April 21, 2014

Industrial Psychology Expert Witness On Employment Testing

In TEST VALIDATION IN EMPLOYMENT SETTINGS, industrial psychology expert witness Robert Rose, PhD, and his partner at Rose Porterfield Group, Inc., Robyn W. Porterfield, PhD, write on employment testing. They have co-written articles including a column for the Dallas Business Journal titled "C-level coach.

If a selection procedure is challenged for adverse impact its validity becomes important. “Validity” is the extent to which test results are related to performance on the job. And, legal issues aside, it is best for the organization to have valid procedures. There are a few key points you need to consider if involved in litigation around testing issues and/or advising clients to avoid issues.

Everything you use to hire or promote is a test. Period. If all you do to hire is interview you have to show that the interview is valid – and that may be difficult.

Validity can be of several types: The three major categories are: 1) construct, the procedure measures an abstract trait such as intelligence or decision-making; 2) content, the procedure has test items or tasks that are needed to perform the job, e.g. using a basic math test for bank tellers; and, 3) criterion-based, e.g. statistical evidence shows people who score high on a test do better in the job than those who score low. None of these are as straightforward as they appear and require someone familiar with psychometrics – usually an Industrial Psychologist – to evaluate.

Validity in the real world is not perfect. It might be ideal to have some perfect measure of success in a controlled study with statistical analysis of hundreds of employees but in the real world that is difficult to do. Short of perfect, what can you do?

Your defense is bolstered by being courteous, consistent, objective, and having documentation. It is also best to avoid – if possible – any one go/no go hurdle. If you have a hiring procedure that is carried out the same way for everyone that consistency is a positive factor; if the results are evaluated in the same way for everyone, that objectivity is a positive factor. If you have some documentation of why and how you use the selection procedure you do that is a positive factor. And, of course, lacking any of those is a problem. E.g. if some people give the same answers as others but get a lower score it is difficult to argue that the procedure is valid. And if you require a college degree you should be able to prove that the degree is highly important, if not essential, to the performance of the job: because that one factor eliminates candidates regardless of other qualifications.

Finally, respect is important. People who feel they were treated disrespectfully are more likely to sue. And if people are treated respectfully, understand why they are being evaluated and why it is a necessary part of the hiring or promotion process they are less likely to be angry or upset.

Read more.

April 13, 2014

Bus Accidents Expert Witnesses

Bus and truck accident expert witnesses may consult regarding transportation accidents, bus accidents, truck safety, and bus safety. This weekend, investigators said that the FedEx truck that slammed into a tour bus full of students in Orland, CA, could have been on fire right before the deadly crash. The truck crossed a median into oncoming traffic which resulted in the death of 10 people. Highway Safety Investigator Robert Accetta will serve as the The National Transportation Safety Board investigator-in-charge. The NTSB website includes Safety Studies.

NTSB Safety Studies are examinations on topics such as the effectiveness of, or need for, actions by a Government agency in reducing transportation losses, the technical aspects of a transportation system, analysis of accident data, or the history and progress of transportation safety improvements. The study results in the issuance of a narrative report on the facts, conclusions and any applicable recommendations.

One of these reports is Crashes Involving Single-Unit Trucks that Resulted in Injuries and Deaths. Safety Study NTSB/SS-13/01. Washington, DC.

Abstract: There are 8.22 million single-unit trucks registered in the United States, which travel more than 110.7 billion miles each year. Although single-unit trucks comprise three percent of registered motor vehicles and four percent of miles traveled, they are involved in nine percent of fatalities among passenger vehicle occupants in multivehicle crashes. Crashes involving single-unit trucks and passenger vehicles pose a hazard to passenger vehicle occupants due to the differences in weight, bumper height, and vehicle stiffness.

The NTSB undertook this study because of concerns about the safety record of single-unit trucks and an interest in identifying countermeasures to address the risks posed by these vehicles. One of the concerns is that single-unit trucks are excluded from some safety rules applicable to tractor-trailers. This study used a variety of data sources, including state records of police and hospital reports, federal databases, and case reviews of selected single-unit truck crashes. Risks were compared between single-unit trucks and tractor-trailers.

The study found that the adverse effects of single-unit truck crashes have been underestimated in the past because these trucks are frequently misclassified and thus undercounted in federal and state databases (approximately 20 percent in the case of fatalities). There are substantial societal impacts resulting from single-unit truck crashes, including deaths, non-fatal injuries, hospitalizations, and hospital costs.

Areas identified for safety improvements include the need to (1) enhance the ability of drivers of single-unit trucks to detect vulnerable road users such as pedestrians and cyclists, (2) prevent passenger vehicles from underriding the rears and sides of single-unit trucks, (3) improve conspicuity of single-unit trucks, (4) improve federal and state databases on large truck crashes, (5) continue the functions of databases vital for accurate fatality data or that link hospital data with police reports, (6) examine the frequency and consequences of single-unit truck drivers operating with an invalid license, and (7) research the potential benefits of expanding the commercial driver’s licensure requirement to lower weight classes.

April 5, 2014

Child Sexual Assault Expert Witnesses

Child sexual assault expert witnesses may consult regarding sexual misconduct, sexual molestation, and child sexual abuse. Child Abuse Pediatrics & Forensic Medicine Experts explains that the accredited sub-specialty Child Abuse Pediatrics practice scope includes the expert analysis of various areas related to sexual abuse using an established evidence-based process with research, clinical findings and input from collateral sources such as law enforcement and protective authorities. The American Board of Pediatrics Certifications and Admission Requirements are described below.

Certificate of Special Qualifications
Candidates seeking a certificate of special qualifications must meet BOTH the General Eligibility Criteria for Certificate in the Pediatric Subspecialties and Eligibility Criteria for the Specific Subspecialty.

Certification by the American Board of Pediatrics (ABP)

A candidate for subspecialty certification must have achieved initial certification in general pediatrics and continue to maintain general pediatrics certification in order to take a subspecialty examination. No exceptions to this policy will be granted. The requirements for Maintenance of Certification (MOC) can be found on the ABP website. All candidates are urged to ensure that the requirements for maintenance of certification will be met in sufficient time to allow acceptance to the subspecialty certifying examination. Under certain circumstances, individuals registered for the general pediatrics certifying examination may apply for a pediatric subspecialty certifying examination pending notification of the general pediatrics examination results. Before making application, contact the ABP for information.


