March 31, 2009

Trademark Expert Witness On Branding Part 2

Trademark expert witness William D. Neal is Senior Executive Officer at SDR Consulting and in Modeling Brand Equity, he writes on branding:

Consumers may also see a particular brand name as a contract. A brand's name may reduce consumers' sense of uncertainty, allowing them to purchase uncertainty reduction, or trust, thus improving their sense of value.

Promotion of a brand can address either price, tangible brand attributes or intrinsic brand attributes (equities). Brand equity is communicated using consistent visual cues and consistent messages, allowing the consumer to quickly and efficiently distinguish between brands and their intrinsic product attributes. As a purchaser considers the tangible product features in concert with brand equity (and price), they arrive at a set of products in a category which they will consider for purchase (i.e. their consideration set). Thus, a brand's equity is somewhat dependent on effective communications to the target market(s) and brand equity can often be improved to some extent with improved effectiveness of communications. However, communications alone cannot overcome a reputation for poor product quality, social irresponsibility, a lack of trust, and so on.

March 30, 2009

Property Management Expert Witness On Resident Screening

Property management expert witness Ann E. Reisch, CPM, CCIM, RPA is Principal of Reisch Consulting Group, Inc. in Central Florida. Also a member of the Industry Standards Advisory Board for the Institute of Real Estate Management, here she writes on resident screening during the leasing process.

Nothing is more devastating to a landlord than to learn that someone was seriously injured or killed on their property. What makes it tragic is to learn that the person responsible was one of their tenants. One of the biggest mistakes a landlord can make is to improperly screen prospective residents during the leasing process. While credit checks, employment verification and reference checking is often done, the most frequent omission landlords make is the failure to check a person’s criminal history.

The safety of residents is paramount. Protecting the property itself is also essential. By obtaining a person’s criminal history before they move in, individuals with prior convictions for violent crimes, sexual assault or other egregious offenses can be identified and rejected for occupancy. When considering that the cost of obtaining this information is typically paid for by the applicant, there is no justifiable reason to skip this important step when leasing property.

March 29, 2009

Attacking Independent Medical Examination Expert Witnesses Part 3

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert, attorney Anthony Colleluori writes on what he calls "the lack of attack on prosecution experts" in criminal trials that involve IME expert witnesses and police personnel.

B. What kind of expert do we need? Consultants v. Testimonial experts.

This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct. First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts. Why not let him testify?

Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)

I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well. Why? Because he or she will have inside dirt I can toss at the other side's expert.

In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.

Excerpted from Long Island (Criminal) Trial Law.

March 28, 2009

Trademark Expert Witness On Branding

Trademark expert witness William D. Neal is Senior Executive Officer at SDR Consulting and in Modeling Brand Equity, he writes on branding:

The measurement and management of brand equity has become a major issue for marketers and marketing researchers over the last several years. The concept of brand equity goes well beyond the legal concept of a trademark or the accounting concept of goodwill. Brand equity encompasses a gestalt of intrinsic values, or equities, that adds to the tangible, measurable benefits delivered by a particular product or service. These intrinsic equities may include such things as the image imparted to the purchaser, advertising quality, advertising quantity, trust, long term reputation for reliability, customer support, social responsibility, and so forth.

As an example, two unbranded home breadmakers may deliver the exact same set of features in terms of capacity, warranty, ease of use, display, color alternatives, and price. As long as these two breadmakers remain unbranded, they will be undifferentiated and therefore equivalent to the purchaser. But, if we label one of those breadmakers, say, an Acme and the other Braun, most purchasers will attribute additional, intrinsic, value to the Braun product. The two branded breadmakers are no longer undifferentiated and, to most consumers, the Braun breadmaker has more value. Most purchasers associate the Braun brand name with the intrinsic values of quality, durability, reliability, trust, and an image with which they want to be associated.

In the marketplace, this concept of brand equity allows Braun to charge a price premium over Acme. That price differential allows Braun to reinforce their brand equity through improved product quality, higher levels of customer service, investments in socially responsible programs, and more effective promotion.

