July 31, 2009

Drug Testing Expert Witness In NASCAR v Mayfield

In a U.S. District Court filing on Wednesday NASCAR claims that suspended owner/driver Jeremy Mayfield has once again failed an Aegis Sciences Corp. issued drug test for methamphetamines. Since being indefinitely suspended from the sport on May 9, 2009, Mayfield and NASCAR have had a very public battle to determine who is telling the truth. Mayfield sued NASCAR claiming their testing policy was flawed and then NASCAR provided affidavits discrediting Mayfield’s drug testing expert witness. When Judge Graham Mullen granted an injunction on July 1, Mayfield was allowed to return to the sport under the condition that NASCAR had right to drug test him any time they wish. The sanctioning body took Mayfield up on that offer on July 6 and now NASCAR is claiming the test came back positive for levels methamphetamines consistent with that of habitual users who, “develop a tolerance, consume high doses of methamphetamine, and are subsequently detected through random testing without displaying obvious signs of their drug use.”

Taking advantage of the opportunity to test Mayfield before, during or after any race, an Aegis representative contacted Mayfield on July 6 at 1:00 p.m. asking him to report to a testing facility within two hours. Mayfield failed to show up at the facility, claiming he got lost. According to the filing, the facility was within a five mile radius of Mayfield’s home, and when he failed to show NASCAR sent an Aegis representative to his home to collect the sample. The observed sample was taken at his home at 8:15 p.m. that evening.

Excerpted from HardcoreRaceFans.com.

July 30, 2009

Medical Expert Witnesses & Continuing Medical Education

A U.S. Senate Special Committee on Aging agreed that doctors must partake in continuing medical education throughout their careers but how to fund that education and whether it should be sponsored by pharmaceutical and device companies is at issue. Medical expert witnesses expressed a wide variety of opinions at the hearing entitled "Medical Research and Education: Higher Learning or Higher Earning?"

Some who testified advocated that industry should play no role in helping doctors continue to develop their skills. Pharmaceutical involvement in continuing medical education, or CME, is estimated to have grown more than 300 percent between 1998 and 2007 to over $1 billion, covering about half of CME services, according to Lewis Morris, chief counsel to the Inspector General of the U.S. Department of Health and Human Services. Some vigorously asserted that such funds substantially influence the curriculum. Others advocated for more stringent rules dictating a "firewall" between pharmaceutical and device companies and CME services. One witness said that industry involvement in medicine -- like funding CME -- has actually spurred medical advances over the past 50 years.

Excerpted from InsideHigherEd.com.

July 29, 2009

DNA Expert Witness & Bone Evidence

Jurors in El Paso, TX, acquitted Guillermo Nieto of murder in the 1999 death of his new bride, Sheila Westphal. He had met her a year before on the Internet and was accused of burying her body in his yard. The DNA expert witness could not confirm that a bone found at Nieto's home was Westphal's. The expert could only say the bone belonged to a female and someone related to Westphal's daughter and her brother, Sam Barbagallo. The expert also testified that most people have common DNA thresholds and that he believed the DNA taken from the bone was not read correctly.

An expert report showed that the DNA from the bone also matched DNA of someone missing from Hurricane Katrina, which thrashed Louisiana and Mississippi in 2005.

Excerpted from ElPasoTimes.com.

July 28, 2009

Product Liability Expert Witness Cases Part 1

In Positive Trend for Defendants in Product Liability, Nick Rees of PublicNuisanceWire.com writes:

Defendants in product liability cases have seen laws and statutes change and morph as the Supreme Court and other venues have interpreted laws and created precedents. Jim Beck, of counsel at Dechert LLP in the mass torts and product liability group in Philadelphia, has seen those changes firsthand for the last 25 years and witnessed how each change has affected defendants' rights at trial. Co-author of the Drug and Device Law blog, Beck spoke to Public Nuisance Wire about how those changes came about, what impact they've had on defendants, and how he'd like to see the laws continue to evolve.

PNW: How have class actions changed in the last twenty-five years?

BECK: Back when I first got into a position where I could have influence on litigation - this is compared to around 1987 when I'd been practicing for five years - the concept of personal injury class action was a real threat. There were cases that were allowing this and plaintiffs were arguing it and that was the trend.

