February 28, 2009

Security Expert Witness On Site Security Planning Part 4

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. write on security layering: the Onion Philosophy:

The first layer is the outside skin of the onion which translates to the site perimeter of the
property. The building skin of the architecture is the next layer. Sensitive areas within a
building are deeper layers requiring protection, and finally special persons,
information, or property may require point protection or the center of the onion. The
site perimeter is the first, not last, line of defense. The State Department seeks setbacks
of at least 100 feet for new buildings and even that distance is difficult to obtain in
most urban settings. While most perimeter fences and walls are designed to
discourage intruders, they are of little use against a determined person or bomb
vehicle.
Designs are now available for vehicle-stopping capabilities. The building skin is the next
layer of protection. It is possible but never easy or inexpensive to minimize openings,
orient them away from the perimeter, raise them above the ground, and provide
windows, doors, grilles, and other devices that resist ballistic weapons, explosives, and
forced entry all the while trying to retain a sense of openness, operable sashes,
unobstructed views, and adequate natural lighting. The next layer is the interior space
planning security. The most sensitive areas should be located high and away from
exterior zones. Thought must be given to the use of spaces behind or near windows.

February 27, 2009

Insurance Fraud Expert Witness On Vehicle Arson

In 8 & 15 Years Jail for Auto Arson in Idaho, Insurance fraud expert witness Barry Zalma writes:

On January 21, 2009, the Idaho Department of Insurance reported that Spencer Jay Maschek and Patrick Anthony Morrissey, 23 were convicted of arson to their vehicles. In February, 2008, Jerome County Sheriff's Department found a burning vehicle belonging to Maschek. Maschek subsequently filed a claim with his insurance company. Farm Bureau Insurance contacted the Department of Insurance about the suspicious nature of the claim. Twin Falls Police Department discovered that Maschek had asked Morrissey to set the vehicle on fire. Department of Insurance Investigator Jan Heinz gathered information and assisted Twin Falls County Sheriff's Department and Farm Bureau Insurance in the investigation. Arson and Conspiracy to Commit Arson are felonies punishable by up to 25 years in prison and a $100,000.00 fine.

Morrissey was found guilty of two felony charges, Conspiracy to Commit Arson in the First Degree and Arson in the First Degree. He was sentenced August 5, 2008, to 15 years, five years fixed, for each crime. The sentences will run consecutively. Morrissey was also ordered to pay restitution. Maschek pleaded guilty to Conspiracy to Commit First Degree Arson, a felony. He was
sentenced January 12, 2009, to eight years in jail.

February 26, 2009

Security Expert Witness On Site Security Planning Part 3

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. describe design criteria:

Threat: Tactics; weapons, explosives, tools
Assets
Levels of protection
Constraints
The result of the assessment will be a set of recommended countermeasures that may
be priced and presented to the owner in a priority order so selections may be made of
those recommendations that are prudent and cost effective. In the case of the
government standards, the assessment results in the assignment of a defined Level of
Protection (LOP) with specified countermeasures. When the LOP is defined, the
specified countermeasures are priced and again the owner may select appropriate
measures depending on a prudent level of protection and the cost effectiveness of
the measure.

February 25, 2009

Insurance Expert Witness On Ethics & Fraud Investigation Part 2

In Ethics & Fraud Investigation insurance expert witness Barry Zalma writes:

Ethical underwriters and claims persons should not use technicalities to reach a decision on a policy or a loss. Rather, the ethical underwriter or claims person must apply the facts to the issue raised and provide the indemnity promised. Similarly, the insured must also clearly, fairly, and completely advise the underwriter of all of the facts known, or that he should know, that would be material to the decision of the insurer to accept or reject the risk. The California Court of Appeal explained the situation as follows:

An insurance company is entitled to determine for itself what risks it will accept, and therefore to know all the facts relative to the applicant's physical condition. It has the unquestioned right to select those whom it will insure and to rely upon him who would be insured for such information as it desires as a basis for its determination to the end that a wise discrimination may be exercised in selecting its risks. (Emphasis added) [Robinson v. Occidental Life Ins. Co. (1955) 131 Cal. App. 2d 581, 586 [281 P.2d 39].]

February 24, 2009

Security Expert Witness On Site Security Planning #2

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA. and Anthony DiGreggario of Atlas Safety & Security Design, Inc. write on the assessment process.

