June 29, 2015

Insurance Expert Witness On Excess Of Loss Coverage Part 1

What areas may insurance expert witnesses consult on? They may write reports, give deposition and testify on insurance regulations, insurance fraud, reinsurance, and more. In Excess Of Loss Coverage For Self Insurers: Is It Insurance Or Reinsurance?, attorney, mediator, and insurance expert witness Robert M. Hall writes:

I. Introduction

Self-insurance entities often purchase excess of loss coverage from conventional insurers and reinsurers in order to meet the solvency standards of the self-insurers’ supervising authorities. Often it is unclear whether this capacity must take the form of excess insurance or may take the form of reinsurance. The companies that provide this coverage sometimes structure it as reinsurance in order to be free of market conduct and rate and form regulation as well as premium taxes, guaranty fund assessments and other charges involved in direct insurance. However, the manner in which the coverage is styled may not be determinative when problems arise. The purpose of this article is to present selected case law as to whether this insurance or reinsurance is treated in several different self-insurance contexts.

II. Rate and Form Filings and Assessments

Commissioner of Insurance v. American Nat. Ins. Co., 410 S.W.3d 843 (Tex. 2012) involved stop loss coverage provided to qualified, self-funded employee benefit plans sponsored by various governmental and private entities. It is not clear from the opinion whether the relevant coverage documents were styled as policies or reinsurance contracts. However for financial statement purposes, the insurer treated the premiums it received as resulting from reinsurance assumed. During a routine audit, the Texas Insurance Department discovered this practice and alleged that the coverage was insurance rather than reinsurance and that the insurer should have paid premium taxes and complied with other regulatory strictures applicable to insurance.

After a detailed examination of Texas statutes, the court found the insurance code ambiguous on point but decided to defer to the position of the Insurance Department that the coverage was insurance and not reinsurance:

The Department has therefore concluded that stop-loss insurance purchased by a plan does not involve two insurers and is therefore not reinsurance. It is instead direct insurance in the nature of health insurance because stop-loss policies are purchased by the plans ultimately to cover claims associated with their health-care expenses. The Department’s construction is reasonable, was formally promulgated, and is not expressly contradicted by the Insurance Code. We accordingly agree with the Department’s construction and hold that stop-loss insurance sold to a self-funded employee health-benefit plan is not reinsurance, but rather direct insurance subject to regulation under the Insurance Code.


Mr. Hall is an attorney, a former law firm partner, a former insurance and reinsurance executive and acts as an insurance consultant as well as an arbitrator and mediator of insurance and reinsurance disputes and as an expert witness. Copyright by the author 2015. Mr. Hall has authored over 100 articles and they may be viewed at his website: robertmhall.com.

June 23, 2015

Finding And Researching Experts and Their Testimony Part 1

In Finding and Researching Experts and Their Testimony, authors Jim Robinson David Dilenschneider, Myles Levin, and Nathan Aaron Rosen write:

Several of us got into some discussions about the need to research experts thoroughly. During those discussions, we exchanged our knowledge of not only the resources to search but also effective strategies on how to use the information found. In the end, we realized that none of us was aware of a truly-comprehensive resource that detailed all the various ways to learn about experts. Accordingly, in the spring of 2007, we wrote the First Edition of this White Paper.

In February 2009, we updated the paper to highlight new resources that had emerged (as well as delete references to older, non-functioning sites), acknowledge new applications and strategies, and relate more failures to vet experts thoroughly.

In the past five years, technologies have changed dramatically, more sites have come and gone, and – of course – failures to vet continue to occur. Accordingly, we have taken it upon ourselves to provide a detailed update to the paper, resulting in this Third Edition.

We hope you find this White Paper to be a valuable resource and return to it regularly.

Introduction

Many years ago, an Arizona trial court judge overturned a jury’s verdict, ordered a new trial and sanctioned the defendant over half a million dollars because the defense expert had lied about his qualifications. Importantly, the judge based his decision to sanction on his expectation that the defendant would have conducted thorough research on its own experts:

This court opined that defendant . . . knew or should have known of the falsity of its own expert’s credentials, but could not conclude that [defendant] in fact knew. This court has been persuaded by plaintiffs’ motion for reconsideration that “should have known” warrants sanctions.”

Expert witnesses are used in a wide range of litigation and their opinions are often viewed as critical – frequently making or breaking a case. As a result, many trials have turned into a battle of the experts. Yet despite their importance, few attorneys take the time to utilize the proper resources to find the right experts, evaluate their credentials, and/or assess the admissibility of their testimony.

The purpose of this article is to suggest various types of online resources that can be used to find experts, gather information about them (whether one’s own or the opposing party’s), and assess the admissibility of their testimony – as well as tips and strategies on how the information uncovered might be utilized. In addition, to assist in research efforts, a few (but certainly not all) potentially-relevant websites have been included. However, note that because many of the resources discussed (e.g. agency opinions, verdict reports, etc.) are available from a wide variety of free and commercial vendors, such as LexisNexis® (see, e.g., Lexis Advance ), Thomson Reuters (see, e.g., WestlawNext), and Bloomberg Law®, generally such providers are not constantly repeated as possible sources of information, unless their being a provider of that specific type of information is not manifestly obvious.

One final note of caution: be wary of outrageous marketing claims. Some vendors will tout that they can provide you all of the information you need to identify, select or impeach an expert. Nothing could be further from the truth. In fact, some products marketed via such claims actually miss relevant, and relatively easy-to-find, information about many experts – providing you with far less than what is promised. The simple upshot is that, although several fairly-comprehensive products, platforms and services exist, we have yet to find one that does it all. So when evaluating resources, adhere to the well-known maxim: “if something sounds too good to be true, it probably is.”

Finding a Potential Expert

A brief word of advice on the subject of finding a potential expert: do it as soon as you possibly can. From precluding the opposition, to helping frame the issues, to assisting in evaluating the opposing expert, the benefits to be gained from early retention are significant and worth the effort.
A. Learning about the Subject Matter
In order to know what questions to ask a potential expert, one should conduct some basic investigation into the relevant topic of expertise. Of course, such research might also lead to the names of potential experts in that field.
Library Websites
a. Online Catalogs
Library websites are an excellent place to begin the search to find information about the subject matter and to find potential experts. Start by searching libraries’ online catalogs for books and journals on the subject at issue. For example, a search for “handwriting identification” on the Library of Congress’s website will return the names of potential experts, the title and date of their publications, and cross-references to other works by each author. Pay particular attention to this information – someone who writes extensively on the subject at issue may make an ideal candidate to serve as an expert.
Possible Sites: www.Libdex.com; catalog.loc.gov; www.worldcat.org
b. Commercial Databases (Free Access)
In addition to making their own catalogs available online, many public libraries also offer free access to some external “pay” databases. Ordinarily, all you need to access these databases from a computer is a library card and an Internet connection. Just a few of the types of databases offered by some libraries include:

Academic Search Premier ProQuest
Newspaper / Periodical Articles Reference USA
Business Source Premier EBSCO Business Directories (e.g. Standard & Poor’s,
Hoovers, etc.)
Gale’s Biographies JSTOR
Physician’s Desk Reference Marquis Who’s Who

Medical Websites
The National Library of Medicine (“NLM”) is an excellent place to find materials in all areas of biomedicine and healthcare, including biomedical aspects of technology, the humanities, and the physical, life, and social sciences. According to its website, the NLM houses millions of items — including books, journals, technical reports, and manuscripts. Moreover, the site, along with its associated services (i.e. “PubMed” and “MedLine Plus”), contains links to medical encyclopedias, full-text news stories, articles, and free publications, as well as information on how to order those materials.

In addition, every branch of medicine has its own professional association with an accompanying website, oftentimes offering article databases and membership directories. The website of the American Board of Medical Specialties is one of the best places to look for links to these associations.

