November 30, 2013

Accident Investigation Expert Witnesses & Distracted Drivers

Accident investigation expert witnesses may provide reports concerning crash investigations, distracted drivers, and skid mark analysis. Statistics in the US suggest that distraction contributes to 16% of all fatal crashes. AAA tells us that drivers spend more than half their time focused on things other than driving, e.g. eating, attending to children, and music devices, etc. At Malman, personal injury lawyers write on how to prove texting and driving, including:

Even if a cautious cell phone user deletes their text messages, law enforcement officials can contact the user’s mobile service provider and view the timestamps for any text messages sent or received. Many auto accident lawyers have been able to use cell phone records to prove that a driver was using their phone during an accident.

Read more:

November 29, 2013

Demonstrative Evidence Expert Witnesses

Demonstrative evidence expert witnesses may consult on courtroom exhibits, computer reconstruction, computer animation, forensic animation, and simulations. While demonstrative evidence is not real evidence, it illuminates the points being argued in court. In How to Build the Visual Foundation of Your Case, attorney Morgan Smith describes how to create simple yet effective graphics. Mr. Smith recently gave a presentation for the Melvin Belli seminar on trial practices, hosted by the Santa Clara County Trial Lawyers Association. He advises:

Start creating graphics to build the visual foundation of your case before the first depo is taken, so that you can go to depositions with a basic to-scale visual diagram of the incident scene. Then witnesses and experts can add in details.

Cogent Legal Blog, shares real-world advice about trial graphics, case presentations, legal tech and litigation strategy. "We blog to help attorneys make their case and manage their practice in the most effective and least stressful way possible. Who are we? Litigators like you." Cogent Legal was voted “the best presentation provider” in Northern California for 2013 in The Recorder’s annual poll of law firms and legal services.

November 27, 2013

DNA Expert Witness Testifies In Cold Case

DNA expert witness Dr. Mark W. Perlin testified in Beaver County, PA, in the 1979 cold case against Gregory Scott Hopkins. The murder case against Hopkins in the death of his girlfriend Catherine Janet Walsh was reopened due to modern DNA technology. Perlin testified regarding DNA evidence at the scene which connected Hopkins to her murder thirty years ago.

Dr. Perlin is CEO and Chief Scientific Officer at Cybergenetics, and the creator of the TrueAllele® technology. Cybergenetics interprets complex DNA evidence using computers to preserve information inherent in the data, and can extract identification information almost every time. DNA testing was originally developed as a method of determining paternity. It now plays a role in the criminal investigation process and is allowed in post-conviction DNA testing to exonerate those who may have been falsely sentenced.

November 26, 2013

Construction Site Expert Witness On Avoiding Expert Report Errors

In Avoid This Expert Report Writing Error, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

As an experienced expert report writer and testifying expert I recommend that attorneys make sure their expert avoids this common expert report writing error.

It is vital that an expert investigate and study the evidence without predisposition. I often read the reports of other experts, in which I see a section labeled “Objective”. In this section I see statements such as:

• To determine within a reasonable degree of professional certainty “if” defendants knew or should have known the dangers presented.
• To determine within a reasonable degree of professional certainty “if” the defendants improperly maintained the area.
• To determine within a reasonable degree of professional certainty “if” the defendants provided the proper warnings and safeguards.

While these statements seem harmless at first glance, they can be damaging to the expert’s credibility. During cross examination the opposing counsel will try to tear down the opinions and conclusions of the expert’s report by attempting to show the jury that the expert’s viewpoint was biased from the very beginning and his or her opinions and conclusions may be unjustifiably slanted.

