January 31, 2009

Medical Expert Witness On Medication Errors Part 3

In Preventable Medical Errors, medical expert witness Perry Hookman, M.D., writes that cancer outpatient medication errors may be more common than previously thought and asks "has the pendulum swung too far?"


The Implicit Message Communicated To The Public [i.e. Medical Malpractice Potential Jurors] Is That Many Drugs On The Market Are Neither Safe Nor Effective — And That Federal Drug-Safety Regulators Are Generally Incompetent.

Notwithstanding the above a decade's worth of unprecedented drug recalls and other worrisome developments in drug safety or efficacy have appropriately pushed many journalists into aggressive coverage of pharmaceutical issues. The downside of the drumbeat of coverage, however, is the implicit message communicated to the public that many drugs on the market are neither safe nor effective — and that federal drug-safety regulators are generally incompetent,” reports Susan Dentzer [Dentzer S. “Communicating Health Care News-Pitfalls of Healthcare Journalism.” NEJM 2009,36[1]:1]

January 30, 2009

Objections To Expert Witness Testimony

In When and How to Object During Deposition, Art of Advocacy blogger Paul Mark Sandler writes that in civil litigation, "objection-free depositions are unheard of." Attorneys often make unnecessary objections or fail to make them properly when dealing with parties in the case and the opposing expert witness. Sandler says attorneys sometimes waive objections by failing to raise them in a deposition and offers some helpful guidelines for knowing when and how to object.

1. What objections are necessary?

At a deposition, an attorney is required to object to those defects that are immediately curable--that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.

Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.

January 29, 2009

Medical Expert Witness On Medication Errors Part 2

In Preventable Medical Errors, medical expert witness Perry Hookman, M.D., writes that cancer outpatient medication errors may be more common than previously thought.

Adverse Drug Events [ADEs]

In a study by Hernández and Vargas (Adverse Drug Events in Ambulatory Care. NEJM.2003;349:303-305), of four primary care practices, the authors found that one-quarter of outpatients had adverse drug events during a three-month period. Of these events, 13% were serious, 39% were either ameliorable or preventable, and 6% were serious and preventable or ameliorable. Ameliorable adverse drug events were attributed to poor communication: the physician's failure to respond to symptoms reported by the patient or the patient's failure to report symptoms to the physician.

The Institute of Medicine (IOM)’s report on the quality of patient care entitled To Err Is Human has drawn national attention to the occurrence, clinical consequences, and cost of adverse drug events in hospitals, which is estimated at $2 billion annually in the United States.1Leape et al.2 studied adverse drug events by reviewing solicited self-reports and conducting daily chart reviews and found that 44% of these events occurred after the prescription order was written (i.e., during the medication delivery and administration processes). Drug therapy cannot be successful unless, and until, both the prescribing and medication delivery processes are conducted correctly.

January 28, 2009

Fire Expert Witness On Spoliation of Evidence

In Evidence – Handle With Care, fire expert witness and Principal of PyroCop Inc., Robert Rowe writes:

"Spoliation of evidence” as defined in the National Fire Protection’s Guide to Fire and Explosion Investigations (NFPA 921), is “the loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation.”

“Spoliation” may occur when evidence is moved, modified, or destroyed during examination and/or destructive testing. Therefore, extreme care must be taken during the examination of a fire scene as any action on the part of the fire expert that impairs the opportunity of other interested parties (other fire experts, attorneys, etc.) to obtain the same “evidentiary value from the evidence.

If a fire expert is not careful with the evidence he or she may have collected or handled at the fire scene, it is not beyond the court to impose discovery or monetary sanctions, exclude expert testimony, dismiss a claim or defense or even prosecute the expert under criminal statutes relating to obstruction of justice.

January 27, 2009

Medical Expert Witness On Locality Rules Part 4

From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts

When it became clear by the 1980's that hospitals were being built in rural areas, that demographic trends indicated sufficient medical staffing in rural areas, that mass communication and mass transit eliminated the disadvantages of isolation, that all U.S. physicians were held to the national standard for their respective specialty, then the original rationale for the locality and state rules had disappeared, and the courts began to rely on national standards for each given specialty.