Class action and personal injury litigation now, in federal court, is virtually extinct. There's a little more play in state courts versus federal but, even then, there's a lot less and they aren't very large anymore.

Two Supreme Court decisions, Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp., cut back on the lowers courts' ability to certify class actions in product liability. Since those decisions, there might be one contested personal injury class action that was upheld on appeal in the federal court system in the last ten years.

Part 2 includes How has the use of expert witnesses evolved?

July 27, 2009

Lawyer Describes His Experience Testifying As An Expert Witness

Bridgeport, CT, attorney Richard Meehan Jr. describes testifying as an expert witness "no easy thing to endure."

I agreed to testify at the request of a young lawyer who I had trained some years back. The experience was enlightening. I realized how difficult it is when you, as a witness, want to testify but are dependent on the questions put to you. The prosecutor repeatedly objected to the phrasing of the questions. As the witness, I could not offer my take on whether the form of the question was or was not proper, nor suggest to my fledgling friend how to rephrase to avoid objections.

It was difficult to sit silently watching this part of the legal drama unfold. Most of the objections were whether lengthy hypothetical questions contained appropriate references to the evidence. I agreed with some limitations by the judge, but not all.

I found myself wanting to be lawyer, judge and witness. I came away with a greater appreciation for the countless experts I’ve used who sat patiently, enduring the legal wrangling. As frustrating as it was, I could only imagine how the non-lawyer feels sitting in that “hot seat.”

Bridgeport attorney Richard Meehan Jr. columns examines the inner workings of the court system. He can be contacted through his Web page at www.meehanlaw.com

July 26, 2009

Accident Reconstruction Expert Witness On Analysis & Testing Part 3

In Analysis and Testing In Accident Reconstruction, accident reconstruction expert witnesses at Technology Associates explain the nature of engineering analysis:

Thus, in the absence of reliable injury-data based on relevant accident records, the subject danger can be evaluated only by analysis and not by testing. Similar reasoning can be applied to many different cases, in spite of differences in detail.

Engineering analysis is not always as easy as in the above case. As an extreme example, consider the structural design of a skyscraper, which requires involved and sophisticated calculations (whether done by computer or otherwise). Here again testing is impractical, and prior experience is of little value unless gained from similar structures, which have been in use over an extended period of time. Thus, again the role of analysis is predominant.

Having said this, we must mention certain instances in which testing is indeed indispensable. One case involves the coefficient of friction (as discussed earlier under Slip and Fall Accidents). This can be determined only by testing, and not by analysis. Another case involves the strength of different materials, which again must be determined by actual test. However, once such determinations have been carried out, it remains for analysis to incorporate the results into a comprehensive argument relating to, for example, a structural failure or a slip-and-fall accident.

July 25, 2009

Ladders Expert Witnesses On Stepladder Accidents Part 3

The danger of falling arises when the unsuspecting climber shifts his center of gravity, causing the ladder’s elevated rear leg, to impact the ground. This is likely to occur when the user lifts one foot while stepping from one level to the next or shifts his weight while working. When this happens, large and rapid forces and the user’s overcompensating reflexes can cause him to lose his balance and fall....

Based on our research, Type II racking can easily lead to the...three-legged condition, even when a stepladder meets the present ANSI (Type-I) racking standard. Based on dynamic testing, a vertical rear leg lift of as little as 1 inch is sufficient to cause a ladder user to fall upon unanticipated crossover. This scenario is consistent with many accident investigations and offers a likely explanation for stepladder fall accidents when there is no obvious cause. We have found that the minimum leg lift-off required to cause a ladder user to fall upon crossover is less than 1 inch and also depends greatly on the agility of the ladder climber.

July 24, 2009

Seatbelts & Airbags Expert Witnesses On Whiplash Part 3

Seat belt and airbag expert witnesses at Technology Associates describe "whiplash":

Testing has shown that the maximum loading to a rear-ended car was amplified about two and a half times when it reached the heads of the occupants. The testing also revealed that this occurred about a fourth of a second after impact.

The momentum and loading to cars which are involved in a rear-end impact (of low enough impact velocity so that there is no permanent deformation of the bumpers) can be fairly accurately modeled as a mass-spring system. This enables determination of the loading effects on the cars and heads of the occupants, by input of known quantities (masses of the cars, bumper stiffness, relative velocity between the cars at time of impact).

