October 30, 2014

Contract Manufacturing Expert Witness On Contract Planning Risks

In Frequent Contract Planning Risks, contract manufacturing expert witness Robert G. Freid writes on the importance of the contract prior to the start of work.

- Customers have their greatest negotiating leverage before start of work. Once work starts it is often difficult to reverse course because of time constraints and resources.
- About a third of my outsourcing consulting services involves work as a consultant in legal disputes between customers and suppliers, and millions of dollars in damage claims. In most cases, no contract existed between the parties – at best, only an MOU. I've recently been an expert witness in such a matter with 10,000 pages of depositions and 1,000 exhibits from both sides. Very expensive.
- Contracts can take only a short time to complete. Time is reduced if the customer has a draft contract proposal ready when the supplier is selected, and if the draft proposal T&C's are within the range of industry practices.

Do not underestimate the project requirements
- Attitudes such as "what we need is not rocket science" or "the service provider is the expert" too often results in weak contracts and eventual unsatisfactory performance.
- Even major corporations make this mistake. For example, Boeing Aircraft said in a news article in the Seattle Times a couple years ago that the 787 program delay was due largely to their over-estimating key off-shore supplier capabilities.
- Also, be sure that your project requirements of the supplier comprehend the sometimes extensive requirements of your key customers.

Avoid using the bidder / supplier's templates
- Best practice contracts for the customer will in many cases, be almost entirely different than the bidder "standard" contract template.
- Bidder templates are often highly favorable to the service provider. Terms important to the customer either weak or missing entirely - for example: influence in selecting supplier's project manager (often a key factor for project success), contract termination restrictions on the bidder, liability limitations for the customer, comprehensive and relevant performance measures.

Plan for RFP language to be incorporated into the contract
- Be sure to consider how supplier responses will be incorporated into the contract. For example format of costing detail, expected PO lead-times, warranty, prices for potential future services – important if a multi-year contract.


Read more: Robert G. Freid.

October 12, 2014

Medical Malpractice Expert Witness On Legal Medical Causation Part 1

In CHIROPRACTIC / MEDICAL MALPRACTICE CAUSATION AND THE DEGENERATIVE SPINE, medical malpractice expert witness Richard K. Skala, DC, writes:

Proving or disproving Legal Medical Causation is based on testimony by expert witnesses regarding the “proximate” cause of negligence to a standard of reasonable medical probability. The plaintiff bears the burden of its expert being able to conclude to this standard that indeed negligence occurred and thus damage ensued. The defense expert bears the opposite burden of concluding to the same standard that there was no cause of negligence and thus no damage.

Regardless of which side of the argument an expert speaks to, their conclusions must be persuasive in terms of causation. The standard of reasonable medical probability essentially means that “it is more probable than not” that a chiropractor did or did not do something negligent during the course of treating a patient that resulted or caused some degree of damage. Experts on both sides of the arguments must be able to demonstrate that the conclusions they pose as “within reasonable medical probability” have enough evidentiary weight to convince a reasonable person that their conclusions are in fact correct.

The chiropractic expert will be challenged by the opposing party during deposition and/or trial in terms of the foundation used to come to their conclusions within a reasonable medical probability.

THE FARMER AND HIS DEGENERATIVE LUMBAR SPINE
In a recent case involving a 50 year old male farmer with no prior history of back pain who injured his low back in a fall and had low back pain he initially treated with his family physician (MD) for one month. The MD took x-rays and noted age/occupation consistent signs of degeneration at L5/S1. The treatment plan of medications and exercise provided no relief. After 4 weeks of failed treatment the farmer presented to a chiropractor with his complaint of low back pain. The farmer did not inform the DC of his prior MD treatment. The DC exam revealed only loss of motion and some muscle guarding. There were no abnormal orthopedic or neurological findings. No x-rays were taken. A treatment plan of side posture manipulation of the lumbar spine was initiated with three visits per week for three weeks. The farmer was also told not to perform his usual weight lifting routine and not lift more than 10 pounds or perform any forward bending motions. During the course of this plan the farmer indicated improvement and after four weeks, the symptoms were rated as slight, there was restoration of lost ROM and the farmer was discharged from the DC’s care. Four weeks after discharge the farmer returned to his family physician and provided a history of ongoing low back pain that had become worse, indicating that the worsening was directly related to the DC’s treatment. The farmer’s condition worsened, involving leg pain with numbness and tingling, which led to a referral to a neurosurgeon. The neurosurgeon had an MRI done with revealed L5/S1 disc herniation impinging the right S1 nerve root. Laminectomy, foraminotomy L5/S1 discectomy was performed. Post surgically the farmer suffered from permanent motor loss in the right leg. The farmer sued the DC for malpractice.

The plaintiff offered a chiropractic expert who testified that the DC had violated multiple standards of care. The basis of these conclusions was largely based on review of the medical records of prior MD treatment. The plaintiff also offered a neurosurgical expert, who testified that the DC treatment “significantly contributed to and likely caused the disc herniation,” basing these conclusions on professional experience and observations over the course of many years.


A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater.

October 9, 2014

Economic Damages Expert Witness On Future Earnings Part 1

In Personal Injury Litigation - the Difference Between Future Earnings and Future Earning Capacity, economic damages expert witness Ronald T. Luke, JD, PhD and Mary L. Hoane, CPA/CFF, MBA write:

This paper discusses one of many issues that can arise in calculating economic damages in personal injury litigation. The issue is the important distinction between projecting a person’s future earnings and a person’s future earning capacity. Earnings are defined as remuneration of a worker for services performed during a specific period of time. When projecting future earnings the economist is projecting the amount the person would have earned but for an injury. When projecting future earning capacity the economist is projecting the amount the person could have earned if he had chosen to maximize his earnings.

In litigation where the injured party remains alive and able to receive a damages award, the correct measure of damages is loss of future earning capacity; the amount the injured party could have earned had the injury not occurred less the amount he could earn given the physical or mental limitations resulting from the injury. When the injured party is deceased, the measure of damages in a wrongful death case is the amount of support the survivors would have received from the injured party. The starting point in calculating the amount of support is the projected earnings of the deceased: the amount the deceased would have earned and from which support could have been paid to the survivors.

Whether the difference between projected earnings and projected earning capacity is large or small depends on the demographic characteristics of the individual (e.g., age, gender, education, race/ethnicity, aptitudes, interests, physical limitations) and their individual life choices (e.g., child care, retirement plans, choice of occupation). When the injury is to a young person who has not established a career and perhaps has not completed his formal education, the economist must rely more heavily on statistics for the average person with the demographic characteristics of the injured party. When the injury is to an older person who has a lengthy work history and who has expressed his retirement plans, the economist can base his projections more on the specific characteristics of the injured party and rely less on statistical averages.

Dr. Luke and his colleagues have been accepted as expert witnesses in state and federal courts and before administrative agencies in more than 25 states.

September 27, 2014

Business Valuation Expert Witness Answers FAQ For Attorneys

In Do I need a forensic accountant or valuations expert in my case? business & accounting expert witness Richard Teichner, CPA, CVA, CDFAJ answers frequently asked questions attorneys have regarding forensic accountants and about business valuations.