March 27, 2009

Attacking Independent Medical Examination Expert Witnesses Part 2

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert, attorney Anthony Colleluori writes on what he calls "the lack of attack on prosecution experts" in criminal trials that involve IME expert witnesses and police personnel.

I. Preparing the attack.

A. Frye or Daubert?

The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony. Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.

Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).

Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.

Excerpted from Long Island (Criminal) Trial Law.

March 26, 2009

Discrimination Expert Witness On Wal-Mart Case

the Ninth Circuit Court of Appeals in San Francisco is deciding whether millions of women who work at Wal-Mart or are former employees can join a class action sex-discrimination lawsuit against the chain. Plaintiff's attorney Brad Seligman says that discrimination was "a system-wide process" at Wal-Mart's 3,400 stores and that their sexual discrimination expert witness found that "in every one of 41 regions, women got paid less than men" by an average of a couple of thousand dollars a year. As a class action it would be the largest civil rights suit in US history. Seligman wants to see all the women compensated and the company change its practices.

Excerpted from SFGate.com.

March 25, 2009

Attacking Independent Medical Examination Expert Witnesses

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert., attorney Anthony Colleluori writes on what he calls "the lack of attack on prosecution experts" in criminal trials that involve IME expert witnesses and police personnel.

Expert witnesses in criminal trials are often members of police forces and Medical Examiner's offices. The County or State spends a lot of money to train these folks and they go to classes and they attend seminars. They have been on the job (especially in the police detective's case) They have been on the job...for many years and often personally know the judges they appear before. They also have been found to be experts in dozens of other cases before the one you're trying so that their being named an expert now is a forgone conclusion. I have watched as they routinely are offered up as experts with nary a sound toward their preclusion as an expert. Why are we defense lawyers giving these people a free ride? I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:

1. They almost always get named as experts so we don't bother to try to keep their testimony out.
2. We often expect their testimony, and so we build it into our case.
3. We do not have the tools available to us to get the background and to do a proper Voir Dire.

As noted scientist, author, and attorney Gil Safir writes, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion.

Excerpted from Long Island (Criminal) Trial Law.

March 24, 2009

Insurance Expert On Health Care Costs

The Coalition for Affordable Health Care was in Pittsfield, MA, Friday to talk to the public and business owners about their coverage. Health New England President & CEO Peter Straley told them that a lot needs to change and the best way to get coverage costs under control is to take better care of ourselves. Our health should also include more conservative care. Too often, Straley says, doctors order more tests than are needed. "MRIs, CTs...these are exceptionally expensive, exceptionally important diagnostic tools, but we use them too much," said Straley.

One local insurance expert says another way to rein in health care costs is to shop around. "As frustrated as employers are, they are having more options and they are taking advantage of the marketplace forces," said True North Financial Services insurance broker Holly Taylor.

March 23, 2009

Pulmonary Medicine Expert Witness On Difficult Airways Part 2

Pulmonary medicine expert witness Kathleen S. Adams, RCP, RRT-NPS, is an instructor and owner of Packmule Education & Consulting Services in Southern California. Also the president-elect of the California Society for Respiratory Care, here she writes on difficult airways.

Difficulty or inability to perform adequate bag-mask ventilation can be predictable in some patients, such as those with obvious facial trauma or beards that may interfere with obtaining an adequate seal. There are more subtle challenges—such as obstruction by the tongue, either by falling back or by swelling; airway edema or spasm; or blockage due to foreign body.

Difficult tracheal intubation can be related to the inability to visualize the glottic opening or those procedures requiring multiple and/or unsuccessful attempts to place the endotracheal tube. Reasons for these are many, including, but not limited to, upper airway edema, trauma, airway anomalies, obesity, limited neck mobility, or limited opening of the mouth. This could also be related to a lack of skill or use of improper technique by the practitioner. Without proper training in the endotracheal intubation procedure and/or proper use of a selected device, the practitioner can actually turn what could be a normal intubation procedure into a difficult one and increase the risk of complications to the patient as a result. To avoid this situation, practitioners expected to perform such tasks should first receive good basic training in the endotracheal procedure. They should then receive special training necessary for intubation pertinent to their patient population, followed by training for a specific device or technique in addition to standard laryngoscopy. No technique or device can replace good airway management training.