Possible Sites: www.nlm.nih.gov (PubMed/MEDLINE); www.webmd.com; www.abms.org (requires registration); www.boardcertifieddocs.com (charges organizations to verify physician certifications)...

Articles
Many legal portals provide access to articles by legal professionals that discuss expert witnesses. For example, law.com, the legal portal of American Lawyer Media (“ALM”), provides access to full-text articles from its various publications – but only to its subscribers (while also providing synopses of those articles for non-subscribers and the opportunity for them to view a limited number of articles via free registration).

The Index to Legal Periodicals & Books (H.W. Wilson) and Legal Resources Index (electronic version of Current Law Index (Gale) are searchable electronic indexes of legal periodical articles containing information about experts. Most of the information consists of article citations from major law reviews, bar association journals and legal newspapers. These citations include an article's title, author, source, and subject headings. Various indexes to legal periodicals, along with the full text of articles can be accessed from many library websites and commercial providers.

Articles written by experts may also be found through Google Scholar. Launched in 2009, this service provides a way to broadly search for scholarly literature, including articles, theses, books, abstracts and court opinions. These documents have been collected from academic publishers, professional societies, online repositories, universities and other websites. Google Scholar may be searched with Boolean, proximity, and phrase searching, as well as through its advanced search function.

Some expert witness directories such as JurisPro and Hieros Gamos provide free access to articles written by experts, and many trade associations publish online newsletters and some provide either the full text of or extracts from articles. For example, the Accident Reconstruction Communications (ARC) Network, a professional organization for those in the accident reconstruction industry, has a monthly newsletter with articles authored by experts. This website also has an active discussion forum that includes opinions posted by various accident reconstructionists.

Jim Robinson, Esq.
Attorney, Past Education Chair for the California State Bar Law Practice Management and Technology Section, Founder of JurisPro Inc.

David V. Dilenschneider, Esq.
Senior Director, Client Relations
LexisNexis

Myles Levin
CEO
Daubert Tracker

Nathan Aaron Rosen
Library Research Manager
Dechert LLP

May 29, 2015

Automobile Air Bag Expert Witnesses & Takata Recall

Automobile air bag safety expert witnesses may consult and testify on automobile airbags, air bag deployment, and other automobile safety systems. In the news, BMW, Ford and Mitsubishi have provided lists of vehicles that are affected by the recent expansion of the Takata air bag recalls. While the vehicle identification numbers included in these recalls are not available on the National Highway Safety Administration’s VIN lookup tool or the manufacturer’s website as of yet, the NHTSA is continuing to provide updates.

NHTSA.com provides this information:

Consumer Information on Takata National Air Bag Recalls
Takata’s expansion of their previous recalls has nearly doubled the potential number of vehicles affected to almost 34 million. Automakers are still working to verify accurate and complete lists of these vehicles; this process could take several weeks. Until the lists are complete, vehicle owners affected by the expanded recall will not be able to use their VIN to determine if their vehicle is part of this recall. As manufacturers verify their affected vehicles to NHTSA, we will provide real-time updates to our database, including lists of makes and model years affected and notifying consumers when they can begin to use NHTSA’s and manufacturers’ VIN look-up tools. NHTSA is coordinating with Takata and automakers to uphold its commitment to ensure that motorists receive information as soon as it is available.

As this recall progresses, NHTSA will organize and prioritize the replacement of the defective air bag inflators to ensure that defective inflators are replaced with safe ones as quickly as possible.

For example, NHTSA has received the list of vehicles from Mitsubishi that are affected by the recent expansion of the Takata air bag recalls. The vehicle identification numbers (VINs) included in these recalls are not yet available on NHTSA’s VIN look-up tool or the manufacturer’s Web site, but NHTSA will continue to provide updates as this information becomes available. If your vehicle is affected by this recall, follow up with the manufacturer to get interim guidance.

Recall 15V-321 for defective front passenger side air bag inflators includes:
2004-2006 model years Mitsubishi Lancer/Lancer Evolution
2004 model year Mitsubishi Lancer Sportback

May 26, 2015

Insurance Expert Witness Reports

What areas may insurance expert witnesses consult on? They may write reports and testify on the insurance industry, commercial insurance, insurance carriers, insurance policies, and more. In Experts - They May Know What To Do and How To Do It - But Do They Know How To Deliver? , Houston attorney Nyanza Moore writes:

In a time where expert reports are more the norm than the exception, it’s important to remember that a great expert report is only as good as the expert delivering it. Delivery here is being used in the sense of delivering a timely, well written report and verbally delivering a succinct explanation of the methodology used to reach the conclusions at a deposition.

Of course, every expert isn't expected to be Johnny Cochran - with the flow of speech that leaves the trier of fact mesmerized. It is well known that public speaking ranks high on the top ten fears most people have. Preparing an expert for a deposition should be used getting them comfortable speaking about the methodologies so they avoid giving rambling answers that draw a Daubert motion to exclude the opinion. For the engineers, meteorologists, public adjusters, CPAs, and economists helping policyholders prove their claims, here is a refresher on what the attorneys, judges and juries are looking for when they read and hear your opinions:

A Daubert motion is a specific type of motion in limine. It is raised before or during trial, to exclude the presentation of unqualified evidence to the jury. Daubert motions are used to exclude the testimony of an expert witness that does not possess the requisite level of expertise or uses questionable methods to obtain or evaluate data.

A Daubert motion is the outcome of a 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals.1 Rules 702 and 703 of the Federal Rules of Evidence govern the admission of scientific evidence in federal court. The rules allow expert witnesses greater leniency in their testimony because it is presumed that the expert will have a reliable basis in knowledge and expertise in his field. The Court in Daubert required that trial judges act as a “gatekeeper” and determine the scientific validity of scientific evidence before admitting it. The guidelines in the decision have been expanded to include technical and specialized knowledge testimony.
The testimony of an expert witness must pass two tests for a judge to accept:

1) Reliability:
• Empirical testing: the theory or technique must be falsifiable, refutable, and testable.; subjected to peer review and publication.
• • Known or potential error rate.
• Whether there are standards controlling the technique’s operations.
• Expert’s qualifications.
• Technique and its results be described with plain meaning.

2) Relevancy:

The relevancy of an expert's testimony is subject to the type of question. For example, a meteorologist may be an expert witness to tell the jury there was a hurricane on the night of the alleged date of loss. However, the expert witness cannot be used to tell the jury that the insurance company adjuster is a lunatic because there was obviously a hurricane that hit the property in question. The judge must act as a gatekeeper to rule out bad testimony.

After the decision in Daubert, Rule 702 was amended to include the additional provisions which state that a witness may only testify if:
• the testimony is based upon sufficient facts or data;
• the testimony is the product of reliable principles and methods; and
• the witness has applied the principles and methods reliably to the facts of the case.
Once certain evidence is excluded by a Daubert motion because it fails to meet the standard, it is unlikely that it will be used again in another trial. Even though a trial court’s ruling on a Daubert motion is not binding on other courts, if some evidence was found lacking, other judges may be persuaded by the trial court reasoning.

1 Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993).

Ms. Moore’s areas of practice are insurance and commercial litigation. She may be reached at nmoore@moorelawgroups.com.
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April 28, 2015

Computer Security Expert Witness On Cyberstalking Part 1(b)

In Cyberbullying, Trolling, and Cyberstalking: the Dark Side of Free Speech (part 1b), computer security expert witness Steve Burgess answers the question What is Free Speech?

Also not protected is harassment, the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. This could include discrimination based on race, gender, or sexual preference. It could include particularly aggressive bill collecting, or some forms of blackmail

Threatening to inflict great bodily harm (“I will stab you in the eyeball,” would qualify. “I will smack you in the kisser,” would not) or death would be illegal if the person has an apparent ability to carry out the action. Idle threats would not likely be found to be illegal.