It is thus possible to determine the likelihood of a claim of whiplash injury being legitimate. Based upon how consistent all incident data is with available research findings and on using as precise a computer model as possible, an engineer with a proper dynamics and biomechanics background can help to determine the viability of a claim.

July 23, 2009

New ABA Criminal Mental Health/Disability Law Book

The ABA Commission on Mental and Physical Disability Law and the ABA Criminal Justice Section announces a new publication Criminal Mental Health and Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Criminal Justice Professionals. The new criminal mental health/disability law book is the most comprehensive to date and the first book to examine in detail the legal relationships that link criminal justice, mental health, and disability discrimination law.

Chapters include:

A legal history of mental health and disability in the criminal justice system
Overview of legal terms, concepts, developments, and considerations
Criminal incompetency: pre-trial, trial, and post-trial
Insanity and diminished culpability
Dangerousness standards in the law, including death penalty
Jails, prisons and secure "treatment" facilities: conditions of confinement and release
Admissibility of expert evidence and testimony
Mental health diagnoses and assessments
Glossary
Detailed index and table of contents
Table of cases

To order, visit the ABA webstore or call: 1-800-285-2221

July 22, 2009

Forensic Psychology Expert Witness & The Insanity Defense

Robert Rigg, associate professor and director of the Criminal Defense Program at Drake University Law School in Des Moines, says that “Jurors don’t like the insanity defense.” In fact, only a few cases in the state have succeeded with an insanity or diminished-capacity defense, according to Rigg, who has worked on a dozen or so over the past 31 years. Defense attorneys and law professors agree that the insanity defense is difficult and jurors are skeptical. It comes down to a “battle of the experts.” The forensic psychology expert witness for the defense testifies that the accused has a mental disease, the state counters with an expert who finds the person sane and the jury has to decide which diagnosis is credible.

University of Iowa law professor David Baldus says that not every kind or degree of mental disease or disorder will excuse a criminal act. Iowa code is specific — a person must suffer from a “diseased or deranged condition of the mind” that renders the person either incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right and wrong.

This is what Mark Becker, 24, accused of shooting Iowa football coach Ed Thomas to death, faces in his first-degree murder trial set for September. He filed this week his intent to claim insanity and/or diminished responsibility as a defense. Becker’s is the latest in a recent string of insanity defenses.

Excerpted from GazetteOnline.com.

July 21, 2009

Accident Reconstruction Expert Witnesses On Analysis & Testing Part 2

In Analysis and Testing In Accident Reconstruction, accident reconstruction expert witnesses at Technology Associates explain the nature of engineering analysis:

Straightforward as the above reasoning is (see 7/16/09 blog entry), it nevertheless constitutes a valid (though simple) example of engineering analysis. Now let us consider what it would take to demonstrate the defect of the steps by testing rather than by analysis. To do this, there must first be devised a suitable test procedure, and this can be arrived at only by further analysis-which is another word for organized and systematic thinking with relevant technical considerations taken into account. From this analysis, there emerged the following requirements:

1. The tests must be done with different subjects, who must not know they are being tested and must not observe each other performing the descent of the stairs-else their performance will be affected, and so will not represent "normal" descent of the stairs by an unwarned person.

2. The descent is dangerous because of the shallowness of the treads, and there seems to be no practical way of eliminating the danger without creating special conditions-such as the use of safety nets-which will alert the subjects to the fact that something unusual is going on, and so prejudice the tests.

3. If stumbling actually occurs during the test, the effects will be quite variable. In many cases, the stumbler will regain his balance before injury occurs. To be indicative, the tests must be repeated with enough subjects so that injury, or near-injury, occurs in some cases-and this is of course unacceptable.

July 20, 2009

Ladders Expert Witnesses On Stepladder Accidents Part 2

Ladders and scaffolds expert witnesses at Technology Associates write on stepladder instability:
Three-leg contact can develop under a number of situations such as set-up on an uneven surface or when climbing, sliding, pivoting or “walking” a flexible ladder along the ground as the user’s work progresses. Dr. John Morse has cited a subtle type of unperceived three-leg stepladder contact named “Type-II racking”, which occurs during climbing as follows.