Achieving the correct level of protection against site-based threats may be very
expensive and is highly dependent on the nature of the protected assets and the
threat against which they require protection. Determining what is required is a matter
of managing the perceived risks. If the designer is to assist in providing protection in the
design of the site, an assessment of the security requirements must be accomplished
preferably before the design begins, but certainly no later than the beginning of the
architectural programming phase. This assessment is the responsibility of the owner;
however, it is incumbent on the designer to assure that the nature of the security
requirements is determined before the design begins. Failing to obtain a definitive
answer will certainly result in design changes, delays, and cost increases to the owner
and the architect if the owner "discovers" their security needs later in the design
process.
The site assessment will answer the following four questions:
What are the assets (persons, places, information, property) that require security
protection?
What are the criminal or other threats ( street crime, workplace violence,
terrorism, sabotage) against which the assets must be protected?
What are the ruinerabilities of the assets to the threats (for example, if workplace
violence is a threat, can uncontrolled persons enter private workspace
unchallenged)?
What are the countermeasures (for example, does the design channel visitors
through controlled site access portals) required to mitigate the threat?

February 23, 2009

Insurance Expert Witness On Ethics & Fraud Investigation

In Ethics & Fraud Investigation insurance expert witness Barry Zalma writes:

Ethics is a process of systematically applying, using, defending and recommending concepts of right and wrong behavior. Ethical behavior is required of both parties to a contract of insurance for the system to work. Ethics is the essence of insurance. Insurance was created to spread risk from individuals to multitudes. Spreading the risk in a fair, ethical and honorable manner from one person to many is the basis upon which a system of insurance was founded. The insurance contract since modern insurance was first created was founded on the concept of Uberrimae Fidei. The phrase is used to express the principle that a contract must be made in perfect good faith, concealing nothing. In the case of insurance both the insured and the insurer must observe the most perfect good faith towards each other. Insurers and reinsurers are dependent on:

utmost good faith [which] may be viewed as a
legal rule but also as a tradition honored by
ceding insurers and reinsurers in their ongoing
commercial relationships. [Unigard Security
Insurance Co. v. North River Insurance Co., 4
F.3d 1049 (2nd Cir. 09/09/1993)]

February 22, 2009

Security Expert Witness On Site Security Planning

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. start with a "Statement of the Problem."

While architects have to design buildings that are fire resistant and be accessible to persons with disabilities, they don't have to make buildings resistant to crime. Designing
for fire resistance and accessibility means complying with building codes and industry
standards. The purpose of building codes around the United States is the protection of the health, safety, and welfare of the building occupants. Thus, architects and designers need to design for the safety and security of the users of the environment. The architects of the future must design against threats of criminal behavior, workplace violence, and acts of terrorism as part of their commitment to designing buildings that protect the building users.

The first contact a person has with a particular architectural project is accessing the site to gain entry to a property or building. With the increasing threats to persons and property, from acts of terrorism, workplace violence, and street crime, the first and most important line of defense is securing the site perimeter and the careful placement of the building/s on the given site.

Architects design buildings that serve a particular function for the users and clients of a
building and hopefully do it in a pleasing aesthetic manner. But also important in
fulfilling this task, this design should protect that user, ensuring their safety and security
in the environment. The main guardian of health and safety for building designs are
building codes, but these only address architectural features, such as egress design,
fire safety, structural integrity, stair proportions, and railing design while ignoring the
considerations of crime or terrorism. As safety is a prime consideration of building
codes, security of the site and of building users should be considered a high priority.

February 21, 2009

Insurance Expert Witness On Premium Increases

In Barry Zalma on Whether Premium Increases Are Due to Weather Changes, insurance expert witness Zalma writes:
“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.”

February 20, 2009

Accident Reconstruction Expert Witness On Diving Injuries Part 2

Accident investigation expert witness Steven Barsky is Principal of Marine Marketing and Consulting, a consulting business for the diving and marine-related industries. In Analysis of a Diving Accident: Death of a Diver, the expert witness writes on lessons to be learned for diving companies:

During his deposition, the head of the diving company admitted that although his company was a member of the ADCI, he had only joined the association to obtain the insurance and believed that Consensus Standards were not something that applied to his operations. Unfortunately, he learned that these are the standards your company will be held to as a commercial diving contractor.

Never modify diving equipment that you have purchased from a manufacturer. Once a piece of gear is modified, the liability for that equipment becomes your responsibility. If you think there is a problem with a piece of gear and it needs modification, consult the manufacturer and get their response in writing before making any changes.