Certified public accountants who provide litigation support services are often referred to as “forensic accountants”. They normally are used as experts in accounting related matters that are necessary in support of business or family law litigation matters. What makes forensic accountants different is that they are experienced in using multiple methods of financial and economic analysis to provide appropriate and objective conclusions on complex financial issues, often when the facts or data are incomplete. If you are representing a client in a matter that requires financial evaluation, such as a determination of economic damages, tracing funds that have been diverted, personal injury and other matters involving financial issues, then a forensic accountant can be a valuable asset to your case. If a business valuation is needed as a means to measure damages or for other purposes in litigation, in divorce matters, or regarding the purchase or sale of a business (or business interest), then a business valuator can assist in the process.

Forensic accountants often have experience in serving as an expert witness. When explaining complex financial analyses to the trier of fact, it is imperative that your expert witness is skilled at clearly and accurately explaining the details in a manner that can be easily understood. Expert witnesses also must be objective and utilize generally acceptable practices in order for their testimony to be credible and admissible.

How can a forensic accountant help my case?
Forensic accountants can assist throughout the litigation process. During discovery and fact-finding, they can aid your investigation by advising you on what documentation you should obtain. They can also help you identify the accounting and valuation questions pertinent to your case, which includes their assistance with formulating requests for production, interrogatories, and questions to be asked of witnesses at deposition and trial. Thus, this process can help you streamline your trial strategies and the focus of your case. The earlier you hire your forensic accountant in the litigation process, the more assistance and support you will likely receive.
What qualities should I look for in selecting a forensic accountant?

There are a number of qualities you should look for when selecting a forensic accountant to work with on your case. The following summarizes some of the factors to consider in selecting a forensic accountant or valuation consultant on a legal matter:
• Experience: How many years of practical accounting experience and expert consulting experience do they have?
• Education: Are they licensed as a Certified Public Accountant? Do they have any professional designations? Do they stay current with continuing education courses, books and publications?
• Ability to communicate: Will they be able to clearly express complex accounting theories and explain financial issues in a manner a jury can understand? Have they given presentations to attorneys and other professionals?
• Impartiality: Will they be objective? Have they served as a consultant both to plaintiffs and the defense in litigation matters?
• Credibility: Do they appear to be honest and believable? How do you think they will be perceived by a judge or jury?
• Support: In the preparation of your case for trial, how much advice and support do you think they will offer? Do they appear to be committed to your case without being biased?
• Confidentiality: Do they understand the importance of the attorney-client relationship? Do they have experience with handling highly sensitive documents?


Read more:
Mr. Richard M. Teichner
Teichner Accounting Forensics & Valuations, PLLC

September 24, 2014

Neurosurgery Expert Witnesses

Neurosurgery expert witnesses may consult on trauma neurosurgery, neurosurgeons, spinal surgery, and related matters. In Rules for Neurosurgical Medical/Legal Expert Opinion Services The American Association of Neurological Surgeons writes that "the American legal system often calls for expert medical testimony."

Proper functioning of this system requires that when such testimony is needed, it be truly expert, impartial and available to all litigants. To that end, the following rules have been adopted by the American Association of Neurological Surgeons. These rules apply to all AANS members providing expert opinion services to attorneys, litigants, or the judiciary in the context of civil or criminal matters and include written expert opinions as well as sworn testimony.

A. Impartial Testimony
1. The neurosurgical expert witness shall be an impartial educator for attorneys, jurors and the court on the subject of neurosurgical practice.
2. The neurosurgical expert witness shall represent and testify as to the practice behavior of a prudent neurological surgeon giving different viewpoints if such there are.
3. The neurosurgical expert witness shall identify as such any personal opinions that vary significantly from generally accepted neurosurgical practice.
4. The neurosurgical expert witness shall recognize and correctly represent the full standard of neurosurgical care and shall with reasonable accuracy state whether a particular action was clearly within, clearly outside of, or close to the margins of the standard of neurosurgical care.
5. The neurosurgical expert witness shall not be evasive for the purpose of favoring one litigant over another. The neurosurgical expert shall answer all properly framed questions pertaining to his or her opinions on the subject matter thereof.

B. Subject Matter Knowledge
1. The neurosurgical expert witness shall have sufficient knowledge of and experience in the specific subject(s) of his or her written expert opinion or sworn oral testimony to warrant designation as an expert.
2. The neurosurgical expert witness shall review all pertinent available medical information about a particular patient prior to rendering an opinion about the appropriateness of medical or surgical management of that patient. Revised 03/22/06
3. The neurosurgical expert witness shall be very familiar with prior and current concepts of standard neurosurgical practices before giving testimony or providing written opinion about such practice standards.

C. Compensation
1. The neurosurgical expert witness shall not accept a contingency fee for providing expert medical opinion services.
2. Charges for medical expert opinion services shall be reasonable and commensurate with the time and effort given to preparing and providing those services.


More information: https://www.aans.org/

September 20, 2014

Automotive Expert Witnesses & Recalls

Automotive expert witnesses may consult on auto defects, auto engines, automotive components, and automotive recalls. In the news, General Motors Co. is recalling some 2011-2014 Chevrolet Express compressed natural gas vehicles. About 3,200 vans may leak natural gas from the CNG high pressure regulator and catch fire.

SUMMARY:
General Motors LLC (GM) is recalling certain model year 2011-2014 Chevrolet Express compressed natural gas (CNG) vehicles manufactured September 10, 2010, to April 28, 2014, and GMC Savana CNG vehicles manufactured May 23, 2011, to April 21, 2014. The affected vehicles may leak natural gas from the CNG high pressure regulator.

CONSEQUENCE:
A natural gas leak in the presence of an ignition source increases the risk of a fire or explosion.

REMEDY:
GM will notify owners, and dealers will replace the high pressure regulator, free of charge. The manufacturer has not yet provided a notification date. Owners may contact Chevrolet customer service at 1-800-222-1020 or GMC customer service at 1-800-462-8782. GM's number for this recall is 14321.

The NHTSA also announced this week that Adrian Steel Company is recalling certain model year 2012 Ford E-150, E-250 and E-350 Commercial Cargo Vans modified by Adrian between September 21, 2012, to September 24, 2012. The affected vehicles are equipped with certain propane fuel system conversion kits with an aluminum fuel line fitting manufactured by Roush CleanTech. Due to a reaction between the different metals, the affected kits may develop a propane leak where the aluminum fuel line fitting contacts the brass supply valve housing.

CONSEQUENCE:
A propane leak in the presence of an ignition source increases the risk of a fire.

REMEDY:
Adrian will notify owners, and dealers will replace the aluminum fuel line fittings with stainless steel fittings, free of charge. The recall is expected to begin in September 2014. Owners may contact Adrian customer service at 1-800-677-2726.

More information: Latest Recalls Announced by Manufacturers.