Today, all physicians (except those in Tennessee where state locality rules still exist) are required to demonstrate the same degree of care, skill, knowledge, and training that would be expected of other members of that specialty at a national level. Unfortunately, it is still all too common to see a motion during a medical malpractice action that seeks to invoke the locality rule as a way to disqualify a medical expert's testimony. Fortunately, most courts do not accept this ploy as it has no relevance to medical practice today.

January 26, 2009

Insurance Expert Witness Defines Risk Management Terms Part 3

Insurance expert witness Jim Leatzow has been educating and insuring professionals about the risks to their businesses for twenty years. At Leatzow.com, he offers a glossary of jargon associated with risk management. Two of the terms defined are:

Cashechtomy
Pronounced "Cash-ech-tomee" Sounding like a medical term, this is the procedure whereby plaintiff's attorneys from the "dark side" intentionally name firms in lawsuits even though they are aware that the claim is groundless and that just filing the lawsuit will cause the person or firm being sued or their insurance company to have to cough up some money in order not to incur far more expense through the process known as "discovery".

Fairness
The term "fairness" has little place in the American civil court system. The fact that you can be sued even though you did nothing wrong isn't fair but it happens every day. Plaintiff's attorneys know this very well and sue everyone they can to extract some money (see Cashechtomy) to help fund the rest of the case that may or may not have merit. There is virtually no downside to a plaintiff's attorney suing you as the courts rarely discipline or sanction those who bring such lawsuits. Remember, they are all lawyers and part of the same "good 'ole boys club" which allows this nonsense to prosper.

January 25, 2009

Medical Expert Witness On Locality Rules Part 3

From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts

By the 1970's, jurisdictions began modifying the locality rule. One problem the courts faced had to do with whether a medical specialist practicing in a rural area was in any way deprived of the conditions enjoyed by medical specialists practicing in urban areas where teaching centers were located. Their concern was that if the answer was yes, then eliminating the locality rule might discourage medical specialists from practicing in rural areas. Courts eventually decided to compromise and instead of adopting a national standard, they converted the locality rule to a state standard. But over time, it became clear that this made no sense because the standards were truly national standards, and so courts began abandoning the locality and statewide rule for all physicians.

January 24, 2009

Insurance Expert Witness Defines Risk Management Terms Part 2

Insurance expert witness Jim Leatzow has been educating and insuring professionals about the risks to their businesses for twenty years. At Leatzow.com, he offers a glossary of jargon associated with risk management. Two of the terms defined are:

Claims-Made Insurance
A policy written to cover claims "made" or brought during the present policy in effect, regardless as to when the "event" occurred, but subject to several terms including the "coverage period". The coverage period begins with a Retroactive Coverage Date and continues to the latest Effective Date. If work was performed under a prior policy and those dates have been accepted by the replacement policy through the Retro Date, then the successor policy accepts the former work risk and exposure. Claims brought outside of that time period are generally excluded and denied. Prior policies that have been replaced will also deny coverage as coverage only applies to the policy in force at the time the "claim is made".

Grace Period
Extra time given to renew a life or health insurance policy. Grace periods DO NOT APPLY to property and casualty insurance.

January 23, 2009

Medical Expert Witness On Locality Rules Part 2

From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:
Locality Rules and Qualifying Medical Experts

As medicine evolved, however, standards of practice slowly became homogenized across all communities, rural and urban. This happened because medical specialty and subspecialty organizations developed, and physicians were held to the same practice standards. Training became uniform, with all programs employing the same curriculum, using similar textbooks, and subjecting all doctors-in-training to the same qualifying exams, initially, and for recertification. Since the locality rule existed to essentially protect the country doc, the general practitioners who were not as well trained and did not have easy access to the latest medical knowledge and training, it did not apply to those medical specialists and subspecialists who claimed to have advanced training and unique skills. Thus, by the mid-1960's, in most jurisdictions, these physicians were no longer able to invoke the locality rule when they were sued for malpractice. Instead, they were now required to meet a national standard of practice in their particular specialty. This marked the beginning of the end of the locality rule.

January 22, 2009

Insurance Expert Witness Defines Risk Management Terms Part 2

Insurance expert witness Jim Leatzow has been educating and insuring professionals about the risks to their businesses for twenty years. At Leatzow.com, he offers a glossary of jargon associated with risk management. Two of the terms he defines are:

Run-Off Period
Time following the expiration of an E&O policy which is then covered by a tail policy or endorsement.