An applicant must hold a valid, unrestricted allopathic and/or osteopathic medical license in at least one jurisdiction in the United States, its territories, or Canada, or unrestricted privileges to practice medicine in the United States Armed Forces. If licenses are held in more than one jurisdiction, all licenses held by a physician should meet this requirement. Temporary or training licenses are not acceptable.

Individuals practicing exclusively abroad, ie., who are not practicing in the United States or Canada, and who do not hold a United States or Canadian license, must provide proof of licensure in the country in which they practice. Applicants for initial certification who intend to practice abroad exclusively must submit a letter stating this fact. In addition, they must submit proof of licensure in the country in which they intend to practice.

Verification of Training

An applicant will be asked to list the program(s) where fellowship training occurred as well as the name(s) of the program director(s). The ABP will provide a Verification of Competence Form to the program director(s) for completion. (Note: For new subspecialties, alternatives to the usual training requirements, such as practice experience, will be acceptable as criteria for admission to the examination. Candidates should refer to the specific subspecialty eligibility criteria for details.) The role of the program director in the certification process is to verify completion of training, evaluate clinical competence including professionalism, and provide evidence of the trainee's scholarly activity/research.

Eligibility Criteria for the Specific Subspecialty for Child Abuse Pediatrics include:

Three years of full-time, broad-based fellowship training in child abuse pediatrics are required for fellows entering training on or after January 1, 2010.

A Verification of Competence Form must be completed by the program director(s) stating satisfactory completion of the required training as well as verification of clinical competence and scholarly activity.

The fellow must meet the criteria stated in the "Principles Regarding the Assessment of Scholarly Activity" as outlined in the General Eligibility Criteria; Verification of scholarly activity will not be required for individuals who began training before January 1, 2010.

The fellow must pass the subspecialty certifying examination.

March 28, 2014

Internet Security Expert Witness & The Industrial Internet Consortium

In The Internet of Things, for Better or Worse, internet security expert witness Steve Burgess writes on networked devices. Burgess Forensics has offered computer forensic and electronic discovery as well as expert witness testimony since 1985.

What kinds of devices make up the Internet of Things (“IoT”)? Anything Internet-connected, which can currently include everything from computer to coffeemaker, from range to refrigerator, from baby monitor to burglar alarm, from car to crockpot. And because they’re Internet-connected some people are afraid that these devices may be subject to malware that will cause them to become zombies.

And indeed, unauthorized use of internet-connected devices has already begun. Around the end of 2013, about 100,000 such devices were used to send about 750,000 spam messages. Seven messages per device is not much, but it is indicative of a real problem. And the low number per device may have been by design, so as to avoid detection. What to do?

Quentin Hardy of bits.blogs writes “And indeed, unauthorized use of internet-connected devices has already begun. Attention: Internet of Things. For better or worse, big boys are in the room.” As many as ten companies including AT&T, Cisco, General Electric, IBM and Intel are forming a consortium to create engineering standards in some of the world’s largest industries, from automotive and manufacturing to healthcare and the military. GE.com describes the Industrial Internet Consortium: “The open, not-for-profit group will work together to break down technology silos, improve machine-to-machine communications and bring the physical and digital worlds closer together. The members will be developing common architectures and advanced test beds for real-world industrial applications…. Although there are already some 10 billion connected devices, they represent just 1 percent of what’s possible. That number will grow to 50 billion by 2020.

The National Institute of Standards and Technology is helping organize the consortium. Five areas of concentration have been laid out:

• Co-engineering cyber and physical systems
• Identifying cyber-security issues and solutions
• Addressing concerns about interoperability
• Identifying ways to maintain robust wireless connections
• Setting standards for real-time data collection and analytics

On the international level, the Object Management Group was founded in 1989 as an international, open membership, not-for-profit technology standards consortium. OMG standards are driven by vendors, end-users, academic institutions and government agencies. OMG Task Forces develop enterprise integration standards for a wide range of technologies and an even wider range of industries. OMG’s modeling standards, including the Unified Modeling Language (UML) and Model Driven Architecture (MDA), enable powerful visual design, execution and maintenance of software and other processes. OMG also hosts organizations such as the user-driven information-sharing Cloud Standards Customer Council (CSCC) and the IT industry software quality standardization group, the Consortium for IT Software Quality (CISQ).

March 21, 2014

Transportation Safety Expert Witnesses & GM Recall

A transportation safety expert witness testified in the case against General Motors brought by the parents of Brooke Melton. The expert reported that information recorded in the black box in the fatal accident showed the key had slipped from the “on” to the “accessory” position three seconds before the accident, shutting off her power steering and power brakes.

On April 1, 2014, General Motors' CEO Mary Barra will testify before a congressional subcommittee about the widening safety recall on GM pre-2008 ignition switches. Ignition switches moving from the "run" position to the "accessory" or "off" position during a crash may disable the air bag sensing system. The recall follows 12 deaths and 31 crashes in 2005-07 Chevrolet Cobalts, 2003-07 Saturn Ions and several other pre-2008 models with the same ignition switch. As a precaution, NHTSA urges owners of recalled GM vehicles - 2005-07 Chevrolet Cobalt, 2007 Pontiac G5, 2003-07 Saturn Ion, 2006-07 Chevrolet HHR, 2006-07 Pontiac Solstice, 2007 Saturn Sky - to follow GM recommendation to "use only the ignition key with nothing else on the key ring" and get repairs as soon as parts are available from GM.

Here is the NHTSA Office of Defects Investigation TQ 14-001:

In its letter dated February 7, 2014, GM notified NHTSA that it has determined that a defect, which relates to motor vehicle safety, exists in 619,122 model year (MY) 2005-2007 Chevrolet Cobalt and MY 2007 Pontiac G5 vehicles. The safety defect concerns a condition in which the vehicle's ignition switch may unintentionally move from the "run" position to the "accessory" or "off" position resulting in a loss of power. This risk may be increased if the key ring is carrying added weight or the vehicle goes off road or experiences some other impact related event. In some cases, the timing of the ignition switch movement relative to the activation of the sensing algorithm of the crash event may result in the airbags not deploying.

