Expert Witness Blog

After being convicted of premeditated first degree murder, Jeremy Hull took his case to the Minnesota Supreme Court. The reason the defense is appealing the case has to do primarily with their belief that the Mille Lacs County District Court should have granted a Frye hearing in regards to fingerprinting and handwriting evidence.

Assistant Minnesota Attorney General Kimberly Parker argued that a Frye hearing is for novel or emerging techniques and that the report Carlson referred to is not novel or emerging and that it’s the burden of the defense to prove there is novel or emerging techniques. “There’s nothing new here,” she said. But a judge countered that the report is saying the technique is in question and not necessarily valid. The assistant attorney general also pointed out that the defense had an opportunity at trial to attack the handwriting issue, but they did not provide handwriting expert witness testimony to say it wasn’t his handwriting.

For more, see MilleLacsCountyTimes.com.

After being convicted of premeditated first degree murder, Jeremy Hull took his case to the Minnesota Supreme Court. It’s an automatic appeal and Hull did not waive his right to appeal. Hull, 26, was convicted in 2008 of killing Lewis Wilczek of Little Falls in April 2007, then dismembering, burning and burying Wilczek’s body outside of Foreston. After killing Wilczek, he stole the 21-year-old’s identity. The reason the defense is appealing the case has to do primarily with their belief that the Mille Lacs County District Court should have granted a Frye hearing in regards to expert witness testimony on fingerprinting and handwriting evidence.

A Frye hearing is used to determine whether scientific evidence (produced by an expert witness) is admissible in court. In the 1923 federal Court of Appeals case Frye v. United States, the court held that expert testimony is admissible when the technique or theory it is based on has gained “general acceptance” in the relevant scientific community. In a Frye hearing, the trial court determines whether or not given testimony is, in fact, generally accepted (a Frye hearing is typically called after prosecutors or defense lawyers move to exclude the testimony of an expert witness).

For more, see MilleLacsCountyTimes.com.

The Ohio Supreme Court recently approved new rules governing pretrial procedures that will help ensure those convicted of crimes are truly guilty, according to Thomas Moyer, chief justice of the Ohio Supreme Court. The amendment to Rule 16 of the Ohio Rules of Criminal Procedure will require greater sharing of evidence between prosecutors and defense attorneys before trial.

One of the major rule changes relates to witness statements, which prosecutors are currently allowed to withhold until trial. Under the new law, witness statements would have to be shared with defense counsel ahead of time, along with other information from police reports. Defense attorneys have complained for the past 35 years that county prosecutors in Ohio have had an unfair advantage because they could withhold certain evidence.

Defense attorneys would be required to hand over witness statements they have obtained. Their criminology expert witnesses would also be required to provide written reports before trial or else they would not be allowed to testify.

For more, see blogcleveland.com.

In The Role of Trial Counsel and House Counsel: Preparation of the Quality Control Witness for Deposition and Trial Testimony, authors Warren W. Eginton and Clifford L. Whitehill-Yarza, write:

Product liability cases require prevention and preparation by corporate and retained attorneys as well as by subject experts. Prevention activities include a prevention review, careful maintenance of blueprint and specifications files, file retention programs for in-house memoranda, and proper use of warranty disclaimers. Once the company receives a writ notifying it of litigation, it should assemble a defense team, consisting of the corporate attorney, an engineer, departmental representatives, and, if appropriate, a representative from the insurance carrier. An early responsibility for the team is to preserve the product and its files and to question witnesses. If an expert witness will appear at the trial, that person should be selected with care. Selection criteria include strong academic credentials and communication skills. Experienced expert witnesses should have no more than two-thirds of their cases devoted solely to either the defense or plaintiff side. The witness should prepare draft and final reports, doing so without retaining notes. Ideally, the witness should participate in a mock trial and then attend every day of the real trial. When on the stand, the expert ought to dress conservatively, speak loudly and clearly, and maintain the same demeanor when responding to both direct and cross examination questions.