The cross examination may go something like this:

Q: Mr. Expert, are all of the opinions and conclusions in this report yours?
A: Yes.
Q: Mr. Expert did you write everything contained in this report?
A: Yes.
Q: I would like to point your attention to the section in your report labeled Objectives, do you see that?
A: Yes.
Q: There are three objectives listed, is that correct?
A: Yes.
Q: Please read them for the jury.
A: (The three objectives are then read out loud to the jury.)
Q: Let’s talk about them for a moment. It is apparent that your objective is to prove that the defendant in the case, my client, knew or should have known various things. Your other objective is to prove my client is guilty of not maintaining the area. And your final objective is to prove that my client did not provide the proper safety warnings. In other words, it was your objective and goal to prove that my client was at fault from the very beginning. Isn’t that correct?
A: No, counselor, I study the evidence and then formulate the opinions and conclusions in my report.
Q: I understand, but your objective states it was to prove my client did not do or did not provide these things, so you made up your mind that my client was at fault in the very beginning before writing your report.
A: No, counselor.
Q: Well, your written objectives are clear and you set an objective or goal to show my client was at fault and to then reflect that goal in your report.
A: Once again, counselor, I did not pre-determine anything before I looked at the evidence.
Q: Would you agree that an objective is a goal you set out to do? Isn’t that correct?
A: Yes, I would agree an objective is similar to a goal.
Q: So then your objectives were the goals you set out in the very beginning to be reflected in your report.

There you have it - an example of how three seemingly harmless “if” objective statements can be twisted to hurt the expert’s credibility and tarnish or render their opinions and conclusions as not credible in the minds of the jury. It is likely the expert’s intention was to determine “if” the defendant did or did not, or was or was not at fault in any of these three areas, which, obviously, could come out either way. However, their “if” objective statements were used against them.
The lesson here is two-fold. If you are an attorney and your expert’s report lists “if” statements and/or objectives, do not allow it, or your expert will open herself up to this type of powerful and sometimes effective cross-examination.

One, and only one, simple and effective objective statement is sufficient and should be included in an expert’s report -- “Objectively assess the facts and evidence of the case in order to form opinions and conclusions without prejudice”. This statement represents why you hired the expert, namely, for their expertise, integrity, and ability to evaluate the evidence and to opine based on the facts of the case. If you are an expert reading this article, avoid “if” statements and only include one objective statement as noted above. Should you choose to include “if” statements, you are opening up the possibility of being intensely cross-examined, put on the defensive and having your credibility questioned.

Read more: William Gulya, Jr., Middlesex Trenching Company, specializes in excavation & construction site preparation.

November 25, 2013

Juvenile Justice System Expert Witness Testifies On Jail Conditions

Juvenile justice system expert witness Paul DeMuro testified in a Polk County, FL, federal trial over the constitutional rights of juveniles at the Polk County jail and the conditions under which they are held. Representing the Southern Poverty Law Center in a class action suit, DeMuro described conditions at the jail, including the use of pepper spray and inadequate supervision. A security camera captured a young detainee being punched and kicked by fellow cellmates and then Polk County deputies spraying them with pepper spray.

Mr. DeMuro has over forty-one years experience working on juvenile justice and child welfare issues. He serves as a senior consultant to the Annie E. Casey Foundation and to the National Juvenile Detention Association.

November 22, 2013

Firearms Expert Witness Testifies Re: Reaction Times

Firearms expert witness Bryce Linskey testified in the Danbury, CT, murder trial of Robert Bell. Bell is accused in the shooting death of his wife Svetlana Bell in their home in December 2012. Mr. Linsky, now with the armed school security provider Direct Contact Solution LLC, is a retired sergeant with the Bristol Police Department and served in the United States Marine Corps. He testified on firearms, reaction times, and other details of the shooting.

Firearms expert witnesses may testify regarding ammunition, ballistics, firearms, firearms design, and related matters.

November 21, 2013

Accounting Expert Witness Testifies in Samsung Case

Attorney and accounting expert witness Michael Wagner testified last week in the lost profits case between Samsung and Apple. Apple is asking for $114M in lost profits over a touch screen feature. Yesterday Samsung asked Judge Lucy Koh to stop the retrial after the US PTO said an Apple patent might not be valid. The case is in jury deliberation. Samsung's net sales in 2012 were $247.5B.