In its letter dated February 24, 2014, GM amended the original recall letter to include a more detailed 573.6(c)(6) section outlining the chronology of principal events with the added Attachment B. On February 25, 2014, GM submitted another letter covering additional models/model year vehicles due to the same safety defect. The specific additional vehicles include the MY 2006-2007 Chevrolet HHR and Pontiac Solstice, MY 2003-2007 Saturn Ion and MY 2007 Saturn Sky vehicles totaling another 748,024 vehicles. Together, these recall actions affect a total population of 1,367,146 vehicles. Based on General Motor's chronology of events, this TQ is opened to evaluate the timing of GM's defect decisionmaking and reporting of the safety defect to NHTSA.

Consumers may sign up to receive recall information by email at http://www-odi.nhtsa.dot.gov/subscriptions/index.cfm:
Sign up to receive e-mail recall notifications for:
(Post 2002, NHTSA receives on average 20 tire recalls per year.)
Child Restraints
(Post 2002, NHTSA receives on average 8 child restraint recalls per year.)
All Vehicles -- You will receive an e-mail weekly with a summary of vehicle recalls for the previous 7 days.
(Post 2002, NHTSA receives on average 600 vehicle recalls per year.)

Select up to 5 specific Make and Model Year combinations below to limit your notifications to those vehicles. Check the boxes below to receive all Motorcycle or School Bus recall notifications. You will receive an e-mail whenever there is a recall for your selection.

Motorcycles, helmets, and motorcycle equipment.
(Post 1998, NHTSA receives on average 45 motorcycle-related recalls per year.)

School Buses
(Post 1998, NHTSA receives on average 35 school bus recalls per year.)

March 19, 2014

Security Management Expert Witness & Role of Buildings Part 1

Security management expert witness Randy Atlas, Phd, AIA, CPP, contributed to the article The Role of Buildings in Mass Shootings, Strategies to decrease workplace homicides which appeared in Buildings Magazine. The expert is president of Atlas Safety & Security Design Inc. and notes that "It’s a big deal for an architectural magazine to focus on the problems of building security." The article is written by Jennie Morton, senior editor of BUILDINGS.

An armed intruder approaches your building – what kind of resistance will they encounter?

Effective access control, automated communication, and rehearsed emergency plans are your best defenses against workplace violence. These measures may not prevent an aggressor from entering your building, but they will create necessary delays in a situation where every second counts.

Treat your building as a security tool, not a potential tragedy scene. It's time to bring facilities management to the table in our national conversation about mass shootings.

Rewind the clock before 9/11 and only a handful of specialty facilities were concerned with counterterrorism measures. This is no longer the case and as the Boston Marathon bombing illustrates, any building can be exposed to violence on this level. The Columbine and Newtown shootings may have put school security in the limelight, but workplace homicides continue to occur in all building types regardless of form, function, or occupancy. "The reality is that this type of violence is foreseeable and building owners need to respond accordingly," says Randy Atlas, president of Atlas Security & Safety Design.

"Every industry is on notice."
In 2012, there were 463 workplace homicides, reports the Bureau of Labor Statistics – 80% of which involved firearms. There have been a total of 6,850 fatal shootings in the workplace between 1997-2010, an average of 525 deaths a year. It's no wonder that a Securitas survey of Fortune 1000 companies shows that workplace violence remains the second highest concern after cyber security.

Owners know that the ripple effects of a mass shooting extend far beyond the confines of the physical property. Whether lives are lost or not, public scrutiny quickly points the finger of liability at property management. The financial repercussions can be acute.
"Workplace violence has an annual estimated price tag of $5 billion in direct and indirect costs for building owners, managers, and employees," notes Thomas Mitchell, managing director of Facilities & Asset Management Consulting Services at Booz Allen Hamilton, a global strategy and technology consulting firm. "These costs include personnel replacement, lost productivity, property damage, administrative resources, and potential litigation."

No crime or disaster is completely preventable, but buildings still make an effort to create a safe environment and plan ahead for emergency response. You already have a number of risk mitigation tools at your disposal – it's just a matter of using them.
"The only barrier to hardening a facility is the checkbook," notes Chris Grollnek, an active shooter prevention expert with Countermeasure Consulting Group. "Your budget dictates how far your security can go."

Review Security Fundamentals
You don't have to put a moat around your property or turn it into a fortress to increase security. Turn to the basic rules of CPTED – crime prevention through environmental design. This concept limits opportunities for crime through strategic design choices. Focus on visibility, access control, and territorial reinforcement.

"You don't want to rely too heavily on only one or two of these principles. That's putting all of your security eggs in one basket," cautions Grollnek. "Research shows that each element of CPTED design you add exponentially increases security and safety levels."

The problem is that not all facilities were built with CPTED in mind, and these strategies may be counterproductive to business practices. Atlas points to malls as an example of just how vulnerable buildings can be.

"By design, a mall invites the mass public onto the property. Almost anyone can walk in unchallenged as there are virtually no security checks," Atlas says. "These large, open spaces often have poor boundary definition and dozens of unrestricted entrances."

Commercial facilities may also experience similar challenges. Recruit the help of a consultant to scrutinize every aspect of your building's layered security. If upgrades aren't on the table, focus on egress integrity. Security breaches can be enabled by something as simple as a broken door.

"The best thing we can do is secure our facility internally and externally to slow down the progress of perpetrators so law enforcement can arrive and prevent the situation from escalating," Mitchell says.

March 16, 2014

Child Abuse Expert Witness On Failure To Thrive

In Child Abuse Pediatrician’s Role, Child Abuse Pediatrics & Forensic Medicine Experts explains failure to thrive.

Failure to Thrive is a condition whereby children either do not receive or are unable to properly utilize adequate nutrition for sufficient growth. There are two categories of causality for Failure to Thrive: organic and non-organic. Organic Failure to Thrive is the type caused by medical conditions. Non-organic Failure to Thrive is caused by either insufficient provision of food, or complex psychosocial factors that impair a child’s ability to accept food provided. Psychosocial Failure to Thrive has complex dynamics and may be classified as child abuse or neglect.