This article appears in RT for Decision Makers Magazine March 2009.

March 22, 2009

Medical Expert Witness On Clinical Standards Part 7

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

Although this clinical policy standardizes the approach to evaluating chest pain, the researchers responsible for its development emphasized its limitations stating that the reality of medical practice is that the physician is often gathering data, performing interventions and making decisions simultaneously, sometimes within a short period of time. Once again, the clinical policy is a reasonable standardized approach to the evaluation of chest pain but can never supersede the physician's clinical judgement which, because of the immense number of clinical variables and continually changing circumstances, must be taken as the final word in making patient care decisions.

Clinical standard development is here to stay. Although they are a cause of consternation among many physicians because of their potential for use against physicians in medical malpractice lawsuits, they will, in the long run, help physicians continue to practice higher quality medicine, avoid malpractice, and more easily defend against frivolous or spurious lawsuits.

March 21, 2009

Pulmonary Medicine Expert Witness On Difficult Airways

Pulmonary medicine expert witness Kathleen S. Adams, RCP, RRT-NPS, is an instructor and owner of Packmule Education & Consulting Services in Southern California. Also the president-elect of the California Society for Respiratory Care, here she writes on difficult airways.

What constitutes a difficult airway? It is important to have an understanding of this and particularly what is causing the airway difficulties that you are experiencing in order to better understand which Plan B may be your best option. There is however, no single generally accepted definition of a difficult airway. For the purposes of its practice guidelines for the difficult airway, the American Society of Anesthesiology set a definition of a clinical situation in which a conventionally trained anesthesiologist experiences difficulty with face mask ventilation of the upper airway, difficulty with tracheal intubation, or both. The guidelines continue that an airway proven to be difficult is a combination of patient factors, the current clinical setting and the skill level of the practitioner performing the airway maneuvers.

This article appears in RT for Decision Makers Magazine March 2009.

March 20, 2009

Medical Expert Witness On Clinical Standards Part 6

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

For each of these rules, there are corresponding guidelines which may or may not be appropriate to act on. For example, under character of pain, it may or may not be useful to ask about the onset of the pain, the severity, the location, whether radiation occurs, its frequency, duration, similar previous episodes, precipitating or mitigating factors, its relationship to exertion, rest, movement or deep breathing and so on. It is clear to physicians that although this information is relevant for many patients presenting with chest pain, there are times when this information does not apply and has no real utility, such as the young otherwise healthy patient with fever who complains of chest pain only when coughing.

Similarly, there are no absolutes about what constitutes appropriate adherence to the guidelines for physical examination. A physician may decide, based on the overall clinical picture of the patient, to listen to the lungs, percuss the lungs, X-ray the lungs, assess the oxygenation of the lungs by doing pulse oximetry or arterial blood gases and so on. It would be left up to the physician to decide whether these things were or were not appropriate to do.

The decision to do or not to do is based on the "findings" for any given "variable". The variable is defined as a component of any aspect of the history, physical examination, lab analysis, differential diagnosis, or disposition. Examples would be the patient sex or age, the chest X-ray, or the vital signs. The finding is defined as the value of the variable, such as male, 64 years old, enlarged heart, and a rapid irregular heart rate.

March 19, 2009

Brain Injury Expert On Brain Trauma

Leading brain injury expert Dr. Neil Martin of UCLA Medical Center says that even falling from a standing position is "a six-foot fall as far as your head is concerned" and that relatively minor accidents can prove fatal.

The first three hours following the onset of a critical health episode like a stroke are critical. If care is delayed beyond this critical time window, the chance of recovery or even survival declines substantially. Much of the first hour following the onset of these critical episodes is spent simply getting the patient to the emergency room. Then the patient must then be diagnosed, CT and MRI images and scans taken and developed. Finally, a specially trained physician must review the images and make a decision on the appropriate treatment protocol.

Dr. Martin is Founder/CEO of Global Care Quest and Chief of Neurosurgery at UCLA Medical Center. His company has developed a new wireless mobile technology that allows physicians to view CT and MRI images and scans from remote locations. This solution, ICIS Mobile, transmits images over high speed wireless networks to a physician’s cell phone or PDA.