The US PTO offers Laws, Regulations, Policies & Procedures here:

November 20, 2013

Expert Witness Marketing Authority Rosalie Hamilton On Your CV

In 3 Tips for Improving your Expert CV, Rosalie Hamilton, the leading authority on expert witness marketing and founder of Expert Communications, offers advice on the form and content of your CV including:

Read your CV as though you were reading someone else’s CV, with three or four others having been received from people with similar credentials and experience. What can you do to improve your CV, including making your expertise instantly recognizable?

Read more: Expert Communications.

Ms. Hamilton provides customized marketing plans and consulting and coaching to individual experts and firms. Her Happy Clients (many of whom have made boatloads of money) are her credentials. She consults and coaches and provides full-service marketing for experts, including web site development. She is the author of *The Expert Witness Marketing Book*

November 16, 2013

Transporation Expert Witnesses &

Transportation safety expert witnesses may provide reports regarding transportation brokering, bus & truck safety, highways, transportation engineering, and transportation infrastructure. On its website, the American Transportation Associations describes how technology is changing the trucking business:

The analysis and utilization of data is changing the driver, vehicle and operational landscape for those fleets that have discovered how to harness it. Transportation leaders are saving time and are able to streamline their operations using integrated technologies that are leading to safer, productive and more efficient operations. Fleet executives and managers need faster, more convenient access to reliable information to find efficiencies in order to survive or gain a competitive advantage.

Information on the ATA Executive Summit may be found at here.

November 15, 2013

Arson Detection Expert Witnesses & Texas Case

Arson detection expert witnesses will testify in the Gatesville, TX, murder trial of David K. Allen who is accused of killing his wife, Paula Allen. Fire investigators have already classified the mobile home fire as intentionally set. The former preacher's trial has been delayed from November 2013 to February 2014. Chemical experts will perform laboratory analyses to determine whether an accelerant was used in the 2011 fire.

The current Mrs. Allen, 28, has been indicted for perjury in the case.

November 14, 2013

Pharmacology Expert Witnesses & Vermont Settlement

Pharmacology expert witnesses may provide reports and expert witness testimony concerning clinical pharmacology, generic drugs, patented drugs, pharmaceutical companies, and associated matters. It was recently announced that the state of Vermont will receive almost $1.4M in the consumer fraud lawsuit against Johnson & Johnson and Janssen Pharmaceuticals. The DOJ charged the drug companies with illegal marketing and kickbacks to influence doctors to prescribe Risperdal, Natrecor and Invega to their patients.

Janssen Pharmaceuticals, Inc., a New Jersey pharmaceutical company of J&J, provides medicines for attention deficit hyperactivity disorder (ADHD), general medicine (acid reflux disease, infectious diseases), mental health (bipolar I disorder, schizophrenia), neurologics (Alzheimer’s disease, epilepsy, migraine prevention and treatment), pain management, and women’s health. Sister companies include Janssen Biotech and Janssen Theraputices.

November 13, 2013

Industrial Psychology Expert Witnesses

Dr. Robyn Porterfield and her partner industrial psychology expert witness Dr. Bob Rose write about the benefits of knowing about the services of Industrial Psychologists.

Judging from the scarcity of Industrial Psychologists (often called IO Psychologists) on legal websites many practitioners may know little, if anything about what they do. IO’s are a specialized group of professionals who have PhDs in Psychology and focus on behavior in the workplace and can speak to issues such as safety, discrimination, harassment, hiring and termination. While these areas require some specialized knowledge beyond the scope of IO training they also have associated psychological factors. For example, a safety program may not be effective if not communicated in a way people can understand and remember. Discrimination in hiring often involves understanding psychometric issues such as validity, an area where Industrial Psychologists have considerable training and understanding of practical applications. Industrial Psychologists whose consultation to business is their sole or major endeavor know the difference in ivory tower theory and real-world applications.

Read more: Rose Porterfield Group Inc

November 12, 2013

Disaster Management Expert Witness On Typhoon Haiyan Aftermath

I asked safety and disaster management expert Dr. Michael J. Fagel to comment on the Typhoon Haiyan disaster. He specializes in industrial safety, OSHA, safety, FEMA, security, transportation, and the food industries. He spent over 100 days at ground zero following the September 11, 2001 attacks.

