Expert Witness Blog

In Preparing and Presenting Expert Testimony, traffic engineer and accident reconstruction expert witness Lawrence Levine writes:

Many times the lawyer for the defense will try to time his response to a pending case until after the plaintiff’s expert has submitted his opinions. This way he is sure to answer with specificity the claims that are being presented. As often, plaintiff attorneys will request that an expert not prepare a report until after a verbal opinion is rendered over the phone or in person. This is because all documents in an engineer’s file, done in preparation for a case, are discoverable at trial. This includes correspondence and e-mails. It is wise to verbally discuss with the attorney the need for a report, the due date, and the format in which to prepare it. This does not and should not create a bias on the part of the engineer.

If the lawyer asks the expert to prepare an opinion based “solely” upon photographs, depositions, or a selected grouping of documents he or she supplies, it is in the expert’s best interest to maintain his or her reputation; to demand the right to seek out additional information if necessary, including site visits, testing or whatever is felt to be necessary in order to render an opinion on the matter. To do less would be a disservice to the client, the plaintiff, the agency and the court. It opens the expert to the potentially embarrassing question later “Why didn’t you do this or that?” or “Isn’t it accepted practice in the field of accident reconstruction and investigation to do this or that?” Just as the lawyer must prepare his case, the expert he is depending upon must be prepared and thoroughly know his subject and the case.

In Optimizing Your Use of Banking and Financial Institution Experts, banking expert witness Michael F. Richards writes:

Reconstructive Documentation This involves the reconstruction of what happened in the case after reviewing the documents. This is a tedious and time consuming process. In many lending cases, five to ten thousand documents are provided for review, spanning a five to ten year period, including many new loans, paid off loans, renewals, extensions, and modifications. This review, along with the depositions of the individuals involved, usually exposes the crux of the problem and why there is a law suit. Once an expert has gone through and reviewed these documents, they should have a feel for the culture of the bank; and personality, knowledge, and experience of the officers involved. This is a very critical area, especially in lending cases. The purpose of the loan, the documentation of the loan, and the actual performance of the loan are usually perceived differently by the parties involved.

Vinyl chloride polymers expert witnesses may opine on PVC products such as piping, construction materials, household items, and more. Here, R. Kayne describes issues surrounding PVC products:

Polyvinyl chloride, better known as PVC or vinyl, is an inexpensive plastic so versatile it has become completely pervasive in modern society. However, its diversity and ubiquitousness is now in question, as it comes from a highly toxic production industry and potentially remains an environmental threat throughout all phases of its life. In addition to the toxic chemical processing required to make PVC, mounting research indicates a tendency for some PVC products to leech harmful chemicals, with a possible link to health risks and environmental contamination.

Additionally, polyvinyl chloride is not biodegradable, a fact that manufacturers promote as a plus, while environmentalists count it among many of polyvinyl chloride’s drawbacks. They point to the ever-growing massive amounts of discarded PVC products and shrinking landfills, and the potential for long-term leeching that could lead to ground water contamination. Polyvinyl chloride should not be burned, as it can release harmful gas, and recycling is difficult because of the diverse additives used in various products.

Trucking industry expert witnesses may write reports and testify on federal motor carrier safety regulations, truck maintenance, trucking computer systems, and related issues. The Federal Motor Carrier Safety Administration is proposing that all interstate trucks and buses be equipped with electronic onboard recorders to track driver hours. The rule would apply to all carriers now required to maintain Records of Duty Status (aka logbooks), which amounts to some 500,000 commercial carriers. The rule would not apply to short-haul interstate carriers that use timecards to document hours of service.

The agency at the same time is proposing to relieve interstate carriers from certain supporting documents requirements for hours of service compliance. Motor carriers will be given three years from the effective date of the final rule to comply with these requirements. The proposal can be found at http://www.ofr.gov/OFRUpload/OFRData/2011-02093_PI.pdf. The agency will be accepting comments as soon as the proposal is published in the Federal Register.

Read more: truckinginfo.com.

Engineered composites expert witnesses may write reports on linear polymers, engineered composites, monomers, and related topics. On Friday, January 28, 2011 Composites Manufacturing Magazine announced the NIBS creation of an advanced materials database.

The National Institute of Building Sciences is overseeing the establishment of an Advanced Materials Database. Coordinated by the Advanced and High Performance Materials Council (AMC), it encourages the understanding and use of high-performance and advanced materials for construction. The database will provide detailed statistics and information, allow engineers, architects and scientists to readily compare different materials, provide a forum of communication between member organizations and prevent the duplication of effort. Beginning January 2011 the Database will accept submis­sions of new materials drawn from the Department of Homeland Security Infra­structure Protection and Disaster Management Division as well as contributing institutions.