What are Medical Causes of Failure to Thrive?

Various medical causes of Failure to Thrive exist and must be excluded by medical experts in this area. Some examples of medical conditions that cause Failure to Thrive include problems include gastro-esophageal reflux (GERD), liver disease, chronic diarrhea, prematurity, cleft lip/palate, or conditions related to endocrine, respiratory, infectious, immunologic, or metabolic disease. The diagnosis of Failure to Thrive should be thoroughly evaluated by medical experts, sometimes by specialists in these various conditions.

What are Non-Medical Causes of Failure to Thrive?

Failure to Thrive, in some cases, may not be caused by a medical condition. First, caretakers may either inappropriately restrict the amount of nutrition provided to a child, or intentionally withhold food. Second, caretakers may not provide adequate nutrition due to lack of interest in the child, leading to concerns for neglect or child abuse. Third, caretakers may not have the financial resources to provide adequate nutrition. Fourth, caretakers may intend and try to provide adequate nutrition, yet an impairment may exist due to psychosocial dynamics (bonding).

Is Failure to Thrive Child Abuse?

The diagnosis of Failure to Thrive involved exclusion of medical causes, a careful evaluation of the pattern of growth using a growth chart (plot for height, weight and head circumference over time) and evaluation of family dynamics. Failure to Thrive may indeed be classified as child abuse or neglect and most certainly warrants a report to protective and/or legal authorities when appropriate.

Read more: Child Abuse Pediatrics & Forensic Medicine Experts

March 9, 2014

Construction Site Expert Witness On OSHA Standards

In OSHA Standards Changing: The standard that gave workers the right to know, now gives them the right to understand construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

As an Expert in OSHA safety standards, regulations and compliance, it is vital I keep up with the most current trends and changes that are proposed and implemented. The Occupational Safety and Health Administration’s (OSHA) main principle to date has been that employees have the “right to know” about the hazardous chemicals they work with. It is my understanding that OSHA is now implementing a newly revised Hazard Communication Standard to be consistent with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Therefore, effective December 1, 2013 OSHA is requiring that employees have the “right to understand,” and the employer must provide proof of this “understanding” to those employees.

Up to now employers training their employees regarding the knowledge of the materials they work with has been enough. Companies provided their employees with hazardous chemical training and then tested them on their knowledge of this training, which method satisfied the federal requirements. Starting December 2013, one-time testing of the employees’ understanding will not be enough. The employer will be responsible for showing proof that their hazardous chemical training is clearly achieving this compliance.

There is a huge difference between recognizing and understanding. The traditional training approach of presenting information and then testing for knowledge can now only be classified as short term, not continuous. Training must now be intensified to enable all employees to achieve true continuous “understanding.”

There are training programs that have addressed this new compliance challenge for employers. Training firms have formulated strategies to focus on employee “understanding” and are choosing interactive e-learning programs to support them. With the technology available today the Internet may just be the answer for employer compliance of this new standard. Employers who choose one of the several e-learning programs available must be sure they contain the key feature of a sophisticated analytics engine. This feature will provide employers with the necessary documented data needed for compliance reporting. The data must contain more than just training hours; it must also show evident, transparent results that demonstrate employee true understanding. It should provide the employer with the ability to identify any employees who do not understand, so intervention on an employee-by-employee basis can be performed.

With the looming federal regulation, I would encourage all employers to look into the best methods of compliance available and implement a comprehensive training plan. Complying with the new “right to understand” standard will simultaneously provide employees the reinforced knowledge they need to protect themselves and the employer’s business.
Reference: OSHA.gov, https://www.osha.gov/dsg/hazcom/index.html

William Gulya, Jr., President & CEO, Middlesex Trenching Company for more than 35 years, specializes in excavation & construction site preparation – earthwork and grading, water mains, sewer installation, trench shoring, underground utilities, heavy equipment rentals and OSHA safety compliance. He provides litigation prevention consulting, mediation, arbitration, and expert witness testimony, regarding heavy equipment safety, construction safety and OSHA compliance; construction accidents; construction contract disputes; delay claims; and nonpayment issues. www.siteworkexpert.com

Mr. Gulya is the author of the book, “The Straight Truth: The Life of an Expert Witness,” http://the-straight-truth.com

March 4, 2014

Child Sexual Assault Expert Witnesses

Child sexual assault expert witnesses may consult regarding sexual misconduct, sexual molestation, and child sexual abuse. Child Abuse Pediatrics & Forensic Medicine Experts explain the Child Abuse Pediatrician’s Role.

The child abuse pediatrician’s clinical role is to provide objective, comprehensive, evidence-based and patient centered care for children and adolescents with suspected sexual abuse, physical abuse, neglect or unexpected child fatalities. Child abuse is a serious medical diagnosis requiring careful and comprehensive evaluations in addition to consideration of collaborative input from protective and investigative sources. In order to diagnose child abuse, it is imperative to consider alternative medical, accidental, or birth related diagnoses and use evidence-based standards when generating opinions.

Here are some helpful resources:

Child Abuse Medical Providers Network

American Academy of Pediatrics Section on Child Abuse and Neglect

National Children’s Alliance – Medical Standards

The goal of this consultation service is to apply these evidence-based, objective, thorough and responsible standards for family, criminal and civil matters under the scope of the child abuse pediatrician’s expertise. This includes educating non-medical professionals about sexual abuse, physical abuse, neglect, and unexpected child fatalities using a factual yet “understandable” approach.

Materials that may be requested for a comprehensive review include:

Birth records
Obstetric records
Primary care records
Specialist visits
Emergency department records
Ambulance records
Inpatient records
Radiological studies
Laboratory studies
Protective services records
Investigative records
Expert reports and/or testimony

A consultation provides the referring attorney with help understanding the medical aspects of a case. A consultation may result in recommending additional experts from other specialty areas (i.e. – pathology, radiology, hematology, neurosurgery, infectious disease). A consultation may or may not lead to expert testimony as the consulting specialist may agree with the original opinion(s) generated by care providers.

