September 30, 2009

Insurance Expert Witness On Bad Faith Cases - Part 9

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

It is obvious from the above that either using traditional tort principles or those requisites for the tort of insurance bad faith, it is critical to the recovery of extra-contractual damages to convert the contract claim to a tort. This requires going outside the four corners of the contract and examining carefully the conduct of the insurer in administering and managing the claim.
Requirement of Financial Loss
Past cases have discussed the question of whether the claim for insurance bad faith is a personal injury or economic claim (i.e., property claim). Decisions have generally described it as the latter. As a result, financial injury must occur before there can be an award for emotional distress. Such a requirement is said to reduce the danger of frivolous or fictitious claims.

Recovery of Damages for Emotional Distress
As a general proposition, the requirement of financial injury provides verification of an accompanying claim for emotional distress. As one California Court of Appeal stated:
The principal reason for limiting recovery of damages for mental distress is that to permit recovery of such damages would open the door to fictitious claims, to recovery for mere bad manners, and to litigation in the field of trivialities.... Obviously, where, as here, the claim is actionable and has resulted in substantial damages apart from those due to mental distress, the danger of fictitious claims is reduced, and we are not here concerned with mere bad manners or trivialities but tortious conduct resulting in substantial invasions of clearly protected interests.

September 29, 2009

Hydrology & Groundwater Expert Witness On Whether Expert Witnesses Are Recession Proof Part 2

In Expert Witnessing During the Current Economic Downturn, Hydrology and groundwater expert witness Rick Van Bruggen, P.E., D.WRE, gives advice on for experts in a rough economy:

One thing I would recommend to Experts during rough times is to stay on top of your retainers, especially with plaintiff’s attorneys. Don’t let your bill get too big without frequent invoicing, and don’t put your Expert’s Report, or your testimony, out there without first getting paid. Also, it’s a great time to market your business, install new software, upgrade your computer, or to get those CEU's through a training course.

I just updated my CV, wrote up two years worth of case descriptions for my Representative Case List, and cleaned up my computer files and company databases. I still hope to write a couple of articles (one down, one to go), go through a new software tutorial, and upgrade a computer O.S. (actually, downgrade: from Vista, back to XP Pro), while I’ve got some extra time on my hands.

For all of us sole proprietors: if you've got savings, don't sweat it, and be prepared to possibly dip into it (especially if the recession lasts through 2009, as predicted). If you don't have a nest egg in place, cut back on travel and dining out, and start marketing now. Most of the marketing that we do as experts (directories, search engine placement, place ads) doesn't impact us for several months. That’s the thing about marketing, when you need to do it, you're probably too late. For many of us, the majority of our case work comes from word of mouth referrals and through our constant contact with clients via newsletters and cold calls (hint, hint). Most importantly, hang in there. The economy runs in cycles and, eventually this cycle will run its course and you’ll come out of it stronger and more experienced.

September 28, 2009

Aquatics Expert Witness Testifies In Parasailing Deaths

Aquatics expert witness and president of a national parasail operators association Arrit McPherson testified in a Coast Guard hearing Friday that he routinely takes two safety steps in his business, either of which may have been critical in preventing the deaths of two women Aug. 28 while parasailing at Ocean Isle Beach. The expert witness told Lt. Chester Warren, the Coast Guard's lead investigator into the accident, that he has his marine radio on when he takes customers on parasail flights. Before they embark, he has them read safety information that includes how to unhook the harness from the sail if they land in water. That is reinforced verbally and with demonstrations once customers are aboard.

Those steps were not taken for N.C. Watersports customers the day Cynthia Woodcock of Kernersville, N.C., and Lorrie Shoup of Granby, Colo., were killed. Witnesses who were on the N.C. Watersports boat with the victims when the incident occurred said they got no safety information before or during that 1 p.m. trip. The line connecting them to the boat broke and the women were carried to their death near the Ocean Isle fishing pier.

