August 31, 2009

Insurance Expert Witness On Bad Faith Cases - Part 3

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

August 30, 2009

Tobacco Expert Witness On Electronic Cigarettes

Tobacco control expert witness Dr. Michael Siegel has served as an expert witness in several major tobacco litigation cases. The associate chairman and a professor in the Department of Community Health Sciences at Boston University writes on the electronic cigarette issue:

Connecticut Attorney General Richard Blumenthal recently announced plans to seek a ban on the sale of electronic cigarettes in the state. This ill-advised decision follows a federal Food and Drug Administration report that put a scare into electronic cigarette users across the country, telling them that these battery-powered devices — which deliver nicotine without burning tobacco like conventional cigarettes — are dangerous because they contain carcinogens...

However, the FDA failed to mention in its press conference that the levels of tobacco-specific nitrosamines (the carcinogens) detected in electronic cigarettes were extremely low, below the level allowed in nicotine replacement products, such as nicotine patches, inhalers and gum. The agency is not threatening to take nicotine patches or gum off the market, although they too contain detectable levels of carcinogens...

The bottom line is this: Conventional cigarettes have been thoroughly tested. They are known to contain at least 10,000 chemicals, including about 57 carcinogens. Electronic cigarettes deliver nicotine without these 10,000 chemicals and 57 carcinogens. It doesn't take a rocket toxicologist to figure out that electronic cigarettes are a much, much safer alternative to conventional ones.

Unfortunately, what the FDA and the anti-smoking groups are essentially telling smokers is that they would rather have them continue to smoke the most toxic cigarettes — the conventional ones — rather than switch to a product that is likely orders of magnitude safer.

Excerpted from

August 29, 2009

Nurse Qualified To Testify As Medical Malpractice Expert Witness

In the recent case of Freed v. Geisinger Medical Center, the Pennsylvania Supreme Court held that a nurse was qualified to testify as a medical malpractice expert witness. The ruling overturned a prior decision by the Court of Common Pleas, which had disallowed the testimony, stating that a nurse is not qualified to give a medical diagnosis. In this medical malpractice case, allegations of substandard care were leveled against the nursing staff at a rehabilitation hospital where the plaintiff, Rodger Freed, was being given rehabilitative treatment for a spinal cord injury that left him a paraplegic.

The state Supreme Court stated that to qualify as an expert witness in a given field, a person needs only to "possess greater expertise than is within the ordinary range of training, knowledge, intelligence, or experience." This ruling means that in cases where nursing care standards are breached, and that breach causes an injury, a nurse can testify to the causes of that injury.

Excerpted from

August 28, 2009

Franchising Expert Witness On The Attorney-Expert Relationship

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

Timing and Duration

Too frequently, attorneys seek expert consultation after substantially completing discovery–almost as an afterthought, as though attorney or client decide that a credible objective opinion might add weight to their arguments. Invariably, this results in the urgent need call: “We’ll overnight the discovery, but we need your feedback by next Friday latest.” It’s not unusual for the expert to accept the challenge, only to hear nothing more for months.

Some attorneys seem averse to conveying updates, and with the ease of e-mail, I think that is indefensible. Even a simple “we won’t be needing your services,” or a periodic “we are proceeding with discovery,” would be helpful. Being kept in the loop keeps experts pondering, rather than wondering. And the longer we ponder, the more we may enrich and fine-tune our opinions.

Understood: attorneys handle many cases simultaneously and deal with legal intricacies of which non-lawyer experts are ignorant. Motions and rulings, interrogatories and responses, coordinating of calendars and depositions, settlement negotiations–all this takes time. Still, in my field, where input from multi-discipline experts is minimal, most cases can be concluded within a year, two at most.
Not all; one, involving an assault of a hotel guest, dragged on for 42 months. Plaintiff counsel understandably waited for the criminal trial to conclude before proceeding with her civil case. Each time I asked what was happening, meanwhile and after, the response was the same: “Discovery.”

August 27, 2009

Bad Faith Expert Witness On Mediation Part 1

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

Anyone who has been involved in the dispute-resolution mechanism knows it can be a laborious and often mysterious process. Somewhat over simplified, here is a good way to remove some of the labor and mystery, and describe how mediation fits into the system: Mediation allows the parties involved in the dispute to sidestep the litigation process, while also getting results. Because of the mediator’s neutrality, the settlement resolution is more likely to be perceived as just. It is a voluntary, non-binding forum in which the parties agree to conduct negotiations using a neutral intermediary who guides the parties through the legal process. The mediator has no decision-making authority. Rather, it is the mediator’s duty to work with the parties to agree on the terms for conflict resolution. Only if they want to do the parties settle.