Planning, something we always talk about, but, when the disaster happens, we wonder what has occurred and why. The extraordinary events that have occurred in the Philippines, underscore the need for human services and support. I have been to many hurricanes and man made disasters over the last 30 years.

We must strive for open and honest communications during the event. Specifically,

Medical Care

are THE things we as humans need, and our injured and dislocated fellow members of the Philippines are now in DIRE need. The time during an event is NOT the time to blame, BUT, the time to prepare for the needs of those affected.

As a disaster response planner, and having been world wide, it is time to reach out to help those less fortunate. Our job is to provide appropriate support, and offer assistance as the government has suggested AND:

Make a plan, and provide for the support for your own community.

Mike Fagel
Michael J. Fagel, PhD.,CEM
Certified Emergency Manager

November 11, 2013

Accident Investigation Expert Witnesses & Hit-and-Run Crashes

Accident investigation expert witnesses may give opinions and provide reports concerning crash investigations, preservation of the accident scene, skidmark analysis, and more. In October, the National Highway Traffic Safety Administration released a statistical projection of traffic fatalities for the first half 2013 which showed that an estimated 15,470 people died in motor vehicle traffic crashes. USA Today reported this week that hit-and-run crashes, including fatal ones, are increasing in many big cities. Los Angeles has the dubious distinction of having almost half of accidents fall into this category.

Dr. Sara Solnick, Professor at the University of Vermont, has studied hit-and-run crashes in the context of the economic model of behavior. She says drivers who have much to lose, e.g. young drivers, those under the influence, or those without a license, are motivated to not get caught.

November 10, 2013

Transportation Expert Witnesses & NTSB Recommendations

Transportation expert witnesses may consult on bus & truck safety, highways, transportation engineering, transportation safety, and associated matters. This past week the National Transportation Safety Board announced their investigations into deadly crashes in the past year has resulted in a recommended audit of the Federal Motor Carrier Safety Administration's oversight procedures. Four commercial vehicle accidents resulted in 25 deaths in the time period December 2012 to June 2013. Investigations revealed safety problems that went unnoticed or were not remedied by the FMCSA until after the accidents.

For more information, see the November 7, 2013, NTSB Press Release.

November 8, 2013

Real Estate Appaisal Expert Witness Testifies Re: Wetlands Valuation

Real estate appraisal expert witness Carlton Segars testified this week that South Carolina bank First National Bank, as well as their appraiser, acted fraudulently in a $3M loan made to state Senator Ray Cleary and his investment company. The fraudulent appraisal under-reported wetlands on the property. The wetlands cannot be developed but First National Bank allegedly included them in the loan amount.

Wetlands may be a marsh, swamp, bog, slough, etc. EPA regulations at 40 CFR 230.3(t) explain that:

Wetlands vary widely because of regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance. Indeed, wetlands are found from the tundra to the tropics and on every continent except Antarctica.

November 7, 2013

Pharmacology Expert Witnesses & Ranbaxy Case

Pharmacology expert witnesses may opine on generic drugs, patented drugs, pharmaceutical companies, pharmaceutical medicine, and the pharmaceutical industry. Not commonly known is the fact that 40% of prescription drugs used in the US are manufactured outside the US. News this week revealed unsavory business practices by the drug company Ranbaxy in India. Ranbaxy chemical engineer Dinesh Thakur became a whistleblower and exposed that Ranbaxy drugs were made improperly. Ranbaxy was ordered to pay $500 million in fines and settlements.

FDA news release, Sept. 16, 2013: FDA prohibits manufacture of FDA-regulated drugs from Ranbaxy’s Mohali, India, plant and issues import alert.

Read more:

November 6, 2013

Domestic Abuse Expert Witnesses

Domestic abuse expert witnesses may consult and testify on domestic violence, family violence, domestic assault, and related matters. Lawrence Cambra fatally shot an Oregon volunteer officer-in-training this past weekend after having police called to the residence 10 times in 2012 for domestic disputes. When Officer Robert Libke arrived at the burning house, Cambra shot him in the face with a rifle. Officer Libke had not drawn his weapon. decribes domestic violence:
Violence can be criminal and includes physical assault (hitting, pushing, shoving, etc.), sexual abuse (unwanted or forced sexual activity), and stalking. Although emotional, psychological and financial abuse are not criminal behaviors, they are forms of abuse and can lead to criminal violence.