Excerpted from

September 27, 2009

Expert Witnesses & Reports - Part 6

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on expert reports:

By statute, Texas requires expert reports to prosecute various types of lawsuits—most notably medical malpractice lawsuits. This paper will not list every such requirement, but will list a few of these statutes and discuss, in particular, the medical malpractice requirements in some detail.
1. Texas Requires Expert Reports in Medical Malpractice Cases. The most litigated expert report requirement is the one that applies to medical malpractice cases and to other “health care liability claims.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon 2005 & Supp. 2006).
a. The Statute Has Strict Requirements and Deadlines. Following major changes in House Bill 4, the current statute, Section 74.351, requires a medical malpractice plaintiff to serve an expert report on each party within 120 days of filing his or her petition, along with a curriculum vitae of each expert. Id. at § 74.351(a). The report should “provide[] a fair summary of the expert’s opinions … regarding [1] applicable standards of care, [2] the manner in which the care rendered by the physician or health care provider failed to meet the standards, and [3] the causal relationship between that failure and the injury, harm, or damages claimed.” Id. at § 74.351(r)(6); see also Id. at § 74.351(j) (“Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than an issue relating to liability or causation.”). If the claimant fails to file a report, the trial court “shall” enter an order dismissing the claim with prejudice and awarding attorney’s fees and costs to the defendant. Id. at § 74.351(b).

September 26, 2009

Medical Expert Witness Testifies In Brain Damage Lawsuit

Medical expert witness Dr. Mark Palumbo testified Wednesday in the medical malpractice lawsuit against St. Joseph Hospital, WA, and two doctors. After having surgery at the hospital Oct. 7, 2004, a blood clot formed in Martin's neck, which restricted her breathing and caused swelling and eventual brain damage. The expert voiced criticism of the care Martin received from neurosurgeon David Goldman and said the brain damage she suffered following surgery was preventable.

"The standard of care was not met for Carol Martin," Palumbo testified. "It's a known complication. You must have knowledge of the potential ramifications. I believe the ... brain damage was preventable in this case." Palumbo is one of several expert witnesses to give testimony critical of Goldman, Schroeter and the nursing staff.

Excerpted from

September 25, 2009

Insurance Expert Witness On Bad Faith Cases - Part 8

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

Insurance companies have increasingly relied on what they perceive as an emerging “defense” to their denials or wrongful handling of claims from their insureds: the “good faith dispute.” Initially, this doctrine arose in the context of a genuine coverage dispute, in which the Ninth Circuit advanced the proposition that a “genuine dispute” as to coverage suggests that an insurer acted reasonably. However, the doctrine is greatly overstated by insurance companies, as confirmed by Wilson. Indeed, prior to Wilson, there was a notion in at least one case that the principle was being relied on too heavily, and being misapplied. At least one case has held that even reasonable conduct can expose a carrier to bad faith in certain circumstances.
The cases concede that this doctrine cannot be applied if:
• The insurer is guilty of misrepresentation in handling the claim;
• The insurer’s employees lie during deposition or discovery or to the insured;
• The insurer dishonestly selected its experts;
• The insurer’s experts are unreasonable; or
• The insurer fails to conduct a reasonable investigation.

September 24, 2009

Hydrology & Groundwater Expert Witness On Whether Expert Witnesses Are Recession Proof

Hydrology and groundwater expert witness Rick Van Bruggen, P.E., D.WRE, writes on whether expert witnesses are “recession proof.”

As an expert witness I am seeing that, while our field of work is not completely “recession proof,” it does seem to be significantly buffered from the full effects of a recession. The fact is, litigation does not stop during an economic downturn, but the nature of it may. As with the recession of ’01-’02, the impact of this recession on my expert witness work seems to have been delayed by some three to six months from the initial impact felt by the industrial sector of the economy, and the scope of that impact seems to be somewhat less ( I haven’t laid myself off… yet). Hopefully, as with the last recession, I will also see my business come back early-on, as the economy starts to improve. Of course, the big unknown now is how deep, and for how long, our economy will be in the tank.