September 13, 2014

Pathology Expert Witness On Learning From Other Experts

In Expert Mistakes, pathology expert witness Dr. Judy Melinek discusses learning from other experts:

"An expert is someone who knows some of the worst mistakes which can be made in a very narrow field."
Niels Bohr

When I review others' reports and find mistakes I always try to learn from them because it is always easier to learn from others' mistakes than to make and learn from your own.

No one is immune to mistakes. It is what makes us human. The question is how do we, as scientists and experts, deal with our errors? Do we ignore them? Deny them? Or do we delve into the reasons why they occurred and make a change? And can we accept that by making a change in policy or procedure we will be opening ourselves up to future attacks by attorneys who will use the change as a basis to invalidate our previous opinions?

What are some of the worst mistakes? The worst I've seen are the result of arrogance. As an expert and legal consultant one needs to be confident and project that confidence when testifying. But knowing the facts of your case and showing proficiency in analyzing and conveying those facts is different from insulting or tearing down an opposing expert, criticizing the person instead of their opinion (ad-hominem attacks). I've been on the receiving end of those with opposing counsel making fun of me for having gone to Harvard or for my dress ("fancy"). Generally I know that if they are attacking me personally it is because they don't know how to attack me based on the facts of the case. I also know that the more obnoxious they get the more they will alienate the decision makers - the jury.

I have seen world-renowned experts, confronted with inconsistencies between their previous and current testimony, or between their testimony and a recently published article get defensive and even aggressive. They respond to legitimate questions with bluster and arrogance. Nothing turns off a jury more. The best way to deal with a direct attack is to address the specific issues at hand and simplify it for the jury. Explain to them why the case the attorney is asking about is different from the current case and how interpretations in science can vary based on these crucial differences. By the time the expert is done explaining, the jury will have either forgotten the attorney's challenge or gotten so wrapped up in the explanation of the facts of the current case that they will be right back along agreeing with the expert.

But how does an expert learn to keep her ego in check? The best way is to hang around people who know a lot more than you do. By teaching residents and medical students and working alongside staff in a university setting you are constantly barraged with questions that force you to challenge your assumptions and stay up on the scientific advances that drive the peer-reviewed medical literature. Take challenging consult cases: by sparring with attorneys on high-profile cases you are going to be confronted with sharp criticism and you'll find that you can't just rely on your experience and training - you need to stay current and sharp. And finally, go to professional meetings. Nothing humbles me more than attending an AAFS or NAME meeting, and sitting in lectures about the cutting-edge research others are conducting, or the challenging cases that others have successfully investigated. I can't sit for more than 10 minutes before having that "shoulda coulda woulda" feeling about some of my own cases. Yet at the same time, when I leave the conferences, I feel invigorated. Forensic science can be incredibly isolating, especially if you are the only doctor in a small rural Coroner's office. Lunching and dining with colleagues makes you realize that there is camaraderie and support; that we may not always agree on the best way to interpret an injury, or certify a death, but we can come together, break bread and do what scientists do best: collaborate.


Dr. Melinek is a American Board of Pathology board-certified forensic pathologist practicing forensic medicine in San Francisco, California as well as an Assistant Clinical Professor of Pathology at the UCSF Medical Center.

September 11, 2014

Security Management Expert Witness On Hospital Security Programs

In Sustaining Hospital Security Programs in an Environment of Decreasing Reimbursables & Increasing Demand for Services, security management expert witness William H. Nesbitt, CPP, writes that “many hospitals are facing a decrease in reimbursables, and sometimes, in an environment of increasing demand. When budgets get tight, unfortunately, security budgets become a target for belt tightening, sometimes at the expense on increasing liability. There are practical solutions to these challenges, but these solutions must be situationally determined because security is a situational discipline.”

The most logical first step is an objective assessment of your security program. Every security program is unique and should be driven by need. Security is a situational discipline which means that no two security programs are alike, nor should they be. We frequently find relatively good security programs that are none-the less inefficient and lacking in cost-effectiveness. The goal should be to do more, with less. The security assessment becomes the foundational basis for all that follows.

We believe there are two primary opportunities for cost savings for most hospital security programs, along with secondary options to further reduce costs. First, the application of CPTED (Crime Prevention Thought Environmental Design) and the application of technology, such as smart video with outsource monitoring. Applying CPTED strategies helps to ensure that the security program is truly synergistic and supported by all employees. CPTED has been around for many years, but not taken advantage. However the attack of the Alfred P. Murrah Federal Building in 1995 and the 9/11 attack on the World Trade Center caused security professional to look a broader based security strategies. As a result, CPTED principals are more in play than ever before.

Additionally, networked based security systems, especially video have had a substantial favorable impact on security budgets. Second, is the application of emerging technology such as smart video. In recent years technology has gotten better, and at the same time, less costly.
Clearly the security needs of hospitals have evolved since 1755, and continue to evolve to this day. Several years ago we had the privilege of working with Pennsylvania Hospital, one of the most unique challenges and most gratifying experiences we have ever encountered.
In recent years the outsourcing of security management has become an emerging trend. However, hospitals have outsourced departmental management for years for departments such as dietary, housekeeping, pharmacy, and facilities, to name a few. We believe that when it comes to outsourcing security management, the providing contractor should not have any conflicts of interest such as being a contract guard service provider.

Bill Nesbitt, who is a Board Certified Protection Professional (CPP) and the President of Security Management Services International, Inc., has been providing Security Litigation Support Services as a Security Expert Witness to law firms across the United States for more than 35 years.

September 7, 2014

Forensic Pathology Expert Witness On Death Investigations

In Cutting Corners, forensic pathology expert witness Dr. Judy Melinek answers the question "Is it common for coroners or forensic pathologists to cut corners in a death investigation if a case does not look like foul play was involved?"

Several visitors to this blog have asked me this question recently, as part of their research into forensic science. Usually those inquiring have had direct contact with a Medical Examiner's or Coroner's Office - and did not find that institution particularly forthcoming. Office policies require death investigators to be careful about divulging information on open cases, and sometimes cases can be "pending" for several months while the pathologist awaits toxicology reports, microscopic slides, scene investigation or incident reports. This can be frustrating and even infuriating to the deceased's family members. They are the ones who have to plan the funeral, and answer inquires while dealing with their own feelings of grief and even guilt about the death while the case is still "pending additional examination." The law allows you to bury a body with a death certificate that says "pending" under "cause of death," but that is cold comfort to the family which has to tackle the inevitable question - "What happened?" - over and over again. A death certificate that says "Hanging" and "Suicide" may not be welcome, but it is an answer.

Coroners and forensic pathologists are two different groups of people. Coroner's deputies are death investigators (often part of a law enforcement agency, like a sheriff's office) while forensic pathologists are the doctors who do the autopsies. Both can "cut corners," yes - but in different ways. A Coroner's deputy might cut corners by not visiting the scene; by not examining the scene thoroughly, either in order to save time or because they are tired (many death investigations are at ungodly hours); by trusting the reports of the people at the scene about what happened without confirming whether those reports are accurate. The death investigation doesn't end when the deputy returns to the office and writes up the case. Frequently they have to complete their investigation, or ask others to, by getting medical records, police reports or questioning other witnesses who were not at the scene when they picked up the body.