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:

· The parties recognize they have more to lose than if they don’t settle. There is high risk if they do not settle. This means not only must there be a downside risk, but also the parties and their lawyers must recognize and understand that risk. If a party and/or counsel have their head in the sand or are refusing to acknowledge the loss possibility or probability, then this leads to an unrealistic evaluation of the case and a failure to appreciate the benefits of a negotiated result. It also leads to unrealistic demands or offers and responses to such. Lastly, it means a mediator is not talking or listening to reasonable minds. This state of affairs costs the parties in many respects, including the time and money for a trial that may very well fail to result in a “win” for anyone.

August 26, 2009

Insurance Expert Witness On Bad Faith Cases - Part 2

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

The potential exposure to punitive or exemplary damages is the greatest danger to an insurer defending an extra-contractual claim. For example, courts have allowed the recovery of punitive damages when the insurer's breach is accompanied by an independent tort or where a serious wrong of a tortious nature has been committed and the public interest would be served by the deterrent effect of punitive damages.

Insurance bad faith cases fall primarily into two categories: first-party and third-party cases. First-party cases evolve from coverage in which the insurance company is obligated to indemnify or reimburse its insured directly. Third-party cases involve underlying claims which trigger an insurer’s obligations to protect an insured against lawsuits by others. It involves the basic obligations of the insurer to defend and indemnify the insured, and to settle such cases when a reasonable opportunity to do so is presented. The right to coverage is triggered by strangers to the insurance relationship who bring a suit against the insured. It draws on traditional tort concepts of fault, proximate cause and duty. “In liability insurance, by ensuring personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum of risks.”

Within the framework of the third-party claim is the “duty to defend” case, which involves claims by an insured against an insurer for breach of the obligation to defend the insured when suit is brought against it. This case may arise even if the insurer has no duty to indemnify under the same coverage since the duty to defend is broader than the duty to indemnify. The former is triggered by the potential for coverage; the latter is triggered by actual coverage.

August 25, 2009

Agricultural Engineering Expert Witnesses & Equipment Injuries - Part 4

In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes on standards:

For grounds maintenance equipment, the ANSI B71 series is of primary interest. The most important standards in this series are ANSI B71.1, dealing with consumer turf care equipment, and ANSI B71.4, dealing with commercial turf care equipment. These are very comprehensive standards covering blade guarding, thrown objects, rollover/stability, burn hazards, etc. ANSI B71.1 incorporates the CPSC lawnmower standard. Other standards in the ANSI B71 series cover rotary tillers, snow throwers, log splitters, and shredder/grinders. Other ANSI standards cover equipment such as chainsaws.

At times it will be necessary to refer to standards from other organizations such as The American Society of Mechanical Engineers (ASME). Also, some industry groups provide safety training information and use recommendations (not standards) that can be useful in cases involving agricultural and grounds maintenance equipment. These organizations include The Association of Equipment Manufacturers (AEM), The Farm Equipment Manufacturers Association (FEMA), and The Outdoor Power Equipment Institute (OPEI). Other organizations that provide safety information on agricultural and grounds maintenance equipment are The National Safety Council (NSC), The National Institute for Occupational Safety and Health (NIOSH), and the National Institute for Farm Safety (NIFS).

In some cases, there is not a standard specific to a particular machine. In this situation, it is often appropriate to refer to a standard for a similar machine and use the safety requirements of that standard to establish the state of the art for similar machines. For instance, requirements on Operator Presence Control (OPC) for walk-behind rotary tillers found in ANSI B71.8 can be applied to walk-behind stump grinders, for which there is no specific standard.

August 24, 2009

Handwriting Expert Witness On Brooke Astor's Will

A handwriting expert told Manhattan Supreme Court jurors on Tuesday that Brooke Astor "very probably" penned her signature on a will update - one prosecutors charge was forged. "I believe this is an authentic signature," Alan Robillard, a former FBI documents examiner expert, told the jury weighing evidence against Astor's son, Anthony Marshall, 85, and lawyer Francis Morrissey, 66. Marshall and Morrissey are being tried on charges of fraud and grand larceny for swindling Astor out of $60 million in a series of will updates in 2004, four years after she was diagnosed with Alzheimer's disease.

Robillard was the first defense witness called in the case. The expert's testimony contradicted that of Gus Lesnevich, a forensic document examiner called by prosecutors. He said he had "absolutely no doubt" the signature was not Astor's.

Excerpted from

August 23, 2009

Premises Liability Expert Witness On The Attorney-Expert Relationship Part 3

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness:

In my view, attorneys should retain experts not merely to ratify their arguments, but for all the experience based information we can contribute. For instance, experts can support discovery by suggesting witnesses to interview and questions to ask. Most civil cases in my area of expertise–the hospitality industry–turn on the duty of reasonable care in the circumstances. Especially in cases lacking forensic, medical, or scientific aspects, my expert testimony may be pivotal.

