Expert Witness Blog

On his website, patents expert witness Manfred E. Wolff writes:

In today's competitive environment, existing pharmaceutical patents are at risk from a number of pitfalls.

In particular, "Designing Around" (i.e., developing a chemical entity, device, or method that avoids the claims of an existing patent) is a legal means for producing new products to compete with existing patented products.

Moreover, would-be competitors have enhanced incentives to invalidate patents. Under the terms of paragraph 4 of the Hatch-Waxman legislation, invalidation of a US patent provides 180 days of regulatory exclusivity to a generic manufacturer. The value of 180 days of exclusivity for the generic version of a patented $500 million drug is such that a legal challenge to the patent is highly attractive financially.

Manfred E. Wolff has been involved in strategic planning for pharmaceutical research since 1988, first with a subsidiary of SmithKline Beckman, and later as Senior Vice-President for R&D at Immunopharmaceutics, Inc. Since founding Intellepharm, Inc., he has conducted planning sessions for a number of biotechnology start-ups.

In How to Avoid Charges of Bad Faith, insurance expert witness Barry Zalma writes:

Almost every lawsuit filed against an insurance company, especially when a claim is denied, alleges that the insurer acted in bad faith. In the first party context, bad faith claims typically allege that the insurer did not have a reasonable basis to deny coverage, and that the insurer engaged in unfair or deceptive conduct in the process of handling the claim and reaching its conclusions regarding coverage. In the third party context, there is typically an allegation that the insurer failed to timely settle a claim in which liability had become reasonably clear. Insurers, with unfounded courage, deny claims based on the recommendations of a claims handler whose experience may be, and usually is, limited.

Trucking expert witnesses may testify on trucking safety, commercial motor vehicles, truck maintenance, and related matters. In the news this week, Bendix Commercial Vehicle Systems has notified customers and the National Highway Traffic Safety Administration that its ATR-6 valves installed on as many as 60,000 vehicles may be faulty and cause breaking problems. Many of the vehicles manufactured between Dec. 2, 2010 and Jan. 18, 2012 will be retrofitted and delivery of new vehicles has been postponed.

Read more: http://www.bendix.com/en/.

In Experts - Be Wary of What You Post Online construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Recently I followed a discussion wherein an expert was seeking opinions on how to best present a complex testing method in his report to a jury. Several experts responded, each with his or her advice and opinion. However, as the discussion progressed, it became a debate on the types of testing methods and the accuracy of each, the point of the original question (how to best present and explain the expert’s findings) quickly getting lost. The ramification of these experts publicizing their opinions on the testing methods – possibly being used against them in their future cases – was ignored.

A good policy is to keep any questions and queries to other experts private. You can call experts you know. You can even look up experts on the Internet and call them. You will find that most are willing to extend professional courtesy to you by sharing their experience on the question at hand. But do not use email, as it is discoverable as well.

Overzealous attorneys will look to discredit experts for even the most innocent discussions. They will take a discussion out of context and twist it around in an attempt to score a few unearned, unjust points with the jury. Experts need to be aware of this and be prepared to address and justify any exchanges/dialogues/discourse on the matter. (Also note that, in some cases, you must not under any circumstances discuss cases with anyone other than your staff.)

William Gulya, Jr., President & CEO, Middlesex Trenching Company for more than 35 years, specializes in excavation & construction site preparation – earthwork and grading, water mains, sewer installation, trenching, containment, underground utilities, dike repair, heavy equipment rentals. www.siteworkexpert.com

In Experts - Be Wary of What You Post Online construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Experts in almost any field sometimes need assistance in determining the best method and means to present a point or to support it in a report.

The Internet is a fabulous source of information, with blogs, Twitter, Facebook and specialty discussion boards for almost any subject or field of expertise you can imagine. However, if you want to keep something private, don’t post it on the Internet, as the world will have access to it. As an expert, virtually everything you write or post becomes a discoverable record available to anyone with the vigor and persistence to find it.

An inherent problem with experts seeking opinion or advice from other experts on a discussion board or blog is that it is discoverable. When an expert seeks advice in these types of forums it is available to almost anyone including, of course, the opposing counsel in the case the expert is working on.