Tail Coverage/Policy
Tail coverage/Tail policy covers a firm for their risks that were created while a traditional E&O policy were in force, but where the firm is no longer practicing for whatever reason. This is typically called the "Run-Off Period". It is different because no new work is being undertaken by the firm and any prior risk is "running off" or decreasing as time goes by. A tail policy may be purchased (subject to underwriting) for a period of years and is paid for at issuance. Tail policies generally are "fully earned" upon issuance, which means that there will be no return premium, even if the Tail Policy is cancelled early before its expiration date.

For more, see Leatzow Insurance.

January 21, 2009

Medical Expert Witness On Locality Rules

From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts

Where do these rules come from and why are they important? Many years ago, there truly was a disparity between the levels of medical care rendered in rural areas versus urban areas. Full-service hospitals were always located in large cities. Physicians and clinics in rural areas had limited facilities, and house calls were common. Standards of medical practice were different for each circumstance. The basic idea was that it would not be proper to hold a rural physician to the same standard as an urban physician. Medical organizations were concerned that if a rural practitioner were held to a higher standard in an environment that could not support those higher standards, physicians would avoid practicing medicine in rural areas. Also, in those days, there was no uniformity in training and there were no standardized board exams. For certain, urban physicians had better training and support than rural physicians.

Consequently, the legal standard, known as the "locality rule" came into being which stated that the degree of skill and knowledge of physicians varied widely by geography and demographics. The earliest application of the locality rule came in the late 19th century when a court ruled that the standard of care for a physician ought to be measured against others in the area where the physician practiced.

January 20, 2009

Insurance Expert Witness On Professional Liability Insurance

Insurance expert witness Jim Leatzow has been educating and insuring professionals about the risks to their businesses for twenty years. At his website he offers "Common Questions and Their Answers" to professionals in the green design industry, e.g. landscape architects, arborists, and irrigation designers:

Here's answers to a few of the most common questions people have regarding risk management for landscape architecture professionals in our FAQ section.

Why do I even need professional liability (E&O) insurance?
If your work products include designs, opinions, studies and similar information, you can only cover the risk/exposure from those work products with professional liability. General liability does not cover them and generally excludes them.

Why do I need to use a written contract?
If trouble arises even years later relating to a project in which you participated, you will need strong evidence to prove what your exact obligations were. A written contract with your customer's signature provides that evidence and is legally enforceable. Absent such a document, you have trouble proving what you were hired to do versus others on the project.


For more, see Leatzow Insurance.

January 19, 2009

Equipment Expert Witness On ABS Systems

In Truck/Tractor-trailer brakes and accident reconstruction,
equipment and machinery expert witness Robert R. Reed writes on ABS anti-lock brakes:

Large trucks and tractor-trailers with ABS anti-lock brakes involved in crashes and accidents have complex systems that must be identified and accounted for in reconstruction and causation issues. Misconception as to skid marks at scenes of crashes can be attributed to the truck/tractor-trailer involved by the police or the investigating agency. Upon investigation and inspection of truck/tractor-trailer it should be noted if the unit has ABS anti-lock brakes and if the system is working. This could change the investigation and reconstruction dramatically as to stopping distance and actions of trucks. ABS systems can apply and release the brakes 5 times a second to keep wheels from locking up and skidding. Numerous times skid marks are attributed to units that did not lock the brakes or skid the tires.

January 18, 2009

Insurance Expert Witness On Bad Faith

In Barry Zalma on Bad Faith: Time to Put A Stake Through the Heart of the Tort of Bad Faith, insurance expert witness Zalma writes:

After the creation of the tort of bad faith, if an insurer and insured disagreed on the application of the policy to the factual situation, damages were no longer limited to contract damages as in other commercial relationships. If the court found that the insurer was wrong it could be required to pay the contract amount AND damages for emotional distress, pain, suffering, punishment damages, attorney’s fees and any other damages the insured and the court could conceive. It was hoped that the tort of bad faith would have a salutary effect on the insurance industry and force insurers to treat their insureds fairly. However, claims for $40.00 wrongfully denied resulted in $5 million verdicts. Juries, unaware of the reason for and operation of insurance decided that insurers that did not pay claims were evil and that they wrote contracts so they never had to pay. They punished insurers severely even when the insurer’s conduct was correct and proper under the terms of its contract. The massive judgments were publicized and many insurers decided fighting its insureds in court was too expensive regardless of how correct its position was on the contract.