Accordingly, I feel obliged to research every source that may help me formulate supportable opinions on each assertion in the complaint. My input should identify what the attorney’s client has done right, and also what the client might have done differently. Ultimately, counsel is preparing for deposition and trial, where the opposition will certainly explore potential vulnerabilities in my opinions.

As for a retainer and an engagement agreement, I have learned to require both, including a clause about who will pay for expert services, and who guarantees payment–something attorneys rarely bring up. Because financial considerations sometimes may limit the extent of investigation attorneys (or their clients) want from experts, the engagement contract can be adapted to each situation.

August 22, 2009

Insurance Expert Witness On Bad Faith Cases - Part 1

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

I’ve been handling bad faith insurance cases for almost my entire career. Initially the majority of cases encompassed the “duty to settle—excess liability cases” wherein the insurer became responsible for the entire amount of a judgment against its insured because the insurer acted imprudently or unreasonable by failing to accept a demand from a plaintiff for the policy limits or less. The basis for this liability was the implied covenant of good faith and fair dealing which exists in all contracts, but which has a special meaning in insurance policies. This covenant of good faith serves as the foundation for the expansion of insurers’ legal responsibility into the realm of tort liability stemming from its “bad-faith” conduct. If the insurer breaches the covenant of good faith by wrongfully handling an insurance claim under the applicable standard, a tort is committed.

In the early 70’s, the California Supreme Court applied these concepts to first party insurance relationships, i.e. where the insurer has promised to pay an insured for a covered loss. This type of coverage is found in all types of insurance relationships: commercial and personal property insurance, medical pay insurance, life, health and medical insurance, and other “direct reimbursement” insurance situations.

When the insurer’s conduct constitutes a tort, the plaintiff can recover damages for injuries that were proximately caused by that conduct, whether or not the injuries could have been anticipated when the contract was executed. Thus, in addition to contract damages, the insured may be able to recover extra-contractual damages, which are damages beyond those usually permitted for a breach of contract using the tort measure of damages. These include compensatory damages, damages for emotional distress, economic losses, and even attorneys’ fees. Moreover, punitive damages may be awarded in certain instances tort claims where a higher degree of misconduct is proven.

August 21, 2009

Legal Malpractice Expert & Lemon Airplane Lawsuit

Two local aviation companies who lost a lawsuit claiming they sold a lemon airplane are taking their former attorney to court. Tim McCandless Inc. and Swieter Aircraft Services allege that attorney Gene Yagla smelled of alcohol during their trial in 2006. Also named in the lawsuit is Yagla's firm, Riley, Shea & Bevel. Attorney and legal malpractice expert William Graham, who is now representing McCandless and Swieter, said Tuesday that Yagla failed to put vital expert witnesses on the stand during the trial and failed to cross examine the plaintiff's witnesses adequately. Graham says Yagla missed a deadline to notify the court and the opposition of his expert witness, and the trial went on without that testimony.

Yagla's attorney, Patrick Roby, said the two aviation companies got sued because they were involved in the sale of a bum airplane to a customer and then blamed their lawyer when they lost. The suit involves the sale of a Cessna that had been built in the United States and then sold in Germany.

Excerpted from

August 20, 2009

Agricultural Engineering Expert Witnesses & Equipment Injuries - Part 3

In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes on industry consensus standards:

The American Society of Agricultural and Biological Engineers (ASABE) is the primary standards organization for farm and grounds maintenance equipment, although The Society of Automotive Engineers (SAE) issues most tractor standards. Most of the ASABE standards will be labeled “ASAE” rather than “ASABE” since standards developed before the name change (inclusion of “and Biological”) still carry the ASAE label. Some are jointly listed as American National Standards Institute (ANSI) standards. There are three primary safety standards covering three primary sub-areas:

ANSI/ASAE S318.17 JUN2009 Safety for Agricultural Field Equipment
ANSI/ASAE S354.5 JAN2006 Safety for Farmstead Equipment
ASAE S440.3 MAR2005 Safety for Powered Lawn and Garden Equipment

The above standards provide specific safety recommendations for equipment used in each of the areas and each also references related standards. Another general safety standard from ASABE that is relevant to many agricultural and grounds maintenance injury cases is ANSI/ASAES493.1 JUL2003 Guarding for Agricultural Equipment. This standard provides a great deal of both general and specific guidance on safety guarding.

ASAE S441.3 FEB1999 Safety Signs provides guidance on wording and formatting of safety signs on equipment. It also has an annex containing many recommended pictorials for safety signs. Although in most cases, an agricultural engineering expert will not be allowed to testify as a warnings expert, an engineer can comment on conformance to ASAE S441 (or the lack of conformance). A related standard is SAE J284 JUN1975 (R2008) Safety Alert Symbol for Agricultural, Construction and Industrial Equipment.