Read more: compositesmanufacturingblog.com.

Trucking expert witnesses may opine on federal motor carrier safety regulations, truck maintenance, trucking drug and alcohol regulations, qualifications of truck drivers, and more. In the news Monday, a U.S. District Court judge ruled that the Minnesota State Patrol’s use of CVSA Level III inspections to determine fatigue violates truckers’ Fourth Amendment rights.

Calling the decision “a major victory,” Paul Cullen Sr., of The Cullen Law Firm representing the Owner-Operator Independent Drivers Association, told Land Line Magazine that Minnesota’s fatigue tests are beyond the scope of CVSA’s Level III inspections, and before such a test could be conducted, officers must have “reasonable articulable suspicion.”

In other words, the driver must exhibit or have shown clear signs that he or she was obviously fatigued. Minnesota have been using a check list of sorts that officers at roadside could consult to see if the certain activities, the driver’s physical appearance or condition, or even the condition or appearance of the truck or cab interior might indicate a driver was tired of fighting fatigue.

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Today, more than at any other time, many cases are settled, won or lost based on the testimony of the expert witness. The real difference between an expert who will help make or break your case is the depth and range of the expert’s experience within the industry involved in the litigation.

I am often asked in an initial interview “How many times have you testified at trial?” I have been involved in many cases. I am proud to say, however, that very few have gone to trial, but instead have been settled in my client’s favor, commonly after submitting my expert report, supplementary expert report or rebuttal reports. The point is that the right expert is not necessarily the one who has gone to court the most. No expert can turn a case without warrant into a success, but the right expert can highlight the strong parts of your case with enough credibility to produce a beneficial outcome.

Pesticides expert witnesses may write reports and testify on pesticide contamination, insecticides, and pesticide products such as Sulfuryl Fluoride. The EPA has recently proposed rules regarding this pesticide.

The U.S. Environmental Protection Agency has re-evaluated the current science on fluoride and is taking steps to begin a phased-down withdrawal of the pesticide sulfuryl fluoride, a pesticide that breaks down into fluoride and is commonly used in food storage and processing facilities. Sulfuryl fluoride is currently registered for the control of insect pests in stored grains, dried fruits, tree nuts, coffee and cocoa beans, and for use in food handling and processing facilities. Although sulfuryl fluoride residues in food contribute only a very small portion of total exposure to fluoride, when combined with other fluoride exposure pathways, including drinking water and toothpaste, EPA has concluded that the tolerance (legal residue limits on food) no longer meets the safety standard under the Federal Food, Drug, and Cosmetic Act (FFDCA) and the tolerances for sulfuryl fluoride should be withdrawn.

See http://www.epa.gov/pesticides/sulfuryl-fluoride/evaluations.html and Federal Register Volume 76, Number 12 January 19, 2011.

Liability policies expert witnesses may testify regarding insurance loss claims, insurance policy coverage, liability policies, and related topics. In The Insurer’s Duty to Defend: A Quick Analysis, attorney Thomas H. Veitch, partner with the law firm of Langley & Banack, Inc. in San Antonio, writes:

The application of the “duty to defend” in liability policies has been a cause of controversy for many, many years. Consequently, there is now an abundance of case law dealing with a variety of issues involving the duty to defend. The case law provides some general guidelines for dealing with these issues. While the precise rules of law may vary from jurisdiction to jurisdiction, the guidelines are much the same. The following are some general rules applied by Texas courts and other jurisdictions following the “Eight Corners Analysis” regarding a duty to defend.

The insurer’s duty to defend is a contractual duty determined by the provisions of the insurance policy.

In Optimizing Your Use of Banking and Financial Institution Experts, banking expert witness Michael F. Richards writes:

Early Involvement In The Case There are a number of reasons why it is important to get an expert involved early in the case. As indicated above, there are numerous regulations, policies, and procedures that are required in banking. It happens far too often that I receive a call and the attorney says, “I have to designate an expert by a certain date” which is only a couple of weeks away or less. As we get into the discussion and I start asking about discovery and specific documents, we find that discovery did not cover all of the documents needed to evaluate the case and the deadline has passed to request the additional information. This is most prevalent when I represent clients against banks. I can understand the attorneys reasoning for waiting as long as possible to retain an expert, hoping the case will settle and save the cost of an expert, but if the case doesn’t settle, is it worth it? A good expert can tell you exactly where to look and what to ask for. Early involvement can help attorneys considerably in formulation of a complaint, discovery, counterclaim, or response to interrogatories. In cases I have been involved in, attorneys have amended their complaint to address items that were found, that otherwise would have gone unnoticed.