Another trend I have seen is that, while my caseload is usually split 50/50 between defense and plaintiff work, I am approached by more council for defendants, verses plaintiffs, on new cases during a recession. This may speak to the fact that plaintiffs have to foot their own bills to initiate and maintain a piece of litigation, but defendants have to defend themselves, no matter what. While the number of civil cases that I get through insurance company subrogation seems not to have changed (I’m a flooding expert and it will always continue to flood somewhere), I would imagine that experts involved in more criminal cases would see an increase in their caseload, as the crime rate always seems to go up during hard times.

September 23, 2009

Bausch & Lomb Lawsuits & Medical Expert

Based on a ruling from a Charleston judge, Bausch & Lomb Inc. plans to seek to dismiss the majority of active lawsuits stemming from the 2006 global recall of a top-selling contact lens solution. David C. Norton, chief U.S. District Court judge in Charleston, last week granted the eye-products maker's request to exclude the testimony of a medical expert in more than 1,000 complaints that have been filed by individuals.

Bausch & Lomb already has paid out more than $250 million to settle about 600 lawsuits linking MoistureLoc to a potentially blinding fungal infection known as Fusarium keratitis. But after a three-day hearing in New York in June on the admissibility of expert evidence, Norton said in an Aug. 26 ruling that there is no reliable scientific basis in the 1,024 remaining complaints for arguing that MoistureLoc caused various eye infections. He said attorneys who were relying on the opinion of corneal specialist Dr. Elisabeth Cohen to support their cases "did not submit any peer-reviewed studies, articles or case reports concluding that there is a causal relationship" between MoistureLoc and the infections.

Excerpted from

September 22, 2009

Expert Witnesses & Reports - Part 5

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert testimony does not fit the case:

The expert testimony must also “fit” the facts of the case. That is, the expert must testify about
scientific theories that have a direct impact the case at hand. One interesting case—where the Court of Appeals rejected a challenge to an expert based on lack of “fit”—was the decision in Gigliobianco v. State, 179 S.W.3d 136, 141-42 (Tex. App.—San Antonio 2005) aff’d, 210 S.W.3d 637 (Tex. Crim. App. 2006). Gigliobianco involved an allegation of drunk driving. The state submitted breath test results that the police took some time after the arrest. The Defendant objected that the results should have been excluded under Rule 702 “in the absence of retrograde extrapolation proving his alcohol content at the time he drove.” Id. at 141. Without such an analysis, he argued, “the State’s expert’s testimony did not ‘fit’ the facts of the case because the expert did not know … his alcohol content when he drove.” Id. The Court acknowledged the “fit” requirement: “Expert testimony must be sufficiently tied to the facts to meet the simple requirement that it be helpful to the jury.” Id. at 142 (citations omitted). But the Court still found that the evidence was relevant and admissible. Id. (“the intoxilyzer test results and the expert testimony were properly admitted because ‘they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove.’”

September 21, 2009

Forensic Science Expert Witnesses

Do you need to hire a forensic science expert witness? The University of Alabama describes what these professionals do:

Most forensic scientists work in a lab doing "traditional" forensic science (DNA, drugs, trace, etc.). Analyzing evidence in the lab requires an undergraduate degree in chemistry, biology, or a related natural science field (like biochemistry, pre-med, microbiology, etc.). The job of a forensic analyst is for the most part limited to lab work (and testifying in court). It is rare that a forensic scientist will be required to visit crime scenes. In some forensic labs, the analysts may assist sheriff’s departments at the crime scene in rural areas, while crime scenes in the city are handled by the city police.