After the climber has one foot on the floor with his other foot on the first step, and one or both hands on the front rails at chest height, he pulls himself upward with one arm and attempts to keep his body straight. This imposes a torque about a vertical axis to the ladder. This torque, combined with the climber’s pulling force (which is necessary to raise his weight to the next step), tends to unload the rear legs. With these legs offloaded, and while this torque is still applied, the ladder twists or “racks” in the direction of the applied torque. When the climber’s foot then leaves the floor and reaches the first step, weight is shifted back onto the rear legs of the racked (slightly twisted) ladder. When this occurs, only one of the ladder’s rear legs can contact the ground. If this goes undetected, the climber has unknowingly created a three-legged ladder and the potential for instability, should center of gravity diagonal-crossover occur later after subsequent climbing or use.

July 19, 2009

Seatbelts & Airbags Expert Witnesses On Whiplash Part 2

Seat belt and airbag expert witnesses at Technology Associates describe "whiplash" injuries:

Unfortunately, the effects of whiplash are often downplayed, and its sufferer thought to be malingering, on the grounds that injury isn't visible. In addition, experiments have shown that the forces to the neck during whiplash are not much greater then those occurring during normal activities (e.g. "plopping down into a seat", "hopping onto a step", and even "sneezing"). However, unlike whiplash, normal events do not take a person by surprise, so one can instinctively brace the neck muscles in anticipation, and control the force transmitted to the cervical soft tissues. With whiplash, the force to the neck is violent and sudden, and is not filtered through the neck musculature. Hence, those with thinner or weakened necks (i.e. women and those who have had prior neck injury) are more prone to the effects of whiplash, which can occur from an impact to the car as low as 3G's.

A problem facing investigators of a whiplash case is that the impact velocity of the striking (rear) car is typically not known with certainty, and this value is needed for determining resulting forces. A conservative estimate of the speed can be surmised by using the damage threshold of the cars' bumpers (because whiplash injury is caused by low speed impacts involving no (or minimal) damage to the bumpers; hence most of the shock is transmitted to the passengers' necks). Testing has shown the damage threshold of bumpers of many cars to be about 5 mph; thus lash forces to the neck based on a maximum 5 mph impact velocity to the struck car. However, most crash testing involves the car impacting a rigid barrier, which does not yield in any way, rather than a relatively flexible bumper of another car. Hence, the crash testing can be more severe than an actual impact with another car, and can, in fact, be equivalent to the car's being struck with another car at up to twice the velocity used for the barrier test.

July 18, 2009

Medical Expert Witnesses To Testify In Soldier's Death

A North Carolina-based paratrooper charged in the death of another soldier he helped subdue outside a bar has agreed to a plea bargain and could testify against five other soldiers, a newspaper reported Tuesday.

Sgt. Christopher Mignocchi, 22, of Hollywood, Fla., had been charged with involuntary manslaughter in the death last summer of Pfc. Luke Brown, 27, of Fredericksburg, Va., The Fayetteville Observer reported Tuesday. He will plead to a lesser charge that is being determined. Boyle's attorneys asked for medical expert witnesses to testify about the condition of Brown's heart and whether alcohol and energy drinks may have affected it.

Excerpted from MiamiHerald.com.

July 17, 2009

Drug Abuse Expert Witness Testifies In Medical Marijuana Case

A 28-year-old Mission Valley, CA, man who claims to operate a medical marijuana collective was ordered Monday to stand trial for allegedly selling and transporting the drug. Judge John Thompson ruled there was enough evidence to try Eugene Zhenya Davidovich on charges of selling marijuana, possessing marijuana for sale and transporting marijuana. San Diego police investigators testified that Davidovich sold seven grams of marijuana to an undercover detective last November, and had 11 baggies containing a combined 34.10 grams of the drug in his car when they served a search warrant in April at his Rancho Mission Road residence.

Drug abuse expert witness Conrado Decastro testified that he based his opinion of collectives and medical marijuana on training he received during his career. “I believed that Mr. Davidovich possessed marijuana for sale,” Detective Conrado Decastro said. Decastro testified that authorities began to crack down on people selling illicit drugs in Pacific Beach last year, and the detective who bought from the defendant received a doctor’s prescription for marijuana by using a false name.

Excerpted from SanDiegoNewsNetwork.com.