ASAE EP363.1 DEC1982 (R2008) Technical Publications for Agricultural Equipment is a valuable engineering practice (somewhat below the status of a standard) in many cases since it provides recommendations on the content and formatting of operators’ manuals. Most large manufacturers do a good job on manuals, but many small companies do not. This engineering practice provides guidance for evaluating the safety content of manuals. An incomplete or poorly written manual may not be a major factor in a case, but can be used to demonstrate lack of safety commitment by the manufacturer.

In addition to these general safety standards, ASABE has issued many other standards dealing with specific agricultural and grounds maintenance machines including:

ASAE S355.3 DEC2002 Safety Practices for Agricultural Front-End Loaders
ASAE S474.1 FEB1999 (R2009) Agricultural Rotary Mower Safety
ASAE S361.3 APR1990 (R2005) Safety for Portable Agricultural Auger Conveying Equipment

There are many other ASABE standards that can be used in a given case, including those dealing with hitches, power take-offs (PTO), lighting, controls, etc. Several SAE and ASABE standards deal with overturn and overhead protection for tractors and related equipment:

SAE J1194 MAY1989 (R2008) Rollover Protective Structures (ROPS) for Wheeled Agricultural Tractors
SAE J2194 DEC1987 (R2008) Roll-Over Protective Structures (ROPS) for Wheeled Agricultural Tractors
SAE J167 JUL1970 (R2008) Overhead Protection for Agricultural Tractors – Test Procedures and Performance Requirements
ANSI/ASAE S478 SEP1995 (R2005) Roll-Over Protective Structures (ROPS) For Compact Utility Tractors

There is a trend within ASABE to coordinate standards with ISO, the international standards organization. Some ASABE standards have become ISO standards, and some ASABE standards have been dropped in deference to ISO standards. Some relevant ISO standards include the ISO 4254 series of standards on Agricultural Machinery Safety.

August 19, 2009

Legal Nurse Consultants As Expert Witnesses Part 2

Elizabeth G. Rudolph, lawyer, nurse and legal nurse consultant, is the founder of Memphis-based Jurex Center for Legal Nurse Consulting. Rudolf writes on nurses as expert witnesses:

“What’s nice is this is an opportunity for nurses to expand their careers,” Rudolph said. “That’s the new part for nurses. They have this beautiful wealth of nursing knowledge, and this is an opportunity for nurses to expand their knowledge beyond the hospitals and clinics and review medical records and/or testify in cases.” Rudolph said she started Jurex because she recognized the demand for more nurse legal experts and the need to establish more training programs. “There are thousands of court cases filed every day in every jurisdiction,” she said.

The nursing expertise needed for particular cases can vary. “I’ve been an attorney 20 years and have certainly litigated lots of cases,” Rudolph said. “It depends on the type of case and the witness, the expert witness, so it’s not always shear number of years that matters. “It can be sometimes the clinical experience. Sometimes it is the persuasiveness of the expert witness. Sometimes it is the knowledge base. It is the findings of the expert witness. There are many components that go into why I would, for example, as an attorney want one PLNC or another.”

Excerpted from

August 18, 2009

Insurance Expert Witnesses On Insurance Policies

Insurance expert witnesses may testify regarding insurance policies which describes here:

Although insurance may cover many different risks, an insurance company may not indemnify an individual or business for committing an an intentional tort. Parties to insurance contracts are required to deal in good faith, according the legal doctrine uberrima fides (as opposed to caveat emptor, where the buyer assumes the risk). The duty of good faith requires that the insured reveal all material information relevant to risk assessment. The insurance company has several good-faith obligations, including a duty to promptly pay or deny a claim, to try to find reasons to cover a claim, and to treat the financial interests of the insured as if they were its own.

In most contract cases, the failure of a party to fulfill its contractual obligations may give rise to a breach of contract suit. The aggrieved party may sue for damages to recoup what it was owed under the contract. The law treats insurance contracts stricter. If an insurance company acts in "bad faith" (by acting with malice, fraud or oppression), in some states, the aggrieved insured may recover not only what it is entitled to under the policy, but also interest, attorney fees, court costs, and damages for emotional distress caused by the bad-faith act. Additionally, some states allow the injured policyholder to recover punitive damages if the insurance company acted egregiously.

August 17, 2009

Premises Liability Expert Witness Speaks To Experts Setting Limits

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness regarding setting parameters:

When attorneys call, experts must determine from a brief description if the case falls within our span of competence and is ethically feasible. Frequently, attorneys ask us to make a preliminary assessment. That’s not readily doable–or prudent. Attorneys may ask, “Do you think I have a cause of action, here?” Well, perhaps; but no expert should offer an opinion at this stage, nor should we hear any confidential information. For me, the best starting point in determining the merit of a case is reading the petition or complaint (if it has been filed) and, if available, the answer to it. But some attorneys seem reluctant to forward the complaint, let alone pay an expert to review it, who then might pass on the case.