This leads us to the other side of forensic science, the crime scene work. Most often, crime scenes will be processed by licensed police officers trained to be a part of the department’s crime scene unit. Although crime scene technicians will be responsible for the collection of evidence and processing crime scenes, they will not have much to do with the investigation or the analysis of the evidence. Unfortunately, the common portrayal of crime scene investigators (such as the characters on CSI) is a lousy portrayal of the profession since those characters have their hands in all aspects of the investigation and in reality a person will only work in one area (lab vs. crime scene vs. investigation). The fact is, most of the investigation (interviewing suspects and witnesses) is completed by licensed police officers.

September 20, 2009

Insurance Expert Witness On Bad Faith Cases - Part 7

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

The duty to investigate is an important duty of an insurer. Hence, it can be an important part of a bad faith case. The erroneous withholding of policy benefits based on the insurer’s failure to investigate a claim may constitute a breach of the implied covenant of good faith and fair dealing. In order to protect the insured’s peace of mind and security, “an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial.” An insurer must “fully inquire into possible bases that might support the insured’s claim.” The investigation must be prompt, thorough, reasonable, and conducted in good faith. That is to say, the insurer must consider facts favorable to the insured’s position as well as those that favor the insurer. This is one aspect of the insurer’s duty to give equal consideration to both the insurer’s and the insured’s interests.

California has codified the duty to investigate in the Unfair Practices Statute (“UPA”) which requires the insurer “to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.” Even though no private right of action may exist under these statutes, the application of the duty to investigate remains important. The UPA confirms the industry standards. Alternatively, other standards may be adopted by the company as fair standards for processing a claim. A violation of the statutory, industry, or self-imposed standards provides support for a bad faith claim. They can serve as standards for determining the bad faith conduct of the insurer.

The Insurer’s “Good Faith Dispute” Defense
Recent cases have allowed an insurer to defend against charges of bad faith by raising the “good faith dispute” or “genuine issue” defense. That is, the insurer claims that because there is a genuine issue of fact or law regarding its liability for the claim, it is insulated from any potential bad faith liability. This is a misleading statement and may very well not be a sound argument. The “genuine issue” argument must be carefully analyzed.

September 18, 2009

Marketing Expert Witness On Surveys In Legal Cases Part 3

In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Often just the threat of a survey or the designation of a survey expert can motivate a plaintiff to rethink their strategy. A shoe manufacturer sued a boutique shoe store alleging that their distinctive product design was being infringed. Rather than giving up and rolling over, the alleged infringer retained a survey expert and indicated their intention to fight. This caused the plaintiff to take another look at the cost of proceeding and possible damages should they win. Their reevaluation of the case made continued litigation look like a poor business decision and the matter was dropped.

Surveys can be a powerful weapon in helping each side in a dispute see the real value of their position. And when the parties see both the truth and the beauty of their cases, settlement can occur. Because good data drives out bad cases.

September 17, 2009

Expert Witnesses & Reports - Part 4

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert's facts are wrong:

An expert’s opinion is unreliable if his or her facts are wrong. As the Supreme Court explained, if “the foundational data underlying the opinion is unreliable, … any opinion drawn from that data is likewise unreliable.” Havner, 953 S.W.2d at 714. One variant of this argument is when the expert makes unwarranted assumptions. For example, the Seventh Circuit affirmed the exclusion of a “lost profits” expert on the basis that his assumptions about market penetration were “optimistic.” Target Market Pub., Inc. v. ADVO, Inc., 136 F.3d 1139, 1144 (7th Cir. 1998). Target Market is significant because the expert’s assumptions were similar to the defendant’s own projections of potential profits in its marketing plans. Id. The Seventh Circuit held that experts still needed to prove the assumptions behind such projections. See Id. at 1145 (“The [marketing] plan sought to demonstrate what Select Auto’s profits might be given certain assumptions that had not yet, and might never, come to pass.”).

