December 30, 2012

Products Liability Expert Witnesses

Products liability expert witnesses may consult on issues involving consumer products safety, consumer products warnings, and product design. In the news, the massive products liability case against ExxonMobil and Citgo is scheduled to go to trial on January 7, 2013 in U.S. District Court New Hampshire. The oil companies are charged with failing to warn consumers of the dangers of MTBE and the prosecution alleges that ExxonMobil and Citgo ignored their own experts who said not to use MTBE. 50,000 exhibits have been marked in the Concord, NH, case (http://www.nhd.uscourts.gov/).

December 28, 2012

Mistakes Attorneys Make With Medical Negligence Cases

In Seven Costly Mistakes Attorneys Make With Medical Negligence Cases, Dr. Burton Bentley of Elite Medical Experts LLC writes:

Although the rate of negligence claims against medical providers has begun to level off, the cost of litigating these actions has risen dramatically. Vast amounts of time and money are lost when attorneys — whether retained by plaintiff or defense — pursue a non-meritorious case or litigate a worthy case inefficiently. Beware of the following costly errors:

MISTAKE #1: FAILING TO THOROUGHLY ANALYZE A CASE BEFORE ACCEPTING IT.
Every experienced litigator knows that medical negligence cases are rarely as simple as they may appear. Complex subject matters, debatable standards of care, and precarious links to causation often conspire to sabotage both plaintiff and defense. The essential key is a meticulous and realistic analysis of the elements of negligence in order to develop a strategic plan. Hiring an “expert” that simply reinforces your own preconceptions is a sure road to disaster. Indeed, successful attorneys know that a negative or contrary opinion from an expert is often more valuable than a positive one. With so much at stake, the quality of your expert is one of the most important factors in achieving success

.

December 28, 2012

Medical Malpractice Expert Witnesses

Medical malpractice expert witnesses may consult on issues involving medical negligence, healthcare providers malpractice, and medical malpractice litigation. The American Academy of Pediatrics Committee on Medical Liability and Risk Management offers Guidelines for Expert Witness Testimony in Medical Malpractice Litigation on their website. The article includes discussion on standards of care, medical errors v. negligence, and more.

See: http://pediatrics.aappublications.org/content/109/5/974.full.

December 26, 2012

Patents Expert Witnesses & $1.17B Carnegie Mellon Award

Patents expert witnesses may opine on patent infringement, software patents, invention patents, and more. In the news this week, Carnegie Mellon University has been awarded almost $1.17B in its patent infringement lawsuit against Marvell Technology Group Ltd. The jury found that Marvell, maker of data storage chips, infringed on Carnegie Mellon technology patents while Marvell argued that the patents were not valid. The Pittsburg jury found that Marvell had sold billions of chips incorporating technology developed by Carnegie Mellon Professor Jose Moura and doctoral student Aleksandar Kavcic. Judge Nora Barry Fischer presided in the W.D. Pa. case (2:09-cv-00290-NBF).

December 25, 2012

Guidelines For The Expert Witness Part 2

In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge
Province of Nova Scotia, offers trial preparation guidelines including:

Guideline #12 - Answer only what is asked.

Be precise and do not offer gratuitous comments. Answer only what counsel or the court asks. If clarification or interpretation is needed, do so as necessary. It is better to acknowledge lack of expertise in a specific area than to risk misleading responses. Failure to acknowledge a possible second interpretation may result in a loss of credibility. Do not assume that counsel or the court are familiar with the profession, its descriptions and prescriptions. Assume that the evidence and the manner it is presented, will be assessed for validity and weighed against other evidence.


Read more at: http://www.lectlaw.com

December 24, 2012

The Emotionally Volatile Client

In The Emotionally Labile Client; Duties – When A Client Threatens Violence, Jeffrey Segal, MD, JD, FACS, et al. and Michael Sacopulos, JD, write on what happens when a client threatens violence. See http://www.medicaljustice.com/.

Published in Elon Law Review, 2012, Spring, pp55-70.


December 23, 2012

Neurology Expert Witnesses

In Expert witnesses on trial, neurosurgery expert witness Dr. Jeffrey Segal writes that the ideal goal of an expert during testimony is to be "an indifferent advocate for the truth." Dr. Segal is a board certified neurosurgeon and Chief Executive Officer and Founder of Medical Justice.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Read his publications: http://www.medicaljustice.com/news/our-publications/.