March 18, 2009

Fraud Expert Witnesses On Texas Voter ID Legislation

Texas SB 362 which deals with voter identification has cleared the Texas Senate and will be sent to the Texas House. SB 362 will create a more secure election process and strive to ensure elderly and low income Texans who are eligible to vote are able to do so with minimal difficulty.

Bill Noble, a spokesman for SAFE Texas, a coalition of Texans dedicated to ensuring security and fairness in the election process, stated that fraud investigation expert witnesses supporting the bill demonstrated the difficulty in detecting and deterring voting fraud under the current system. "SB 362 is a major step forward in helping to detect and deter election fraud and assure Texas elections are secure and fair.”

March 17, 2009

Licensing Expert Witnesses Part 3

The licensing expert witness opines in cases regarding the multi-billion dollar intellectual property market. In Licensing Overview, Justia.com describes patent licensing:

A patent is a grant of a property right to an inventor for an invention that is new, inventive, and useful or industrially applicable. Patents are issued by the United States Patent and Trademark Office (USPTO). A patent gives the inventor an exclusive right to the invention for a specific period of time. Because a patent grants an inventor the right to exclude others from making, using, or selling the invention, only a licensing agreement between the patent owner and another person or company will allow the use or sale of the invention by someone other than the patent holder.

Companies that do a great deal of research and development of new products and technologies that become patented may enter into cross-licensing agreements, whereby two parties share patents without paying the normally required licensing fee.

March 16, 2009

Medical Expert Witness On Clinical Standards Part 5

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

One of the first clinical problems targeted for standards development was Chest Pain. As a prototypic example of clinical policy development, the Specialty Board responsible for the development and implementation of this standard created three conceptual entities which can be applied to all clinical problems. They are "actions", "variables", and "findings".

Actions are defined as either "rules" (principles of good practice in most situations) such as ordering an electrocardiogram on an elderly patient with shortness of breath and severe chest pain, or "guidelines" (actions that should be considered but may or may not be performed depending on the patient, the circumstances, and a multitude of other factors) such as ordering imaging studies on any patient with chest pain. In those situations where a rule isn't followed, the physician would be required to document in writing his justification for its avoidance.

Understanding the difference between rules and guidelines made it possible to create a rational categorization of the patient's history and physical examination. Any patient presenting with chest pain, as a rule, should have a history taken which determines the character of the pain, any associated symptoms, and the patient's past medical history. As a rule, the physician must also perform a physical examination that includes vital signs, and both a cardiovascular and pulmonary examination.

March 15, 2009

Licensing Expert Witnesses Part 2

The licensing expert witness opines in cases regarding the multi-billion dollar intellectual property market. In Licensing Overview, Justia.com describes trademark licensing:

Trademarks are also protected intellectual property, generally in the form of a word, symbol, shape, or any sign, that is affixed to a product to indicate its source and distinguish it from other goods. A trademark holder can license that trademark, often referred to as a mark, to an individual or entity, who may then distribute products under that mark. Without a licensing agreement between those parties, anyone using a mark protected as the property of another would be subject to penalties for trademark infringement.

Intellectual property recognizes trademark rights in part to protect the public, as people come to associate a trademark with certain products and can then rely on the fact that goods bearing that mark will be consistently of the same origin and quality when they make purchasing decisions. Therefore, trademark holders must enforce their right to use the mark, and if they fail to do so, may be found to have abandoned the trademark, leaving it open to use by anyone.

The same legal requirement of enforcement applies to trademark licensing: A trademark owner who licenses the mark must specify in the licensing agreement that the owner is entitled to approve the licensee's use of the mark and oversee the quality of whatever the mark is being affixed to by the licensee. The failure to so specify in the trademark licensing agreement is called naked licensing and a court may find that the mark holder has abandoned the mark, thereby losing any rights under the law to use it. Even if the licensing agreement contains such a provision, the mark owner must actually oversee what the licensee is using the mark for, or a court may find the owner has abandoned the mark.