September 16, 2009

Accident Reconstruction Expert Witness Methodology

Accident reconstruction expert witness Will Meredith lays out the steps in accident reconstruction:


1) REPORTING: Strictly factual, no opinions.
2) INSPECTION: Includes measurements at scene, photographs, vehicle inspections, all observable evidence at scene.
3) TECHNICAL PREPARATION: May require additional site or vehicle measurements, occupant measurements, more photographs, map preparation, satellite photograph down loads of site, other available factual information, drawings, experiments, reinactments, skid tests, measurements of like vehicles, obtainment of vehicle specifications, repair documentation, etc.
4) PROFESSIONAL RECONSTRUCTION OF ACCIDENT: Application of scientific principles and engineering calculations usually performed by use of computer calculations and computer animations based upon physics calculations. Simple animations based upon speculation of non-engineers may be in error because of lack of understanding of Newtonian Physics.
5) CAUSE ANALYSIS: Determination of the most probable way an accident did happen. Determination of how or why an accident could not have happened in a particular way can also be determined.
6) CONFIRMATION OF RESULTS: May be necessary by comparison with similar cases and by peer review if desired.

September 15, 2009

Insurance Expert Witness On Bad Faith Cases - Part 6

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

While not an exhaustive list, the following are indicia of bad faith conduct under various standards:
• Failure to investigate a claim thoroughly;

• Failure to evaluate a claim objectively;

• Unduly restrictive interpretation of policy language or claims forms;

• Unjustified delay in payment of a claim;

• Dilatory handling of claims;

• Deceptive practices to avoid payment of a claim;

• Abusive or coercive practices to compel compromise of a claim;

• Unreasonable conduct during litigation;

• Arbitrary and unreasonable demands for proof of loss;

• Absence of a reasonable basis for delay in payment or for the denial of a claim;

• Improper refusal to defend an insured;

• Improper handling of defense of insured, resulting in loss of goodwill; and

• Deliberate misinterpretation of records or the policy to defeat coverage.

September 14, 2009

Advertising Expert Witness On Print Media

Advertising expert witness Paul Wright, is a principal of SignValue. This SignValue survey includes bad news for print media:

1) Contrary to previously published survey results, 24.7% of all respondents here indicated that their 2009 media expenditures will remain flat to potentially increase approximately 10% over 2008.

2) As a result of economic slowdown, 40% of respondents shifted dollars into e-mail marketing from print.

3) 42.1% of respondents believe that media purchasing power per dollar has increased over the last 12 months 0-10%

4) Almost half (48.2%) have diverted dollars from print to other media because of closings.

5) Until the economy recovers, 37.5% of respondents were seeking media opportunities; 35.7% were going to spend the bare minimum.

6) Exactly half believe media allocation to return to peak levels in 2001.

7) A little more than half (59.6%) expect the economy to recover in 2011.

September 13, 2009

Marketing Expert Witness On Surveys In Legal Cases Part 2

In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Sometimes even the results of a survey pre-test can be valuable. Pre-testing or pilot testing a survey is a standard research practice that often improves the survey by eliminating confusing wording or awkward question sequences. In addition, pre-testing can provide a rough indication of the likely results of a full-scale study. While the information that comes from pre-testing is not as precise as the results of a full-scale survey, the data can have an important impact on the strategy of the parties.
• In a case alleging trade dress infringement, the parties were attempting to negotiate a settlement while a pre-test of a survey was being conducted on behalf of the plaintiff. When the plaintiff’s representative in the negotiation introduced that very day’s pre-test results into the discussion, the defendant accepted the settlement offered.
• In a case involving cartoon characters on children’s clothing, the defendant maintained that there could be no confusion with the plaintiff’s trademarked character. Pre-test results in this case, however, showed a considerable amount of confusion. Recognizing that they were unlikely to prevail if they went forward with the case, the defendant withdrew the infringing characters.

