serving a 15-month tour in Afghanistan. Hernandez hopes to join the New York police force.

His lawyer, James D. Harmon Jr., a former prosecutor who served in Vietnam and their expert witness, Randy Jergensen, a retired New York police detective who parachuted into battle in Korea, testified on behalf of Hernanez. They believe that his service in the army and certificate of good conduct from the parole board remove any legal barriers to Mr. Hernandez’s joining the police force. The decision is now up to police officials, who have said that the city’s administrative code forbids hiring anyone with a felony conviction as a police officer.

Maj. Gen. Thomas P. Bostick of the Army Recruiting Command says the Army has accepted 372 felons this year as of October 10, down from 511 last year. A recent military study showed that such recruits were promoted faster, were more likely to re-enlist, and received more awards.

For more see New York Times.

November 13, 2008

Medical Expert Witness On Accepting the MedMal Case Part 3

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in the medical negligence case.

Two objective case analyses are touted by many seasoned medical malpractice litigators as the judicious approach to working up a potential case. When the two reviews are in concordance, you will be on solid footing and well on your way to maximizing your chances for a successful outcome. If there is a discrepancy between the two reviews, then it will be easier for you to understand the weaknesses of your case. The knowledge you attain in this way will help you to decide whether you want to drop, or stay with the case. The costs for the in-depth medical expert record review and analysis should be in the neighborhood of $1000 to $2000 per medical expert; again depending on the volume of records, complexity of the case, and the specialty of the medical expert doing the record review.

Case review is both a science and an art. The physician reviewer must be adroit at dissecting out the critical facts and determining whether or not the appropriate standards of practice were breached. Moreover, the reviewer must decide whether issues of causation clearly reinforce any alleged departures from the standard of care. Attention must also be given to damages. The issues can be quite complex. Are the injuries or disabilities due to malpractice or are they a maloccurrence, an unfortunate bad outcome that could not have been prevented?

November 12, 2008

DUI Expert Witness On Your Reputation

Even if you've been lucky and avoided tickets for years, being pulled over for speeding or drunken driving could cost you plenty. Fines, legal fees, and hiring an expert witness can add up to a "financial mugging." In First-time driving offenders don't get off easy , AOLautos writes on how a DUI can also affect your reputation:

If you are a professional -- a doctor, an attorney, a stock broker, pilot, a teacher, even a politician these days -- a DUI arrest, not to mention a conviction, is most certain to affect your reputation, your standing in the community or group to which you belong, and even your professional credentials.

Even if you are just the third cubicle on the right at the travel agency, produce manager of Safeway #376 or third camera assistant on the local TV news, your career track now has a speed bump in it, a DUI on your record that can stay there for years, potentially and/or actually damaging your chances for advancement and/or qualifying for a better job at another organization.

November 11, 2008

Medical Expert Witness On Accepting the MedMal Case Part 2

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in the medical negligence case.

It has been said that a little knowledge can be dangerous. Nowhere is this more obvious than in medical negligence case analysis. The quality , credibility, and scope of the record analysis will only be as good as the reviewing individual(s). Bottom line: Choose reviewers wisely; pay appropriately. Typical costs for detailed initial case screening average $500 to $1000 depending on the size of medical records, complexity of the case, and the specialty of the reviewing physician.

Cases that are deemed provisionally meritorious should be sent for a second review by medical experts identified by the screening physicians, who are prepared to give oral testimony if called upon. Careful attention should be given to determining who the medical experts should be. Ideally, a physician consultant experienced in medical-legal matters should assist you in the identification of the appropriate medical specialists. This person can "talk shop" with the potential expert and be in a better position to decide whether any given medical expert is the right person for the case. By analogy, you, as an attorney, would be in a much better position than a layperson to recommend another reputable and successful attorney in a specific legal specialty area. Thus, it makes good sense to establish a relationship with a physician consultant experienced in medical-legal case analysis.