March 14, 2009

Medical Expert Witness On Clinical Standards Part 4

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

Potential limitations should be recognized and dealt with such as the possibility that a particular standard becomes obsolete because of new discoveries or advances; or situations where environmental factors such as disaster, overcrowding, or multiple high acuity emergencies negate the applicability of standard clinical policies. Likewise, policy standards can never supersede the physician's clinical judgement which must be taken as the final word in making patient care decisions. This is because of the immense number of clinical variables and continually changing circumstances in both stable and unstable patients with complex multifactorial systemic medical problems.

For maximum effectiveness and utility, it is clear that standards should be developed in the areas that place the patient at highest risk for death or debility. For the physician, these are often the areas of greatest liability. Also, it is important that standards are developed for common presenting complaints rather than for obscure uncommon entities. Finally, because cost-containment has become a central issue, clinical standards should also target those conditions or situations that may result in high charges.

March 13, 2009

Licensing Expert Witnesses

The licensing expert witness opines in cases regarding the multi-billion dollar intellectual property market. In Licensing Overview, Justia.com explains:

A company or person with intellectual property protected by law who wishes to license that property enters into a licensing agreement with a user, and that agreement becomes a contract, governed by applicable contract laws, which can vary from state to state. International licensing agreements also may be subject to additional regulations, depending upon what is being licensed and how it will be used.

An intellectual property license also varies with what is being licensed, but generally has several common components, including a specified length of time, agreement as to where the license is valid, provision for renewal, and any limitations the licensor deems important to the agreement. Sometimes, other laws will limit what limitations may be imposed in a licensing agreement. In most licensing agreements, the licensee pays a fee to the licensor in order to use his or her intellectual property for financial gain.

March 12, 2009

Medical Expert Witness On Clinical Standards Part 3

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

The existence of clinical standards would enable malpractice litigators to be more selective in their choice of cases. In situations where a clinical standard was followed but where there was an adverse patient outcome, litigators would be less inclined to pursue the matter. In situations where deviation from clinical standards, the litigation process would still allow physicians to explain their reasoning and, in and of itself, is not de facto proof of negligence.

The actual development of clinical standards is complex, time consuming and expensive. In general, these standards should be developed by physician organizations, particularly the specialty societies utilizing appropriate ancillary input from administrators, economists, etc. They should be based on current information and clinical experience and be as comprehensive and specific as possible. They should be periodically reviewed and revised and widely disseminated.

The "standard" should be thought of as a guideline or parameter rather than something that should be adhered to at all times without exception. This more accurately reflects the reality of medicine where nothing is absolute. The "standard", therefore, is equivalent to a recommendation about the management of a particular problem. This definition is broad enough to provide a framework for the development of applicable, non-rigid approaches to clinical problems in medicine.

March 11, 2009

Toxicology Expert Witness In W.R. Grace Case

W. R. Grace along with five individual defendants, filed a motion Sunday to exclude the toxicology expert witness testimony of Dr. Aubrey Miller. Dr. Miller, an investigator with the EPA, is the prosecution’s key witness. WRG was successful in an earlier attempt to limit the testimony of another key witness, Paul Peronard, who served as the EPA’s on-site coordinator in Libby after the town’s asbestos contamination first made headlines ten years ago. The Mesothelioma & Asbestos Awareness Center also reports:

The company and five one-time Grace officials are charged with a federal conspiracy involving Clean Air Act violations and obstruction of justice. The jury must find whether the company and its top employees knew they were endangering the community of Libby by mining the asbestos-laced ore and whether they were violating federal law as they did so.

Thousands of Libby residents have been diagnosed with asbestos-related illnesses, including asbestosis and pleural mesothelioma cancer. Previous testimony from another doctor revealed that approximately one new case of asbestos-caused disease is diagnosed per week in Libby.

March 10, 2009

Corporate Governance Expert Witness On Five Biggest Banks

McClatchy Company, the third largest newspaper company in the US, reports that America's five largest banks, which already have received $145 billion in taxpayer bailout dollars, still face potentially catastrophic losses from exotic investments if economic conditions substantially worsen, their latest financial reports show.

Corporate governance expert witness and president of Everest Management Gary Kopff has scrutinized the big banks' financial reports. He noted that Citibank now lists 60 percent of its $301 billion in potential losses from its wheeling and dealing in derivatives in the highest-risk category, up from 40 percent in early 2007. Citibank is a unit of New York-based Citigroup. In Monday trading on the New York Stock Exchange, Citigroup shares closed at $1.05.