July 16, 2009

Accident Reconstruction Expert Witness On Analysis & Testing

In Analysis and Testing In Accident Reconstruction, accident reconstruction expert witnesses at Technology Associates explain the nature of engineering analysis:

Persons with no training in engineering are generally unaware of the nature of engineering analysis, and so tend to assume that testing, as a means of determining the causation of accidents, is a dominant tool of the engineer. In the following examples, we shall undertake to explain the nature of engineering analysis, and to show that it is more basic than testing because testing without analysis is meaningless. Further, while analysis is always necessary in accident reconstruction, testing is only sometimes necessary.

Consider, for example, a flight of steps in which the tread of each step (the horizontal surface) is only 6 Inches deep (in the direction from front to back). Since the shoes of most persons are considerably greater than 6 Inches in length, the toes of a descending adult will tend to overhang the tread by a substantial amount, especially since It Is not to be expected that the heel will always be placed as far back as possible, thereby increasing the overhang all the more. The result will be that the footing will not be as secure as If the tread were, say, 10 inches deep. Thus, if a person has fallen while descending the 6-Inch-deep steps, the fall may be ascribed to the inadequate depth with reasonable probability (providing of course that there is no other contributing reason for the fall).

July 15, 2009

Ladders Expert Witnesses On Stepladder Accidents

Ladders and scaffolds expert witnesses at Technology Associates write on stepladder instability:

According to Consumer Product Safety Commission (CPSC) accident estimates, tens of thousands of stepladder accidents requiring emergency room treatment occurred annually in the United States. Approximately 85-90% of these accidents involve the user falling from the ladder and 8-9% of these injuries are serious enough to require that the victim be admitted to a hospital. In addition to posing a severe health concern, these accidents have significant loss-of-wages and high medical expense implications.

Having investigated numerous stepladder falls over the years, we have found it very common to learn that ladder accident victims are unaware of the cause of their falls and it is typical for them to respond to questions regarding causation with answers such as: “The ladder just gave way”, or “It was sudden, I don’t know what happened”, or equivalent statements. One possible cause of such accidents is associated with use of the common four legged A-shaped stepladder, which can easily be accidentally positioned such that only three of its legs are contacting the ground. This situation can also go unperceived until it is too late to avoid an accident.

July 14, 2009

Seatbelts & Airbags Expert Witnesses On Whiplash

Seat belt and airbag expert witnesses at Technology Associates describe "whiplash":

What is the syndrome called "whiplash"? Here is a brief description. A stopped car is struck by another vehicle from behind; the struck car and torsos of its passengers are thrown forward. However, the heads of the passengers lag behind for a fraction of a second, causing their necks to be hyper-extended (unduly strained as the torso flies forward while the head stays behind). As their torsos rebound against the seat backs, their heads now move forward, but are snapped back again, by their necks, and overshoot the torso, again causing the neck to be hyper-extended. This effect is most severe if the headrests are too low and set too far back, as they are in many cars. The whole occurrence takes less then a second.

Although the person experiencing this situation does not have overt signs of injury, the possible occurrence of soft tissue damage to the overstretched ligaments of the neck has been well documented. This damage may be permanent, causing chronic pain and limitation in neck movement, the full extent of which may not be apparent until about a day after the accident.

July 13, 2009

Pain Expert Witnesses & Overdose Deaths

Siobhan Reynolds, president of the Santa Fe, N.M.-based Pain Relief Network, is being investigated by a federal grand jury in Topeka for her role in the case of a Kansas doctor whose clinic has been linked by prosecutors to 59 overdose deaths. Reynolds' group has supported Dr. Stephen Schneider and his wife, Linda, who were indicted in December 2007 on 34 counts accusing them of unlawfully prescribing painkillers and over billing for services at their clinic in the Wichita suburb of Haysville.

The Pain Relief Network, which opposes what it sees as federal efforts to crack down on chronic pain treatment, has helped the Schneiders line up attorneys and pain expert witnesses, and has put up billboards supporting them.

Excerpted from KansasCity.com.

July 12, 2009

Psychology Expert Witness & Self Defense Trial

The Arizona Court of Appeals has reversed and remanded the high-profile case of Harold Fish, who's serving time for shooting a man in what he calls self-defense. The new trial will allow Fish to introduce testimony that was barred from his first case in which the state disallowed Fish from having a psychology expert witness testify that his "fight or flight" instinct could have interfered with his memory.