November 10, 2008

Franchising Expert Witnesses & The Daubert Test

Franchise executive Don Sniegowski comments on the franchise case study by attorney Bruce Schaeffer in which Schaeffer concludes that one of the weakest links in franchisee court cases is often their own expert's testimony.

In Challenges to the Admissibility of Expert Financial Testimony, attorney Bruce Schaeffer followed all federal and state cases involving the admissibility of expert financial testimony from 2005 through 2008. He discovered that challenges involving expert witnesses were successful some 57% of the time, meaning that only 43% of of proposed experts were allowed to testify. And, when expert testimony is successfully challenged, it almost always means the franchisee's case will fail.

According to Schaeffer, the key point in a franchise dispute is to prove damages. For that, a franchisee needs an expert. But their proposed witness will never make it to the stand if he cannot get by the Daubert test, named after the U.S. Supreme Court case that determined that for expert testimony to be admissible, it must meet a minimum "threshold" level of credibility, namely:

1. The theory or technique can be tested
2. The expert’s work has been subjected to peer review
3. The rate of error is acceptable
4. The method utilized enjoys widespread acceptance

If franchisees are going to use an expert, which in most cases is a must, they had better have one that can pass the Daubert test. Chances are the weakest link in a franchisee's case is that they cannot prove damages because their expert's testimony does not pass the Daubert test. So the case will never go to jury and will be thrown out of court.

November 8, 2008

Medical Expert Witness On Accepting the MedMal Case

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes that "To accept or reject a medical negligence case: this is the single most important decision you will make when processing a medical negligence case." Choosing unwisely, either a case with good potential will be lost or an unmeritorious case will tie you up for long periods of time resulting in great expense.

To make an informed decision about accepting a case, you must have the facts, not only those you obtain from your client, but more importantly, those obtained from qualified medical experts after a thorough review of the medical records.

It is not enough to have medical records reviewed by just anyone. Medical records should be screened by those specially capable of understanding and identifying all medical-legal issues. These individuals should be experienced in medical-legal analysis and board-certified in the medical specialty where the alleged negligence occurred. Even better, the medical records can be reviewed in a collaborative setting, where the records are screened by one board-certified physician who then confers with other medical specialists to form consensus opinions.

November 7, 2008

Insurance Expert Witnesses On Car Insurance Costs

Even if you've been lucky and avoided tickets for years, being pulled over for speeding or drunken driving could cost you plenty. In First-time driving offenders don't get off easy , AOLautos writes:

The car insurance companies are in business to avoid loss, and drunken drivers, or those arrested for DUI, represent potential profit drains. Your automobile liability insurance costs -- mandatory just about everywhere -- could, according to experts, double, triple or even quadruple because of a DUI, especially a DUI with a high BAC.

Even if you are capable of paying a bank-breaking new tariff, you might still lose your insurance since a number of major insurance companies are ridding their files of drivers they see as risky and can drop your coverage even if you are found not guilty.

November 6, 2008

DUI Expert Witness & Driving Tickets

Even if you've been lucky and avoided tickets for years, being pulled over for speeding or drunken driving could cost you plenty. Fines, legal fees, and hiring an expert witness can add up to a "financial mugging." In First-time driving offenders don't get off easy , AOLautos writes:

Speeding fines and penalties are, excuse the expression, all over the map; how fast you were going or where you were speeding (school zone or construction zone for example) and whether you are a first-time offender all factor in. More than half the states use a points system to record driver infraction data -- the more points, the higher the fines and possible jail terms.

Although Forbes Magazine reports that the national median for a first-time offender's fine is $200, many states are quite entrepreneurial in their penalties for first-time speeding-related offenses:

• In Georgia, first-time speeders can be fined up to $1,000 and sentenced to 12 months in jail.

• In Nevada, first-time speeders can be fined up to $1,000 and sentenced to six months in jail.

November 5, 2008

Marketing Expert Witness - Why Did They Settle?

Marketing expert witness Gabriele Goldaper describes a case she worked on and questions, "WHY DID THEY SETTLE?"