Here are some helpful resources:

Child Abuse Medical Providers Network

American Academy of Pediatrics Section on Child Abuse and Neglect

National Children’s Alliance – Medical Standards

Read more: http://childabusepediatrics.com/

March 2, 2014

Environmental Expert Witnesses & Keystone XL Project

Environmental expert witnesses may write reports and testify on environmental forensics, environmental health and safety, and environmental impact studies, EPA regulation, water pollution and more. The State Department released the Keystone XL pipeline environmental review last month and the report forecast that the project would have minimal environmental impact. This week the inspector general found that the review was not biased and was handled properly. The project would connect tar sands oil in Canada to refineries in Texas.

The proposed Keystone XL project consists of a 875-mile long pipeline and related facilities to transport up to 830,000 barrels per day of crude oil from Alberta, Canada and the Bakken Shale Formation in Montana. The pipeline would cross the U.S. border near Morgan, Montana and continue through Montana, South Dakota, and Nebraska where it would connect to existing pipeline facilities near Steele City, Nebraska, for onward delivery to Cushing, Oklahoma, and the Gulf Coast area.

On February 26, 2014, the Dept. of State issued: State Dept. on Step in Environmental Review of Keystone Pipeline


Completion of Compliance Follow-up Review for the Selection of Third-Party Contractor o Assist in Environmental Impact Statement Preparation for the Proposed Keystone XL Pipeline

Today, the State Department Office of Inspector General released its Compliance Follow-up Review of the Department’s choice of a third-party contractor to assist the Department in preparing the Supplemental Environmental Impact Statement for the proposed Keystone XL Pipeline project. We have been pleased to work with the Office of Inspector General during this process.

The Review found that our processes not only avoided conflicts of interest, but were more rigorous than required. We welcome findings in this Review that “the process used to assess organizational conflicts of interest was effective” and that the Department’s process to select Environmental Resources Management “substantially followed and at times was more rigorous than its prescribed Guidance.”

We continue to work to improve and strengthen the procedures for selecting third-party contractors and assessing potential conflicts of interest. We welcome the recommendations in the OIG’s Review that will contribute to improved guidelines, documentation, and sharing of information. As noted in the OIG Review, we had already begun implementing changes in our process consistent with some of the recommendations, and we look forward to further implementing these recommendations.

February 27, 2014

Securities Expert Witnesses & Illegal "Parking"

Securities expert witnesses may consult and testify on securities regulation, securities fraud, and the securities industry. This month the SEC charged Wall Street traders Thomas Gonnella and Ryan King with a fraudulent “parking” scheme in which one trader temporarily placed securities in the other’s trading book. Gonnella arranged for King, who worked at a different firm, to purchase several securities with the understanding that Gonnella would repurchase them at a profit for King’s firm.

The alleged round-trip trades caused Gonnella’s firm to lose approximately $174,000. The SEC’s Enforcement Division alleges that after Gonnella’s supervisor began inquiring about the trades, Gonnella and King took steps to evade detection by interposing an interdealer broker in subsequent transactions and communicating by cell phone to avoid having conversations recorded by their firms. Gonnella and King were eventually fired by their firms for the misconduct.

SEC Press Release 2014-24 …King, who has cooperated with the SEC investigation, agreed to settle the charges by disgorging his profits and being barred from the securities industry. Any additional financial penalties will be determined at a later date. The Enforcement Division’s litigation against Gonnella continues in a proceeding before an administrative law judge.

“Gonnella conducted trades for the purpose of avoiding his firm’s aged-inventory policy and protecting his own bonus,” said Andrew M. Calamari, director of the SEC’s New York Regional Office. “Even though Gonnella misled his employer and resorted to text messages on his cell phone to avoid detection, his tricks failed and we are holding him accountable for these deceptive trades.”

According to the SEC’s administrative orders, Gonnella parked a total of 10 securities with King. The scheme began on May 31, 2011, when Gonnella offered to sell King several asset-backed bonds issued by Bayview Commercial Asset Trust (BAYC). Gonnella wrote in an instant message to King, “i have 4 small bonds that i’m looking to turnover today for good ol’ month end/aging purposes ... i like these bonds ... and would more than likely have a higher bid for these later this wk when the calendar turns ...” Gonnella’s reference to “aging purposes” was his firm’s aged-inventory policy. After King agreed, Gonnella sold him the securities and repurchased them before they had even settled in the account at King’s firm.

The SEC’s Enforcement Division alleges that Gonnella contacted King again a few months later on August 29, writing, “let’s talk tmrw. Have some aged bonds that I might offer you, if you’re game ... maybe do what we did a few months ago w/ some of those bayc’s ...” After Gonnella sold three BAYC bonds to King, he repurchased two but did not immediately repurchase the other security. He later did so at a loss to King’s firm, but made them whole by selling two other bonds at prices favorable to King’s firm and unfavorable to his own firm. King then used the resulting profit on the two bonds to offset the original loss incurred.

As their scheme began to unravel, the SEC’s Enforcement Division alleges that Gonnella and King discussed their trading plans via cell phone and text messaging in an effort to avoid detection. Cell phone records show that they rarely contacted one another that way in the prior four years. For example, after discussing some trades in instant messages, Gonnella told King, “Check your text [messages] in like 3 minutes.” King responded, “haha, ok ... sneaky sneaky.”

The order against Gonnella alleges that he willfully violated Sections 17(a)(1) and 17(a)(3) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The order alleges that he willfully aided and abetted and caused violations of Section 17(a) of the Exchange Act and Rule 17a-3.

February 23, 2014

Psychiatry Expert Witness On Security Clearance Part 2

In recent years, psychiatrists have been asked to consult on security clearance eligibility. In The Psychiatrist in the Security Clearance Process, psychiatry expert witness Brian Crowley, MD, DLFAPA, writes:

Psychiatrists are asked to participate in the security clearance process in either of two ways....
In the second scenario, a psychiatrist is asked to perform an independent psychiatric evaluation for an individual he has not met, addressing the issue of eligibility to obtain or to hold a security clearance. The evaluation may be requested either by a government agency or by an individual; in the latter case, he/she is usually represented by an attorney. Such an evaluation should be performed by a psychiatrist with considerable experience working at the interface of psychiatry and the law. While this is a forensic psychiatric procedure, in my view it does not require that the psychiatrist has taken a forensic fellowship – when I started working at the psychiatry/law interface there were no such fellowships – but it does take one who has deep knowledge and appreciation for how the law undergirds all psychiatric practice.