The case began in 2004, after Fish ran into Grant Kuenzli and his dogs while hiking on a lonely trail in northern Arizona. According to Fish, the only witness, Kuenzli charged aggressively at Fish after failing to control his unleashed canines. Fish pointed a his 10-millimeter handgun at Kuenzli, yelled at him to stop, and then fired three shots that hit the man in the chest.

Excerpted from PhoenixNewTimes.com.

July 11, 2009

Engineering Expert Witness On Massive Coal Ash Spill

A $3 million study blaming a massive coal ash spill in Tennessee on a complex combination of structural and geologic factors is wrong, says an engineering expert witness who evaluated the disaster for his own mining and utility clients. Though no one was injured, the disaster was one of the worst of its kind in the US and has brought new attention to the risks and lack of regulation of coal ash storage sites around the country. TVA, the nation's largest public utility, estimates it could take years and up to $1 billion to clean up the mess. Residents fear lingering environmental harm.

Barry Thacker, who has been designing hydraulic-fill structures similar to the Kingston Fossil Plant landfill for 30 years. In a report shared with regulators, the expert witness concludes the Dec. 22 breach that sent 5.4 million cubic yards of toxic-laden muck into the Emory River and a lakeside neighborhood about 40 miles west of Knoxville occurred because of an undiagnosed and preventable buildup of water pressure against a perimeter clay dike.

Thacker doesn't agree with the more exotic conclusion of Tennessee Valley Authority consultant AECOM USA Inc. last month that the spill was due to several factors in and under a mountainous dredge cell upstream of the dike, including liquifying soils and a deep, unknown, unstable layer of silt and ash dubbed "slimes."

Excerpted from WVEC.com.

July 10, 2009

Drug Abuse Expert Witness Testifies For Wrestling Coach

In Virginia last week Ben W. Hunter, 42, now of Phoenix, Ariz., was found not guilty on all but two of 32 charges which included 13 counts of distributing steroids and 13 counts of distributing drugs to a minor. The former wrestling coach had also been charged with selling drugs on or near school property, distributing drugs and abuse and neglect of a child. Dr. James Shipe, a researcher in athletic drug testing at the University of Virginia's School of Medicine, was called as a drug abuse expert witness in the case.

"Traditionally, testing originated for Olympic athletes," the expert witness explained after the case. "All tests were developed using a witnessed urine test as the specimen" because, he added, some athletes from various countries had religious or moral protests to drawing blood samples.

Hunter faces sentencing for one felony count of failure to appear and one misdemeanor county of failure to appear on October 30 in Lancaster County Circuit Court. His attorney, James Broccoletti of Norfolk, requested a pre-sentencing report be prepared for the hearing.

Excerpted from NorthernNeckNews.com.

July 9, 2009

Automotive Expert Witness On Auto Sales

In How Long An Arm? automotive expert witness Richard O. Neville writes:

Can a state law prohibiting direct sales to consumers by a manufacturer have an extra-territorial reach into another state? The Fourth Circuit has said it cannot. The case involved a Volvo and GM truck dealer, Carolina Trucks & Equipment, Inc. (CT&E) which found itself in an out-of-trust situation in 2002 with its floor plan lender, Volvo Commercial Finance (VCF). Later, after termination of its dealer agreement, the dealer settled with VCF. It had also sued Volvo Trucks North America, the manufacturer; one of its complaints was that VTNA was selling used trucks direct through its Arrow Truck Sales unit (although specifically permitted by its dealer agreement)....

The court quoted from the Dealers Act: a manufacturer “may not sell, directly or indirectly, a motor vehicle to a consumer in this State”2 except through the franchises that manufacturers are generally prohibited from owning themselves. Commenting on the ambiguity of the phrase “in this state,” the court did not find that it gave the state’s laws extraterritorial reach, and that “…state laws may not generally operate extraterritorially…” To find otherwise, the court went on, would raise constitutional Commerce Clause issues. Arrow’s advertising, the court held, was an “even more tenuous link between South Carolina and Arrow’s sales in Atlanta…” To find otherwise would be to ban out-of-state advertising of goods and services.