December 22, 2012

Thoracic Surgery Expert Witnesses

Thoracic surgery expert witnesses may opine on pulmonology, chest medicine, respiratory medicine, and more. The American Association for Thoracic Surgery has adopted a statement of qualifications for expert witnesses and guidelines for behavior of AATS members when acting as experts in the legal system including:

Making false, misleading, or deceptive statements exposes physician expert witnesses to risks of criminal prosecution for perjury, civil suits for negligence, and revocation or suspension of their professional licenses. Violation of these guidelines may lead to disciplinary action by the AATS. (See Article IX of the AATS By-laws.)

Read more: http://www.aats.org/

December 20, 2012

Emergency Medicine Expert Witness On EMTALA Part 1

In EMTALA What is the “Appropriate Medical Screening Examination,” emergency medicine expert witness Dainius A. Drukteinis writes:

Chances are if you are an emergency medicine physician or nurse you have probably heard of the acronym EMTALA. Even without knowing what it stands for, you likely shudder at the mere mention of the word, with its authoritative ring as if bellowed from a voice up above . . . E-M-T-A-L-A. If a senior physician tells you, “That violates EMTALA,” you don’t ask questions. You simply look down and respond “Yes, Sensai, it will not happen again.” If you have been in the emergency medicine field a few years, you probably know that EMTALA prohibits a hospital from turning patients away from the Emergency Department, and it also prohibits transferring unstable patients to another facility. You know that a violation of EMTALA means bad things will happen. What those bad things are, however, you are not sure. This is usually the extent of people’s knowledge because to know more would require reading the EMTALA statute, both boring and confusing, or court case opinions, more boring and more confusing.

This article introduces the basic concepts of EMTALA by providing a brief history of the statute with its original purpose, a discussion of the statute’s actual form, and subsequent interpretations of EMTALA based on cases. It is written in non-legal fashion, with details in the endnotes for those of you for whom “seeing is believing.” It then challenges your understanding of EMTALA by having you work through a real case before being given the Court’s rationale for its opinion. It will hopefully answer basic questions you have regarding the application of EMTALA, specifically the requirement to perform an “appropriate medical screening examination.” It does not discuss details regarding transferring unstable patients. Do not read this article if you think it will give you EMTALA peace. It will only lead to more questions, as any discussion of legal principles invariably leads to more questions than answers. For the obsessive-compulsive, welcome to the EMTALA black hole.

Dainius A. Drukteinis, M.D., J.D., is a Board Certified Emergency Medicine Physician. He is an Assistant Professor of Emergency Medicine at Tampa General Hospital in conjunction with the University of South Florida.

December 19, 2012

Guidelines For The Expert Witness Part 1

In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge
Province of Nova Scotia, offers pretrial preparation guidelines including:

Attend by court ordered summons or subpoena only.

The expert witness attends court at the request of a party or by court summons or subpoena. The expert witness should consider being formally ordered to attend rather than attending voluntarily. There are advantages to attending by court order.


Read more at: http://www.lectlaw.com

December 18, 2012

Thoracic Surgery Expert Witnesses

Thoracic surgery expert witnesses may opine on pulmonology, chest medicine, respiratory medicine, and more. The American Association for Thoracic Surgery has adopted a statement of qualifications for expert witnesses and guidelines for behavior of AATS members when acting as experts in the legal system including:

The physician expert witness should state the basis of his or her testimony or opinion, and whether it is based on personal experience, specific clinical references, evidence-based guidelines, or a generally accepted opinion in the specialty field.

Read more: http://www.aats.org/

December 17, 2012

School Safety Expert Witnesses

School safety expert witnesses may provide testimony regarding school violence, school crisis preparedness training, and school crisis services, as well as related topics. In Fight, Flight or Lockdown – Teaching Students and Staff to Attack Active Shooters could Result in Decreased Casualties or Needless Deaths, authors Michael S. Dorn and Stephen Satterly, Jr., of Safe Havens International write on incidents where victims are trapped by an active shooter.

Mike Dorn serves as the Executive Director of Safe Havens International, a non-profit school safety center. He has authored and co-authored 26 books on school safety and have served as a university police lieutenant, school district police chief and as the lead expert for the nation’s largest state government Pre K-20 school safety center. His articles may be found here: http://www.safehavensinternational.org/resources/articles/.