September 12, 2009

Expert Witnesses & Reports - Part 3

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The Admissibility of Expert Testimony in Texas after Daubert and Robinson. Rule 702 governs the admissibility of expert testimony in Texas: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. TEX. R. EVID. 702. 1. The Robinson Opinion Created the Framework for Applying Rule 702. Robinson’s core holding is that Rule 702 requires the trial court to serve as a “gatekeeper” to ensure that (1) the expert is qualified and that the expert testimony is both (2) relevant and (3) reliable. Robinson, 923 S.W.2d at 553-54 & 556; see also Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc) (holding that, in evaluating expert testimony in criminal cases, “the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.”). According to Robinson, the relevancy requirement is critical because of the prejudicial effect that expert testimony has on the jury: “a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert.” Robinson, 923 S.W.2d at 553 (citations omitted). As to reliability, Robinson announced a “nonexclusive” six-factor test to evaluate expert testimony:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective interpretation of the expert, ...; (3) whether the theory has been subjected to peer review and/or publication
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been generally accepted as valid by the
relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or technique.

September 10, 2009

Insurance Expert Witness On Bad Faith Cases - Part 5

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

Thus, a bad faith claim has these three very separate and distinct components: A breach of contract is not bad faith – there must be an examination of the conduct of the company to determine if the manner of handling the claim was consistent with “good faith” principles. However, proof of bad faith is not enough to impose punitive damages – “something more” is required, which has been expressed as an “evilness” in the corporate scheme of things, or the “collective corporate conduct.”

The different standards and burdens applied must be evaluated. If not, they offer the defense an excellent opportunity to “compartmentalize” the case and defeat the plaintiff’s effort to obtain relief for the wrongs done in an amount sufficient to accomplish the goal of giving notice that such conduct should be stopped.

Assuming that there is contractual liability, the next question is whether the compensatory damages are limited to the contract standard as contemplated at the time of the agreement or the tort standard based on proximate cause and foreseeability.

See the next blog entry for Mr. Kornblum's indicia of bad faith conduct under various standards:

September 9, 2009

Marketing Expert Witness On Surveys In Legal Cases

Good Data Drives Out Bad Cases marketing expert witness and president of Applied Marketing Science, Inc., Robert L. Klein writes on the effective use of surveys in legal cases:

A survey can be a very effective way of helping a client see the true “beauty” of her case. For example, a survey showing that a patent infringement caused minimal lost sales can encourage a party to accept a smaller than hoped for settlement. A survey showing significant confusion due to packaging or trademark similarity, can motivate a defendant to negotiate rather than fight on. A survey establishing that marketplace realities bear little resemblance to the allegations can persuade a plaintiff to drop the case. When both sides are able to look at the same information and consider how that information will impact a judge or jury, cases settle. Armed with valid and reliable survey data, attorneys are better able to assess the merits of their case and advise their clients as to the best way to proceed.

Some attorneys may resist commissioning a survey for fear that the results will not be supportive of their client’s case. Surveys are not cheap, and sometimes the attorney’s instincts will be correct. But if a survey is going to expose the weakness of one side’s case, the other side should reasonably be expected to conduct the same survey and see the same result. The first side to know the truth can set the agenda for how the suit proceeds.

September 8, 2009

Legal Malpractice Expert Witness In Detroit Professional Misconduct Trial

Samuel McCargo faced cross-examination Friday in the final session of his trial on charges of professional misconduct while representing former Detroit Mayor Kwame Kilpatrick in the text message scandal. McCargo’s lawyers want to use Thomas Cranmer, a Detroit criminal defense lawyer, as a legal malpractice expert witness to counter the allegations that McCargo crossed ethical boundaries while representing Kilpatrick and working out the $8.4-million settlement in the 2007 police whistle-blower trial.

McCargo, who could lose his law license, is accused of covering up perjury and other misconduct, hiding evidence and lying to investigators about his actions after text messages surfaced showing Kilpatrick and his top aide Christine Beatty lied under oath.