A forensic pathologist might "cut corners" by doing an incomplete or partial autopsy; or by rushing through the case and by not following up with police or Coroner's investigators when the story being given does not match up with the injury on the body or the presumed cause of death. This takes time. Coroner's deputies get paid per shift and FP's in a coroner system get paid per case. There is no financial incentive for the doctor or the deputy to invest extra time in investigating a case. Many offices are understaffed due to budget shortfalls, so there is always plenty of work and not enough people to do it. A deputy has to be efficient with his/her time; so if a case looks like something routine, such as an overdose or a suicide, you might see them cut corners in the interest of working speed.

Yet speculation frequently follows an overdose. Generally, people who use drugs and alcohol are on the margins of society, hang out with unsavory or unreliable "friends," some of whom may have criminal pasts. This fuels funeral-parlor rumors that foul play was involved when the person dies of an overdose. Generally, the only way the police or coroner can confirm that foul play was not involved is with a thorough death investigation. But the investigative and autopsy findings also have to be articulated to the family. Coroner's staff are not necessarily medically trained and may not be effective communicators, so families might seek out other sources for answers. That other source is sometimes me - and I am always glad to serve as a consultant, but only after asking the person calling whether they aired their concerns with the Coroner's office or with the police. I also ask whether the family member had spoken to the original pathologist who did the autopsy. Frequently they have not. Sometimes if they go back and speak to those people who were directly involved with the death investigation, they will find out that the investigation was actually more thorough than they initially thought, or was not completely documented in the limited materials that were initially released to them.

Frequently I hear about families finding out about other peoples' suspicions at the time of the funeral. Unless the people fueling the speculation have direct knowledge of what happened, I would be cautious about putting too much faith in rumors. Family and friends often invent or exaggerate the importance of certain events in order to make themselves or others feel better about a death. I have investigated cases that were clear-cut suicides, where the deceased even left a suicide note, the family was understanding and seemed at peace, but then speculation at the funeral made them doubt the coroner's findings and suspect murder by an estranged lover or the roommate who found the body. Denial in the face of a death is a powerful (and expected) reaction - but entrenching that denial by piling doubt upon doubt is harmful to the grieving and healing process. I spend many hours counseling these families and I am grateful for my role in helping them find closure, and while I understand why well-meaning people can sometimes unintentionally cause more grief, it still pains me to watch.

What can be done about this? Well, if you are attending a funeral and have no idea why the person died, don't ask the family "what happened?" You'll find out soon enough. I love the Jewish tradition at a shiva (the equivalent of a wake) to bring food and not speak unless you are spoken to. When my father died the sustenance was appreciated and I was glad not to have to talk to anyone. If you feel really sad and want to share that with the bereaved you can always go with "I'm sorry for your loss," though I personally prefer sharing a happy story about something the deceased did that meant a lot to you or made you smile. That will have resonance and truly give comfort. If you are a family member and have been told things that disturb you about the circumstances surrounding the death of a loved one and are starting to have concerns, start by calling the officer who gave you their card at the death scene or informed you of the death. Tell them what others are saying, and ask them to help you have some closure. They may refer you to the forensic pathologist who did the autopsy, or maybe they will just reassure you that a thorough investigation was already done. If you don't get the answers you need, you can always ask to speak to their supervisor or to the pathologist yourself. In most cases, you will eventually be able to find someone to answer your questions, but please understand that death investigations take time. Just because you haven't heard back from the Coroner's office doesn't mean they have forgotten about you or about the case. The doctor may be waiting for the lab results before proceeding further. The Deputy Coroner may have received no replies when calling people to follow up on your concerns. Find out who the lead investigator is on the case, and what their hours are. If you call the office once every two to three weeks during their shift and always ask to speak to the same person, you will be able to get a progress report on what is going on with the case. I hope this helps you find closure.

Dr. Melinek is a American Board of Pathology board-certified forensic pathologist practicing forensic medicine in San Francisco, California as well as an Assistant Clinical Professor of Pathology at the UCSF Medical Center.

September 2, 2014

Chiropractic Expert Witness On Standard Of Care Part 2

In Defining the Chiropractic Standard Of Care, chiropractic expert witness Richard K. Skala, D.C., writes:

IS THERE A LEGAL DEFINITION OF THE CHIROPRACTIC STANDARD OF CARE?

Based on the definitions above, as well as my medical legal experience, the chiropractic standard of care can be summed up as follows:

"What a prudent, competent state licensed chiropractic physician in the same general region (state) would do under the same or reasonably similar situations or circumstances."

HOW IS THE CHIROPRACTIC STANDARD OF CARE DETERMINED?

Like all health care professions, chiropractic physicians are trained in schools/colleges of chiropractic (43 worldwide)*. In the USA, each of the 17 chiropractic colleges are accredited based on a number of criteria, not the least of which is their respective basic science, and clinical science curriculum. Within these curriculum is contained the foundation for the Chiropractic Standard of Care. In addition to college curricula, the chiropractic profession is supported by established scientific, empirical, and clinical evidence. Over the course of time, a consensus of opinions and conclusions regarding things such as the scope of use of various forms of chiropractic treatment, where these methods are taught, and the clinical utility and proper application for any specific condition(s) for which the treatment is applied are all factors of consideration. In certain cases or jurisdictions Case Law may prove relevant in defining specific aspects of the standard of care on a legal basis.

REAL WORLD OCCURENCES

So what are the more common lapses in standard of care that end up in a law suit or board compliance action? (This list is by no means complete.)

1. Lack of informed consent given to the patient signed by the patient
2. Adverse consequence resulting from treatment
3. Negative side effects of the treatment employed
4. Misdiagnosis
5. Failure to diagnose
6. Failure to reexamine
7. Failure to refer
8. Failure to keep adequate records
9. Altering patient records

SO WAS JUSTICE POTTER CORRECT?

In any case involving breach of “Standard of Care” there are going to be advocates on either side of the question diligently working to advocate their side of the argument. Each case will largely depend on the condition of the chiropractic records, and the impressions, opinions and conclusions of the experts who review those records and eventually give testimony. This article is by no means a treatise on the subject of the “Chiropractic Standard of Care.” It does set forth my experience and the general concepts relating to questions that arise over the “Chiropractic Standard of Care.” Each and every case is unique with its own set of facts. At the end of the day, even with the availability of the outline above, and others like it, the best I can say is not too far afield from Justice Potter (and I in no way compare my intelligence to his intelligence and wisdom when I say this): “I shall not today attempt further to define the kinds of material I understand to be embraced within the medical records reviewed and perhaps I could never succeed in intelligibly doing so. But I know what breach of the Chiropractic Standard of Care looks like when I see it.”

* http://en.wikipedia.org/wiki/List_of_chiropractic_schools

A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater. www.drskalachiroexpert.com.