Always be sure that the people you employ are qualified graduates of a recognized commercial diver training program. The days of hiring people out of bars or with only sport diving experience are far behind us.


For more see Marine Marketing & Consulting

February 19, 2009

Fire Expert Witness On Fire Codes

In Fire Experts and the Fire Code, fire expert witness Robert Rowe, Pyrocop, Inc., writes:

Fire codes are written by dedicated and knowledgeable fire experts who have, at one time or another during their fire service career have witnessed serious injury or the loss of life and property. So why does the U.S., the most powerful and technologically advanced nation in the world, still experience fire injuries, fire fatalities and pay out billions of dollars in insurance claims each year?

According to the 2007 fire statistics published by the National Fire Protection Association, U.S. fire departments responded to an estimated 1,557,500 fires. These fires resulted in 3,430 civilian fire fatalities, 17,675 civilian fire injuries and an estimated $14,639,000,000 in direct property loss. A civilian fire death occurred every 153 minutes and a civilian fire injury every 30 minutes. Home fires contributed 2,865, or 84%, of the civilian fire deaths.

If we as a nation took the time to truly understand and seriously consider the provisions of the fire code, without question, there would be a significant drop in the above statistics.

February 18, 2009

Accident Reconstruction Expert Witness On Diving Injuries

Accident investigation expert witness Steven Barsky is Principal of Marine Marketing and Consulting, a consulting business for the diving and marine-related industries. In Analysis of a Diving Accident: Death of a Diver, the expert witness writes:

Nothing is more tragic than the death or serious injury of a diver, especially when the accident could have been easily prevented. In most diving accident cases where I have consulted, there are usually multiple mistakes made by both the diver and the dive team... There are two important lessons to be learned by divers... First, and foremost, if the company you are working for does not adhere to all aspects of the ADCI Consensus Standards, you need to tactfully point out any deficiencies in their work practices and strive to get them corrected. If the company blatantly disregards the ADCI Consensus Standards and refuses to revise their practices, then you need to look for another place to work. With the shortage of divers today, nobody should have to put up with a company that does not follow safe practices.

Hand-in hand with the previous recommendation is to always wear a bail-out bottle. There is no good reason for every diver not to be equipped with a bail-out bottle. The expense is minimal, and a bottle will rarely if ever impede your work. Yes, there is a possibility that a bail-out bottle could cause you to become entangled with lines or net in certain environments, but the benefits far outweigh the risks.


For more see Marine Marketing & Consulting

February 17, 2009

Fire Expert Witness On Planning a Fire Investigation

In Planning a Fire Investigation, fire expert witness and Principal of Pyrocop Inc., Robert Rowe writes:

Whether you are a seasoned fire expert or just getting into the business, the need to properly plan your fire investigation is critical to its outcome. As quoted by Benjamin Franklin, commonly referred to as the “father of the fire service”, “By failing to prepare, you are preparing to fail.”

As a Fire expert, one must always carefully consider their resources prior to the commencement of his or her investigation and plan accordingly. Factors effecting the planning of a fire investigation may include but are not limited to, the complexity of the fire, size of the fire scene, cost associated with performing a thorough investigation and the need for additional assistance or other experts.

Once the fire expert has identified the resources needed to conduct the fire investigation, he or she must then identify the required tasks that must be performed, such as fire scene photography, documentation, evidence collection and witness interviews. Once the fire expert has a clear understanding of the incident dynamics, available resources and a list of tasks that need to be performed, it is so much easier to focus on the details of the fire investigation.


February 16, 2009

Forensic Psychiatry Expert Witness On Forensic Evaluations

Forensic psychiatry expert witness Dr. Roy Lubit is board certified in forensic psychiatry, child psychiatry and general psychiatry. He writes this on forensic evaluations:

Critiquing adverse forensic evaluations is a special art. It is inadequate to simply produce a competing evaluation, so that there is now one on each side. Key weaknesses in many reports include the expert simultaneously making speculative comments and ignoring important material that was available which contradicted their conclusions. I have even seen evaluators ignore the significance of data they reported in the body of their report. Other common problems include failing to access available information and simply accepting a litigants’ presentation of their histories as true.

Adverse expert reports can often be destroyed by carefully showing that the report’s conclusions are simply speculations supported by cherry picking of the data, and that a full consideration of the available information demonstrates that other hypotheses are more likely to be correct. This technique has even be successful when I was hired by one side to critique the report of a neutral evaluator.