July 8, 2009

How to Pick a Construction Expert Witness

David Tuffin of the firm Tuffin, Ferraby, & Taylor writes In my expert opinion: How to pick an expert witness

Expert witnesses can make or break a case, so it’s vital to pick exactly the right (independent, knowledgeable and impressive) person for the job. With the construction industry seeing a significant rise in litigation and conflict there is going to be an increase in demand for reliable expert witnesses called in by lawyers to either help defend or support their clients’ cases.

The biggest challenge facing those selecting an expert witness is how to ensure that the person they call upon is going to help and not hinder the case. Often the evidence the expert provides can make or break a case and therefore choosing the right person is of utmost importance.

Independence

According to the Civil Procedure Rules “it is the duty of an expert to help the courts on the matters within his expertise and this duty overrides any obligation to the person from whom he has received instruction.” Courts tend not to look favorably at witnesses with a vested interest in the outcome of a hearing. It is therefore important to make sure you assess any potential conflict of interest from the start. The safest option is to get an expert from an independent firm.

Mediation

The high cost of going to court is resulting in the majority of disputes – about 80% – being resolved through negotiations and mediation. This will usually see the experts for both sides sitting around a table and arguing their cases in order to find a middle ground. Mediation is a fine art and therefore finding an expert who is experienced in mediation and has undergone specific training can work to your advantage.

July 7, 2009

Psychiatry Expert Witness Testifies In Posioning Case

A Maryland state psychiatry expert witness believes Victoria Adele Sparrow knew what she was doing was wrong and is therefore guilty of first-degree murder when she poisoned her 3-year-old daughter and then tried to kill herself. Psychiatric experts - one employed by the state and the other hired by the defense - are set to testify on July 20 in Queen Anne's County Circuit Court in Centreville. They will be the only witnesses, attorneys said. Sparrow, 43, waived her right to a jury trial Tuesday and agreed to let Judge Thomas G. Ross determine if she was "criminally responsible" for her actions inside her home on Dec. 18.

Defense attorney Peter S. O'Neill filed a motion earlier this year claiming his client was not fit to stand trial. He hired a medical expert who determined that Sparrow would be able to assist in her defense. That expert, however, did not believe Sparrow was sane at the time of the killing. Queen Anne's County State's Attorney Lance Richardson said a state psychiatrist does not agree with the defense's medical expert.

Excerpted from HometownAnnapolis.com.

July 6, 2009

Sports Expert Witness & UL Football Coach $2M Case

On Wednesday, the 1st Circuit Court of Appeal in Baton Rouge threw out a $2 million judgment that a 19th Judicial District Court jury had awarded former UL football coach Jerry Baldwin in 2007. In that case, Baldwin claimed racial discrimination by the university, the UL Board of Supervisors and former athletic director Nelson Schexnayder for his firing after the Ragin’ Cajuns’ 2001 season.

Baldwin claimed breach of contract, discrimination and emotional distress, and the racially-balanced jury – six white, six black – voted 10-2 to award Baldwin $500,000 for general damages and emotional distress, $600,000 for lost wages and $900,000 for future lost wages. The jury heard from the plaintiff's sports expert witness who said Baldwin’s firing cost him the chance to coach professionally in the NFL, and hence the $900,000 award for future lost wages.

Excerpted from NewOrleans.com.

July 5, 2009

Obstetrics Expert On In Vitro Fertilizarion

Obstetrics expert witness Dr. Robert Winston says women who freeze their eggs to delay motherhood are being given false hope by some fertility clinics. Winston says there is no guarantee and he believes that some clinics that offer services for healthy women to freeze eggs – at a cost of thousands of dollars – are guilty of an "expensive confidence trick".
Winston says there is no guarantee that women would go on to have children or that any babies they did conceive would be completely healthy. CourierMail.com reports:

An increasing number of IVF clinics are now offering to harvest and freeze eggs – at a cost of about $10,000 a time – for healthy women. The expert has warned of the dangers of expensive and unreliable fertility treatments and has called for a curb on clinics offering freezing for non-medical reasons until more research is carried out.

"Women are paying a very high premium for an expensive 'insurance' policy for childbirth in their later years," he said. He said the drugs used to boost egg production before freezing could damage chromosomes, cutting the chances of pregnancy. Women also risk ovarian hyperstimulation syndrome, a life-threatening condition in which the ovaries struggle to cope with the extra eggs produced. And no one knows whether freezing the fragile egg will affect the development of a child in years to come.