August 27, 2014

Arbitration & Mediation Expert Witnesses

Arbitration and mediation expert witnesses may consult on American Arbitration Association rules, binding arbitration, nonbinding arbitration, and alternative dispute resolution. On June 16, 2014, the American Arbitration Association released new rules on construction disputes.

NEW AMERICAN ARBITRATION ASSOCIATION SUPPLEMENTARY RULES ENABLE PREDICTABLE TIME-AND-COST CONSTRUCTION ARBITRATION June 16, 2014 Parties involved in construction disputes now have the option of selecting supplementary rules that will limit the cost and duration of their arbitration proceedings. The new supplementary rules developed by the American Arbitration Association (AAA®) took effect on June 15, 2014. Working with its National Construction Dispute Resolution Committee (NCDRC), the AAA created new Supplementary Rules for Fixed Time and Cost Construction Arbitration that will allow parties to calculate the maximum time to complete the arbitration, the number of hearing days, and the arbitrator costs. For example, for cases in the $250,000 to $500,000 range, the rules prescribe a maximum of 180 days from filing to award, with no more than three hearing days. Arbitrator compensation for hearing days and study time (limited to 12 hours) is capped at $275 an hour. Administrative fees to the AAA are fixed at $5,000.

“Parties involved in certain construction dispute cases now can be more certain about the time and cost associated with their arbitration,” says Rodney Toben, AAA Vice President, Construction Division. “We believe this solution responds to many concerns that arbitration costs in terms of dollars and time may have grown unpredictable. We see the new supplementary rules as innovative, reasonable, and clearly defined so that all parties benefit,” Mr. Toben said.

The supplementary rules also encourage client participation by requiring that each party representative provide contact information for a “designated employee,” such as in-house counsel or senior level executive, and require that the AAA and/or arbitrator include such designated employees on all communications related to the arbitration.
“We’ve put significant thought into these rules with input from some of the best construction dispute resolution experts from around the country and expect that they will be an attractive option to parties in many cases,” Mr. Toben concluded.

August 25, 2014

Forensic Accounting Expert Witness On Asset Misappropriation

In Preventing Damaging Effects of Asset Misappropriationforensic accounting expert witness Alan D. Lasko and accountant Bradley Kaye write:

Honest mistakes can occur that resemble fraud. One company may lose the receipt of the transaction, but the other company involved can provide the necessary information to prove that the expense was legitimate. This mistake would be uncovered by an external audit performed under Statements of Auditing Standards No. 99, Consideration of Fraud in a Financial Statement Audit; however, in instances of actual fraud, standard financial audit procedures may not prove any wrongdoing without a confession or a report from another employee. Instances such as this may have a company utilizing the use of a forensic accountant, since a small company will not have an internal audit staff.

A forensic accountant may also be able to infer that fraud has occurred based on his experience with repeated transactions of this type. These types of suspicious transactions should be checked with scrutiny to ensure legitimacy. A forensic accountant can for example, analyze the cash flows and compare different sets of statistics to determine whether fraud may have been committed.

If the forensic accountant's investigation determines that there is significant asset misappropriation, legal action could be taken to return the losses. As the accusation of fraud could have significant conse-quences for both the individual and the company, it is imperative that the forensic accountant be able to provide expert witness testimony for the pending deposition and/or trial. Though asset misappropriation cannot be completely eliminated, there are certain steps which any company can take to mitigate the damaging effects that it could create. Some of these steps include:

• Strong internal controls
• A competent, relatively independent external or internal audit function
• An active and responsible audit committee
• A history of conservative accounting practices
• Stable management
• An overall corporate emphasis on ethical behavior
• Absence of new external pressures on management
• Notify all employees about the con-sequences of asset misappropriation
• Make available employee guidelines about fraud, including reporting any suspected fraud and the necessity to keep records of all transactions
• Encourage honest and high ethical standards throughout the company
• Have random investigations performed by a forensic accountant to ensure all levels of management are being honest

Asset misappropriation is a problem that will not go away on its own. Constant evaluations need to be performed from both internal and external perspectives through-out all levels of a company. This will help ensure that the effects caused by asset misappropriation do not become too damaging to a company and its investors. It will also send a message to the employees that management's philosophy is that this type of activity is not acceptable.

Alan D. Lasko & Associates, P.C.

August 23, 2014

Documents & Handwriting Expert Witness On Handwriting Analysis

In Forensic Handwriting Analysis – Expert Introduction to Handwriting Analysis, documents and handwriting expert witness Mark Songer writes that “the science of handwriting analysis is based on the premise that no two individuals can produce exactly the same writing and that an individual cannot exactly reproduce his own handwriting, otherwise known as variation. Variations are natural deviations that occur in a person’s handwriting.”

The first step is to analyze the known writing sample and the unknown writing sample for distinctive characteristics. The examiner looks for unique qualities such as letters and word spacing, letter and word slant, size and proportional-ity of letters, unusual formations of letters, flourishes, and other individual attributes.

2) Comparison
The next step is to differentiate elements from the known sample to those of the unknown sample. The examiner considers spelling, grammar, punctuation, and phraseology as well.

3) Evaluation
The final step is to evaluate the similarities in the known and unknown samples. While differences are a good indication of a non-match, no single similar characteristic, no matter how unique, can determine a match. Therefore, all likenesses must be considered. The examiner must make a judgment in each case by evaluating the totality of the documents.

Mark Songer is a Forensic Criminologist and Handwriting Expert. He provides investigations, reports, and testimony towards the resolution of matters involving disputed documents or signatures, including: wills, checks, contracts, deeds, account ledgers, medical records, and autograph authentication.

August 19, 2014

Child Abuse Expert Witnesses Part 2

Child abuse expert witnesses may advise regarding child abuse and neglect, including the physical, emotional, or sexual mistreatment of children. On its website, the Child Welfare Information Gateway describes the process of proving child maltreatment in court. CWIG is a service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services.

Proving Child Maltreatment in Court... Relevant and Material Evidence To be usable in court, evidence must be material and relevant. Evidence is material when it has a logical connection to any of the issues that need to be proved in the case. It should be clear from a particular State's law exactly what must be proved. For example, whether a parent cheated on his/her income taxes would be immaterial to any issue in a child abuse case. Evidence will be relevant when it increases the likelihood that a particular fact in question occurred. For example, the fact that, prior to the incident in question, the parent failed to provide his/her child with adequate medical care is irrelevant to the question of whether he/she molested that child. Evidence must also be competent. This means that the evidence does not violate any rules of evidence and is not more prejudicial (unfairly harmful or beneficial) than it is probative (tending to prove or disprove) on any given issue.

The Hearsay Rule
Although relevant evidence is generally admissible, some relevant evidence that is thought to be unreliable will be excluded from judicial consideration. One such evidentiary rule is the rule against hearsay. Hearsay is a statement made outside the courtroom that is presented in court by someone other than the original speaker to prove the truth of the original speaker's statement. So, the hearsay rule sometimes prevents a witness from testifying about what another person said. In other situations, because the purpose of repeating the statement in court is not to prove the truth of the statement, hearsay may be admissible.