December 16, 2012

Screening Medical Expert Witnesses

In Screen a Medical Expert Witness with 5 Easy Questions, Mednick Associates writes that "Locating a medical expert witness to provide an objective opinion is a crucial, make or break moment for your case. Just spending the hours and energy searching for and locating a medical expert who will review your case file is not enough. Asking the right questions via a proper screening process is as important as the search itself."

The five questions, including "Will you testify?," may be found here: www.mednickassociates.

December 15, 2012

Bus Safety Expert Witnesses

Bus safety expert witnesses may testify on commercial vehicles, school bus safety, and bus maintenance, among other topics. In Screening School Bus Safety and Security Expert Witnesses, Mike Dorn writes:

While there are fortunately many well qualified and highly credible expert witnesses who are men and women of integrity, it can sometimes be difficult for busy attorneys and insurance personnel to sort out the best from those who are questionable in any particular field of expertise.

Mike Dorn serves as the Executive Director of Safe Havens International, a non-profit school safety center. He has authored and co-authored 26 books on school safety and have served as a university police lieutenant, school district police chief and as the lead expert for the nation’s largest state government Pre K-20 school safety center. His articles may be found here: http://www.safehavensinternational.org/resources/articles/.

December 12, 2012

Patents Expert Witnesses & Latest Apple, Inc. Decision

Patents expert witnesses may opine on patent infringement, software patents, invention patents, and more. In the news this week, MobileMedia Ideas LLC won a patent case against Apple Inc. in the Wilmington, Delaware District Court. The jury decided that Apple infringed on patents for electronics in handheld devices.

The MobileMedia website states:

MobileMedia Ideas is the patent portfolio licensor of inventions adopted by manufacturers of smart phones, mobile phones and other portable devices including personal computers, laptops, netbooks, personal media players, e-book readers, cameras and hand-held game consoles.

We own more than 300 patents worldwide that are important to those mobile device companies incorporating in their products innovations such as call handling, speed dial functions, database searches, audio download and playback, and still picture and video processing.

December 11, 2012

Location Of Medical Expert Witnesses

In Four Reasons Why The Location Of A Medical Expert Witness Is Becoming Less Important, Diane Manders of Mednick Associates writes:

The physical location of a medical expert witness, while in no way related to the competency of the witness, has always been a concern of attorneys litigating medical, health, toxic tort or injury cases. Conventional wisdom says the closer the expert is to the venue of a trial, the higher credibility they will have with a jury. Proximity, like it or not, tends to breed confidence and eliminates the question on why an attorney had to “go to the other side of the country” to prove his/her case.

However, as the world has grown smaller so has the potential stigma of an out of state or out of region medical expert witness.

Read more: http://www.prweb.com

December 10, 2012

Developing The Expert Witness CV

In BECOMING AN EXPERT WITNESS & DEVELOPING YOUR CURRICULUM VITA OR RÉSUMÉ, Hallie Bongar White & Jane Larrington of the The Southwest Center For Law And Policy offer a template for Writing A Curriculum Vita or Résumé. The Southwest Center For Law And Policy is a non-profit organization providing legal training and technical assistance for tribal law enforcement, courts, prosecutors, community health care professionals, victim advocates, social services, and community members. SWCLAP hosts the National Tribal Trial College.

Ms. White is an attorney and Executive Director of the Southwest Center for Law and Policy. Ms. Larrington is a reference librarian at the Thomas Jefferson School of Law and a staff attorney at the Southwest Center for Law and Policy.

Read more: http://www.swclap.org/pdfs/EXPERTWITNESS.pdf

December 9, 2012

Real Estate Valuation Expert Witnesses

Real estate appraisal expert witnesses may write reports and testify on commercial appraisals, fair market value, and residential real estate appraisal.

On its website, The Appraisal Institute offers Appraiser News Online, the Appraisal Institute’s free weekly e-newsletter that provides ongoing coverage of industry trends, legislative issues and regulatory developments affecting appraisers. The Appraisal Institute is a leader in residential and commercial real estate appraisal education. Webinars include Appraising Distressed Commercial Real Estate: Here We Go Again.

More info: http://www.appraisalinstitute.org/store/c-23-webinar-recordings.aspx

December 8, 2012

Architecture Expert Witness On Construction Defects Part 1

In Help! My New House Is Falling Down, architect Peter Lattey writes that uncovering construction defects requires an expert to discover the cause of damage.