January 17, 2009

Medical Expert Witness On Medication Errors

In Preventable Medical Errors, medical expert witness Perry Hookman, M.D., writes that cancer outpatient medication errors may be more common than previously thought.

The increasing number of medications -- prescription and nonprescription -- used by older people has raised the potential for harm from serious drug interactions, doctors warn in a report published 12/24/08 in the Journal of the American Medical Association. In a survey of more than 3,000 adults 57 to 85 years old, more than half of respondents reported using 5 or more prescription medications, over-the-counter medications, or dietary supplements. Nearly 30 percent used at least 5 prescription medications. Four percent of respondents were using 1 of 11 drug combinations that put them at risk for a major adverse drug reaction because of an interaction between medications. Five of these combinations included nonprescription medications, including aspirin, niacin, garlic, and Ginkgo. Nearly half of these hazardous combinations involved the use of anticoagulants (warfarin) or antiplatelet agents (aspirin), raising the risk of bleeding.

January 16, 2009

International Law Expert Witness On Obama & Russia Part 2

In Obama and Russia, international law expert witness David Satter writes that finding a way to keep an aggressive Russia under control is "one of the most serious challenges facing President Obama." Satter, an expert witness on Russian politics, society and the Russian legal system, offers basic principles for dealing with Russia that can help cut the learning period short for an American president:

2. Don’t Assume Sincerity.

The Russian leaders defended the right of the Abkhaz and South Ossetians to secede from Georgia but leveled Grozny when it was a question of Chechnya trying to secede from Russia. They denounce the U.S. anti-ballistic missile system in Eastern Europe while facilitating the threat from Iran against which the systems are intended to defend. As for the passionate denunciations of Western encirclement, Russians understand that NATO membership for Georgia and Ukraine poses no military threat but they are loath to give their real reason for opposition which is that the example of democracy in former Soviet republics could inspire demands for democracy in Russia itself. For seven decades, the need to feign belief in Soviet ideology turned Russia into a nation of actors. President Obama should keep this in mind when confronted with Russian “outrage” over some aspect of Western behavior.

January 15, 2009

Insurance Expert Witness On Insurance Risk

Barry Zalma, insurance expert witness and Principal of Zalma Insurance Consultants, writes on insurance risk:


It is dangerous in most legal analyses to limit the conclusion to one factual issue. Underwriting insurance requires the analysis of multiple factual issues that can increase or decrease the potential for loss. The underwriter and the actuary want to cover those risks where the insurer can collect sufficient premiums to pay all losses that can be anticipated and to still have enough to make a profit for its stockholders. Insurers cannot allow hysteria over global warming to effect their decisions with regard to a particular risk. They must review all of the potential factors that can effect the risk so that a well run, well built structure, on land above sea level in New Orleans becomes a risk an insurer is willing to take for a reasonable premium while a home in Beverly Hills, well built on stable ground owned by a person who has suffered five fire losses in the last ten years and three theft losses in the last five years, becomes an unacceptable to a prudent underwriter.

January 14, 2009

International Law Expert Witness On Obama & Russia

In Obama and Russia, international law expert witness David Satter writes that finding a way to keep an aggressive Russia under control is "one of the most serious challenges facing President Obama." Satter reports that the Russian economy is unraveling and changes to the Russian Constitution are planned that will probably return Putin to office and make him president for life. Not only is Russia threatening to target American anti-missile installations in Eastern Europe but also to interfere with them electronically which Satter describes as "unquestionably the action of a hostile power."

Satter, an expert on Russian politics, society and the Russian legal system, offers basic principles for dealing with Russia that can help cut the learning period short for an American president:

1. Don’t Treat the Russian leader As a "Friend.”

U.S. policy toward Russia must be based on principles not personalities. It is not possible to “charm” Russian leaders into ignoring what they regard as Russia’s national interest and the attempt to do so at the expense of our principles will destroy our moral capital with the Russian people. Under Clinton, the emphasis on Yeltsin as the symbol of “democracy” led the U.S. to ignore and become complicit in the eyes of Russians in their country’s complete criminalization. Bush’s supposed friendship with Putin freed Putin to build an authoritarian regime and pursue a genocidal war in Chechnya without fear of U.S. political pressure or moral censure.