The doctor gathers all relevant information to understand the problems and issues presented, reviews the materials, sees the individual (I recommend twice) in the office for personal evaluation, consults with appropriate parties as indicated, and writes a good report. The report need not be long but should be thoughtful, well-crafted, succinct, readable and interesting. In my experience, an 87-page forensic psychiatry report is almost always inferior to one that is five-pages long. If the written report does not resolve the matter, a hearing will likely be scheduled to decide the case. These hearings are usually held in a standard administrative hearing format with attorneys for both sides present. Evidence is introduced, including expert as well as lay witnesses, and the hearing is presided over by an administrative law judge who makes a written ruling. It has been my experience that the individual regularly receives a fair consideration in such a hearing, with ample opportunity to show eligibility to hold a clearance, and where problem conditions are identified and mitigated.

In the federal government, the standard is the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information. The Guidelines, promulgated by The White House, have been in use since the 1950s and revised periodically through successive administrations. I find them clear, sensible, and nuanced – facilitating a quality evaluation and report. The guidelines are more concerned with behavior than with formal diagnosis, and speak of “behavior that casts doubt on an individual’s judgment, reliability, or trustworthiness.” “Conditions that could raise a security concern and may be disqualifying” are balanced against “conditions that could mitigate security concerns” in making the judgment to grant or deny a security clearance.

Importantly, the Guidelines provide explicitly that “No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.” This helps reduce the fear of some that being in treatment is hazardous to their job health. In my long career I have found that this fear has not proven realistic. In fact, it is just the reverse: leaving symptoms of mental disorder unattended to and untreated is hazardous to the person’s standing at work as well as to the rest of his or her functioning in life. Employers generally would rather have an employee who is productive and stable with ongoing treatment rather than an undiagnosed or untreated bundle of behavioral dysfunction.

No specific mental health diagnoses, or behaviors, are listed in the Guidelines as automatically disqualifying. An individuals is not deemed a security risk if that person has a psychological or behavioral problem and that condition can be mitigated if “the identified condition is readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan,” or there is “a recent opinion by a duly qualified mental health professional employed by, or acceptable to and approved by the U.S. Government, that an individual’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation.”

A number of my patients and former patients have gone on to serve with great credit and satisfaction in significant jobs, after negotiating the security clearance process. On the forensic (evaluative) side, it continues to be interesting, challenging yet rewarding work to conduct these evaluations and to participate in the adjudication process, including the administrative hearings.

As printed in the The Washington Psychiatrist.

Dr. Crowley's areas of expertise include Testamentary Capacity and Undue Influence, Fitness for Duty, Security Clearances, Independent Medical Examinations Dangerousness Assessments,

February 20, 2014

Hazardous Waste Expert Witnesses & Hanford Nuclear Reservation

Hazardous waste expert witnesses may write reports and testify on hazardous waste sites, the Resource Conservation and Recovery Act (RCRA), and hazardous waste mapping. In the news, whistle-blower Donna Busche was fired from her position as manager of environmental and nuclear safety at the Hanford Nuclear Reservation waste treatment plant construction site. Hanford, located on the Columbia River in the state of Washington, ranks as the most polluted nuclear weapons production site in the US. The Columbia is the fourth largest river in the United States and drains into the Pacific. Hanford was a top secret project in the 1940s with the task of building the atomic bomb. Decades of plutonium production for US nuclear weapons have resulted in cleanup costs estimated at $2B/year. (Below is a Hanford exposure map,)

Ms. Busche worked for URS Corp., which is assisting in building a $12B plant to convert nuclear waste into glass but construction of the plant itself has been stopped due to safety concerns. Busche and others have filed complaints with the federal government over design and safety of the facility.

At http://www.whistleblowers.gov/, the US Department of Labor describes whistleblower protection programs.

OSHA's Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Protection from discrimination means that an employer cannot retaliate by taking "adverse action" against workers, such as:
• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Making threats
• Reassignment affecting prospects for promotion
• Reducing pay or hours
Since passage of the OSH Act in 1970, Congress has expanded OSHA's whistleblower authority to protect workers from discrimination under twenty-one federal laws. Complaints must be reported to OSHA within set timeframes following the discriminatory action, as prescribed by each law.


February 15, 2014

Insurance Claims Expert Witness On Insurance Underwriters

On his blog, insurance claims expert witness and "Claims Coach" Kevin M. Quinley CPCU, AIC, ARM, RPA writes Risk Managers: Use These 8 Tips for Better Meetings with Underwriters.

The risk manager’s ability to procure insurance coverage and to do so on the best financial terns depends in large part on the discretion of the insurance underwriter. Underwriters are the insurance company gatekeepers. They decide whether or not to offer coverage terms and, if so, at what price.

Meet with Underwriter

Within insurance companies, the underwriter decides which risk applications to except for coverage and which to decline. They also will determine how much you pay, what kind of policy terms and conditions the insurance company is willing to provide, etc. They are the “gatekeepers” to insurability. As such, the underwriter is key to a company’s insurance program, risk management program and financial protection. This can work for – or against – a risk manager. It pays to get to know the underwriter.

#1. Don’t be “too busy” to meet. However, this is rare in buying insurance. Risk managers may feel they are too busy to meet underwriters. To kick start the insurance process, the prospective policyholder may have to complete an application for coverage.

#2. Get into selling mode. The ability to get insurance coverage at the best price on the best terms may hinge upon how successful and skilled you are in “selling” your company as a good risk. If you convince the underwriter that you have strong loss control/prevention and risk management systems, you have a better chance of being insured on the best possible terms. If, however, you cannot make a compelling case to the underwriter, seem befuddled or ill-prepared, that may compromise your negotiating leverage and the ability to get the best insurance price and terms.

#3. Understand the underwriter’s world. Here it helps to have some appreciation of the underwriter’s work environment and job context. Underwriters are often besieged by the volume of incoming applications that they have. They always feel (not without justification) that there is more work to do than there are hours in which to do it. It is challenging for them to stay on top of their workload.