July 4, 2009

Medical Expert Witness On Federal Lawsuit Against Portland Police

The medical examiner who performed the autopsy on James P. Chasse Jr. after he died in police custody says Chasse suffered 46 separate abrasions or contusions on his body, including six to the head and 19 strikes to the torso. Chasse, 42, who suffered from schizophrenia, died in police custody on Sept. 17, 2006. Two Portland officers, Officer Christopher Humphreys and Sgt. Kyle Nice, and then-Multnomah County sheriff's deputy Bret Burton struggled to arrest Chasse after one of the officers said he appeared to be urinating on a city street. Police said he ran when they approached. They chased him, knocked him to the ground and struggled to handcuff him.

The medical expert witness said fractures to Chasse's rear ribs also likely did not result from Chasse getting knocked to the ground or someone falling on top of him, but more likely resulted from a kick or knee-drop. Police procedures expert witness Lou Reiter, a retired Los Angeles police deputy chief hired by Chasse's family, said in a statement filed in court that the officers used excessive force through "impact strikes," kicking and using their knees once Chasse was on the ground.

Excerpted from OregonLive.com.

July 3, 2009

Pool Expert On VGB Act

The Virginia Graeme Baker Pool and Spa Safety Act was signed into law in December 2007, giving owners of public pools until December 2008 to comply with the new pool drain safety requirements. This law applies to all pre-existing public and semi-public pools and to any new pools (public or private) built after December 2008. Pool expert David Morrill, President of Pool Resolution Consulting, Inc., says "Even a very small filter pump can create sufficient suction power to trap a person underwater or cause fatal injuries . At the very least hotel and apartment management should immediately install temporary fixes so a tragic accident does not occur at your AAA destination."

If you currently have a non-compliant drain system in your public or semi-public pool or spa, the law applies. All commercial, public or semi-public pools are required to install approved two drain systems with covers that qualify under ANSI/ASME A112.19.8-2007 code or comply using other approved alternates such as:

* Install an approved "unblockable" channel drain
* Disable the drain, or convert it from a suction line to a pool return
* Install a Safety Vacuum Release System

"With the first lawsuit being filed for non-compliance of the VGB act, look for the local authorities to follow up and begin enforcing the code and fines more vigorously," said Morrill.

July 2, 2009

Pathology Expert Witness Testifies In Shaken Baby Trial

Pathology expert witness Dr. Janice Ophoven testified Tuesday in the trial of Amy Dierks, the Sioux Falls day care provider accused of shaking a six-month-old child into a coma-like state in November 2007. In reviewing the Baby Henry Johnson case, she told jurors she doesn't believe Dierks abused the child; rather Ophoven believes he had a stroke and seizures. The expert witness told the jury she reviewed Henry Johnson's medical records and reports and believes the child showed preexisting symptoms and conditions before he was hospitalized. She went on to say he showed no signs of trauma or abuse.

"The child was having a stroke with signs and symptoms that appeared a week earlier,” Dr. Ophoven said. Prosecutors recalled Dr. Ed Mailloux to the stand, who disagreed with many of Dr. Ophoven's statements and stood by Baby Henry's head trauma diagnosis. The prosecution plans to call one more rebuttal witness Wednesday morning before closing statements and the case is turned over to the jury.

Excerpted from Keloland.com.

July 1, 2009

Securities Expert Witness & Qwest CEO Case

Former Qwest (NYSE: Q) CEO Joe Nacchio, now residing in a Pennsylvania prison camp, has received the news that the US Supreme Court may be considering a review of his conviction on insider-trading charges...The high court has requested the entire record from Nacchio's earlier trials and appeals -- a move his attorneys said signaled that the court could be leaning toward a formal review of his case.

Nacchio's appeal is primarily based on two issues. First, he complained that the trial judge in a Denver Federal District Court improperly kept a securities expert witness from testifying on Nacchio's behalf on matters involving the National Security Agency. Second, Nacchio is contesting insider trading charges leveled against him that involved predictions of future financial results. Nacchio is the last of the 1990s telecommunications executives to be indicted on illegal insider trading charges. He was sentenced to six years in prison earlier this year.

Excerpted from InformationWeek.com.