For instance, a witness would not be permitted to testify that he/she heard another person say "I am the President," to show that that person was, in fact, the President. Such testimony could be used, however, to show that the speaker was mentally unstable. In a child abuse case, it is not uncommon for a witness to be told by the child's teacher, neighbor, or relative that "the child gets beaten up at home all the time." However, because of the hearsay rule, that witness may not testify that "Mr. X told me that the child gets beaten up at home all the time," to prove the abuse. If Mr. X has something to say about the child's home life, the judge will want to hear directly from Mr. X, so that Mr. X can be questioned fully, cross-examined, and observed on the witness stand.

There are a variety of exceptions to the hearsay rule which permit the use of some hearsay in court. The underlying reason for these exceptions is that some hearsay statements, when made under certain circumstances that suggest that they are especially trustworthy, are reliable enough to be used in court. The rule against hearsay is tricky, and sometimes lawyers and judges have difficulty applying it correctly.

The following are among the hearsay exceptions most commonly used in child abuse and neglect cases.

Admissions of a Party
When a person accused of some type of wrongful conduct makes an out-of-court admission, it may be testified to by another under an exception to the hearsay rule. For example, an allegedly abusive parent might confess to an investigating caseworker: "I know I hit her too hard but I won't do it again." Although the parent may deny in court that he/she ever made such a statement, the caseworker would be permitted to recount it under this hearsay exception. The reason for this exception is that an admission is considered reliable hearsay, since an alleged wrongdoer (for example, an abusive parent) has nothing to gain from making up such a damaging statement. In addition, the parent probably would not say something contrary to his/her own interests if it were not true.

Excited Utterances
An out-of-court statement that is made spontaneously under extreme emotional excitement is also admissible as an exception to the hearsay rule. The excited utterance is viewed as trustworthy because the speaker's excitement is thought to prevent him/her from reflecting long enough to fabricate a story. For example, in a child abuse case, courts will usually look at the length of time between the startling event and the child's statement when deciding whether it is an excited utterance. However, the time lapse alone is not determinative; it is just one factor among many that the court can consider.

Some States apply a more relaxed standard for admitting excited utterances when they are made by children. Very young children, particularly if they are victims of sexual assault, may be found to remain under the influence of the assault for an extended period of time.72 Thus, for example, the statement of a 4-year-old made several hours after he/she was raped may be considered sufficiently reliable to be admitted as an excited utterance, given the child's very young age, the degree of trauma to which he/she was exposed, and the level of excitement under which he/she made his/her statement. However, a court might find that the same statement, made by an adult rape victim, does not qualify as an excited utterance, since an adult (or even an older child) might be capable of reflecting on and fabricating a story during a time lapse of that length. Even when similar statements are made by children of similar ages and under similar circumstances, courts in different States vary widely as to what they will consider an excited utterance by a child.

August 14, 2014

Business Expert Witnesses & New York Barclays Complaint

Business expert witnesses may consult on executive management, corporate governance, director duties, and related matters. In the news, Barclays may pay as much as $2B billion in litigation costs and penalties due to litigation filed by New York’s attorney general. This follows 2012 penalties of $450M paid to the US and Britain after conceding that the banks employees manipulated global benchmark interest rates.

On June 25, 2014, New York’s attorney general Eric Schneiderman filed civil fraud charges in the New York Supreme Court, County of New York, alleging that Barclay’s private stock trading platform favored high frequency traders.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK By ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Plaintiff, - against -

BARCLAYS CAPITAL, INC., and BARCLAYS PLC, Defendants.

This is a case about fraud and deceit by one of the world’s largest banks.

Barclays operates in fifty countries with particularly large business operations in New York and London. The facts in this case concern a major business division in Barclays’ New York office, the Equities Electronic Trading division. In that division, Barclays operates a private securities trading venue known as a “dark pool.” From 2011 to the present, Barclays embarked on a business strategy to dramatically increase the market share of its dark pool, with the goal of making it the largest dark pool in the United States. Barclays accomplished this through a series of false statements to clients and the investing public about how, and for whose benefit, Barclays operates its dark pool. In short, contrary to Barclays’ representations that it implemented special following:

a) Barclays falsified marketing material purporting to show the extent and type of high frequency trading in its dark pool. That marketing material was false and misleading because, among other things, Barclays intentionally excluded from the material the dark pool’s then-largest participant – a high frequency trading firm Barclays knew engaged in predatory behavior in the dark pool. Internally, Barclays acknowledged that it was “taking liberties” with the truth by suppressing the disclosure of this high frequency trading firm, but decided to falsify the analysis in order to “help ourselves”;

b) Barclays falsely marketed the percentage of aggressive high frequency trading activity in its dark pool, asserting to clients and to the investing public that less than 10% of the trading activity in the pool was “aggressive,” while at the same time secretly indicating to at least one high frequency trading firm that the level of such trading activity was at least 25%;

c) Barclays made a series of false representations to clients about its “Liquidity Profiling” service. Barclays claimed that its Liquidity Profiling service “analyzes each interaction in the dark pool” to “protect [clients] from predatory trading,” to “continuously police . . . trading activity” and to “maintain quality flow” in the dark pool. In reality, and undisclosed to clients, Barclays failed to provide those services, because it (i) failed to remove known predatory traders from its dark pool; (ii) failed to regularly profile traders in its dark pool; (iii) granted liberal “overrides” to high frequency trading firms and to Barclays’ own internal trading desks (which themselves employ “aggressive” trading strategies), in order to make them appear less “toxic” than they really are; (iv) failed to apply the protections of Liquidity Profiling to a significant portion of the trading in its dark pool; and (v) misled clients as to how Liquidity Profiling actually evaluated traders;

d) Barclays falsely represented that it routed client orders for securities to trading venues in a manner that did not favor Barclays’ own dark pool. While representing that Barclays “treat[s] all venues the same based on execution quality,” Barclays, in fact, routed a disproportionately high percentage of client orders to its own dark pool. When a detailed analysis of Barclays’ order routing practices was conducted for a major institutional investor – showing that Barclays was routing and executing the vast bulk of this client’s sampled orders to Barclays’ own dark pool – Barclays senior executives directed that a written presentation to that client include falsified information, in an effort to mask Barclays’ biased order routing practices; and

e) At the same time that Barclays marketed its dark pool to institutional investors as offering protection from high frequency traders, Barclays secretly gave high frequency trading firms informational and other advantages over other clients trading in the dark pool. For instance, Barclays provided detailed information regarding the structure and composition of its dark pool to high frequency trading firms, including information about the identity and trading activity of other traders in the pool. Such information would allow high frequency trading firms to maximize the effectiveness of their aggressive trading strategies in the dark pool. Barclays did not generally provide such information to its brokerage clients. Barclays also charged high frequency trading firms virtually nothing to trade in its dark pool.

The facts described in this Complaint are the result of an investigation by the Office of the Attorney General. The Attorney General’s investigation has been aided significantly by a number of high-level former Barclays insiders, each of whom was in a position to observe much of the conduct described in this Complaint. These witnesses provided meaningful assistance to the Attorney General’s investigation.