For full article, see http://www.asq.org/qic/display-item/index.pl?item=10525.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Insurance bad faith cases offer an early opportunity for resolution for several reasons. First of all, they are expensive to prepare and try. Capturing the case early, evaluating the damages, and looking at the down the line costs should motivate both sides to review the case to see if mediation at an early stage is prudent. Second, insurance bad faith cases present a unique opportunity for an early evaluation. If there are coverage issues, they can be evaluated by reviewing the policy provisions and the applicable law. Because there is already a “paper trail” called a “claims file,” there is an excellent source of information for preparing a chronology of claims handling and learning what was done and why. Once the pertinent files are obtained, you should have considerable information about the claims handling, and the reasoning, or lack of such, behind it.

The pertinent insurance company files can be obtained and reviewed early in the case. This may include underwriting and claims files as well as industry and company manuals as a means for evaluating how the claim was handled – that is, what was done and why. The client and client representatives, such as brokers should be interviewed and files obtained for review. On the defense side, the company personnel should be interviewed to determine the basis for underwriting and claims decisions.

In some cases the parties might agree on limited early discovery with a view towards mediating once they have completed this preliminary discovery or informal exchange of information.

STRATEGY FOR NEGOTIATIONS The environment for seeking redress for insurance company wrongs is not always “plaintiff friendly.” While juries may be sympathetic, the barriers posed by evidentiary rules, punitive “caps,” and the views of judges and appellate courts to class actions or large punitive “windfalls” must be evaluated before committing your law firm to these suits. They require careful planning and consideration before filing.

Tort reform and the courts’ approaches to punitive damages claims have made some carriers feel more secure that bad faith and punitive damages are not a threat as they were in the 1970’s and 1980’s when insurance bad faith cases matured.

Now, there are still cases where punitive damages are warranted, but the commitment of time, money and the client’s emotional and physical resources is large. For example, Ray Bourhis, a well known insurance bad faith lawyer in San Francisco, has written a telling story of one of his more recent insurance bad faith cases. Anyone doing insurance bad faith work is well advised to read this book.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

THE SEVEN POINT TEST FOR EVALUATING A “BAD FAITH” CASE
Here is a quick checklist for looking at the potential for bad faith and punitive damages in an insurance tort case:
1. What is the personal plight of the insured/claimant plaintiff? In short, how sad is the story? Will the story justify “ringing the bell” in the minds of the jury?
2. What is the amount of the contract claim? Is the amount sufficient to justify a substantial compensatory award? Is the fact that plaintiff has been deprived of these sums sufficient justification for a significant emotional distress award?
3. What is the amount of compensatory damages that is likely to be awarded for economic loss, emotional distress and attorneys’ fees? The greater the amount of compensatory damages, the larger the potential for punitive damages. This is particularly true in a “cap” state such as Indiana in which three times the compensatory award may pose a much greater exposure to punitive damages than the monetary cap of only $50,000.
4. How long has the plaintiff been a policyholder (in a suit by an insured)? A jury will expect the insurer to “give slack” to an insured who has been a policyholder for a substantial period of time. Reluctance by the insurer to give the benefit of the doubt to long-standing insureds who have continued to fuel the company coffers with premium payments may create a jury climate for a punitive claim.
5. What is the length of time from claim to compensation? The longer the period from the time of the initial injury to trial (or payment of what was rightly owed), the higher the punitive potential. A lengthy period of denial only bolsters the perception that insurance company claims personnel are taught to hold on to the insurer’s money for as long as possible in order to maximize profits.
6. What is the likely credibility of the company witnesses? The story of the claims handling is influenced by the believability of the insurance company’s witnesses, who may be subject to impeachment and/or may be shown to have taken an adversarial posture against the insured, which is inconsistent with the principles of good faith claims handling.
7. What is the overall perception of the insurance company? That is, what picture will the jury have of the insurer? Promises of “Good Hands,” “Good Neighbor” and “Piece of the Rock” give the jury the impression that the insurer can be trusted, but these advertising slogans may be perceived as just marketing tools for attracting customers, with no intention of meeting these standards of customer concern, care or treatment. Also, if the insurer is perceived as being very wealthy (even if the jury will not hear evidence of financial wealth until a later aspect of the trial), this perception can affect the jury’s determination.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