A homeowner walks into your office and says "My new house is falling apart and I want to sue the bum that built it."

As a smart lawyer, you quickly decide that this may be your next money making case and you decide to find out what the case is all about. Being a prudent person, you do a bit of research before you take on the case. Just as an emergency room doctor does a triage on new cases to decide how each new patient is to be treated, a smart lawyer needs to do the same on new construction defect cases.

This is a story about what happens next.

You should start by asking the homeowner a few initial questions to determine what the contractual basis of the case is.

• What sorts of problems are there with the house?
• Is there a written contract between the owner and the builder?
• Is the builder licensed?
• Does the contractor have insurance?
• Who drew the plans? Do they have insurance?
• Was there a building permit issued?
• Who took out the permit from city hall?

Chances are Mr. or Ms. Homeowner won't know the answers to all of these questions but the questions will give you an idea of what is going on. You can then make a note of what documents you will need from the homeowner at your next meeting.

Lattey, principal of Peter Lattey, Archtects, has served as an expert witness regarding construction defects, fire & explosion, building products defects, construction costs and construction scheduling.

More information: www.peterlattey.com.

December 5, 2012

Cross Examination Of Expert Witnesses

In Cross-Examination of Experts: Where to Start, Richard A. Cook, Esq., offers a list of areas to review including Learned Treatises, Private Investigators, and more. Mr. Cook, member of the Indianapolis law firm Yosha Cook Shartzer & Tisch, is a former Assistant U. S. Attorney for the Northern District of Indiana. He writes as a guest blogger for http://theparalegalsociety.wordpress.com.

December 4, 2012

Psychology Expert Witness On Litigating Competence Part 2

In Litigating Competence—Five Central Questions, psychology expert witness Philip J. Kinsler, Ph.D., writes:

2. What specific psycho-legal skills should be addressed in a competency evaluation?
2.1. An examination of competence often makes an assessment of the following psycho-legal skills:
2.1.1. Whether the Defendant has an appreciation of the charges;
2.1.2. Whether the Defendant has an appreciation of the range and nature of possible penalties;
2.1.3. Whether the Defendant has an understanding of the adversary nature of the legal process;
2.1.4. Whether the Defendant has the capacity to disclose to his attorney pertinent facts surrounding the alleged offenses;
2.1.5. Whether the Defendant has the ability to relate to his attorney;
2.1.6. Whether the Defendant has an ability to assist his attorney in planning his defense;
2.1.7. Whether the Defendant has the capacity to realistically challenge prosecution witnesses;
2.1.8. Whether the Defendant has the ability to manifest appropriate
courtroom behavior.

December 3, 2012

Forensic Expert Witnesses

In The forensic expert witness—An issue of competency, Forensic Science International writes:

Scientists submitting expert opinions within the legal system are expected to be knowledgeable in the forensic aspects of their particular science, as well as to be ethical and unbiased.

Scientists are seldom able to decline a request to provide an expert opinion in their field, even when their forensic expertise is minimal. The competence of scientists providing expert opinions in forensic cases is reviewed here. Three examples of the perils of uninformed “expertise” in forensic biology, medicine and anthropology are presented.

More: http://www.fsijournal.org/

December 2, 2012

Texas Judge On Witness Competency

In Witness Competency, Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, TX, writes:

Long before Robinson and Daubert subjected expert witnesses to a judicial pre-screening process, Texas judges were acting as gate-keepers as to fact witnesses on the basis of competency. In fact, legal history in Texas is replete with many grounds to exclude witnesses due to incompetency, most of which have long-since been abandoned or repealed, such as religion, race and criminal convictions. Two exclusionary grounds remain, however, in the current rules of evidence – witnesses who are mentally incompetent and children.

Read more: http://judgebonniesudderth.wordpress.com

December 1, 2012

Tobacco Expert Witness & $27B Lawsuit

Quebec Justice Brian Riordan agreed to hear the testimony of Stanford University's Robert Proctor in the class action case against Imperial Tobacco Canada Ltd., Rothmans, Benson & Hedges, and JTI-Macdonald. The tobacco expert witness published Tobacco and the Global Lung Cancer Epidemic in 2001 and has previously testified in 30 trials. Dr. Proctor testified for plaintiffs in the $27B case.