Some advance work can lower this hurdle. Before calling potential experts, attorneys should check their credentials and references to verify that they are both competent in their fields and, above all, have a reputation for integrity. Then, if an attorney wants an expert’s early reading as to the case’s strengths and weaknesses, he or she should be willing to pay a reasonable fee for this. If the expert’s screening suggests a weak case, the attorney cuts losses; if the expert feels he or she can espouse a supportive opinion, the attorney can confidently retain the expert. Either way, the nominal investment is justified.
There is a fine line for an expert between saying enough to get the job and offering too much. Before I learned to request a retainer, a Michigan attorney asked my preliminary assessment of a potential case by telephone. After receiving assurance that he would compensate me for early research and feedback, I found and transmitted to him a provision in state law that could make his case. End of story: he never responded to e-mails or phone calls. No payment, but lesson learned.
Submitting credentials is de rigueur in bidding for retention, but when I forward credentials and receive nary a word in response, I wonder. I hesitate to suggest that any attorney might lack scruples, but apart from the lack of courtesy, might the attorney have designated me as his expert without informing me? This happens, and it shouldn’t.

Once attorneys retain experts, they should specifically delineate the scope of services expected. Where they do not , it’s up to experts to clarify expectations before undertaking unwanted work. The experts might describe his or her typical approach: “I do comprehensive research and write detailed reports, including case precedent references.” If attorneys want narrower parameters, this is their cue to define them.

August 16, 2009

Medical Expert Witnesses & Pretrial Screening Panels

In Litigation screening panels on trial: Are they working?, Amy Lynn Sorrel, of AMNews writes:

A well-designed pretrial screening panel does a very effective job of not only getting claims settled faster, but a higher percentage of the system cost goes to the injured patient, and that's an important piece of this. What you don't want to do is create another bureaucratic step that doesn't do anything but create another hoop you have to jump through and another cost you have to pay," said Robert J. Walling, a partner with Pinnacle Actuarial Resources Inc.

The actuarial and consulting firm conducted a 2008 study of the issue for the American Medical Association, which views the panels as a promising alternative for states that cannot achieve more effective, traditional liability reforms such as noneconomic damage caps. The analysis found that states with screening panels generally had better overall medical liability insurance rates -- 20% below the national average -- and lower claims costs than states without such laws. States with stronger panel laws also showed a higher percentage of cases that closed without any payout and quicker settlement times.

While a typical claim takes at least two years to resolve, including an average two-week jury trial, screening panels convene and evaluate cases within a matter of months, usually not more than six. A hearing is conducted over a day or two by a committee of one or more physicians, an attorney and a nonvoting chair, who render a nonbinding opinion. Costs generally are shared by the parties or covered by the state. Panel members may be appointed by a court or selected by both sides.

The process offers plaintiffs access to an expert review at little or no expense, Dr. Hoover said. And regardless of the opinion, it does not interfere with parties' ability to go to trial, where either side can use a panel opinion as evidence.

August 15, 2009

Agricultural Engineering Expert Witnesses & Equipment Injuries - Part 2

In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes:

It is easier to find current standards than obsolete versions. An agricultural engineering expert may have to do some digging to find the correct version of a standard. Furthermore, obtaining copies of obsolete standards is sometimes difficult since some professional engineering societies do not provide/sell obsolete versions of standards. These older versions, as well as current versions, are usually available from IHS Global ( An attorney or expert will often have a choice of buying a hard copy of a standard or opting for electronic delivery. It is necessary to pay for most standards (from any source), and the cost per page can be fairly steep.
Government Standards

The primary government standards of interest in this field are from the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commission (CPSC). The most relevant OSHA standard in many cases is 29 CFR Part 1928, Occupational and Health Standards for Agriculture. This standard covers some things such as overturn protection and cotton ginning in some detail, but provides only general guidance in other areas. In cases involving forestry equipment, 29 CFR Part 1910, Occupational Safety and Health Standards for General Industry, is appropriate since it specifically covers forestry topics. If the case involves small construction equipment used in grounds maintenance or landscape construction, 29 CFR Part 1926, Occupational Safety and Health Standards for the Construction Industry, may be appropriate.

In some situations where none of the specific OSHA regulations apply, 29 USC 654 Section 5, the OSHA General Duty section, will be appropriate. Although OSHA is prohibited from inspecting small farming operations, these operations are not exempt from OSHA regulations and the standards are relevant. The relevant CPSC standard is 16 CFR Part 1205, Safety Standard for Walk-Behind Power Lawn Mowers.

August 14, 2009

Psychiatry Expert Witness On Memory Lapse Defense In Murder Trial

Psychiatry expert witness Dr. James Missett took the stand Wednesday in the final day of testimony in Marshall Doud's murder trial. Doud, 43, is accused of smothering his wife, Morgana, on Sept. 4, 2007, but has testified that he has no recollection of killing her. The couple's three teenage children found their mother's dead body on her bed a few hours after Doud left their Mentel Avenue home and drove into the Santa Cruz Mountains. He has testified that he lost about two hours of memory during the early morning hours, which was when Morgana, 42, died.