Excerpted from

September 7, 2009

Expert Witnesses & Reports - Part 2

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The practical effect of Robinson in Texas has been an increase in the scrutiny of expert testimony. Even popular media coverage has identified the 1993 Daubert decision as a severe restriction on expert testimony. See, e.g., Laura Parker, Yates Trial Highlights Power of an Expert Witness, USA TODAY,June 20, 2006 (quoting a well-respected defense lawyer as saying “[b]efore the (1993) decision, I was seeing the most outlandish testimony. People with no credentials offered conclusions without explaining themselves ….”). Ironically, the Supreme Court intended Daubert to represent a less restrictive test for the admissibility of expert testimony than the prior “general acceptance” test used in federal courts. Daubert, 509 U.S. at 588 (“a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to ‘opinion’ testimony.”) (citations omitted). Nevertheless, in Texas, courts have taken seriously their gatekeeper function under Robinson.

September 6, 2009

Bad Faith Expert Witness On Mediation - Part 3

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

· The parties have non-lawsuit reasons to settle. There may be non-lawsuit related reasons to settle. The existence of the lawsuit or a “bad” result may trigger losses in business relationships or a negative impact on a business marketing plan. The parties may also have an ongoing business relationship which would be costly to terminate. There are lots of business and personal reasons to settle, and if these are present they will motivate the parties to seek a negotiated result.

· While the liability, damages or collection issues remain, there is no clear barrier to recovery and payment of any judgment by the plaintiff. A lawsuit is a three legged stool: liability, damages and collection. All three have to be present in order for the case to have value from the plaintiff’s perspective. If any of these three legs are missing, the plaintiff has problems and needs to assess what course is the best way to move forward. Indeed, a modest settlement may be in order in such a case. But if there is no clear barrier to the plaintiff and the stool has some strength in all three legs, then the parties should be talking seriously about resolving the lawsuit. There may be a disagreement over the numbers, but that is why mediation is attractive at a timely point in the litigation process – to save the time and expense of trial, and eliminate the risk of a disappointing result.

September 5, 2009

Insurance Expert Witness On Bad Faith Cases - Part 4

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.

The classic breakdown of the first-party insurance bad faith case is represented by a three-tiered analytical framework: 1) breach of the insurance contract; 2) the tort of insurance bad faith (or other tort converting the contract action to a tort claim); and 3) the punitive damage claim. Theoretically, this is a mixture of legal theories and remedies.

September 4, 2009

Expert Witness Seminar: How To Deliver Effective & Convincing Testimony

Roger A. Lenneberg of Constructive Solutions, LLC can tell you that the best experts know more than just their field—they know how to be a witness. His seminar Law, Evidence & Testimony For Building Forensics Experts - What to Say, When to Say It, and How to Say It is designed to provide experts with the knowledge and skills necessary to prepare and deliver effective, convincing testimony. Presenters include:

Mr. Lenneberg, with 25 years experience as a trial lawyer and mediator in the construction industry. He is a frequent lecturer on construction law and mediation. He also offers seminars for contractors on risk and project management. Roger is the past Chairman of the Construction Section for the Oregon State Bar and is admitted to practice in Oregon and Washington.

Laura Dominic, Tsongas Litigation Consulting, Inc., with 12 years of experience as a jury consultant. She has worked with hundreds of witnesses to improve confidence and credibility. She has given many seminars and participated in witness training workshops for all types of lay and expert witnesses. Her services also include strategic case presentation, creating persuasive demonstrative exhibits to support witness testimony, jury selection, and pre-trial jury research.

Please see for more details. You may also contact Mr. Leeneberg directly by phone at (503) 244-4603 or by email at

September 3, 2009

Franchising Expert Witness On The Attorney - Expert Relationship Part 2

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

The attorney/expert relationship is a tricky business in that experts are employed on behalf of one litigant–but are we members of the litigation “team?” One gratifying experience was working with a local attorney on a non-compete challenge to a proposed new business. Over several months, counsel and I separately compiled evidence. We met periodically to sift and consolidate our documentation. We analyzed possible opposition arguments. To prepare me for trial, counsel simply posed questions he might ask in direct, to hear how I would respond.