February 15, 2009

Securities Expert Witness On Fiduciary Duty

In Madoff Investor Alerts, securities expert witness Chris McConnell, AIFA, writes on fiduciary duty:

Breach of Fiduciary Duty (BFD) is pervasive in today’s volatile financial environment, primarily due to two elements: 1) investment pros have not been properly trained, if at all, in the standards of fiduciary responsibility, and 2) some are allowed to operate “under the radar” as “investment professionals” without proper credentials or licensing. Particularly troubling, the elderly, women and charities are often the targets of fraud and scams. Cultural and religious affinity scams, similar to Madoff’s targeting of Jewish charitable groups and donors, are on the rise due to feeder fund agents’ infiltration into social, religious and philanthropic causes; often with ulterior motives.

BFD (Breach of fiduciary duty) is often the root cause of investor’s losses “Any asset, at any time, in any type of account, at any financial institution, may become subject to fiduciary duty standards, including real estate, securities, futures, insurance policies (life and annuity), intellectual property; or even closely-held businesses and partnerships.”

February 14, 2009

Medical Expert Witnesses On Autism

A U.S. court has ruled that a vaccination for certain childhood diseases is not linked to autism, as claimed by parents of children who suffer from the brain disorder. The ruling Thursday is a blow to at least 4,800 families who have filed similar claims and are seeking compensation through the government's "Vaccine Injury Compensation Program." VOA.com also reports:

The special court in Washington ruled Thursday against the parents of three children, saying the families had failed to prove their claims. In his decision, the special master, George L. Hastings Jr., ruled that the government’s medical expert witnesses were “far better qualified, far more experienced and far more persuasive” than the Cedillos’. Although the family had to show only that the preponderance of evidence was on their side, Mr. Hastings ruled that the evidence was “overwhelmingly contrary” to their argument.

February 13, 2009

Statistics Expert Witness & Gambling Trial

Mike Sexton, host of the "World Poker Tour" and a 30-year poker pro, will be called as a gambling expert witness in the illegal gambling trial of five players busted during the police raid of a home tournament three years ago. Sexton, of Las Vegas, will contend that their chosen game of Texas Hold 'em relies more on skill to win than on illegal gambling chance, which is at the heart of the players' defense. Sexton has a long resume in the poker world, helping to coordinate corporate endorsements and sponsorships behind broadcast poker tournaments. "The success of the World Poker Tour can largely be chalked up to his credit," according to the Poker Listings Web site.

Also scheduled to testify is Robert Hannum, a statistics expert witness and professor at the University of Denver. Both men recently gave affidavits, filed this week at Mount Pleasant's Municipal Court, defending the merits of Texas Hold 'em and the need for skill in mathematics, money management, bluffing, card play and reading an opponent to be successful.

Excerpted from Charleston.net.

February 12, 2009

Medical Expert Witness On Clinical Standards

In Clinical Standards in Medicine medical expert witness Barry E. Gustin, MD, MPH, FAAEM, writes:

Medical negligence litigators seek to establish which clinical standards are pertinent to their case, define what these clinical standards are, and then set out to demonstrate how the clinical standards were not followed.

Historically, from the physicians' point of view, the issue of "clinical standards" has evoked much apprehension and concern. Physicians claim, and with some fervor, that creating specific standards of care can not be done because each patient is unique, the variables are often myriad and complex, and the deductive reasoning and creative process which leads to a successful diagnosis and treatment would be hindered. They further argue that clinical standards will ultimately increase physicians' liability exposure and thus will do more harm than good.

In spite of this, during the past four to five years the interest level has continually increased throughout the health care system in pursuing the development of standards of care and several dozen specialty boards are now actively involved in standards development. In the final analysis, carefully written standards may actually help physicians control and limit their liability risks. The current lack of formal standards introduces into malpractice actions a definite unpredictability. Formal standards, by contrast, define a set of expectations that are known in advance of a patient's evaluation. Compare this with the present situation in which each side supports or condemns the level of patient care in a retrospective manner.

February 11, 2009

Electronic Discovery Expert Witness On Deleted Email

In Challenges in Recovering Deleted Email, electronic discovery expert witness Steve Burgess writes:

Both computer forensics experts and data recovery technicians seek to recover deleted data. Data recovery is primarily interested in bringing back files, while computer forensics tends to dig deeper, looking not just for deleted documents, but also for metadata (data about data – such as file attributes, descriptions, dates, and other information) and meaningful snippets of unrecoverable files. One area of particular interest is email.