January 13, 2009

Automotive Experts On Electronic Stability Control

The Insurance Institute for Highway Safety, Consumer Reports, the federal government, and many other auto industry experts say electronic stability control is the most important auto safety innovation since seat belts. "Our recommendation to consumers is that you want to buy a vehicle with electronic stability control," said David Zuby, a vice president of the Insurance Institute. "It's a very effective way of reducing the risk of fatal crashes." 100 percent of vehicles must have it by 2012 which may prevent thousands of deaths each year. According to Insurance Institute research, half of fatalities occur in single-vehicle crashes, and 50 percent of those are preventable using ESC. MercuryNews.com writes:

The U.S. Department of Transportation, as well as the Insurance Institute, a nonprofit researcher funded by insurers, has done much of the research related to stability control. ESC will reduce single-vehicle fatal crash risk by 51 percent, and multiple-vehicle fatal crash risk by 20 percent for cars and SUVs, the institute says.

The technology is particularly useful on sport-utility vehicles, which tend to be top-heavy and more prone to rolling over. ESC reduces the risk of a fatal single-vehicle rollover in an SUV by 72 percent, according to the institute. About 10,000 Americans die each year in rollover accidents.

January 12, 2009

Forensic Psychiatry Expert Witness On Evaluating Litigants

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

With regard to causation, the forensic expert must always be on guard to not fall into the trap described so artfully more than 200 years ago by a great physician and man of letters, Samuel Johnson: “It is … physicians, I am afraid, beyond all other men, [who] mistake subsequence for consequence.” In other words, just because B follows A does not mean that A caused B.

In addition to reviewing medical (and sometimes military, employment and academic) records as well as legal documents such as the complaint and deposition transcripts, the forensic psychiatric evaluator examines the plaintiff himself, usually for several hours, inquiring about his personal, developmental, social, family, marital, medical, drug, educational, employment, academic and legal histories. This interview takes a long time because it takes a long time to hear someone’s life story; there are no shortcuts to extracting this kind of essential narrative.


January 11, 2009

Security Expert Witness On Security Standards

In SECURITY: By Design And Decree security expert witness Robert A. Gardner, CPP, writes on security ordinances:

To ensure that security and crime prevention considerations are included in new construction and remodeling projects, a growing number of city and county governments have adopted minimum security standards as part of their local building codes. Generally where these standards exist, they are subjected to the same inspection and review process as any other building code requirement. Compliance must be shown before building permits can be obtained or certificates of occupancy issued. Although these codes are primarily applicable during the design and construction process, many also place requirements and restrictions on the continuing use of buildings and property after construction. Building Security Codes can apply to all building types and most land uses.

While specific wording may vary somewhat among jurisdictions, the requirements of these codes are generally similar. One reason for this similarity is the fact that many jurisdictions have adopted security ordinances based on Model Building Security Codes such as the one developed by the California Crime Prevention Officers Association (CCPOA). This organization was an early proponent of "Crime Prevention Through Environmental Design" and Building Security Codes. It is a pioneer in the crime prevention field and has, through its members, been instrumental in the development of many of the crime prevention programs in use today.

January 10, 2009

Auditing Expert Witness Re: Professional Pitfalls Part 2

In Pitfalls for Attorneys, Business Managers and CPAs auditing expert witness Chris McConnell writes on steps to consider to insulate your professional practice:

* Identify potential fiduciary risk exposure areas in your practice
* Review E&O insurance for coverage or exclusions related to investment fiduciary activities
* Inform clients who act as trustees of fiduciary responsibilities and liability
* Alert clients of potential liability before they accept a trustee or board position on a non-profit
* Become familiar with federal and state laws concerning investment fiduciary standards of care:
o Uniform Prudent Investor Act (UPIA)
o ERISA
o Taft Hartley Act - Union or multi-employer pensions
o Uniform Management of Public Employee's Pension Systems Act (UMPERs)
o Uniform Prudent Management of Institutional Funds Act (UPMIFA)

"The majority of investment fiduciary compliance is controllable"

January 10, 2009

Professional Engineering Expert Witnesses & ISO 9000 Part 7

Professional engineering expert witnesses may opine on ISO 9000. Here is a summary of ISO9000 from the ISO9000 Council.

What is ISO 9001 Certification?