False advertising – knowingly communicating untruthful or misleading statements about a product or service is not protected. Oddly (and somewhat maddeningly), political false advertising is protected.

Some symbolic actions are unprotected if they are otherwise illegal. I might feel strongly about an issue, but tagging a building with my message would not be protected. Neither would the act of burning a cross on private property, or littering, even if it was a political statement.

Plagiarism of copyrighted material is not protected (although it may be under certain circumstances, such as if it is satire, or is partially quoted but with attribution).

So we can see that we have a broad right to expression, as long as such speech does not run afoul of certain other laws restricting particular classes of activity. And for the most part, we are free to express ourselves anonymously.

Now we have entered the Internet Age and we find that the Web can provide easy anonymity. We also find that very many feel emboldened to engage anonymously in vile, despicable and dangerous statements, without much fear of retribution for the pain and damage that their words may cause others.

When people are speaking face-to-face, it is easy to determine who it is whose speech shades (or possibly charges) over the line from protected expression into unprotected or even illegal forms of behavior. But Internet anonymity protects the offender from being identified, from witnesses being able to testify against the offender. In some cases, the speaker may not be identifiable; in others the speaker may be actually be impersonating someone else. And when anonymous, there’s not only less or little chance of being found out, there’s also less or little chance of social norms checking such behavior through public ostracism or social shame – both mechanisms that commonly keep otherwise objectionable behavior in check.

Perhaps this is why Internet trolling, cyberstalking and cyberbullying are becoming more and more widespread.

In Part 2 of this series, we will explore what these terms mean, show examples of their use, and discuss the damage their practice does.

Burgess Forensics offers computer forensic & electronic discovery and expert witness testimony since 1985.

April 18, 2015

Gasoline Explosion Expert Witnesses

Gasoline explosion expert witnesses may report and testify on fuel explosions, flammable materials, and tanker truck explosions. On March 26 in Huimanguillo, in the southeastern Mexican state of Tabasco, villagers tried to take gasoline from a tanker truck that had overturned late at night. Unfortunately, residents broke through a police perimeter and chased off firefighters in an attempt to take fuel. Eighteen people were killed in the explosion. Due to the flammability of the cargo, the possibility of survivors in the vicinity of a tanker truck accident is low.

http://www.cvtips.com/ writes:

Tanker trucks are powerful vehicles that haul liquid or semi-liquid cargo in long metal containers. Examples of liquid cargo can include fuel, food products and chemicals. The cargo can often be dangerous. The liquids can be flammable, corrosive, poisonous or even explosive. Handling such cargo requires extensive safety training. Driving trucks with a heavy liquid load also requires a different touch than hauling dry goods like lumber or furniture.

April 12, 2015

Undue Influence Expert Witness On Making Bequests Part 2

In Undue Influence in Making Bequests: A Forensic Psychiatrist Examines the Evidence, undue influence expert witness Stephen M. Raffle, M.D., writes:

One of the inferences for the exertion of “undue” influence is if a close or isolative relationship existed between the testator and the proponent of the changed will or trust at the time changes are entered into. When the beneficiary/caregiver isolates the testator from his/her other natural heirs, there is an index of suspicion to the psychiatrist for undue influence.

Another circumstantial fact may be a financial relationship between the “favored” beneficiary and the testator. For example, the favored beneficiary has check-writing authority and is otherwise being empowered to take over the financial affairs of the testator. Yet other example may be the receipt of a joint tenancy interest in real property even though the property was paid for entirely by the testator, or being employed by the testator’s business (or promoted if already an employee) up to and including being made an officer of the company.

Participation in the procurement, preparation, or execution of the actual testamentary document is not an essential element of undue influence. The “favored” beneficiary need not be present at the time of the execution of a disputed testamentary document to participate in the creation or execution of the document. The participation may be proven inference. The forensic psychiatrist examines such participation when assessing undue influence. When the beneficiary personally communicates with the attorney who is drawing up the testamentary instruction, this is inferential evidence for the forensic psychiatrist to consider. Other circumstances the psychiatrist considers may include the allegedly “influencing” beneficiary meeting alone with the attorney who subsequently prepares a trust or will for the testator, and/or telling the preparer what the modifications will be. Other medical evidence is when the attorney who drafts the document is also retained by the beneficiary of the will or trust; there is a suggestion of a conflict. The psychiatrist would want to know the nature of the prior relationship with the attorney, and how the testator came to choose and rely on that attorney.

Undue profit as indicia of undue influence may be considered. In Estate of Gelonese, a testamentary disposition that does not treat a descendant’s children equally is “unnatural,” “demonstrating undue benefit to one child over the other.” The question whether the proponent unduly profited by testamentary document is resolved by the terms of the testamentary document itself.

As a psychiatric evaluator, I look at the relative complexity of the instrument which is drawn and assess the testator’s mental capacity to understand the document, as reflected by either direct or indirect evidence, e.g., deposition testimony, films/videos, medical records, and testimony from disinterested parties When a testator “trusts” a favored beneficiary to tell the testator what the will or trust means, then in my opinion there is substantial room for misrepresentation and distortion. The disproportionate trust in a beneficiary when there is an exclusion of other children of the beneficiary from the testamentary document raises the medical questions of independent action versus deception and self-dealing.

Further comments on this issue are addressed in my discussion of testamentary capacity (which may or may not be linked to undue influence).

Stephen M. Raffle, M.D., Board Certified Forensic Psychiatrist focusing on emotional distress, PTSD, chronic pain, undue influence, testamentary capacity and employment litigation (among others), with over 40 years' experience offering expert opinion in over 5000 cases, 700+ depositions, and testifying in 150+ trials in Federal, State, Administrative and Military jurisdictions


April 6, 2015

Computer Security Expert Witness On Cyberstalking Part 1

In Cyberbullying, Trolling, and Cyberstalking: the Dark Side of Free Speech (part 1a), computer security expert witness Steve Burgess answers the question What is Free Speech?

To listen to, read, or watch the news, it is clear that there is broad misunderstanding about the right to free speech. It is not the freedom to say anything to anyone anywhere, but rather a prohibition to keep the government from denying us the right to express ourselves. The Bill of Rights asserts that we have certain freedoms simply by dint of being born human beings.

We treasure our freedoms and freedom of expression or speech is one of the most sacred. Having this right allows us to speak truth to power and to satirize fools. In fact, one of the earliest forms of protected speech may have been the Celtic bards who worked for tribal kings, satirizing poor (or opposing) rulers, but immune from retribution under Brehon law many hundreds of years ago, or even thousands of years under European Celtic tradition.

In many cases throughout history however, speaking freely has led to harassment, imprisonment and even the death of the speaker. Such events have given rise also to the protection of anonymous speech. Indeed, anonymous expression has been integral to the history and emergence of the United States itself. Although the Supreme Court has only come down firmly on the side of anonymity in recent decades, the Federalist Papers, penned anonymously at the time by Founders of our Constitution, may have only been able to bring these ideas to the public without revealing true identities of the Papers’ authors: Alexander Hamilton, James Madison, and John Jay.

As it turns out, free expression also gives rise to less noble speech that many would see as offensive, vile, despicable and dangerous but would still be protected. So we have learned to draw lines based in large part on whether or not there is harm. In general, you’re free to express yourself insofar as said expression does not hurt other people or break other laws.

But then, satire going back to the ancients was itself designed to hurt people – to topple kings from their high positions. So again, we find ourselves drawing lines within lines to distinguish the threshold level of harm.

In the USA the right to free expression is enshrined in, and guaranteed by, the First Amendment of the U.S. Constitution. The 1st Amendment is quite succinct and reads in full:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

This has come to be understood and adjudged to mean that the government can’t keep you from saying your piece, no matter how much the government, or anyone else might disagree. This applies to all government in the U.S. – Federal, State, local entities and public officials of those public entities. You are free to speak in “the Public Square.” Note that the concept of the Public Square applies only to governmental entities, property and officials. It does not apply to private or commercial property. Property owners or business owners can prohibit you from saying certain things, or from saying anything at all on or within their own property, business, or broadcasts unless it is otherwise allowed.