CAN YOU CONVERT THE CONTRACT CLAIM TO A TORT CLAIM?
It is obvious from the above that either using traditional tort principles or those requisites for the tort of insurance bad faith, it is critical to the recovery of extra-contractual damages to convert the contract claim to a tort. This requires going outside the four corners of the contract and examining carefully the conduct of the insurer in administering and managing the claim.
Requirement of Financial Loss
Past cases have discussed the question of whether the claim for insurance bad faith is a personal injury or economic claim (i.e., property claim). Decisions have generally described it as the latter. As a result, financial injury must occur before there can be an award for emotional distress. Such a requirement is said to reduce the danger of frivolous or fictitious claims.

Recovery of Damages for Emotional Distress
As a general proposition, the requirement of financial injury provides verification of an accompanying claim for emotional distress. As one California Court of Appeal stated:
The principal reason for limiting recovery of damages for mental distress is that to permit recovery of such damages would open the door to fictitious claims, to recovery for mere bad manners, and to litigation in the field of trivialities.... Obviously, where, as here, the claim is actionable and has resulted in substantial damages apart from those due to mental distress, the danger of fictitious claims is reduced, and we are not here concerned with mere bad manners or trivialities but tortious conduct resulting in substantial invasions of clearly protected interests.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Insurance companies have increasingly relied on what they perceive as an emerging “defense” to their denials or wrongful handling of claims from their insureds: the “good faith dispute.” Initially, this doctrine arose in the context of a genuine coverage dispute, in which the Ninth Circuit advanced the proposition that a “genuine dispute” as to coverage suggests that an insurer acted reasonably. However, the doctrine is greatly overstated by insurance companies, as confirmed by Wilson. Indeed, prior to Wilson, there was a notion in at least one case that the principle was being relied on too heavily, and being misapplied. At least one case has held that even reasonable conduct can expose a carrier to bad faith in certain circumstances.
The cases concede that this doctrine cannot be applied if:
• The insurer is guilty of misrepresentation in handling the claim;
• The insurer’s employees lie during deposition or discovery or to the insured;
• The insurer dishonestly selected its experts;
• The insurer’s experts are unreasonable; or
• The insurer fails to conduct a reasonable investigation.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

The duty to investigate is an important duty of an insurer. Hence, it can be an important part of a bad faith case. The erroneous withholding of policy benefits based on the insurer’s failure to investigate a claim may constitute a breach of the implied covenant of good faith and fair dealing. In order to protect the insured’s peace of mind and security, “an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial.” An insurer must “fully inquire into possible bases that might support the insured’s claim.” The investigation must be prompt, thorough, reasonable, and conducted in good faith. That is to say, the insurer must consider facts favorable to the insured’s position as well as those that favor the insurer. This is one aspect of the insurer’s duty to give equal consideration to both the insurer’s and the insured’s interests.

California has codified the duty to investigate in the Unfair Practices Statute (“UPA”) which requires the insurer “to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.” Even though no private right of action may exist under these statutes, the application of the duty to investigate remains important. The UPA confirms the industry standards. Alternatively, other standards may be adopted by the company as fair standards for processing a claim. A violation of the statutory, industry, or self-imposed standards provides support for a bad faith claim. They can serve as standards for determining the bad faith conduct of the insurer.

The Insurer’s “Good Faith Dispute” Defense
Recent cases have allowed an insurer to defend against charges of bad faith by raising the “good faith dispute” or “genuine issue” defense. That is, the insurer claims that because there is a genuine issue of fact or law regarding its liability for the claim, it is insulated from any potential bad faith liability. This is a misleading statement and may very well not be a sound argument. The “genuine issue” argument must be carefully analyzed.