ISO 9001 certification is also known as ISO 9001 registration, ISO 9000 certification (if one is less precise), ISO 9000 registration, ISO 9001:2008 certification (if one specifically refers to the latest version of the ISO 9001 standard), or ISO 9001:2008 registration. All of these refer to an independent certification body attesting that your company’s ISO 9001 quality management system meets all requirements of the ISO 9001 2008 standard. Typically, the certification company sends one or more auditors to perform an initial audit of the quality management system. If no significant gaps to the ISO 9001 requirements are discovered, a certificate is issued. The certificate is typically valid for three years provided that period audits (usually every 6 - 12 months) continue to show compliance.

► Tip: Evaluate your registrar carefully with the goal of finding a registrar whose auditors are flexible (because there are countless ways of fulfilling the ISO 9001 requirements and some may fit better for an individual business) and whose auditors don't mind sharing their experiences (auditors are not allowed to consult but they are allowed to share what they have seen to work for other companies).

January 9, 2009

ADA Expert Witness On Capacity Part 3

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 witness writes:

The gold bullion standard of evidence based opinion for forensic psychiatric and psychological experts is the ballistics expert who can say with reasonable “ballistic certainty” that a particular shell was fired from a particular gun…or it wasn’t. Of course, arriving at such a definite conclusion is more difficult in the behavioral sciences. However, with careful assessment of all available evidence, doing so is not only possible – it is probable.

The evidence that a forensic psychiatrist sifts through consists of medical, psychiatric and psychological records from periods of time both prior to, during and after the period of time when the incident or circumstance that was alleged to have emotionally and/or neurocognitively damaged the plaintiff occurred. These records can be both difficult to obtain and extensive – but once obtained and reviewed they are usually highly revelatory. Sometimes it is also helpful to obtain childhood medical records, even when evaluating adult plaintiffs. These records may help answer the question of whether this particular plaintiff is a person, who as a result of earlier emotional trauma, was particularly fragile when the event in dispute purportedly caused him or her to be damaged; or in contrast, whether the plaintiff is a highly resilient individual? Alternatively, the plaintiff may have a chronic mental condition (like the neurological disorder, Multiple Sclerosis) with its own waxing and waning natural course that is relatively independent of external events. If so, it is likely that such a condition would have produced emotional symptoms following the disputed events, whether or not the incident was actually damaging or had even occurred?

January 8, 2009

Auditing Expert Witness Re: Professional Pitfalls

In Pitfalls for Attorneys, Business Managers and CPAs auditing expert witness Chris McConnell writes on pitfalls for attorneys, business managers and CPAs:

* Providing investment advice to clients whether or not you receive compensation
* Drawing the line between investment advice and legal, financial or tax advice
* Serving as trustee to accomodate a client who doesn't want heirs to know or be involved
* Recommending any investment, stockbroker, financial planner or insurance agent to a trustee then failing to monitor the situation, among other things; personnel turnover happens and compliance may erode.
* Receiving any remuneration or compensation for referrals, investments or insurance, etc.

January 7, 2009

Fire Expert Witness On The Fire Report

In Fire Investigation Reports: The Key to Writing a Quality Report fire expert witness and Principal of Pyrocop, Inc., Robert Rowe writes on the preparation of a fire report:

One of the most essential components of fire investigation is the writing of an accurate and comprehensive fire report. Although the writing styles of fire investigators may vary, as with any professional report, preparation is the essential first step.
The fire investigator must insure that all necessary information pertinent to the fire investigation has been collected and compiled before the report can be written. The material within the report must be arranged in a systematic order and that information not pertinent to the case is left out. Utilization of an outline will assist the fire investigator in ensuring that the report is in chronological order and easy to follow.

January 6, 2009

Mortgages Expert Witness On Loan Underwriting Part 4

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

Loan underwriting is performed by the mortgage banker’s underwriter who decides whether the loan will be consistent with governing loan program underwriting standards and, therefore, should or should not made by the mortgage banker. Also, the mortgage banker’s underwriter, where the PMI underwriting is delegated to the mortgage banker, decides whether the loan qualifies or does not qualify for PMI insurance. Based on at all the information gathered during the wholesale loan processing by the mortgage broker, the loan underwriter analyzes and considers these three areas of risks ─ collateral risk (loan-to-value), capacity risk (ability-to-repay/income) and character risk (credit, reputation).