As a result of the material misstatements set forth herein and the pattern of fraud and deceit engaged in by Barclays, the Attorney General brings this action pursuant to General Business Law §§ 352 et seq. (the “Martin Act”) and Executive Law § 63(12).

August 12, 2014

Bus Safety Expert Witnesses

What areas of transportation may bus may bus safety expert witnesses consult on? These experts may report and testify on bus accidents, motor carriers, D.O.T. compliance, and more. In the news, eighteen people were hospitalized when a passenger car struck a Massachusetts Bay Transportation Authority bus on August 12. An MBTA spokesman said the driver of the car turned into the bus and may have been under the influence of drugs.

On its website, the MBTA offers safety instructions created through a partnership with the MBTA, the American Red Cross of Massachusetts Bay, the Federal Transit Administration, and the U.S. Department of Homeland Security. The U.S. Department of Transportation’s National Highway Traffic Safety Administration recently proposed a new federal motor vehicle safety standard to protect motorcoach and other large bus passengers in rollover crashes.The proposal aims to improve the structural design of large buses to ensure that passengers are better protected in a deadly vehicle rollover by ensuring that the space around them remains sufficiently intact and the emergency exits remain operable.

Both the proposed test procedure and performance requirements are closely modeled after the European regulations for large buses. In a separate rulemaking action to improve safety even further, the Department is planning on finalizing requirements later this year for stability control technologies in these vehicles, which would help prevent rollovers from occurring.

“The traveling public deserves safer service and peace of mind when they board a motorcoach or large bus,” said NHTSA Acting Administrator David Friedman. “Stronger large bus structures, combined with seat belt use will help keep passengers secured and protected in the event of a crash.”

“Approximately 700 million trips are taken on commercial buses each year. Raising the standard for a motorcoach’s durability, in the event of a crash, is critical to saving the lives of the passengers inside,” said FMCSA Administrator Anne Ferro.

August 10, 2014

Chiropractic Expert Witness On Standard Of Care Part 1

In Defining the Chiropractic Standard Of Care, chiropractic expert witness Richard K. Skala, D.C., writes:
When the Supreme Court of the United States was considering the issue of pornography, Justice Stewart became a greater part of our legal lexicon when he responded in regards to defining pornography saying, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…..” Jacobellis v. Ohio, 378 U.S. 184 (1964).

Hopefully, the question of what constitutes a breach of the Chiropractic Standard of Care can be better defined. However, one must consider that the chiropractic profession contains a wide range of variability in terms of philosophical adaptation on the part of the individual chiropractic physician as well as a wide range of legal definitions from state to state in so far as what the scope of chiropractic practice is. This article will not address the 50 state variability, but suffice it to say the various scope of practice regulations range from the very limited (Michigan) to California, long known as a state with a broad scope (which is now undergoing a regulatory challenge with the forced importation of the California Board of Chiropractic Examiners into the California Department of Consumer Affairs – which is attempting to limit the scope of practice of the chiropractic physician in California to a 1923 standard!) and most recently in states such as New Mexico. where the more recent “advanced practice” regulations allow limited prescription and injections as a part of the scope of chiropractic practice.

An Internet search in regards to “chiropractic standards of care” reveals a number of “treatment guideline” or “clinical guideline” documents which are more suited for determination of treatment plans that are reimbursable by third party payors. There is no universal “Standard of Care” document or binding reference to be found in such a search. A few states have various “standard of care or practice” documents on the web sites of state chiropractic associations and or licensing boards.

DEFINING THE STANDARD OF CARE

Clearly there is a disconnect between the medical legal determination of Standard of Care and guidelines to clinical practice.

Many of the so-called clinical guidelines offer a narrowly confined approach to clinical management based on the influence of the insurance industry and what they are willing to pay for as opposed to what the chiropractic physician should in fact do to assure his/her own standard of care.

In as much as there is wide diversity amongst the 50 states as to scope of practice, any regulatory body statements or published “scope of practice” standards cannot be used as a “Standard of Care” reference.

Thus the question defaults to this: What is the medical legal definition of a “Chiropractic Standard of Care?” Most of the definitions of Standard of Care have a few common threads. Here is what several sources have to say:

The Free Dictionary: The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ. (See: negligence, duty of care)

Black’s Law Dictionary: Degree of care a prudent and reasonable person will exercise under the circumstances.

Nolo: The degree of care (watchfulness, attention, caution, and prudence) that a reasonable person should exercise under the circumstances. If a person does not meet the standard of care, he or she may be liable to a third party for negligence.

Most of these definitions also cross reference to “duty of care”.

Law.com - duty of care: A requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.

A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater. www.drskalachiroexpert.com.

August 8, 2014

Forensic Accounting Expert Witness On Asset Misappropriation Part 1

In Preventing Damaging Effects of Asset Misappropriation, forensic accounting expert witness Alan D. Lasko and accountant Bradley Kaye write:

Employees across the country at all levels of power and in all types of companies, engage in some form of asset misappropriation on a daily basis. Though often these actions may seem insignificant, over a period of time they can create severe long-term damages.

Asset misappropriation is a general term used to describe when someone takes an asset of a company, such as cash or supplies, for personal use at the expense of a company. Examples of this are as simple as checking a personal email, to as damaging as skimming or borrowing for oneself from cash reserves.
Small businesses are more susceptible to these problems than large businesses. This is because the internal accounting controls are usually weaker in small businesses than large businesses. Generally, by creating a system of checks and balances within a company, this will serve to reduce the instance of fraud, and increase the likelihood that the perpetrator will be caught.

If there is an internal audit staff, they could work along with the executives of a company to help see that the financial statements are correct and that any suspicious transactions be further investigated.

For large corporations, the Securities and Exchange Commission has taken certain steps necessary in an attempt to combat fraud in publicly traded companies. The Sarbanes-Oxley Act passed in 2002 is an effort to combat upper level fraud. This mandate is to reflect that the rest of the company understands that any skimming or larceny will be caught more readily, even if it is coming from the highest levels. However, even with this law the percentage of fraud that was uncovered by audit firms jumped from 7 percent to 29 percent in recent years.

Fraudulent actions can occur at any level of personnel and could go unnoticed by people familiar with the employees or the accounts at hand. Companies try to minimize this by utilizing random independent internal audits to try to uncover any asset misappropriation or fraud, before it becomes too damaging to the company. If a company allows for too much time between these types of internal audits or creates a regular schedule of review, the damages from potential fraud could cause monetary shortfalls or even bankruptcy as dishonest workers may adapt their strategies to not be caught by the audit.