November 5, 2013

Pesticides Expert Witnesses & Pesticide Contamination

How may pesticides expert witnesses consult on pesticide contamination? These professionals may write reports and testify on insects, pesticide products, pesticide regulations, pesticide pollution, and more. This week, two pesticides have been linked to an increased risk of the medical condition endometriosis. Mirex and beta HCH have been banned in the US for many years but are still found in some dairy products and fish.

Mirex was developed to control fire ants. The chemical unfortunately becomes more concentrated and toxic as it travels up the food chain to humans. The pesticide beta HCH was used over 30 years ago but traces may still be found in the environment. Studies on humans show that exposure is linked to both Alzheimer's and Parkinson's disease.


November 4, 2013

Cell Phone Expert Witnesses & Rockstar Litigation

Cell phone expert witnesses may consult and testify on wireless communications, cellular, and wireless networks. This week, the Rockstar Consortium (owned by Apple, Microsoft, Blackberry, Ericsson and Sony) sued Google, Samsung, and others over alleged mobile phone patent infringements. The lawsuit was filed in the U.S. District Court of Eastern Texas while at the same time Samsung and Apple are in patent litigation in more than 10 European countries.

Dan Rowinski, Mobile Editor at ReadWrite, says Rockstar could be considered a “non-practicing entity.” While NPEs are patent holders, they do not manufacture products or supply services based on these patents and are sometimes referred to as "patent trolls." On October 30, 1023, Sen. Orrin Hatch introduced the Patent Litigation Integrity Act (S. 1612) to inhibit litigation by patent trolls.

November 4, 2013

Wireless Technology Expert Witnesses

What types of cases may wireless technology expert witnesses consult on? They may assist with disputes involving wireless communications, cellular, GPS, and more. The Global Positioning System is a navigation system made possible by 24 satellites in orbit 12K miles above the earth. The satellites are solar powered and each circles the earth twice a day.

In the news, a Philadelphia federal appeals court ruled that police must have a warrant before using GPS to track a suspect's vehicle. In Case No. 12-2548, Judge Greenaway opined: “This appeal stems from the Government’s warrant-less installation of a Global Positioning System device (a “GPS device” or “GPS tracker”) to track the movements of appellee Harry Katzin’s van.”

November 3, 2013

Transit Expert Witnesses & DOT lnformation

Transit expert witnesses may opine on bus & truck safety, highways, bridges, transportation engineering, and related matters. Background information on these issues may be found at the U.S. Department of Transportation Federal Transit Administration website which offers news releases, policy letters, the FTA library (which includes a Legislation & Law search page), and much more.

There is also an email update service. I signed up for the Transit Research Update and Press Releases.

November 2, 2013

Chiropractic Expert Witness Testifies In Criminal Sexual Conduct Case

Chiropractic expert witness Dr. Steven S. White testified in the criminal sexual conduct case against Dr. George Young of Munising, MI. Eight patients and two employees have accused Young of inappropriate touching and/or sexual assault which took place in his chiropractic office. Young describes his actions as part of the chiropractic procedure while Dr. White testified that the defendant's conduct was unnecessary and inappropriate. The Traverse City expert witness graduated from Palmer College of Chiropractic in 1972.

November 1, 2013

Internet Expert Witnesses & NSA

Internet expert witnesses may consult and and testify on electronic mail, identity theft, and internet security. In the news, documents leaked by Edward Snowden and Washington Post interviews describe the National Security Agency as collecting information from Silicon Valley internet companies, such as Google and Yahoo, on millions of customers. Google’s David C. Drummond, Senior VP, Corporate Development, and Chief Legal Officer, said his company does not “provide any government, including the US government, with access to our systems.” Drummond served as Google’s first outside counsel while at Wilson Sonsini and joined Google in 2002.

FYI: Gmail was launched on On April Fools' Day in 2004.