Also note that some broadcasts are in a gray or hybrid area. It is often asserted that the airwaves belong to the People. Corporations and private entities may use specific frequencies through the purchase of long-term, but still temporary licenses, which are sold and/or granted by the government. More on this in a later article in this series.

What kinds of speech or expression are not protected?

There are a few types of expression that are not protected and may be considered illegal by the government.

Among these are obscenity – speech which appeals to the "prurient" interest in sex, is patently offensive by community standards, and lacks literary, scientific, or artistic value. One may have noticed that pornography nonetheless is prevalent and easily accessible in print, film, and electronically. This is because the courts hold a very narrow interpretation of what can be found to be obscene and usually finds in favor of free expression - even if it is clearly pornography - over other interests opposed to pornography.

However, child pornography is not protected and is in fact, a Federal crime, likely to get the offender years in prison.

Incitement – often spoken of as “inciting to riot” - is speech that is not protected if it advocates for generating and is likely to produce 'imminent lawless action.' Again, the court tends to rule narrowly in such cases. I can think of many a 60’s protest song that in retrospect appears slightly shocking in its urging to violent revolution, but remained legal.

Fighting words – speech that is personally abusive to an individual and likely to induce physical retaliation (i.e., start a fight) is not protected.

Defamation, or libel, is not protected. These are intentionally false statements spoken or written in public that cause injury to an individual. “Joe Smith eats babies and so should not be allowed to work in the day care center,” might be an extreme example. The speaker could be sued in civil court by the injured party.

Knowingly lying in court, or perjury, is not protected and not legal.

Extortion of money or property from someone through the use of fear or threats is unprotected and illegal.

Burgess Forensics offers computer forensic & electronic discovery and expert witness testimony since 1985.

March 31, 2015

Immigration Expert Witnesses

Immigration expert witnesses may consult on issues involving employment based immigration, green cards, immigration policy, and asylum.The Society for Applied Anthropology (SfAA) presented Anthropologists as Expert Witnesses: Theory, Practice and Ethics at their annual meeting March 24-28. University of Cincinnati assistant professor of anthropology Leila Rodriguez has testified in immigration cases and writes:

I think the legal system's understanding of culture is very different from how anthropologists define culture," explains Rodriguez. The legal system often is looking for something with clear limits around it - the black-and-white answer - when most of our answers as anthropologists are gray.

Recorded sessions will be published at a rate of a couple a week, starting about two weeks after the annual meeting. Sign up to be notified via RSS or email.

Guilt, Innocence and Ethnography: Informants and Expert Witness Presenter: Jeffrey H. Cohen, The Ohio State University

Judicial Ignorance and Expert Witnesses in Asylum Cases Presenter: Murray Leaf, University of Texas at Dallas

The Epistemology of Expertise: Scientific Anthropology and Expert Witness Testimony in a Criminal Case Presenter: Leila Rodriguez, University of Cincinnati

The Role of Culture in Expert Witness Testimony: Presenter: Kendall Thu, Northern Illinois University

Expert Witness: Asylum vs. Criminal Proceedings with Central American Immigrants in U.S. Courts Presenter: Allan Burns, University of Florida

Can I Get a Witness? A Lawyer's Perspective on the Critical Role of Experts in Saving Lives Presenter: Virginia Raymond, immigration attorney


The SfAA promotes interdisciplinary research in addressing issues affecting human beings around the world. With over 2,000 members, the society is the pre-eminent international organization in the field. The theme for the 75th annual meeting is "Continuity and Change."

March 28, 2015

Forensic Psychiatry Expert Witness On Testamentary Capacity

In Testamentary Capacity to Execute a Will and Mental Competency to Execute a Trust or Contract, forensic psychiatry expert witness Stephen M. Raffle, M.D., writes:

A Will is not a contract because it does not represent a promise to perform a service or execute an action for another person (including corporations). It is solely an allocation of a person’s wealth on death. A contract, such as a Trust, implies the potential for an adversarial relationship if one of the parties does not perform as promised. In a Trust the parties may be the Trustors and the Trustees. Therefore, an adversarial relationship potentially exists between the parties. Because of this potential adversarial relationship, each of the parties must be able to understand the consequences of their actions vis-à-vis being in default. This requires each party to be able to understand with meaning (mental competency) the terms and conditions of the contract which may themselves be complex and require multiple steps. For this reason the mental state required to enter into a contract requires an understanding of consequences and an ability to understand complex meanings contained within the contracted obligation, neither of which is explicit or implied in the execution of a Will.

Mental competence to enter into a contract has a higher threshold than mental competence to execute a Will. It is therefore possible for a person to retain testamentary capacity but not be competent to execute a Trust.

Stephen M. Raffle, M.D., Board Certified Forensic Psychiatrist focusing on emotional distress, PTSD, chronic pain, undue influence, testamentary capacity and employment litigation (among others), with over 40 years' experience offering expert opinion in over 5000 cases, 700+ depositions, and testifying in 150+ trials in Federal, State, Administrative and Military jurisdictions

March 23, 2015

Undue Influence Expert Witness On Making Bequests Part 1

In Undue Influence in Making Bequests: A Forensic Psychiatrist Examines the Evidence, undue influence expert witness Stephen M. Raffle, M.D., writes:

Undue influence when creating a will, codicil to amend a will, trust or other legal instrument, occurs when the conduct of another prevents a testator (or anyone for that matter) from exercising his or her free will. The occurrence of undue influence is established by demonstrating that the testator’s testamentary disposition was caused by undue pressure, argument, or other coercive acts which destroyed the testator’s freedom of choice in the disposition of the assets of his or her estate, and is replaced by the substituted judgment/wishes of another. Litigants may characterize the circumstances as perceived or misperceived exploitation of a vulnerable individual, especially as we see a generation of baby boomers reach ages at risk for dementia and Alzheimer’s, both medical conditions best assessed by a medical doctor. Undue influence may be proven with circumstantial evidence, i.e., without direct evidence. It is necessary to demonstrate by fact that undue influence has occurred. Often the term “undue influence” in a testamentary setting is lumped with the phrases “testamentary capacity” and “competency” to make a Will or Trust. A dispute about testamentary capacity may arise in the same case as undue influence, but from the forensic psychiatrist’s point of view, the issues are different. The making of Wills vs. Trusts have different thresholds of competency and the distinction is important to understand when evaluating if susceptibility to undue influence is considered.

There are various indicia of undue influence. Those indicia include, but are not limited to, the following:

• An unnatural cutting off of any substantial bequest from the natural objects of an individual’s bounty, such as children, e.g., if one child is left the entire body of an estate and another child is provided nothing.

• Disposition of an estate which is at variance with the decedent’s intentions as expressed before and after the execution of the document in question. In other words, the testator expresses that the will (or trust) provides for “X” before the will is signed and again at some later date. However, the bequest proves to contain a different provision entirely. This situation may indicate the testator suffers from dementia and is not the victim of undue influence. A forensic psychiatrist must take into account a wide variety of evidence to form an opinion.

Note: When a testator excludes a natural heir due to a delusion about the heir, the testator is deemed incompetent to execute a will or trust.

• Relations existing between the chief beneficiaries and the decedent were such that one of the beneficiaries was provided an opportunity to control the testamentary act. This commonly occurs when one child manages all of the assets of the testator and otherwise controls the wealth and care of the testator to the exclusion of other children (child).

• The testator was vulnerable to undue influence because he/she suffered from a mental or physical condition which permitted a subversion of his or her free will. This may include a chronic physical condition or mental decline, as mentioned above and below.