Small companies are not obliged to follow this sequence, nor do they employ enough people to have a strong system of checks and balances to combat fraud internally. Only one person may be trained to accurately analyze the accounts to find instances of fraud. In these cases, the owner of the firm must be familiar with some signals of fraud. These often include:

• Forged or altered documents
• Unexplained differences in cash accounts
• Undocumented transactions and advances
• Duplicate or phony and unreasonable expense reports
• Fake companies involved in transactions (sometimes based on employee's initials, or with the same home address)
• Consulting companies not previously utilized by the company

Alan Lasko
Alan D. Lasko & Associates, P.C.
Certified Public Accountants
29 South LaSalle Street, Suite 1240
Chicago, Illinois 60603
Email: alasko@adlassoc.com
Website: www.adlassoc.com

August 5, 2014

Child Abuse Expert Witnesses & Proving Maltreatment In Court Part 1

Child abuse expert witnesses may advise regarding child abuse and neglect, including the physical, emotional, or sexual mistreatment of children. On its website, the Child Welfare Information Gateway describes the process of proving child maltreatment in court. CWIG is a service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services

Proving Child Maltreatment in Court This section applies to both civil and criminal cases. However, some significant differences between the two types of proceedings exist; these differences will be noted throughout the discussion.

The Process of Proving Maltreatment
To succeed in a child maltreatment case, sufficient evidence must be presented to the court to prove that: the child has been harmed or threatened with harm; and in a civil trial, the parent either inflicted an injury on the child or failed to protect the child from harm; or, in a criminal trial, the defendant was the perpetrator of this harm. These elements may be proved by direct evidence alone, such as the child victim's testimony; but usually additional evidence, such as expert testimony, is needed to establish the facts to a sufficient degree of certainty.

When the alleged offender asserts some type of defense or extenuating circumstances (e.g., reasonable use of parental discipline), it is his/her burden to establish this defense, and rebuttal evidence then may be introduced.

The Rules of Evidence: Why They Exist
The rules of evidence control what information may be introduced in court to convince the judge to reach a particular decision. Because some types of testimony, documents, and records are less reliable and more prejudicial than others, special evidentiary rules are necessary to allow the judge to consider some evidence in his/her fact-finding process, while excluding other evidence from consideration.

How Evidentiary Rules Affect the Caseworker
Anyone who investigates or gathers facts in a child abuse case should have a general understanding of the rules of evidence. Although in most States few cases in a CPS caseload actually go to court, it is important to treat all investigations as if they might. The manner in which a caseworker should practice (i.e., conduct investigations, take notes, and preserve tangible evidence) is significantly affected by these rules.

Types of Evidence
There are several types of evidence that may be admissible in court. The caseworker should be able to sort out the information contained in his/her case narrative/dictation according to the type of evidence it represents.
Direct evidence is evidence which is based on personal knowledge or observation; generally, testimony by an eyewitness to an event.

Real or demonstrative evidence usually takes the form of documents, photographs, or x rays. It is an object (rather than testimony) that is offered to persuade the judge of the facts in question. The rules of evidence require that before real or demonstrative evidence may be presented to the judge, a foundation must be laid that establishes the relevance and authenticity of that object. This is generally accomplished by the testimony of someone who has had control over the object. (See "Getting Records Into Evidence.")

Circumstantial evidence is often used when no or little direct or real evidence is available; it is indirect evidence from which certain inferences can be drawn. This would include testimony by a neighbor who heard a child crying and an adult shouting, or by a teacher who noticed that the parent often smelled of alcohol and slurred his/her speech. The judge will not take this as absolute proof of abuse or neglect, but together, these details may create a probability that the abuse or neglect occurred. Although circumstantial evidence is the least persuasive type of evidence, it is particularly useful in child abuse cases, where eyewitnesses and clear evidence of inflicted physical injury are rare. Expert witnesses may also provide circumstantial evidence by testifying in court. (See "Expert Testimony.") For example, expert testimony that a child's injuries are inconsistent with the parents' explanations for them may be permitted to infer that the child is, in fact, a battered child.

For example, a caseworker's narrative/dictation on a child abuse investigation might contain the pieces of information listed below.

1.A teacher kept a log of the days that the child came to school with bruises.
2.A neighbor heard a child's screams.
3.A pediatrician reported the case after examining the child and found multiple bruises, both old and new, on his/her back and buttocks. The doctor says that the location, number, and severity of the bruises, as well as the presence of old bruises in the same place, suggest that the child's injuries did not occur accidentally, but rather were intentionally inflicted.
4.Medical records.
5.Photographs of the bruises taken by a police officer called by the doctor.
6.The child said that his/her parent beat him/her with a belt.
7.A belt.
A classification of the evidence should look something like this:

Direct evidence: the child's testimony.
Real or demonstrative evidence: the teacher's log (supported by his/her testimony); the medical records (supported by the doctor's testimony); the photographs (supported by the officer's testimony); and the belt.

All of this evidence might not be used in court, but caseworkers (aided by their attorneys) will want to sort out and consider it all initially. Once a caseworker has categorized all his/her information, the strengths and weaknesses of the case will become clearer. With the attorney's help, the caseworker may be able to fill in any gaps in the evidence by further investigative work and case preparation.71

August 3, 2014

Environmental Expert Witnesses & Blue-Green Algae

Environmental toxicology expert witnesses may consult on pollutants, ecological systems, forensic toxicology, ecology, and related topics. In the news, the blue-green algae toxin microcystin has tainted the water in the Ohio counties of Lucas, Wood and Fulton. Gov. John Kasich declared a state of emergency and officials told residents not to drink or boil the water. It should only be used to bathe and wash hands. Consumption may cause nausea and impair liver function

The Ohio Environmental Protection Agency, website answers the questions:

What is a harmful algal bloom?
A harmful algal bloom (HAB) is a large growth of bacteria that can produce toxins. These toxins may affect the liver, nervous system and/or skin.

What causes HABs to form?
Some factors that can contribute to HABs include sunlight; low-water or low-flow conditions; calm water; warmer temperatures; and excess nutrients (phosphorus or nitrogen). The primary sources of nutrient pollution are runoff of fertilizers, animal manure, sewage treatment plant discharges, storm water runoff, car and power plant emissions and failing septic tanks. The State of Ohio is currently working on a statewide nutrient reduction strategy that will document ongoing nutrient reduction activities and identify areas where more work is needed.

How dangerous are HABs?
If you touch HABs, swallow water with HAB toxins or breathe in water droplets, you could get a rash, have an allergic reaction, get a stomach ache, or feel dizzy or light-headed. HABs also are toxic to pets.

Always look for HABs before going in the water. Check for HAB advisories. Ask the park manager if there has been a recent HAB because colorless toxins can still be in water.

How will I know if there is a HAB?
HABs have different colors and looks. Some colors are green, blue-green, brown, black, white, purple, red and black. They can look like film, crust or puff balls at the surface. They also may look like grass clippings or dots in the water. Some HABs look like spilled paint, pea soup, foam, wool, streaks or green cottage cheese curd.

What should I do if I see a HAB?
■Stay out of water that may have a HAB.
■Do not let your children or pets play in HAB debris on the shore.
■After swimming or wading in lake water, even where no HABs are visible, rinse off with fresh water as soon as possible.
■Never swallow any lake or river water, whether you see HABs or not.
■Do not let pets lick HAB material from their fur or eat HAB material.
■Do not drink or cook with lake water.
■See a doctor if you or your children might be ill from HAB toxins. If your pet appears ill, contact your veterinarian.