Dr. Missett, the only expert to testify during the seven-day trial, was called as a witness for the District Attorney's Office to share his opinion on consciousness and memory lapses. Defense attorney Art Dudley asked Missett if there were levels of consciousness, and the doctor said consciousness is "graded" and that it's possible to be awake and still unconscious. The doctor said outside factors, including stroke, a blow to the head or being under the influence of drugs or alcohol - could impair someone's ability to recollect their actions. Doud was using a therapeutic dose of anti-depressants at the time of his wife's death, but Missett said that amount of the drug should not affect memory retention.

Excerpted from

August 13, 2009

Legal Nurse Consultants As Expert Witnesses

Elizabeth G. Rudolph, lawyer, nurse and legal nurse consultant, is the founder of Memphis-based Jurex Center for Legal Nurse Consulting. Rudolf writes on nurses as expert witnesses:

Expert witnesses for legal issues involving medical matters aren’t always doctors because nurses often have more firsthand knowledge about a disputed practice or protocol....“Over the last several years, nurses have been testifying either for or against nurses, and physicians testify either for or against physicians,” she said. “In the past, physicians had been able to testify for or against nurses, and in some jurisdictions they still do. But now judges have wanted nurses for and against nurses, and physicians for and against physicians.”

Once a nurse completes training from an experienced trial lawyer and acquires the required number of hours, he or she can apply for certification from the American Society of Legal Nurse Consultants. This organization does not offer a teaching program but does provide certification...
Rudolph started Jurex in 2006 after working first as a nurse and then as a lawyer on the defense and plaintiff sides of medical disputes. She has a master’s degree in nursing and a law degree, both from Vanderbilt University.

Excerpted from

August 12, 2009

Premises Liability Expert Witness On The Attorney-Expert Relationship Part 1

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness:

“I do not want legal research regarding theories, defenses, etc. I want my liability expert to provide opinions on the facts.” That rebuke came from an attorney who did not appreciate my suggestion that he might litigate his case under contract theory (breach of implied warranty) as well as tort theory. To someone relatively new to litigation support, this underscored a fundamental question: What exactly is the expert’s role?

After all, many “facts” are disputable. Proficient experts should perform thorough investigations, during which we may assemble a wide ranging body of relevant information – some of which may suggest alternative paths for pursuing a case. Competent litigation consultants can help attorneys win and triers of fact decide issues fairly. But some attorneys do not want comprehensive case analysis from their experts. Years after that reprimand, I still encounter ambiguity in attorney expectations. While experts should not presume to instruct attorneys on the law, consulting is what we do. Are we not to be proactive in providing all advice we feel qualified to offer? At the same time, to what extent can we involve ourselves while preserving our objectivity should a case go to trial? It is, in the words of Gilbert and Sullivan, “A seeming paradox!”

August 11, 2009

Daubert As Elegant Process To Qualify Expert Witnesses

In Daubert: Very Convoluted, Usually Confusing to Many, Nevertheless Elegant, Armand Rossetti writes:

Pretrial Daubert hearings are essentially motions in limine that ultimately decide whether an expert is qualified, and whether that expert: 1) has based an opinion on sufficient facts or data; 2) will be able to testify using “reliable principles and methods,” and; 3) has applied the principles and methods reliable to the particular facts of a given case.

The Daubert factors are based Rule 702 of the Federal Rules of Evidence, which is used to examine an expert’s testimony as a whole. In addition under Rule 703, experts may reasonably rely on documents and information that may be inadmissible during trial. It is also Rule 703 that forms the basis for inquiry, concerning the reliability of any data that supports expert testimony. Furthermore, Rule 703 relaxes the requirement that experts need to acquire personal knowledge about the matter to which they testify. Finally, Rule 703 has little to do with whether an expert’s testimony, as a whole, meets Daubert standards. That determination rests with Rule 702.

Since a Rule 702 is more “holistic,” judges acting as gatekeepers should not require each document, or particular source of data that experts might use to form opinions, to be dispositive. In other words, Courts should not be conducting a Daubert inquiry on each and every document and deciding whether or not each document is qualified as being stand-alone reliable.

Excerpted from

August 10, 2009

Agricultural Engineering Expert Witnesses & Equipment Injuries - Part 1

In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes:

When a personal injury or wrongful death case involves agricultural or grounds maintenance equipment, it will usually be necessary to retain an agricultural engineering expert to assist with the case. In most such cases, the agricultural engineering expert should start with a review of relevant industry and government standards. Most of the standards in this field are industry consensus standards, not mandatory government standards. Applicable government standards are few, but important.