Collateral risk is analyzed by reviewing the appraisal to ensure that all the criteria required by the appraisal standards are met. Second, the underwriter must address the liquidation value of the property if it should go into foreclosure. Third, the underwriter must address the marketability timeframe if the mortgage banker had to sell the property after foreclosure. After determining that the answers to these areas are satisfactory, the underwriter determines the appropriate loan-to-value (LTV) ratio for the collateral.

January 5, 2009

HVAC Expert Witness On Industry Guidelines Part 2

In General Issues For Attorneys In HVAC Cases, HVAC expert witness Russell M. Keeler writes on the important strengths to look for in an HVAC expert:

Years of HVAC design experience ( but not 5 years 5 times). Design experience should include varied project types, unless a specific project type is in question (i.e. Schools, hospitals, prisons, etc.) Even then, if the issue is generic, such as piping or water chillers, experience in the specific project type is not required.

Has the expert spent time performing troubleshooting work, or just new design? Troubleshooting exposes the expert to the “whys” of malfunctions, while those working only on new projects tend to repeat the same mistakes due to a lack of feedback.

Will the expert provide hands on research, or farm it out to subordinates.

Does the expert speak in jargon, or can he explain complex technical issues in laymanese.

Beware the expert who offers expertise over too wide a range. For example, an expert whose background and experience are in structural engineering should not offer electrical or geotechnical advice.


Reprinted with permission from Mr. Russell Keeler.

January 4, 2009

Mold Expert Witness On Moisture Damage

In How Projects Go Awry, mold expert witness Russell Keeler writes on mold and moisture damage:

Over the years, we have observed many cases of humidity gone wild, with the attendant formation of mold or other moisture damage. Condensation can be the result of actions by the various players in the construction process.

The designer
• A design that does not provide for humidity control.
• Incomplete design documents.
• Incorrect temperature control sequence.
• Shoddy review of shop drawings.
• Failure to verify operation of the system in the field.

The contractor
• Substitutions based on price, not function.
• Poor workmanship.
• Misunderstanding of contract document intent.
• Inadequate due diligence of vendor product submittals.

The vendor
• Misunderstanding of contract document requirements.
• Yielding to contractor/owner pressure on price.
• Failure to advise on implications of alternate product submittal.


January 3, 2009

HVAC Expert Witness On Industry Guidelines Part 1

In General Issues For Attorneys In HVAC Cases, HVAC expert witness Russell M. Keeler writes on guidelines that have emerged in his industry:

Over the past 50 years, heating and cooling design has progressed from a craftsman/apprentice trade to a pursuit solidly grounded in scientific principles. The authoritative body for this fund of knowledge is the American Society of Heating, Refrigerating and Air Conditioning Engineers, Inc. (ASHRAE).

ASHRAE funds extensive research into thermodynamics, heat transfer, the mechanics of building heat gain and loss and refrigeration. As processes become understood, the findings are published in the ASHRAE Handbook, a four volume compendium that is updated with new findings, one volume per year. ASHRAE also publishes standards for safety and testing of equipment. ASHRAE is the defining authority for heating, cooling and refrigeration.
Nevertheless, an engineer cannot design an HVAC system by merely studying the ASHRAE Handbook. The Handbook is written with the assumption that the reader has a general understanding of HVAC systems, including piping, ductwork, mechanical room layouts as well as a general understanding of architecture, structural and electrical engineering, specification methodology, and construction techniques.

Over the years of participating in disputes, I have faced various experts on the other side. In reality, the most formidable expert is generally the old pro (especially one with troubleshooting and systems diagnostic experience) who has seen it all (or at least most of it).


Reprinted with permission from Mr. Russell Keeler.

January 2, 2009

Homeowner's Insurance Expert Witness On Slide

Dave and Kathei Hendrickson have filed suit against Farmers Insurance Company of Oregon for denying them coverage when their four-level home cascaded down a hill into two other houses on Oct. 8. The Hendricksons allege in the $2 million complaint filed Dec. 10 in Multnomah County Circuit Court that Farmers has been “calculatingly malicious” in its refusal to pay for any damage resulting from the landslide.

According to homeowner's insurance expert witnesses, “earth movement” is not typically covered by homeowner’s insurance and requires a rare extra policy. The Hendricksons claim in their suit that a Farmers Insurance agent told them when they bought a “Protector Plus Homeowners Package” that it would cover all eventualities, including earth movement.
For more see SWComConnection.