When most documents are written to a computer’s hard disk, each newly created document has its own directory entry (what the user sees as a listing in a folder). If a file has been deleted, but has not been overwritten by another document, the recovery process is a relatively trivial part of e-discovery or of data recovery. But when the data of interest is from deleted email, the discovery process is likely to differ significantly from that of data recovery. Individual emails are stored differently than individual files. Different types of email programs store data differently on the user’s hard disk and require different schemes for finding useful information. As a result, the deletion of emails and recovering of deleted emails differs not only from that for other types of documents, but also between different types of email programs.

February 9, 2009

Equipment Expert Witness On ABS Systems Part 3

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

The importance of checking proper operation of the ABS system is that some fleets do not have in house maintenance that can diagnose and repair systems and over the road trucking companies tend to not take trucks/trailers out of service for repair for ABS light that stays on. Bulbs or fuses sometimes disappear from the dash warning light and system. Some veteran drivers remember the late 1970's and don't care for ABS because they think they have more skill in braking than ABS. This is not true as the new ABS systems have proven there reliability. Trucks/trailers with ABS problems will revert back to regular braking if any faults exist and the wheel or axle with a problem can skid. This can change or explain a stray skid mark that shows up at a scene. Other problems can develop with ABS with maintenance or lack thereof ABS wheel sensors, wiring, or exciter tone rings can be damaged and cause faults. Some fleets will avoid the costs as the truck still has regular brakes. Most normal stops by trucks/trailers do not involve ABS functions as ABS only releases the brake when skids/lock-up situations are detected but emergency/panic stops involving crash situations need the ABS functions to stop sooner or maneuver. If you encounter the unusual check for proper ABS functions.

February 8, 2009

Forensic Psychiatry Expert Witness On Evaluating Litigants 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 forensic psychiatry expert witness writes:

Psychological and Neuropsychological testing provides an objective means of sorting out how much embellishment or minimization of symptoms may exist. From a psychological perspective, there is always a concern in personal injury litigation and criminal litigation as to the extent one may be exaggerating their symptoms. In divorce and custody proceedings, the opposite may be true. Whenever brain injury is at issue, there may be motivational issues that are difficult to for the plaintiff to overcome and for the examiner to assess...
A competent psychologist has to try to sort these issues out. How much is the underlying personality structure affecting the symptom presentation? How much (or little) of a brain injury has really occurred?

In civil litigation the administration of reliable and valid “self-report” personality tests such as the Minnesota Multiphasic Personality Inventory – 2 (MMPI-2) and/or Personality Assessment Inventory (PAI) and the Rorschach Inkblot Test (Rorschach) is the best way to find out what is going on. Testing is in fact an attempt to answer a “membership” question: to which group of independently diagnosed individuals in the data base does the examinee belong, based upon his pattern of test responses?

February 7, 2009

Equipment Expert Witness On ABS Systems Part 2

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

Compatibility is also an issue as older trucks pull newer trailers and newer trucks pull older trailers. This creates different issues for reconstruction. Load conditions, total weight, weather, environment, road and tire conditions, brake system maintenance, adjustment, capacity and capabilities must also be considered. These issues can produce conflicting data, cloud issues and render unfair judgments on the drivers/vehicles involved. Remember that since March 1999 trucks and buses with hydraulic brakes are ABS equipped and trucks with air brakes have ABS after March 1997 and air brake trailers have ABS after March 1, 1998. These are manufacture dates of the vehicles. Analyze all data carefully, identify systems properly to understand actions of the vehicles involved in the crash.

February 6, 2009

Fire Expert Witness On Spoliation of Evidence Part 3

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

Defendant had since inspected evidence removed from the fire scene, the Defendant was unable to inspect the scene it its original position and urged three possible sanctions applicable to this situation: dismissal, exclusion of Plaintiff’s experts, and an adverse jury instruction. The court granted the Defendant’s Spoliation Motion and the matter was dismissed with prejudice.

What can one do as a fire expert to prevent “spoliation” from occurring? The first priority of every fire expert is to conduct their investigation so as to minimize the loss or destruction of evidence and minimize allegations of spoliation. Prior to touching or moving anything, make sure the evidence is carefully photographed and documented. If the evidence must be moved, as is sometimes required to complete an investigation or to protect the evidence from further damage or theft, it is vital that the evidence is properly packaged, labeled and stored in a secure and controlled location.