#4. Know your aims in meeting with underwriters. The aim for risk managers is to emerge from the pack, from the herd and to differentiate their companies in a positive way, as a good risk which any sane underwriter and reasonable insurance company would WANT to insure.

#5. Seek an in-person meeting. One way to do this is to seek a brief but in-person meeting with the underwriter. A conference call or email doesn’t cut it. This may be a challenge, but there are ways to do it:

Prepare well in advance
Have your insurance broker run interference
Propose to meet underwriters in their office
Ask for a short amount of time

#6. Prepare an “elevator speech,” a short verbal presentation generally meant to persuade or in foreign. It should be two to three minutes long. Explain why your company represents a good risk Highlight key features, particularly in so far as safety is concerned. Underwriters often have limited availability and attention span, so hit the high points.

#7. Be brief. Practice and rehearse your talking points. Prepare to amplify if you field questions. When you meet with an underwriter, you are an ambassador for your company. If you are well prepared, the underwriter may infer that your company has its act together with regard to safety and related features.

#8. Make a positive impression. If you appear unprepared, this can cast a negative pall. Your aim: to leave the exchange with the underwriter thinking, “That company really seems to have its systems in place and to be an attractive risk!” This impression should manifest itself in the form of a favorable insurance quotation both in terms of price and coverage features.

For risk managers, time spent meeting with underwriters may seem like a needless distraction but can pay off in broader insurance coverage at a more favorable price!

Q: What techniques have worked for YOU in having more productive exchanges with insurance underwriters? Share here or email me at kevin@kevinquinley.com

Kevin Quinley is an insurance claims expert and industry thought-leader with 35+ years of operational experience. Read more: Kevin Quinley.

February 3, 2014

Psychiatry Expert Witness On Security Clearance

In recent years, psychiatrists have been asked to consult in the security clearance process. In The Psychiatrist in the Security Clearance Process, psychiatry expert witness Brian Crowley, MD, DLFAPA, writes:

Psychiatrists are asked to participate in the security clearance process in either of two ways. First, treating psychiatrists are occasionally asked to give a professional opinion as to whether or not a patient, or former patient, is suitable for a security clearance. The doctor will receive a call or a fax from a federal investigator, usually asking to meet briefly with the doctor, and stating he has a release signed by the patient. Typically only one question is asked:

Does the person under investigation have a condition that could impair his or her judgment, reliability, or ability to properly safeguard classified national security information?

Yes No
If so, describe the nature of the condition and the extent and duration of the impairment or treatment. ______________________________________________________________________
What is the prognosis?______________________________________________________________
Dates of treatment? ________________ Doctor’s Signature _____________________________

If the treating doctor answers that question “No,” that ends the inquiry and supports the patient on his way to obtain (or retain) his clearance. On occasion a psychiatrist refuses to give any reply to this question. That refusal often leads to a prolonged delay in adjudication, during which the patient/employee stays in limbo until the system makes a referral for a current evaluation by another psychiatrist or clinical psychologist. This delay, often lengthy, is a profound disservice to an individual who is able, eager, and competent to work and to safeguard classified information.

I think we should answer this question for our patients when asked. Yes, we want to be sure the patient has consented to our giving this opinion, but he/she almost invariably has done so in writing, while looking for a new job, or for advancement in an existing position. Most of the time these are folks who have been working with us in treatment, sincerely trying to improve the quality of their lives and/or reduce symptoms. They are, in my experience, most often earnest, sincere people with a high degree of dedication and patriotism. With a current patient, I make a point always to discuss the inquiry I have received, and my proposed reply, with her/him before I meet with the investigator. (Frequently my patient has told me to expect such an inquiry, and we have already discussed it.)

On the other hand, if I am asked about a patient I saw once or twice, eight years ago, with dubious treatment commitment and a then-unstable condition, I say I do know not his/her current status and suggest a more current evaluation. While the form asks for a “yes” or “no” answer, there is absolutely no barrier to writing a brief explanation.
If a colleague will not answer that question about a patient he knows well out of fear his answer might prove wrong and he will experience some backlash, he should critique himself for excessive timidity and/or lack of knowledge of how strongly the law supports a doctor using his best judgment in the service of his patients and the community.

If uncertain how to handle a given inquiry, consultation with an experienced colleague is a very good idea, as it is with other challenging practice situations.

As printed in the The Washington Psychiatrist.

Dr. Crowley's areas of expertise include Testamentary Capacity and Undue Influence, Fitness for Duty, Security Clearances, Independent Medical Examinations Dangerousness Assessments.

January 23, 2014

Evaluating The School Safety Expert Witness Part 7

In Evaluting An Expert Witness For School Safety Cases, school safety expert witness Michael Dorn writes:

Questions to Ask a Potential Expert Witness for School Safety Cases

...Attorneys, judges and insurance professionals are typically already familiar with general questions that should be asked of an expert. Some specific questions that might help more accurately gauge an expert’s suitability for a school safety case before the expert is retained and sent documents to review include:

“The key issues so far are (insert the issues that need to be evaluated). Do you feel you are qualified to serve as an expert witness for these issues?” If the answer is yes, ask the prospective expert witness to elaborate on the relevant experience.

“How many times have you served as an expert witness consultant in school safety cases?”

“Have you served as an expert for both the plaintiff and the defense?”

“Have you ever been disqualified as an expert? If so, why?”

“Have you ever withdrawn from a case or been withdrawn from a case by an attorney? If so, why?”

“Has an attorney ever terminated your services before a case was concluded? If so, why?”

“Have you ever been arrested or indicted? If so, what were the charges, in what court were they brought, and what were the dispositions of the case(s)?”

“Have you ever been terminated from a job or asked to resign? If so, please explain the circumstances.”

“Have you ever had any certifications or professional licenses revoked or suspended? If so, what license or certification and for what reason?”

“Have you or your firm ever been a party to a civil action including mediation or arbitration arising out of working as a consultant? If so, please explain."

“Have you or your firm ever filed an open records request with a school district, regulatory agency or government agency? If so, please explain when, why and how many times you or your firm did so.”