In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Often just the threat of a survey or the designation of a survey expert can motivate a plaintiff to rethink their strategy. A shoe manufacturer sued a boutique shoe store alleging that their distinctive product design was being infringed. Rather than giving up and rolling over, the alleged infringer retained a survey expert and indicated their intention to fight. This caused the plaintiff to take another look at the cost of proceeding and possible damages should they win. Their reevaluation of the case made continued litigation look like a poor business decision and the matter was dropped.

Surveys can be a powerful weapon in helping each side in a dispute see the real value of their position. And when the parties see both the truth and the beauty of their cases, settlement can occur. Because good data drives out bad cases.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

While not an exhaustive list, the following are indicia of bad faith conduct under various standards:
• Failure to investigate a claim thoroughly;

• Failure to evaluate a claim objectively;

• Unduly restrictive interpretation of policy language or claims forms;

• Unjustified delay in payment of a claim;

• Dilatory handling of claims;

• Deceptive practices to avoid payment of a claim;

• Abusive or coercive practices to compel compromise of a claim;

• Unreasonable conduct during litigation;

• Arbitrary and unreasonable demands for proof of loss;

• Absence of a reasonable basis for delay in payment or for the denial of a claim;

• Improper refusal to defend an insured;

• Improper handling of defense of insured, resulting in loss of goodwill; and

• Deliberate misinterpretation of records or the policy to defeat coverage.

In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Sometimes even the results of a survey pre-test can be valuable. Pre-testing or pilot testing a survey is a standard research practice that often improves the survey by eliminating confusing wording or awkward question sequences. In addition, pre-testing can provide a rough indication of the likely results of a full-scale study. While the information that comes from pre-testing is not as precise as the results of a full-scale survey, the data can have an important impact on the strategy of the parties.
• In a case alleging trade dress infringement, the parties were attempting to negotiate a settlement while a pre-test of a survey was being conducted on behalf of the plaintiff. When the plaintiff’s representative in the negotiation introduced that very day’s pre-test results into the discussion, the defendant accepted the settlement offered.
• In a case involving cartoon characters on children’s clothing, the defendant maintained that there could be no confusion with the plaintiff’s trademarked character. Pre-test results in this case, however, showed a considerable amount of confusion. Recognizing that they were unlikely to prevail if they went forward with the case, the defendant withdrew the infringing characters.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Thus, a bad faith claim has these three very separate and distinct components: A breach of contract is not bad faith – there must be an examination of the conduct of the company to determine if the manner of handling the claim was consistent with “good faith” principles. However, proof of bad faith is not enough to impose punitive damages – “something more” is required, which has been expressed as an “evilness” in the corporate scheme of things, or the “collective corporate conduct.”

The different standards and burdens applied must be evaluated. If not, they offer the defense an excellent opportunity to “compartmentalize” the case and defeat the plaintiff’s effort to obtain relief for the wrongs done in an amount sufficient to accomplish the goal of giving notice that such conduct should be stopped.

LOOKING AT LIABILITY FOR BAD FAITH
Assuming that there is contractual liability, the next question is whether the compensatory damages are limited to the contract standard as contemplated at the time of the agreement or the tort standard based on proximate cause and foreseeability.

See the next blog entry for Mr. Kornblum's indicia of bad faith conduct under various standards:

Good Data Drives Out Bad Cases marketing expert witness and president of Applied Marketing Science, Inc., Robert L. Klein writes on the effective use of surveys in legal cases:

A survey can be a very effective way of helping a client see the true “beauty” of her case. For example, a survey showing that a patent infringement caused minimal lost sales can encourage a party to accept a smaller than hoped for settlement. A survey showing significant confusion due to packaging or trademark similarity, can motivate a defendant to negotiate rather than fight on. A survey establishing that marketplace realities bear little resemblance to the allegations can persuade a plaintiff to drop the case. When both sides are able to look at the same information and consider how that information will impact a judge or jury, cases settle. Armed with valid and reliable survey data, attorneys are better able to assess the merits of their case and advise their clients as to the best way to proceed.

Some attorneys may resist commissioning a survey for fear that the results will not be supportive of their client’s case. Surveys are not cheap, and sometimes the attorney’s instincts will be correct. But if a survey is going to expose the weakness of one side’s case, the other side should reasonably be expected to conduct the same survey and see the same result. The first side to know the truth can set the agenda for how the suit proceeds.