I have evaluated cases in which the considerations included the side effects of medication, mentally disabling brain conditions (e.g. a brain tumor), or dementia brought on by the toxic side effects of kidney or liver damage, to name only a few. Conversely, regardless of evidence of physical causes of mental decline, the primary impetus for the testator’s behavior may prove to be caused by the behavior of another person manipulating or exploiting the testator. When assessing undue influence on a deceased testator, the medical training of a forensic psychiatrist, who is a licensed medical doctor, becomes especially relevant as medical records are often the primary evidence available.

• When the chief beneficiary of the testator also is active in procuring the execution of the instrument which provides the bounty, the question must arise whether or not undue influence was exercised.

• If undue influence is alleged against a fiduciary of the testator, the burden of proof shifts to the fiduciary to establish no undue influence occurred.

It is not necessary to demonstrate the existence of mental dysfunction in order to prove undue influence. There may be mental “weakness” (see Estate of Yale), which is probative of undue influence. This “weakness” from whatever cause is nevertheless less debilitating than the mental defect required to establish a lack of testamentary capacity. In Estate of Yale, the court held that a persuasive indicia of undue influence is a physical and mental condition of the testator “such as to permit a subversion of his freewill.” Susceptibility to undue influence may include advanced age, medical deterioration due to a progressive medical mental deterioration, and/or reliance on the beneficiary as a caregiver.

Usually, undue influence is established by circumstantial evidence and, by necessity, inferences. Generally, the existence of undue influence is not investigated until the death of the testator, at which time, of course, the testator no longer is available to testify about acts that influenced him. Rarely is direct testimony available. In the case of David v. Hermann, for example, the court inferred the settlor’s sudden negative shift in attitude toward the older daughter to be caused by the younger daughter falsely “poisoning the settlor’s mind because it [the court] could find no other rational explanation.”

It is generally held that the evidence of cumulative events are taken together in order to support a finding of undue influence; a single event is rarely sufficient as proof. Many types of circumstantial evidence may be produced which when taken cumulatively become more than the sum of their parts.

Not all influence is “undue.” Another close individual such as a spouse may influence the testator to make certain decisions in order to best provide for heirs. The influence becomes “undue” for the reasons given above....

Further comments on this issue are addressed in my discussion of testamentary capacity (which may or may not be linked to undue influence).

Stephen M. Raffle, M.D., Board Certified Forensic Psychiatrist focusing on emotional distress, PTSD, chronic pain, undue influence, testamentary capacity and employment litigation (among others), with over 40 years' experience offering expert opinion in over 5000 cases, 700+ depositions, and testifying in 150+ trials in Federal, State, Administrative and Military jurisdictions

March 12, 2015

Emergency Medicine Expert Witness On Choosing an Orthopedic Surgery Expert

In Choosing an Orthopedic Surgery Expert Witness, Burton Bentley II, M.D FAAEM, writes:

Orthopedic surgery (commonly spelled “Orthopaedic” in academia) is a field of surgery dealing with the surgical treatment of disease and injury of the musculoskeletal system. Orthopedic surgeons are licensed physicians who complete a five year residency program in orthopedic surgery often followed by subspecialization in a specific branch of orthopedic surgery. Common subspecialty areas include Hand Surgery, Total Joint Reconstruction (i.e. arthroplasty), Pediatric Orthopedics, Foot and Ankle Surgery, Spine Surgery, Sports Medicine, and Trauma. Board certification in Orthopedic Surgery is conferred by the American Board of Orthopaedic Surgery, a section of the American Board of Medical Specialties (ABMS). Physicians who enter the field of orthopedics via an osteopathic pathway (D.O. rather than M.D.) are eligible for Board Certification under the American Osteopathic Board of Orthopedic Surgery.

Orthopedic surgeons diagnose, image, medically treat, and surgically correct a broad range of musculoskeletal conditions. Common procedures in orthopedic surgery include arthroscopic surgery upon the knee and shoulder, joint replacement surgery (predominantly upon the hip and knee), spine surgery, and carpal tunnel release. The foundation of orthopedics, however, is the stabilization and treatment of various fractures. Fractures may be treated non-operatively (closed reduction) or operatively (open reduction). Some fractures may require internal hardware (internal fixation) while others require external hardware (external fixation) or no hardware at all. The most common fracture sites include the hip (e.g. femoral neck), ankle, tibia, wrist (radius and/or ulna), humerus, and clavicle. Other acute conditions in orthopedic surgery include compartment syndrome and the management of complex bone and joint infections. Depending on the complexity of the procedure, orthopedic interventions may be performed in the office, in an outpatient surgical facility (ambulatory surgery center), or in a hospital-based operating room.

Orthopedic surgery expert witnesses are critical in several important aspects of orthopedic litigation including standard of care, causation, and harm. Orthopedic surgery expert witnesses may also determine the etiology, extent, and prognosis of various musculoskeletal conditions, including complications caused by trauma or alleged medical negligence. For example, an orthopedic surgery expert witness may look at the circumstances surrounding a work-related injury in order to determine whether, to a reasonable degree of medical probability, a person’s injury was acute rather than related to a preexisting condition. The same expert might also determine the prognosis of the person’s condition, such as the disability rating or need for future medical care. Orthopedic surgery experts are also commonly called upon to perform Independent Medical Examinations (IME). An IME is an indispensable tool for objectively assessing a person’s physical condition. A thorough and impartial IME allows one to make critical determinations regarding the existence, origin, extent, and prognosis of a specific orthopedic condition.

Litigation against orthopedic surgeons typically stems from poor surgical outcomes resulting in pain or functional loss. This may occur as a result of surgical technique, infection, or other complicating factors. Delayed treatment of “compartment syndrome” (a limb-threatening elevation in extremity pressure) is another area of risk for practicing orthopedists. Since orthopedic surgeons employ a range of highly specialized surgical devices, orthopedic expert witnesses are often called to testify for both plaintiff and defense in product liability cases. Such litigation is increasingly common with many cases gaining national notoriety as class action lawsuits.

Given the complexity and expense of orthopedic surgery litigation, it is imperative to carefully choose an orthopedic surgery expert witness. A top-tier orthopedic surgery expert witness will have Board Certification, full-time clinical practice, and a professorial appointment at a major university medical center. Beyond those requisite steps, be sure to interview your expert witness candidate to assure impartiality, freedom from conflict, and communication skills. The expert should also agree to remain involved with the case throughout all phases of litigation. When all criteria are met, you will have minimized your risk and set the best course for investigating your orthopedic surgery case.

Dr. Bentley is the President and CEO of ELITE MEDICAL EXPERTS. In his full-time clinical practice he is an attending Emergency Physician at Northwest Medical Center in Tucson, Arizona. With over twenty years of clinical experience, he has provided emergency care to over 60,000 patients. He is also the principal physician of Emergency Medicine Litigation Analysts, Inc., where Dr. Bentley has consulted upon countless claims of potential medical negligence for both plaintiff and defense.

March 5, 2015

Explosions Expert Witnesses

Explosions expert witnesses may consult on flammable materials, fire & explosion analysis, and natural gas explosions, as well as related matters. Investigators have reported that the cause of an explosion last week in Stafford Township, NJ, was a crack in a gas line. Firefighters, paramedics, and New Jersey Gas employees were injured. The shock wave from the explosion flattened one home and damaged a score more.

Commonly used for heating, natural gas, methane, propane and butane make up the majority of residential gas explosions. After a 127 year old gas main exploded in East Harlem, NY, in 2014, Natural Gas Watch.org wrote that natural gas explosions seem to be occurring with disturbing regularity in the US.

There are more than 5,000 miles of natural gas pipeline beneath the streets, homes and buildings of New York City and according to public records, a significant portion of that underground pipeline is made of aging cast iron that’s prone to leak. Indeed, hundreds of miles of this pipeline are at least 100 years old and some of it even dates back to 1889.