Compliance with applicable industry standards is not compulsory, but the failure of a machine to conform to applicable consensus safety standards gives a plaintiff attorney strong ammunition against the designer, manufacturer, dealer, and/or rental agency. Conformance with applicable consensus safety standards is usually not a complete defense, but certainly makes a defense attorney’s job easier.

Not only is it important for an expert to consider all the appropriate standards, but the expert must also use the correct version of the standards. As a general rule, the version of the standard that was in effect at the time the subject machine was manufactured is the correct version to use. Trying to apply a current version of a standard to an older machine manufactured under an earlier version can result in the expert’s testimony being disallowed in a Daubert hearing.

August 9, 2009

Medical Malpractice Expert Witnesses Part 2

In Physicians giving expert testimony are regulated by law, professional associations, B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD write:

Both the legal and medical professions must contend with self-declared expert witnesses, who promote their availability to testify before courts in return for financial compensation. Reports of lucrative compensation for expert witnesses fueled concerns that some individuals were abusing the judicial process, and that the safeguards provided by Daubert and its offspring of legal cases were insufficient to protect defendants from overly zealous expert testimony that might mislead the court and jury, misstate the relevant standard of care, and impede justice.

Professional associations

In response to such concerns, a number of medical societies and professional associations, including the American Academy of Orthopaedic Surgeons, have developed programs to monitor expert witness testimony delivered by association members. These programs allow members to file complaints against fellow members who have testified adversely in a medical malpractice trial. A committee of association members typically reviews the suspect testimony and sanctions the testifying expert if the testimony is deemed inaccurate and misleading.

The proliferation of expert witness programs has provoked much controversy.

While courts have generally viewed the programs as assisting the judicial process, critics claim that the impact has a chilling effect on the willingness of physicians and surgeons to serve as expert witnesses for plaintiffs in malpractice cases. Furthermore, plaintiffs and their attorneys who have been the target of questionable testimony delivered by the defendant’s expert typically do not benefit from professional expert witness programs.

One reason why courts have upheld the legality of expert witness programs is that the professional associations which developed them are private and possess more latitude than government organization in restricting the freedom of speech of their members. However, this private status may create exposure to new forms of litigation, as a recent Minnesota court ruling suggests.

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August 8, 2009

Petrochemcal Expert Witness & Propane Gas Regulation

Petrochemical expert witness Douglas Buchan testified for the plaintiff in the U.S. District Court in Green Bay and describes how the lawsuit led to the State of Wisconsin changing the law to cover and protect the public with the installation of propane systems.

The Higdon family filed a complaint against Cedar Grove Resort, some construction companies, a utility and their insurance companies claiming that negligence caused propane explosions in Ellison Bay in 2006. The fire caused the death of Patrick and Margaret Higdon and injured twelve others. The family was awarded a settlement worth more than $21 million.

The case led to the State of Wisconsin changing the law in that State to cover and protect the public with the installation of propane systems in that state. This new regulation will save lives and increase the safety of propane gas pipeline installations and systems in the State of Wisconsin. All the propane gas pipelines that are currently installed and those being installed underground in public places are now required to be registered with the State's One Call office. Suppliers and construction companies must follow new rules when dealing with propane and the law creates a communication system for underground gas lines.

August 7, 2009

Police Procedures Expert Witnesses & Use Of Force Case

The Texas Alcoholic Beverage Commission acknowledges that numerous agency policies were violated during the June 28 inspection of the Rainbow Lounge, Fort Worth, TX, and that disciplinary actions are pending against the agents involved. "There were so many violations that one could readily assert that they had no business walking through the door," said State Rep. Lon Burnam D-Fort Worth, who met with TABC’s executive director on Wednesday to discuss the report. The 32-page document, which was the result of an internal affair investigation by the TABC, outlines what happened during the controversial inspection at the gay bar, which led to six public intoxication arrests and left one bar patron, Chad Gibson, seriously injured.

A separate investigation and report will address the agents’ alleged use of force. Because that report will include statements by TABC employees, Fort Worth police officers, eye witnesses and police procedures expert witnesses, it will take longer to complete, agency officials said.

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August 6, 2009

Survey Research Expert Witness & Litigation Support

In Survey Research to Support Litigation, survey research expert witness Dr. Larry Chiagouris writes:

Survey research is used to provide greater levels of understanding in a wide variety of disputes. Issues such as consumer confusion, misleading advertising claims, disparagement, copyright infringement and trademark disputes can be better assessed as a result of developing and executing survey research. The purpose of this monograph is to aid attorneys in understanding what research standards and guidelines might be relied upon in their use of survey research.

Attorneys will often refer to documents well established within the legal profession. Those documents include: Manual for Complex Litigation, Fourth or material found within subject matter guides such as McCarthy on Trademarks. While these documents provide discussion concerning a wide variety of issues, these are not the only documents that should be considered during the planning, execution or evaluation stages of survey research.