Fire experts should always consult with their client regarding the handling of evidence discovered at a fire scene. Additional guidance regarding notification can be found in ASTM (American Standards for Testing and Materials) E 860.

February 5, 2009

Objections To Expert Witness Testimony Part 4

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.

4. Grounds

How should an objection be made? To be effective, an objection cannot be vague or unclear. Although Maryland Rule 2-415(g) states that the grounds for an objection “need not be given unless requested by a party,” this language presents a trap. If counsel objects to a deposition question that can be immediately cured, the lawyer must state the grounds to avoid waiving it. The objecting attorney must give enough detail to “provide the questioner with the opportunity to obviate the mistake while the deposition is taking place.” (See Davis, 117 Md. App. at 403-04.) This protocol affords the party taking the deposition the chance to re-word the question and cure any problems in it.

Objecting attorneys should be careful not to say too much, however. So-called speaking objections are improper under both the Maryland Rules and Federal Rules of Civil Procedure. When an attorney in a deposition objects, he or she must state the objection concisely, in a non-argumentative and non-suggestive manner.

February 4, 2009

Fire Expert Witness On Spoliation of Evidence Part 2

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

In a subrogation action filed by a prominent insurance company (plaintiff) for damages it paid to its insured’s as the result of a fire that occurred in the laundry room of the insured’s residence, Plaintiff claimed the fire was caused by an exhaust fan manufactured by Defendant.

The fire expert retained by the insurance company to conduct the initial investigation returned to the scene with a forensic electrical expert to analyze the electrical appliances, components, and wiring at the residence. Once the inspection was complete, the Plaintiff advised the home owner that they could begin repairs to the fire scene.

The Plaintiff then referred the insurance claim to its subrogation unit with the intent to pursue recovery against the Defendant and faxed the Defendant a letter a notifying the Defendent of the fire and Plaintiff’s belief that the Defendant’s fan was a cause of loss and offered the Defendant an opportunity to inspect the fire scene prior to repairs. By that point, however, repairs had already begun and the fire scene had not been preserved.

February 3, 2009

Objections To Expert Witness Testimony Part 3

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.

3. Privilege

If the deposing attorney asks a question that invades a witness’s privilege, such as the attorney-client privilege, the opposing attorney may instruct the witness not to answer. Maryland Discovery Guideline 6 states that where an attorney asserts a claim of privilege at a deposition, the attorney “shall identify during the deposition the nature of the privilege (including work product) which is being claimed” and shall provide certain information about the allegedly privileged communication, including the date and general subject matter of the communication.

February 2, 2009

Medical Expert Witness On Medication Errors Part 4

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

During congressional hearings in 2004 that unleashed a torrent of this type of coverage, a safety officer for the Food and Drug Administration (FDA), David Graham, singled out five drugs on the market whose safety should be "seriously looked at. Some newspaper reports the next day featured graphic spreads on the "Five Most Dangerous Drugs" — the acne drug isotretinoin, the weight-loss drug sibutramine, the cyclooxygenase-2 inhibitor valdecoxib, the lipid-lowering drug rosuvastatin, and the asthma drug salmeterol. Four years later, all but one of these drugs (valdecoxib) are still on the market, although black-box warnings were strengthened or added for most and a new safety-oriented distribution system was created for isotretinoin.

Few news reports at the time noted that Graham's list was just that — his own personal list of worrisome drugs, not the FDA's or anyone else's. Web sites such as Public Citizen's WorstPills.org feature literally hundreds of concerns about dozens of drugs. But, we all know that almost no drug on the market is without risk.

February 1, 2009

Objections To Expert Witness Testimony Part 2

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.

2. Incurable Defects

Many substantive objections cannot be resolved by a simple rephrasing. If an attorney asks about irrelevant matters, the questions will usually be objectionable no matter how the attorney poses them. For such an “incurable” defect, a timely objection is not necessary under Maryland Rule 2-415(g).

Where the interrogating lawyer asks a question that contains a substantive, “incurable” defect, opposing counsel can raise the objection when the deposition testimony is offered at trial, or as an exhibit to a motion. Might there be advantages of waiting until trial to raise objections? In some instances, yes. If the objection cuts to the heart of the adversary’s case, lodging it at trial could help diminish the opposing counsel’s courtroom ethos.