Natural Gas Watch.org reported in 2014:

Legislation cleared the House Wednesday that outlines a process under which utilities would be held accountable for repairing thousands of underground natural gas leaks, with supporters saying the bill could save lives by preventing explosions. Proponents of the bill, long pushed by Marblehead Rep. Lori Ehrlich, said $40 million is wasted each year due to natural gas leaks. Prior to the bill’s passage, Ehrlich ticked of a series of home explosions caused by natural gas leaks, citing growing risks. “These leaks can only get worse,” she said.

March 4, 2015

Business Valuation Experts & BMC Software Ruling

In A Review of BMC Software, Inc. v. Commissioner of Internal Revenue: Should Intercompany Accounts Receivable Be Considered “Debt”? Samuel S. Nicholls of Willamette Management Associates writes:

In the matter of BMC Software, Inc. (“BMC”) v. Commissioner, the U.S. Tax Court (the “Tax Court”) ruled on the definition of “debt” as it relates to intercompany indebtedness between a U.S. tax¬payer and its foreign subsidiary.

At issue in this decision was the BMC accounts receivable owed from its foreign subsidiary, BMC Software European Holding (BSEH). This accounts receivable was created as a result of a transfer pricing settlement between BMC and the Internal Revenue Service (the “Service”) in 2007.

The specific question in the BMC decision was whether or not this accounts receivable increased the company’s related-party indebtedness between October 3, 2004, and March 31, 2006 (the testing period). If it did, then the amount of money that BMC repatriated under the Internal Revenue Code Section 965 tax holiday would be reduced, and BMC would owe additional tax.

That is, if the intercompany accounts receivable were deemed to be debt, then BMC would have over-stated its dividends received deduction (“special dividend”) and it would have to retroactively pay the regular tax on the amount of the overstatement.

Related-party indebtedness was relevant in this decision, because Section 965 does not permit any increase in related-party indebtedness to be included in the amount of funds eligible for the special dividend.

The testing period is relevant because Congress provided that the amount of the Section 965 special dividend deduction would be reduced by any increase in related-party indebtedness during the “testing period.”

The Service took the position that (1) the establishment of the account receivable, resulting from a transfer pricing adjustment in 2007, constituted increased related-party indebtedness, (2) the related-party debt should be applied retroactively to the testing period, and (3) this amount should not be included in the special dividend. BMC disagreed and petitioned the Tax Court for relief.

The Tax Court filed its opinion on September 18, 2013, ruling in favor of the Service. In its opinion, the Tax Court concluded that some of the funds repatriated by BMC under Section 965 wereineligible for the special dividend. This is because those funds included an intercompany accounts receivable that the Tax Court considered to be a form of intercompany debt.

BMC subsequently filed an appeal with the U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”), and the case is currently pending review. The Fifth Circuit’s decision could have broad implications for intercompany transfer pricing issues.

Mr. Nichols is a senior associate with Willamette Management Associates and has performed the following types of valuation and economic analyses: merger and acquisition valuations, business and stock valuations, and fairness opinions.

Mr. Curtis R. Kimball of Willamette Management Associates is an expert witness in business valuation and intellectual property.

Read the entire article here.

March 1, 2015

Pediatric Emergency Medicine Expert Witness

In Myocaritis in Children: A Diagnosis to Consider in the Pediatric Emergency Department, a board certified pediatric emergency medicine expert witness explains that myocarditis, or inflammation of the heart muscle, may result in significant heart malfunction or death. This is a condition that may result in misdiagnosis and is important for the pediatric emergency medicine physician to be familiar with and consider.

In children, the most common reason is due to a viral infection. Other causes include Lyme disease, Rocky Mountain spotted fever, toxic shock syndrome, fungus infections and or parasites.

Since myocarditis in children may mimic other conditions, the diagnosis of myocarditis is challenging. It is a rare condition, with common symptoms that the pediatric emergency medicine provider may encounter with other common conditions.

Consider myocarditis on the differential when a child presents with trouble feeding or tachypnea (breathing fast). Young babies may be difficult to calm and described as fussy. On exam, infants and children may have hypo-perfusion presenting with cool and pale extremities.

Although some children may have more overt signs such as swelling in the face, feet or the legs, general flu-like symptoms may be the only sign of myocarditis.

Myocarditis is a clinical diagnosis and requires a careful history and thorough physical examination. The pediatric emergency medicine doctor may order a chest x-ray that reveals an enlarged heart size or fluid in the lungs. Similarly, an electrocardiogram may reveal abnormal heart electrical activity. Finally, an echocardiogram may reveal increased heart size.

Given that other organs may be affected by myocarditis, it is important to assess kidney and liver function. Also, given the infectious causes, a blood count and tests for infections may also be done.

Myocarditis in babies and children requires admission to an intensive care unit management.

Read more: Pediatric Emergency Medicine Consultants

February 17, 2015

Business Expert Witness On World Economies Part 1

In Are We Nearing a Global Turning Point?, business expert witness Douglas E. Johnston writes:

Several important economic factors appear to be moving unfavorably for the US at the moment, both domestically and abroad, and there are increasing indications that America
may not be able to orchestrate a hoped-for global resurgence on its own. Despite
encouraging signs of domestic recovery, fundamental structural problems persist in the
US economy. The National Debt now exceeds $18 Trillion, the Department of
Agriculture confirms that well over 46 million Americans continue on food stamps, and
key voices have stepped forward asking for a deeper look at several U.S. economic
statistics.

Last week long-time Gallup CEO Jim Clinton very boldly drew attention to the
government’s recent 5.6% unemployment numbers, questioning them as overly
optimistic interpretations of data, and noting on CNBC that the percentage of Americans
holding full-time jobs is now the lowest in 60 years. Former US Asst. Treasury Secretary
Dr. Paul Craig Roberts added more to the unemployment conversation recently when he
calculated that the true US jobless rate may reach nearly 23% after adding back several
categories of workers who have now given up looking for work. Several other media
sources including CBS Radio have reported that as many as a record 92 million
Americans may now be now functionally unemployed.

Adding to the domestic uncertainty, more pressing issues loom for the US internationally.
While the dollar is currently surging in value as a ‘safe haven’ investment, America faces
more than the usual normal number of unsettling issues abroad. From China to Russia to
India to Ukraine to Switzerland to Greece to Iran to Saudi Arabia and the Middle East,
the US may be facing potential developments with both allies and adversaries which
could displace the US from its lead role in international finance. The dollar has ruled
supreme internationally as the global-standard currency for settlement of most
international payments since the 1944 Bretton Woods global economic summit. But the
handwriting is on the wall for a change ahead, especially when considering the
emergence of Russia, India, China and the other BRICS bloc of countries. We should
make no mistake about it, the BRICS countries and many other long-time allies and
friends no longer view the US as unwaveringly as they once did. IMF Managing Director
Christine Lagarde has since 2012 noted several emerging ‘tectonic shifts’ in global
finance. Much groundwork has been laid in recent years by the BRICS toward a
‘tectonic’ realignment of the global currency markets and to de-emphasize the dollar as
the global currency of choice, especially including settlements for oil. The US has
steadily resisted this shift for decades, because allowing the world to bypass the dollar
could have profound implications for US influence in the world, as well as in the daily
lives of Americans as the cost of imported goods rises.

What are these emerging ‘tectonic’ developments and where are the current focal points
which might result in a global currency realignment and a shift in the dollar’s role? Here
are a few of the more notable global shifts as the US might see them:

· China quietly surpassed the US in 2014 as the world’s largest economy (per the
IMF) and it has steadily expanded its global trade plus the influence of the yuan
via scores of currency ‘swaps’ and bi-lateral trade arrangements with virtually
every major country & foreign central bank, plus all major US allies. The possible
displacement of the dollar as the sole global reserve currency could reduce or
even eliminate the huge advantage the US currently holds in funding its debt and
deficits through foreign markets. While the dollar still dominates global trade, the
Chinese have publicly stated their intention to have the yuan adopted as at least an
‘alternate’ reserve currency to replace and/or compete with the dollar. That time
appears now to be approaching even faster.