My first case was regarding a small clothing company who sued their bank claiming that when the bank did not agree to extend additional credit, the bank was responsible for the clothing company going out of business. My defense, in representing the bank, was that analyzing the books and financial history of the clothing company gave me enough evidence to state that the clothing company was already on the way out. The clothing company was not assigning appropriate markups when determining their wholesale selling prices. In addition, the company had not set any quality standards for their production contractors and thus received a lot of returns from the stores/customers, because of quality related issues.

These returns could not be resold so there was a direct hit to their profit margins. The selling and marketing expenses were far above the standards for the apparel industry. Furthermore, there had not been enough attention paid to their too high payroll and associated expenses and no attempt had been made to bring these costs to a more realistic level. Management appeared to be lacking at every level. I agreed with the bank that further loans would have been extra risky. The bank had no quantifiable information or assurance of any kind enabling them to extend additional credit.

To my surprise, the case settled.

November 4, 2008

International Business Expert Witness Testifies in Bowoto v. Chevron

Opening arguments began last week in federal court in San Francisco in the landmark human rights case of Bowoto v. Chevron. In its seventh year of litigation, the case raises important issues regarding liability of multinational corporations in U.S. courts. Survivor Larry Bowoto and eighteen other plaintiffs are accusing Chevron of collaboration with Nigerian military in brutal suppression of a protest by unarmed villagers on a Chevron offshore oil platform in the Niger Delta in 1998. Bowoto was shot during the protest; two other protesters were killed. International business expert Michael Watts, professor at the University of California at Berkeley, is among the expert witnesses testifying in the case.

For more see: AllAfrica.com

November 3, 2008

Consumer Products Expert Witness On A Painful Needle

Consumer products expert witness Gabriele Goldaper describes a case she worked on regarding a "needle in a stack."

I was engaged by a plaintiff, who purchased several pairs of pants from a leading upscale sportswear retailer. At home, while trying on one of the pants and sitting down, he
suffered severe, medically documented, injuries in a very sensitive area of his body, from a needle which was apparently still in the seam of the crotch area of the pants. My role was to testify about the manufacturing process and standard quality control needed in the production cycle of men’s pants.

To support my opinion that not enough necessary action was taken to avoid this unpleasant accident, I was able to find evidence of the lack of good quality control when reading the depositions of the various production managers and the records they kept. Product safety dictates that at each step of the production cycle inspections take place. In this case, there were not enough, satisfactory or detailed records to indicate that procedures where in place to assure the safety of the product. Typically a basic check at the finish line of production is to use a mechanism, much like a metal detector, to see if any metal, like a needle point, is lodged in any area of the garment. No record of such basic final inspection could be found.

Ms. Goldaper's opinion as an expert is that "the consumer is always entitled to a perfect quality garment. It is not the responsibility of the consumer to inspect the product for safety."

November 1, 2008

Insurance Expert Witness On Insurance Fraud Part 2

Insurance expert witness Barry Zalma and principal of Zalma Insurance Consultants writes that It is Necessary to Know Insurance to Fight Insurance Fraud.

Insurance fraud is a multi-billion dollar, complex, multi-faceted problem.Those charged with investigating and detecting insurance fraud must institute a serious and detailed training program for its fraud investigators to make them knowledgeable, at the very least, about:

* How to read and interpret an insurance policy
* How to enforce the material conditions in a policy of insurance.
* How to enforce the warranties in an insurance policy.
* The effect of a material misrepresentation or concealment of a material fact at the time a policy is acquired.
* The crime of insurance fraud and the evidence necessary to prove the crime.
* How “red flags” of insurance fraud lead to evidence but are not evidence of fraud. Insurance fraud is a multi-billion dollar, complex, multi-faceted problem.

If insurers refuse to train their people they will continue to detect fraud, investigate it thoroughly, and then pay the perpetrator because they failed to prove a viable defense to the fraud.