Unquestionably, being in the same city facilitated communication. Although counsel never attempted to influence my perspective, we worked first in parallel, then in convergence, and our interaction felt very much like a collaboration. Strictly speaking, it was not; although experts may become personally invested in cases, attorneys should work with us not as “team members,” but as independent, unbiased contract consultants.

The expert/attorney relationship is as fascinating as it is complicated. Many experts have spent a lifetime in their fields and have much to offer. For the foreseeable future, experts will comprise an important galaxy in the litigation universe. We–attorneys and experts alike–should welcome each new challenge as an opportunity to contribute constructively to the enduring quest for justice. To do so is more than a job; it is a privilege.

September 2, 2009

Expert Witnesses & Reports - Part 1

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P.write:

The Texas appellate courts have a deep interest in experts. Since 1995, few topics have consistently generated as many opinions from the Texas appellate courts as has the topic of expert testimony. The Texas legislature has also taken an interest in experts. The Legislature recently tightened the longstanding requirement in medical malpractice cases that plaintiffs provide an expert report to support their claims. The Legislature has also started requiring expert reports in other types of lawsuits.

The starting point for any discussion of experts is Rule 702. The U.S. Supreme Court inaugurated the current approach to Rule 702 in its landmark 1993 decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Texas Supreme Court adopted Daubert less than two years later in 1995. E.I. Dupont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Following Daubert and Robinson, a body of case law developed in Texas setting out (1) the substantive standards for evaluating the admissibility of expert testimony and (2) the procedures for preserving error when challenging experts. Soon after Robinson, however, the Texas Supreme Court applied the standards for the admissibility of experts at trial to appellate “no evidence” challenges to final judgments. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711-14 (Tex. 1997).
This ultimately created an alternative system of error preservation. This alternative method of
challenging expert testimony is much more limited than preserving error under Robinson—so, of course, all practitioners should follow the normal methods of error preservation. Nevertheless, these alternative arguments can salvage a terrific appeal when it might otherwise appear lost. This paper will first review these three issues mentioned above: (1) the Robinson test for the admissibility of expert testimony; (2) preservation of error under Robinson; and (3) preservation of error under the alternative methods that have developed following Havner.
Finally, this paper will also discuss (4) Texas statutory requirements for expert reports and (5) unique expert issues that arise in specific areas of the law.

September 1, 2009

Bad Faith Expert Witness On Mediation - Part 2

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

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:
· There has been cooperation among the parties and their counsel during the litigation process. This is key. No doubt a case has a greater potential for settlement when the parties are “firm but fair” with one another. They cooperate without compromising their clients’ rights or position. They exchange what they know is discoverable and they diplomatically but firmly protect what is not. They prepare their client for participation in the litigation process. For example, I try not to intervene at my client’s deposition. He or she is prepared to tell the story, and tell it truthfully. I don’t need to make inappropriate speaking objections or interfere with my opponent’s questioning unless counsel is violating the rules, being rude, harassing my client, or asking questions about irrelevant or privileged matters. Then, rather than arguing on the record and creating useless transcripts, I state my position and deal with this bad behavior appropriately as the rules permit. But, if we are conducting the case within and in accordance with the rules, the prospective of a cooperative discussion about resolution is highly likely.

· The parties have engaged in sufficient discovery and an exchange of information so that you know the facts of the case. You have reached a plateau in the case; each side can look towards the door of trial court and see how the case is likely to play out. Experienced trial lawyers can do this. They “hear” the evidence, they play out the examination of witnesses in their minds, and they anticipate the argument of their opponent. They know how these arguments will sound and how a jury, court, or arbitrator might respond to them. Perhaps the parties have conducted focus groups and obtained some insight into how a jury might decide. It is the ability to anticipate the “end result” that allows a trial lawyer to properly advise his or her client as to the alternatives of resolution by trial.