· Russia is now the world’s largest energy exporting nation. In 2014 Russia and
China signed over $400 Billion in long-term energy and trade pacts outside the
dollar, and China has recently signaled that it will backstop Russia if it needs help
in the face of US-led economic sanctions regarding Ukraine. For decades, this
kind of an economic alliance of China and Russia has been considered almost
unthinkable for the US, and numerous observers including Henry Kissinger have
characterized the emerging Russia-China alliance as one of the most significant
global geopolitical shifts in the past 150 years.

· The US-dominated IMF and World Bank have provided powerful support for US
foreign policy for decades, and yet the US has continued to withhold both new
funding and support for IMF reforms to accommodate the BRICS and others. In
July 2014 the BRICS bloc established its own $100 Billion Development Bank(s)
and other similar institutions to compete with the IMF and World Bank, and to
facilitate non-dollar finance and influence.

· Russia and the other BRICS nations have also been working steadily in recent
years to establish secure communications and wire-transfer networks outside of
the US-dominated and Belgian-based SWIFT system, in order to facilitate
banking and trade outside US influence. The new system is said to have begun its
first operational testing in late 2014, and full operations are expected in 2015.

· US-led economic sanctions against Russia over Ukraine have produced a military
and economic cold/hot war which threatens to deteriorate further, and with far reaching
trade implications. Europeans have so far generally chosen to follow the
US lead, but they have expressed reluctance to do so because: 1) Europe relies on
Russia for up to 25% of its own gas supplies, and 2) the US-led sanctions often
hurt European countries the most as Russia’s regional trade partners. Longtime
US ally Germany remains somewhat ‘in the middle’ as the economic powerhouse
of Europe, and yet some observers now believe German Chancellor Angela
Merkel, who speaks fluent Russian herself, many now be shifting her attention
toward the emerging Russia-China bloc. Highly-influential US-based Foreign
Affairs magazine has highlighted this issue in a key essay in its January-February
2015 issue: ‘Leaving the West Behind: Germany Looks East.’

· Following President Obama’s ‘Asia Re-Balancing’ visit to India in late January,
the Chinese followed with a February 2 summit in Beijing of the foreign ministers
of Russia, India and China to address India’s bid to join the Russia-China security
bloc. This follows India’s announcement in December 2014 of its plans to lease a
second Russian nuclear submarine. There is additional noteworthy data from the
World Gold Council and various central banks and sources indicating that Russia,
India and China (the ‘RICs’) have each steadily continued to amass gold reserves
in recent years. Reuters reports that two-thirds of global gold consumption now
comes from Asia, and newly-launched gold exchanges in Shanghai, Singapore,
Hong Kong and Dubai beginning in late 2014 may serve to shift dominance in
these markets which is currently held by London and New York.

· Iran announced in January 2015, after years of threats, that it has now dropped the
dollar for payments of its oil exports. In decades past, Iran’s many threats have
often been met by the deployment of yet another US aircraft carrier to the Persian
Gulf. Yet now, with the winds of broader global geopolitical change stirring, and
given the added complexity of ongoing negotiations with Iran on nuclear issues, a
real oil pricing currency shift may be at hand. The US has long been concerned
that Iran might be the ‘first domino’ of major Middle East oil-exporting countries
to drop the dollar, and related Arab state defections from the dollar remain a
possibility.

· Saudi Arabia and Yemen experienced important regime changes in early 2015
which could similarly impact US influence in the Middle East. The long-festering
wars and unrest in Iraq, Egypt, Libya, Syria and Lebanon also pose renewed
potential challenges for the dollar and US interests in the region.

· Greece and its very significant $300 Billion external debt, long the outliers in the
20-nation euro bloc, might present Russia and its BRICS allies with a stunning
non-NATO geopolitical opportunity in 2015 by offering the BRICS a stronger
strategic and financial foothold in southern Europe. This emerging scene bears
watching very closely. As Stratfor geopolitical strategist George Friedman and
many others have long noted, European leaders (and more recently the US) have
shared a common interest for centuries in keeping huge and mineral-rich Russia
bottled up geographically and with limited access to warm-water ports. Germanled
euro austerity measures against Greece thus may need to be re-thought as the
long-suffering Greeks consider their emerging opportunity to switch to a new
economic sponsor and/or currency. Greece is a small country but it occupies a
unique strategic position at the crossroads of Europe, Asia and the Middle East.
It could thus also play a major role in the emergence of new roles for the dollar,
euro, and yuan, and former US Fed Chairman Alan Greenspan recently furthered
the discussion by predicting that Greece would ultimately leave the euro bloc.

· Switzerland’s January 2015 decoupling of the Swiss franc from the euro has
underscored emerging problems in the euro currency, and spotlighting the
reluctance of euro powerhouse Germany to arrange additional bailouts for Greece,
as well as for the rapidly-weakening economies of Italy, Spain and Portugal.

Doug Johnston (through Five Management, LLC) is an expert witness in banking/lending
and an investigative business consultant specializing in Commercial Banking & Lending,
Private Equity, and International Banking. Early in his career he was named as the
youngest bank president in Texas, and thereafter he established multiple bank offices in
California and Texas. Expanding into Corporate Finance and Mergers & Acquisitions,
he became a ‘Founding Father’ of the largest private company in Los Angeles. As a C Level
executive, Doug has ‘hands-on’ debt and equity finance and documentation
experience with both lenders and investors involving hundreds of companies engaged in
technology, service, real estate, manufacturing, and entertainment across the US as well
as in Europe.

January 17, 2015

Handwriting Expert Witness On Forensic Document Examination

In When is a Handwriting Expert Not a Handwriting Expert? handwriting expert witness Dennis Ryan of Applied Forensics, LLC, writes:

A handwriting expert is not a handwriting expert when they are called on to examine aspects of a document that do not require a handwriting examination. Most handwriting experts are actually Forensic Document Examiners (FDE’s). The expertise of a Forensic Document Examiner goes well beyond the examination and comparison of signatures, hand-printed or handwritten items. The Forensic Document Examiner (Handwriting Expert) can examine documents to determine if they are forged. For example, our FDEs have examined documents associated with a vintage automobile sale. The documents that were produced in the sale of the automobile were the window sticker, the bill of sale and other related documents. The price of the automobile was increased by a hundred thousand dollars ($100,000) when these documents were used in the sale of the automobile. Our examiners determined that the documents were fraudulent because they were produced using a color laser printer/copier. The documents appeared artificially aged.

The Forensic Document Examiner (handwriting expert) can also examine documents to determine the method of production of the document. Was the document produced by a typewriter, dot matrix, ink jet or laser printer? Does the document have a signature on it which appears original but is in fact a color laser copy of the signature and not the original inked signature? Does the ink jet printer have a defect that can identify the specific printer used to create the document?

A Forensic Document Examiner may also examine alterations, additions and deletions. Our office has examined documents ranging from medical treatment records to standardized school testing records for evidence of alterations, additions or deletions. The alterations are not always evident without a close examination using infrared imaging technology. Our examiners have examined hundreds of state standardized tests and have found, on occasion, the answers have been changed from an incorrect answer to a correct one.

The Forensic Document Examiner (handwriting expert) also does indentation analysis. An examiner could, for example, determine why handwritten initials from page one of a multi-page document do not appear on page two of the document, but the initials appear on the remaining pages of the multi page document. The answer could be that an alternative version of page two has been substituted. In another case, our office compared indentations from a 2008 document and those of a document dated 2014 which provided a clue in dating the document in question.