Professional survey research organizations adhere to a variety of ethical or technical codes and standards that have been developed by leading professional research industry associations. In particular, standards or guidelines have been issued by the Association of the American Public Opinion Research (AAPOR), the Advertising Research Foundation (ARF), the Market Research Association (MRA) and the Council of American Survey Research Organizations (CASRO). Two of these are the focus of this monograph because they address in depth issues that are not always completely covered in the usual and customary materials that attorneys are most likely to use in their work.

August 5, 2009

Product Liability Expert Witness Cases Part 2

In Positive Trend for Defendants in Product Liability, Nick Rees of interviews Jim Beck, of counsel at Dechert LLP in the mass torts and product liability group.
PNW: How has the use of expert witnesses evolved?

BECK: Daubert v. Merrrell Dow Pharmaceuticals, Inc. really brought a revolution in expert witnesses. It's created a willingness of courts to act as gatekeepers and view expert witnesses critically. Basically, the other side can cross examine expert witnesses at trial. It used to be a hands-off attitude by the court, but now they have to evaluate the reliability of the testimony as well as several other factors. It doesn't matter what standard that you apply, the simple act of applying that standard, given how poor a lot of these expert opinions are, has had a very beneficial effect.

PNW: Has the federal pleading standard changed to help defendants?

BECK: The Supreme Court, back in 1957, issued an interpretation of the federal pleading rule - Rule 8 - that let just about anything go. As long as there's any conceivable set of facts, that was sufficient pleading.

Starting in 2007 and again this term, they've tightened that standard from an initial very liberal interpretation of it. The court felt that it was no longer appropriate to have this broad and vague pleading standard that let anything go. I'd give the current pleading standard an A-minus only because it's a recent development, which makes it sort of incomplete. The courts are starting to enforce this and it's looking quite beneficial for my clients.

August 4, 2009

Medical Malpractice Expert Witnesses Part 1

In Physicians giving expert testimony are regulated by law, professional associations, B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD write:

In civil actions involving alleged negligence on the part of a professional, such as a claim of medical malpractice, expert testimony serves to educate the court and jury on the relevant standard of care to which the professional must be held. Evidence law allows a wide berth for expert witnesses. A person sworn as an expert during a trial can testify based on personal experience and insight; on observation and examination of other evidence submitted at trial; or even on out-of-court observations and knowledge of statements made by others in the profession. Ordinarily, such testimony would be inadmissible as hearsay.

The legal profession has long recognized the limitations of expert testimony. The Supreme Court of the United States clarified the parameters needed to qualify expert witnesses testifying in federal courts in Daubert v. Merrell Dow Pharmaceuticals, a 1993 case in which each side produced expert testimony contradicting the other. Since that case and its progeny, federal judges have had discretion to exclude expert testimony that falls short of standards for reliability, scientific methodology, empirical testing and peer review.

Excerpted from

August 3, 2009

Copyrights Expert Witness & Latest RIAA Victory

A Boston federal jury on Friday ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Excerpted from ArsTechnica.

August 2, 2009

Pathology Expert Witness On Crash That Killed 8

No one can pinpoint why Diane Schuler, 36, drove the wrong way on a familiar suburban New York parkway for nearly 2 miles before slamming head-on into another vehicle, killing herself and seven others. A medical examiner is digging deeper for answers after ruling that Schuler didn't have a heart attack or stroke behind the wheel, and plans further testing to determine whether she had signs of an advanced diabetic condition.

After forensic pathologists ruled out a stroke, aneurysm or heart attack, Dr. Kunjlata Ashar, deputy medical examiner for Westchester County, said she would test Schuler's eye fluid for evidence of heightened blood sugar levels, a possible sign of ketoacidosis. Noted pathology expert witness Dr. Michael Baden, however, doubted that possibility for Schuler. "People just don't have a hypoglycemic crisis out of the blue," said Baden.

Excerpted from

August 1, 2009

Accident Reconstruction Expert Witness Opines In Homicide Trial

An accident reconstruction expert witness and an engineering expert witness testified Thursday for the defense in Laurence Thompson's homicide trial in Bucks County, PA. Thompson was drinking before he allegedly drove drunk and caused the death of his passenger, Mary Anne Locicero. But the defense expert witnesses say she could have been behind the wheel. They said the violent sideways motion of the car spinning and striking the guardrails would have been enough to propel the 180-pound woman across Thompson's lap and out the passenger side window.

Prosecutors say Thompson, 48, of Bensalem was drunk and speeding when he crashed Locicero's car. Prosecution experts said that evidence in the car, as well as Locicero's injuries, proves she was in the passenger seat. Thompson claims he's been wrongly accused of driving drunk and killing his passenger.

Excerpted from