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

· The parties have non-lawsuit reasons to settle. There may be non-lawsuit related reasons to settle. The existence of the lawsuit or a “bad” result may trigger losses in business relationships or a negative impact on a business marketing plan. The parties may also have an ongoing business relationship which would be costly to terminate. There are lots of business and personal reasons to settle, and if these are present they will motivate the parties to seek a negotiated result.

· While the liability, damages or collection issues remain, there is no clear barrier to recovery and payment of any judgment by the plaintiff. A lawsuit is a three legged stool: liability, damages and collection. All three have to be present in order for the case to have value from the plaintiff’s perspective. If any of these three legs are missing, the plaintiff has problems and needs to assess what course is the best way to move forward. Indeed, a modest settlement may be in order in such a case. But if there is no clear barrier to the plaintiff and the stool has some strength in all three legs, then the parties should be talking seriously about resolving the lawsuit. There may be a disagreement over the numbers, but that is why mediation is attractive at a timely point in the litigation process – to save the time and expense of trial, and eliminate the risk of a disappointing result.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

The classic breakdown of the first-party insurance bad faith case is represented by a three-tiered analytical framework: 1) breach of the insurance contract; 2) the tort of insurance bad faith (or other tort converting the contract action to a tort claim); and 3) the punitive damage claim. Theoretically, this is a mixture of legal theories and remedies.

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

The attorney/expert relationship is a tricky business in that experts are employed on behalf of one litigant–but are we members of the litigation “team?” One gratifying experience was working with a local attorney on a non-compete challenge to a proposed new business. Over several months, counsel and I separately compiled evidence. We met periodically to sift and consolidate our documentation. We analyzed possible opposition arguments. To prepare me for trial, counsel simply posed questions he might ask in direct, to hear how I would respond.

Unquestionably, being in the same city facilitated communication. Although counsel never attempted to influence my perspective, we worked first in parallel, then in convergence, and our interaction felt very much like a collaboration. Strictly speaking, it was not; although experts may become personally invested in cases, attorneys should work with us not as “team members,” but as independent, unbiased contract consultants.

The expert/attorney relationship is as fascinating as it is complicated. Many experts have spent a lifetime in their fields and have much to offer. For the foreseeable future, experts will comprise an important galaxy in the litigation universe. We–attorneys and experts alike–should welcome each new challenge as an opportunity to contribute constructively to the enduring quest for justice. To do so is more than a job; it is a privilege.

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:
· There has been cooperation among the parties and their counsel during the litigation process. This is key. No doubt a case has a greater potential for settlement when the parties are “firm but fair” with one another. They cooperate without compromising their clients’ rights or position. They exchange what they know is discoverable and they diplomatically but firmly protect what is not. They prepare their client for participation in the litigation process. For example, I try not to intervene at my client’s deposition. He or she is prepared to tell the story, and tell it truthfully. I don’t need to make inappropriate speaking objections or interfere with my opponent’s questioning unless counsel is violating the rules, being rude, harassing my client, or asking questions about irrelevant or privileged matters. Then, rather than arguing on the record and creating useless transcripts, I state my position and deal with this bad behavior appropriately as the rules permit. But, if we are conducting the case within and in accordance with the rules, the prospective of a cooperative discussion about resolution is highly likely.

· The parties have engaged in sufficient discovery and an exchange of information so that you know the facts of the case. You have reached a plateau in the case; each side can look towards the door of trial court and see how the case is likely to play out. Experienced trial lawyers can do this. They “hear” the evidence, they play out the examination of witnesses in their minds, and they anticipate the argument of their opponent. They know how these arguments will sound and how a jury, court, or arbitrator might respond to them. Perhaps the parties have conducted focus groups and obtained some insight into how a jury might decide. It is the ability to anticipate the “end result” that allows a trial lawyer to properly advise his or her client as to the alternatives of resolution by trial.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.