The Forensic Document Examiners (handwriting experts) in our offices have been asked to examine photocopied documents to determine if the copies are mechanical fabrications. Another term for a mechanical fabrication is a “cut and paste”. With the accessibility of desktop publishing so prevalent in today’s society, a “cut and paste” can be done with relative ease with only a computer and a scanner. A “cut and paste” can be very rudimentary or very sophisticated, it all depends on the time and effort one wants to put into creating the document.

As one can see the handwriting expert does not always fulfill the role of handwriting expert. The Forensic Document Examiner commonly referred to as a handwriting expert, conducts a myriad of examinations on documents called into question.



Applied Forensics
is a state of art laboratory of certified Forensic Document Examiners with offices in New York, Maryland, Boston, Connecticut, and North Carolina. Document examinations are provided in the following areas: handwriting, typewriter, photocopies, alterations, obliterations, erasures, and paper exams.

January 7, 2015

School Security Expert Witness On School Shootings Part 2

In Ten Lessons Learned From the Sandy Hook School Shootings, school security expert witness Ken Trump, MPA, President of National School Safety and Security Services writes:

Our team’s analysis of the Sandy Hook Final Report released by the Connecticut State’s Attorney continues with 10 key lessons learned for school security and emergency preparedness. While additional details may be revealed in forthcoming documents from the Connecticut State Police, 10 important lessons from Sandy Hook have emerged based upon the final report, information shared with us by individuals involved with the incident, and other published reports:

6. Assess physical security at each school due to unique designs and issues. The classrooms where children and staff died at Sandy Hook had connecting doors in the walls. Restrooms inside the classrooms helped as places for young children to lockdown. Each school district is unique and schools within each district are unique, requiring building-specific assessments and actions as appropriate to identify strengths and areas of concern.

7. Strengthen communications capabilities and create redundancy. The ability to activate the PA from multiple locations was helpful in alerting others of the shootings at Sandy Hook. As noted in Chuck Hibbert’s blog article this week, Connecticut State Police radios did not work inside the school. Have redundancy in communications in the event “Plan A” fails.

8. Recognize and address the elephants in the living room: Mental health, home dysfunction, weapons, violent videos, etc. These are largely home and community issues that must be recognized, acknowledged and addressed by parents and the community.

9. Think and act cognitively, not emotionally; and measured, not knee-jerk — and related to this lesson:

10. Stay focused on proven, tested and reliable best practices. Experienced school safety professionals, psychologists and many educators have expressed concerns since December of 2012 about far too many emotionally-driven ideas and actions based upon what people believed occurred at Sandy Hook. Bulletproof backpacks, bulletproof whiteboards, vendors and consultants pushing expensive classroom surveillance cameras activated by individual teacher panic alerts, software developers providing lockdown or shooter notification apps (that could result in not only first responders rushing to the school, but also undesired onlookers like the NY man who went to Sandy Hook to see what was going and got detained by police), and others have jumped into the fray with questionable proposals.

Many schools rushed to fortify their front entrance doors, failing to recognize that the Sandy Hook shooter shot out the glass next to the doorway, not in the actual doorway. Some mistakenly have downplayed and/or dismissed lockdowns as effective tools. Others have encouraged students and staff to evacuate and run anywhere and everywhere possible, which in the case of Sandy Hook appears to have adversely impacted police from getting inside the school once they arrived.

Teaching children and teachers to throw things at, and to attack, armed gunmen is another flawed theory put forth with greater emphasis after Sandy Hook. Yet the Sandy Hook principal and psychologist were instantly killed while moving toward the heavily armed gunman. The staff member who was near them and got shot went back into the conference room, locked down and lived. Students who locked down, even inside the inner classroom restrooms, survived. Classes on both sides where the shootings occurred quietly locked down and survived.

More lessons may follow, and some amendments to the above may be needed, with the release of additional documents. But for now, based upon what is known, the above lessons remind us to focus on proven, reliable best practices.


KENNETH S. TRUMP
, M.P.A., is President of National School Safety and Security Services, a Cleveland-based national consulting firm specializing in K-12 school security and emergency preparedness training, school security assessments, school emergency planning consultations, school security officers and school police issues, and related school safety, violence, crime and crisis consulting services.

January 2, 2015

Explosions Expert Witnesses

Explosions expert witnesses may consult regarding explosives, flammable materials, combustion, and related matters. In the news, fireworks manufacturer Entertainment Fireworks has been fined following a fatal explosion in June 2014. The Washington State Department of Labor & Industries investigated the accident and concluded that safety violations and improper training contributed to the explosion which killed one worker and injured two more.

The Bureau of Alcohol, Tobacco, Firearms and Explosives website contains detailed safety precautions in the use and storage of explosives.

Explosives Safety and Security
Federal explosives law and regulations provide requirements and standards for the secure storage of explosives materials. To maximize the effects of regulatory compliance, the following voluntary suggestions, developed in partnership with the International Makers of Explosives (IME) and the International Society of Explosives Engineers, may serve as a helpful guide for securing explosive materials.

Storage Requirements
The Federal explosives regulations at 27 CFR, Part 555, Subpart K, outline the storage requirements for explosive materials. Section 555.205 specifies that licensees and permittees must keep all explosive materials in locked magazines meeting the standards in Subpart K unless they are:
In the process of manufacture;
Being physically handled in the operating process of a licensee or user;
Being used; or
Being transported to a place of storage or use by a licensee or permittee or by a person who has lawfully acquired explosive materials under Sec. 555.106.

When none of the above conditions apply, this section mandates that you keep explosive materials in magazines that meet the construction and table of distance requirements of Subpart K. Any divergence from these requirements requires prior approval by the Director, ATF, in accordance with the provisions of 27 CFR, Part 555.22. Persons with questions on this issue should contact the Explosives Industry Programs Branch in ATF Headquarters at 202-648-7120 or through e-mail (EIPB@atf.gov).

December 30, 2014

Emergency Preparedness Expert Witness On First Aid Teams Part 2

In First Aid Teams, emergency preparedness expert witness Michael J. Ryan, principal at First Aid Depot, asks the question, “Does your organization need a First Aid Team?”

Training is only part of the First Aid Team question. Now that your associates have received the training they need the right tools. The right tools include all the equipment discussed in the First Aid and CPR/AED programs. These could include face-masks with one-way valves to eliminate direct mouth-to-mouth contact, triangular bandages for bandaging and splinting, and portable first aid kit(s) to be carried to the emergency stocked with the unique supplies for your work place emergencies.

Once your First Aid Teams are trained, in place, and equipped with the proper tools, they need to be managed. This can be accomplished in several ways. A self governing Safety Committee can oversee the First Aid Teams activities as well as scheduling coverage, checking supplies, and future retraining needs. The human resources department may take an active role in the First Aid Team; after all, it involves the employers’ associates caring for other associates. Human resources may be better able to deal with wellness issues. Depending on the size of your facility, the facilities manager may be best suited to manage the First Aid Team(s).

First Aid Teams in general are a great way to boost moral and at the same time ensures that the organization is providing appropriate emergency first aid. Being prepared for work place emergencies helps keep the company OSHA compliant. The investment in training and tools is a fraction of the payoff if an emergency occurs. As an example, training 10 associates in First Aid with Adult CPR/AED and then outfitting each member with a pocket facemask and 1 first aid kit is less than $800.00 dollars. AED (Automated External Defibrillators) have also dropped in price, approximately $2,000.00 each.

First Aid Teams are an all around wise investment in your associates and a commitment to their wellness.

Mr. Ryan's areas of expertise include citizen responders who provide First Aid, CPR and Automated External Defribrillation (AED) treatment; employer responsibility in the work place as it relates to emergency care/preparedness and EMS issues with respect to pre-hospital emergency medicine.