McClatchy.com writes:

Citibank, Bank of America, HSBC Bank USA, Wells Fargo Bank and J.P. Morgan Chase reported that their "current" net loss risks from derivatives — insurance-like bets tied to a loan or other underlying asset — surged to $587 billion as of Dec. 31. Buried in end-of-the-year regulatory reports that McClatchy has reviewed, the figures reflect a jump of 49 percent in just 90 days.

March 9, 2009

Medical Expert Witness On Clinical Standards Part 2

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

Forces both inside and outside of medicine are responsible for the trend towards the development of clinical standards. Physicians have been motivated by their desire to establish acceptable levels of care within the various specialties. This ultimately homogenizes and standardizes the basic approach to patient's problems, is patient-centered, allows for the development of quality assurance and improvement programs, and demonstrates to the public that physicians as a group are concerned about the quality of care they provide to their patients.

Forces outside of medicine, however, are probably more potent than these internal forces at bringing increasing pressure to the issue of standards development. Malpractice carriers see the creation of widely-accepted clinical standards as one route towards reduced malpractice losses. Ditto for several states, including Maine and New Jersey, which have mandated the development of clinical standards because of their involvement in underwriting malpractice insurance plans.

The high cost of medical care has been a major motivating factor for third-party payors to support the development of clinical standards. Likewise, the federal government is taking an increasingly active role in the genesis of clinical guidelines. Several agencies, including the Department of Health and Human Services, are being charged with the task of establishing many of these standards of care for specific medical problems, including, for example, back pain and depression.

March 7, 2009

Actuarial Expert Witness On Insurance Capital Part 2

In Discussion of Insurance Capital as a Shared Asset, actuarial expert witness Robert Bear discusses what he describes as Donald Mango's ground breaking work Insurance Capital as a Shared Asset:

Mr. Mango differentiates between consumptive and non-consumptive use of an asset. A
consumptive use involves the transfer of a portion or share of the asset from the communal
asset to an individual, such as in the reservoir water usage and fishery examples. Nonconsumptive use involves temporary, limited transfer of control which is intended to be non-depletive in that it is left intact for subsequent users. Examples of non-consumptive use indude boating on a reservoir, playing on a golf course or renting a hotel room.

While shared assets are typically used in only one of the two manners, some shared assets
can be used in either a consumptive or non-consumptive manner, depending on the
situation. Mr. Mango gives the example of renting a hotel room. While the intended use is
benign occupancy (non-consumptive), there is the risk that a guest may fall asleep with a lit
cigarette and burn down a wing of the hotel (clearly consumptive).


For more, see Casualty Actuarial Society Forum, Fall 2006.

March 6, 2009

Criminology Expert Witness On False Confessions

Pennsylvania prosecutors have questioned the admissibility of criminology expert witness Allison Redlich's testimony in the homicide trial of Frederick Anthony Robinson. Redlich testified Wednesday by phone about her educational background and the methodology of her research of false confessions. She is currently an assistant professor in the school of criminal justice at the Albany, N.Y. branch of the State University of New York.

Robinson's attorneys have said the jury's understanding of the pathology of a false confession is integral to their defense. "This is a topic where there is extensive, lengthy research," Redlich stated. The expert witness would testify during the trial about the generalities of false confessions and common characteristics but prosecutors believe her testimony should be inadmissible in the trial scheduled to begin next week.

For more, see Pittsburgh Tribune-Review.

March 5, 2009

Actuarial Expert Witness On Insurance Capital

In Discussion of Insurance Capital as a Shared Asset, actuarial expert witness Robert Bear discusses what he describes as Donald Mango's ground breaking work Insurance Capital as a Shared Asset:

Actuaries frequently allocate capital to line of business or individual risk in an effort to calculate risk loads or evaluate profitability by calculating a risk adjusted return in the form of a return on equity (ROE) metric. Concerns have been expressed about ROE methods, especially the fact that the value inherent in the unallocated surplus is ignored (the entire surplus supports each and every risk). In 2005 ASTIN Donald Mango's paper on "Insurance Capital as a Shared Asset" has introduced a method that eliminates the need for allocation of capital which he believes is more grounded in insurer realities.