“Have you or your firm ever filed a formal protest when you or your firm were not awarded a bid for a school safety project? If so, please explain when, why and how many times you or your firm did so.”

“Have you ever had a client terminate or attempt to terminate a contract for professional services such as consulting, training, and assessment? If so, please explain when, why and how many times this has occurred.”

“If asked to do so, could you provide college transcripts and copies of training certificates for the education and training you list in your materials?”

Mr. Dorn is Executive Director of Safe Havens International, a non-profit school safety center.

January 21, 2014

Mortgages Expert Witness On Hard Money Lending Part 3

Mortgages expert witness Joffrey G. Long will moderate a special session on title insurance as part of the January 30-31 educational program presented by the California Mortgage Association in Universal City, CA. In Securing a mortgage expert witness: Types of real property lawsuits, Mr. Long writes:

There are many types of lawsuits involving loans secured by real property; they often fall into one of six general themes:
4) Loan servicing, default and modification issues: Cases involve what occurred after a loan was originated, including issues about application of payments; the processing, denial, or granting of loan modifications; and foreclosure.

5) Issues relating to licensing requirements and practices, or usury: Not as common as some of the other cases, these often center on the licensing of the originating organization or individuals, and their ability to have legally made or arranged the financing at issue. A related topic is usury, where a dispute exists over whether or not a loan was usurious, or if an exemption from usury applied.

6) Loan fraud issues: Advanced technology and a down economy have contributed to increases in both the quantity and complexity of direct real estate and lending related fraud. Forged documents, false reports, “straw” buyers or borrowers, fraudulent entities, falsified income, credit and appraisal documentation, and “short sale” fraud or fraud related to lender-foreclosed property comprise just a partial list. Having been defrauded and often unable to find or collect from the original perpetrator(s), parties often sue those that can be found and have assets or insurance coverage. These may include loan origination entities or officers, escrow holders or title insurers, appraisers, and loan or real estate brokerage firms.

Mr. Long has been a mortgage broker/lender in hard money and institutional lending since 1979, president of a mortgage company, past president and current education chair and director for the California Mortgage Assn. (Private Money Broker/Lender Trade Assn.)

Read more: Joffrey Long

January 20, 2014

Internet Security Expert Witnesses & The Internet Of Things

What areas of internet technology may internet security expert witnesses consult on? These experts may write reports and testify concerning internet devices, smart appliances, computer security intrusions, hacking, and more. As more objects are becoming embedded with sensors and gain the ability to communicate, malicious e-mails have now been sent by internet connected appliances including wireless speakers, televisions and at least one refrigerator. Guardian Liberty Voice reports that a smart refrigerator was among the more than 100,000 appliances and devices used by hackers to send out spam emails.

McKinsey and Company writes on smart appliances:

When objects can both sense the environment and communicate, they become tools for understanding complexity and responding to it swiftly. What’s revolutionary in all this is that these physical information systems are now beginning to be deployed, and some of them even work largely without human intervention.

Read more from McKinsey.

January 16, 2014

Mortgages Expert Witness On Hard Money Lending Part 2

Mortgages expert witness Joffrey G. Long will moderate a special session on title insurance as part of the January 30-31 educational program presented by the California Mortgage Association in Universal City, CA. In Securing a mortgage expert witness: Types of real property lawsuits, Mr. Long writes:

There are many types of lawsuits involving loans secured by real property; they often fall into one of six general themes:
2) The commercial loan gone bad: In this case, again often involving loans originated in 2007 or before, (and with a surprising percentage originated in either 2006 or 2007) a commercial property owner or developer has obtained a loan, or often a series of loans from a commercial institution or private money lender.

Problems in these transactions often revolve around the manner in which the loans were originally set up or documented, claims that rates and terms were usurious, issues related to subsequent loans from the same provider, default penalties and default interest rates, advances or modifications, various lending and borrower entities, documentation, lien priority and matters related to title insurance coverage.

3) Private investor’s loss of capital: Here, the lender, rather than the borrower, has a complaint. In these cases, private investors who have invested funds in private money loans are suing the providers/organizers of the loan investment(s), (who may be loan brokers, “pool or fund” managers, or others who accept funds from investors) the borrowers, or other parties to the transaction. Issues revolve around the manner in which the funds were raised, duties of the provider to analyze and underwrite the loan, disclosure of risk, possible “self-dealing” and undisclosed conflicts of interest, violations of securities laws and failure to properly manage (service) the various aspects of the loan after origination.

Read more: Joffrey Long

January 12, 2014

Environmental Forensics Expert Witnesses & West Virginia Chemical Leak

Environmental forensics expert witnesses may consult on environmental health and safety, soil/groundwater investigations, above ground and underground storage sites, and associated matters. In the news, hundreds of thousands of West Virginia residents have been without tap water since Thursday after a chemical leak contaminated their water supply. On Friday the West Virginia Department of Environmental Protection’s Division of Water and Waste Management issued a Cease Operations Order to Freedom Industries, Inc. and is now requiring the company to remove the contents in the 11 remaining above-ground storage tanks at its Etowah Terminal in Charleston. The chemical MCHM leaked from tanks and entered the Elk River on Thursday and then a water treatment facility. The West Virginia Department of Environmental Protection reports:

According to the order issued Friday night, Freedom Industries must begin, within 24 hours, removing all material from all above-ground storage tanks and store the material in an off-site area which provides adequate secondary containment.

Also within 24 hours, Freedom Industries must submit for approval an appropriate plan of corrective action which at a minimum shall include, among other things, a detailed plan to appropriately implement a remediation of all contaminated soil and/or groundwater and a plan and schedule for the ultimate disposition of the products stored in these tanks.
On Jan. 10, WVDEP continued its investigation of the release of MCHM from Freedom Industries’ facility. During the course of the investigation, the following was observed and documented:

In addition to the three above-ground storage tanks containing MCHM, 11 additional tanks were reported inside the same failed secondary containment area in which the MCHM leaked. The other materials being stored in the additional tanks include Calcium Chloride and Glycerin.

Freedom Industries has removed most of the MCHM from the above ground storage tanks and staged it off-site at Poca Blending, LLC in four large Baker tanks.