William Gulya, Jr., President & CEO, Middlesex Trenching Company for more than 35 years, specializes in excavation & construction site preparation – earthwork and grading, water mains, sewer installation, trenching, containment, underground utilities, dike repair, heavy equipment rentals. www.siteworkexpert.com

Auto insurance claims expert witnesses may testify on insurance carriers, insurance policies, and related matters. In 1990, insurance expert, Dr. Lena Chang and former New Jersey Insurance Commissioner James J. Sheeran founded New Jersey Citizens United Reciprocal Exchange ("NJ CURE") which is now CURE Auto Insurance. Their website offers Safety Driving Tips:

Keep headlights on one hour before dusk and one hour after dawn to increase your vehicle’s visibility.

Regularly clean the interior of your windshield to eliminate glare while driving at night.

Light is reflected back off of the fog, so using your high beams can reduce visibility.

Drunk-driver-related accident fatalities are at their highest on Friday and Saturday nights.

Distances are more difficult to gauge at night.

Citizens United Reciprocal Exchange, (CURE) is a not-for-profit reciprocal exchange headquartered in Princeton, N.J. Founded in 1990 by New Jersey Insurance Commissioner James J. Sheeran and award-winning insurance expert, Dr. Lena Chang as an answer to the insurance crisis in New Jersey, CURE continues to lead the way as the not-for-profit solution for responsible drivers and the "cure" for the continuously evolving auto insurance problems. CURE is currently available in New Jersey and Pennsylvania.

Read more: http://www.cure.com/SafeDrivingTips.asp.

Homeowner's insurance expert witnesses may write reports and opine on insurance coverage, insurance companies, and associated issues. Insurance expert Eustace L. Greaves Jr., licensed insurance agent and broker/owner of Greaves Financial Services & The Bridge Insurance Agency, recently shared advice on the top things homeowners can do to lower the cost of home insurance with Homes.org.

Read more: prweb.com.

Auto insurance claims expert witnesses may testify on insurance carriers, insurance policies, and related matters. In 1990, insurance expert, Dr. Lena Chang and former New Jersey Insurance Commissioner James J. Sheeran founded New Jersey Citizens United Reciprocal Exchange ("NJ CURE") which is now CURE Auto Insurance. Their website offers Safety Driving Tips:

Tip # 1 Drinking and driving is the leading cause of death for Americans between the ages of 17 and 24.

Tip # 2 The cost of an average DUI is $3,000.

Tip # 3 Deer are most active between 5 and 8 pm.

Tip # 4 Headlights have an illumination range of 200 to 250 feet. To allow for sufficient brake time, reduce your speed to 45 miles per hour at night.

Tip # 5 Keep in mind that deer wander in groups. If you see one crossing the road, be alert for more deer that could be following.

Citizens United Reciprocal Exchange, (CURE) is a not-for-profit reciprocal exchange headquartered in Princeton, N.J. Founded in 1990 by New Jersey Insurance Commissioner James J. Sheeran and award-winning insurance expert, Dr. Lena Chang as an answer to the insurance crisis in New Jersey, CURE continues to lead the way as the not-for-profit solution for responsible drivers and the "cure" for the continuously evolving auto insurance problems. CURE is currently available in New Jersey and Pennsylvania.

Read more: http://www.cure.com/SafeDrivingTips.asp.

Siesmology expert witnesses may provide reports concerning earthquake building codes, earthquake engineering, and structural issues involving earthquakes. In the news this week, seismology expert John Armbruster of Columbia University's Lamont-Doherty Earth Observatory predicts more minor earthquakes in the northeast Ohio area after the 4.0 event New Year's Day. Scientists at the observatory study the planet from its deepest interior to the outer reaches of its atmosphere, on every continent and in every ocean.

Read more: http://www.ldeo.columbia.edu/.

In Preventing Texting-while-Driving Reduces Distracted Driving, wireless technology expert witness Ben Levitan writes:

While it has been recognized that there is no such thing as multi-tasking, many people still believe that they are able to multi-task. According to cognitive psychologists, multi-tasking is more accurately described as a continuous partial attention. Hence, with this awareness, multi-tasking is all the more dangerous when
operating equipment. Levitan has been working on technology that disables cellphones in moving cars.

Read more: benlevitan.com.