Donald Mango treats insurance capital as a shared asset, with the insurance contracts
having simultaneous rights to access potentially all of that shared capital. Shared assets can
be scarce and essential public entities (e.g., reservoirs, fisheries, national forests), or desirable
private entities (e.g., hotels, golf courses, beach houses). The access to and use of the assets
is controlled and regulated by their owners; this control and regulation is essential to
preserve the asset for future use. The aggregation risk is a common characteristic of shared
asset usage, since shared assets typically have more members who could potentially use the
asset than the asset can safely bear.


For more, see Casualty Actuarial Society Forum, Fall 2006.

March 4, 2009

Security Management Expert Witness On Risk Assessment

In What the Defendant Can Do Wrong,
security management expert witness Ira Somerson, BCFE, CPP, CSC, writes that "failing to preface your security plan with a risk assessment would violate standard security industry practices. If your risk assessment lacks sufficient qualitative (unscientific) or quantitative (scientific) analysis, it probably will be below a standard security industry practice."

Risk Assessment is the art and science of identifying security vulnerabilities, measuring the likelihood that each vulnerability will occur (foreseeability), the opportunity for each to occur, measuring each event’s impact upon the organization’s assets (criticality) and prioritizing each identified vulnerability in comparison to all others (queuing).

Partial Range of Other Definitions
■ Legal: The legal definition of Risk is “...the element of uncertainty in an undertaking.”
■ Financial: “...the ultimate cost to an organization for failing to identify vulnerabilities and develop deterrent/remedial programs.”


More to follow.

March 3, 2009

Insurance Fraud Expert Witness On Crash Claim

Insurance fraud expert witness Barry Zalma shares this from Reports of Convictions From the Coalition Against Insurance Fraud:

The sisters should’ve at least coordinated their stories before making their insurance claims.
Jackeline Morales and Gloria Perez claimed they crashed into each other at Interstate 495 South, in Haverhill, Mass. But neither remembered the color of the other’s car, prosecutors say. Nor could they remember if the crash happened while they were getting onto or off the highway, or other details.

Morales and Perez finally admitted they were sisters and that the crash only happened on paper; no bumpers ever bumped. They were among six more suspects charged with staging real or paper crashes to bilk auto insurers with bogus injury claims. Some 350 suspects have been charged with staging crashes in the Lawrence area since the city began cracking down on accident rings. It’s a coordinated and successful joint effort by the Lawrence police and Massachusetts fraud bureau.


March 2, 2009

Security Expert Witness On Site Security Planning Part 5

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 (part 2):

New developments in blast curtains, window films, and break resistant and bullet resistant glazing provide the designer with more choices for protection. Yet, a building that is resistant from an exterior bomb blast may be in conflict with the threat of an interior bomb blast and having no ability for decompression or blast out walls. Inside the building, zones or layers of security may be established with various types of access control devices reinforcing physical separations. Protected work stations are critical in many occupations, and safe rooms for CEO protection. Building design should also contribute to or ease implementation of operational security policies and procedures.

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. However, the bomb of the future may be delivered by a moped or pedestrian, thus rendering truck bombs unnecessary.

March 1, 2009

Auto Insurance Expert Witnesses In New Mexico

Auto insurance expert witnesses will be testifying in New Mexico cases that cover multiple insurance fraud schemes. The NM Senate passed a bill that would increase insurance fraud penalties by empowering courts to combine the insurance money stolen by multiple schemes into one larger dollar amount and longer sentences. ClaimsJournal.com reports:

State Sen. Carroll Leavell sponsored SB 117, which passed Feb. 17, 2009. A staged-accident ring, for example, might bilk several auto insurers out of hundreds of thousands of dollars with dozens or more fake injury claims. Combining these claims into one larger dollar sum for sentencing purposes can greatly magnify the final penalty, according to the Coalition Against Insurance Fraud. Several states permit courts to aggregate stolen insurance money when sentencing swindlers. Some laws fall under the state's insurance codes, and others under their general criminal code.