In Workplace Accidents, human factors engineering expert witness Kenneth Nemire writes:

Injuries in the workplace may occur because of one or more factors:
Behavioral factors may include:
• Insufficient operation or safety training
• Failure to wear protective equipment
• Inattention to environmental conditions such as scaffolding
• Ingestion of medication, alcohol or drugs that affect perception or balance
• Operating or working at an unsafe speed

In What's the difference? Making sense of titles for doctors, nutritionists, theRepublic.com writes:

Finding the right medical expert can be one of the most frustrating aspects of health care. Osteopathic physicians are medical doctors (M.D.s), for example, but not all M.D.s are osteopathic physicians. Meanwhile, all dietitians are nutritionists, but not all nutritionists are dietitians. Huh?

To help break this down, here’s an overview of the distinctions between four commonly used — and misunderstood — health care titles.

Read more: therepublic.com.

Worker's compensation plans expert witnesses may consult on wage-loss benefits, medical and career rehabilitation benefits, and benefits to dependents. A starting point for research into state specific links regarding worker's compensation insurance may be found at the International Risk Management Institute, Inc. site: Workers Compensation Assigned Risk Plans and Pools.

In Workplace Accidents, human factors engineering expert witness Kenneth Nemire writes:

Injuries in the workplace may occur because of one or more factors:

• Environmental factors may include:
• Poorly designed equipment, procedures, jobs, environment
• Instrument panel layout that results in performance errors
• Inadequate illumination to support work performance
• Absent or inadequate machine guarding
• Failure to warn of hazards

Media analysis expert witnesses may consult on media analysis of newspapers, TV, magazines, and books. In The Tablet Revolution: What It Means for News The Pew Charitable Trusts writes that:

Eighteen months after the introduction of the iPad, 11% of U.S. adults now own a tablet computer of some kind. About half (53%) get news on their tablet every day, and they read long articles as well as get headlines.

Insurance coverage expert witnesses may opine on property insurance, insurance companies, and insurance policies as well as related matters. In Trial of the Coverage Case (Part 1), attorney R. Brent Cooper, Cooper & Scully, P.C., writes:

The trial of an insurance coverage case is one of the more challenging tasks that an insured or an insurer will face. By its nature, the topics involved in the trial are not the most interesting. In fact, some would say that coverage—and particularly a coverage trial—is one of the more boring exercises a person can undertake. In addition, while boring, coverage can also be extremely complicated.

Commercial liability policies expert witnesses may consult on insurance policies, third party insurance claims, and associated matters. In Will Your Commercial General Liability Policy Cover I. P. Litigation?, attorneys at Shimokaji & Associates, P.C, write:

Part 1 of this article addressed whether your Commercial General Liability (CGL) policy provided coverage for “advertising injury” resulting from patent infringement and trademark infringement. Part 2 explores the possibility of coverage for trade dress infringement, copyright infringement, and trade secret theft.

Insurance fraud expert witnesses may consult on the insurance industry, health insurance, disability insurance, and affiliated matters. On December 14, 2011, the Illinois Department of Insurance issued this press release:

The Illinois Department of Insurance Uncovers Company Selling Fraudulent Health Insurance - Department Offers Advice on How to Avoid Scam Insurance Plans

The Department also offers advice on dealing with offers of health insurance:

• Ask questions. Find out exactly what coverage is being offered and why. Ask for written information regarding what health care providers are included in the network and make sure your doctor, hospital, or pharmacy is included. Call your provider to make sure they are participating in the plan being offered
• Be wary of unsolicited inquiries or offers. Health insurance may only be sold in Illinois by a licensed insurance agent. Call the Department toll-free at (877) 527-9431 or visit http://insurance.illinois.gov/Producer to determine if the salesperson offering you insurance is licensed. Avoid dealing with a salesperson if he or she seems evasive, ill-informed, or if they are reluctant to send you detailed information about the insurance plan or insurance company until after you sign up.

Read more: illinois.gov.

Media formats expert witnesses may consult on newspapers, TV, magazines, and books. The Communications Consortium Media Center reports that Vocus, a provider of on-demand software for public relations management, has released the State of the Media Report 2011. The report covers the four traditional media segments including newspapers, magazines, television and radio, and finds that the media industry has revived in the last 12 months and it continues to experiment with new digital and mobile distribution models.

Read more: ccmc.org.

Entertainment expert witnesses may consult on movies television, and correlated matters. In an effort to strengthen copyright enforcement online, The U.S. House of Representatives has been debating H.R.3261, The Stop Online Piracy Act but the congressional vote has been delayed until 2012. The legislation seeks to curb overseas Internet sites that sell pirated copies of movies, television shows and other creative content.

Read more: thomas.loc.gov.