Expert Witness Blog

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standard under the Federal Food, Drug, and Cosmetic Act (FFDCA) and the tolerances for sulfuryl fluoride should be withdrawn.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.

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

An old and established rule of thumb for attorneys is that the best prepared attorney wins and a good attorney never asks a question for which he does not already know the answer. It can be devastating to the expert’s reputation and to the lawyer’s case, should a topic be undiscovered prior to submission of expert opinions. It can also be devastating to a case for the expert to have a pre-formulated opinion; in other words, for the expert to start at the end (with his opinion), and then work backwards to uncover “how the accident must have happened.” This is faulty thinking. It is crucial to always approach a case with an open mind. Start with all the facts, including depositions and witness statements; see the site and allow the case to build itself naturally.

Normally expert opinions are required to be submitted and exchanged at least 30 days before trial, although this may vary. The submission is either in the form of an affidavit signed by the lawyer, an affidavit of opinions signed by the expert, or an Expert Witness Response signed by the lawyer. Never allow an attorney to prepare and submit an Expert Witness Response without a thorough review. It used to be the case that expert affidavits were the norm and the expert had to sign off on what was being said or prepare it themselves. This is no longer the case. Attorneys have been known to prepare Expert Witness Responses for cases in which they do not even have an expert – hoping to settle the case. Be on guard that this does not happen and report it, if it occurs, to the local Bar Association. On the whole, attorneys are very honest and, as officers of the court, do not engage in unsavory behavior such as this.

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

What an expert does not know can and likely will hurt your case. It is widely accepted knowledge that a good lawyer never asks a question to which they don’t already know the answer; so it is with an expert. By withholding facts or materials that you think are not relevant or may not enhance your case, you run the risk of allowing your expert to be ambushed, surprised and/or embarrassed. Expert witness testimony is invaluable and can be summed up in one word — credibility. You are better served by providing the expert everything.

The experienced and ethical expert is not interested in running up unnecessary bills to the client. They are concerned about having all the information, being kept informed about developments, and having access to the attorney or attorneys on the case. An open line of communication builds confidence for both the expert and the client and enables your expert to reach out to you with new ideas, discoveries and materials that provide for the best possible performance at depositions and trial. New technologies such as online meetings improve collaboration and reduce cost for travel.

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

Selecting the right expert is important, but also optimizing their use is just as important. Following are areas that should be considered and explored. I will not elaborate on each item, as there are numerous articles written with great detail, but highlight the areas I feel can be optimized.

Selecting The Right Expert Focus on the background of the expert. Banking includes many specialized areas that include but are not limited to lending in the following areas; commercial credit, consumer credit, agricultural credit, mortgage lending, manufactured housing, factoring, construction lending, dealer financing, recreational vehicle financing, land development, participations, credit cards, and merchant credit. On the operational side of the bank they include but are not limited to the following areas; teller transactions, checking and savings products, ATM transactions, wire transfers, ACH transactions, processing of checks and deposits, and safe deposit boxes, just to name a few. Over the last several years numerous transactions have gone paperless. Many of the regional and larger financial institutions have special departments that only handle specific types of transactions. When I has hired by Crocker Bank back in the mid 70’s as an officer trainee, we spent a year in training going through all departments of the bank before we were ever allowed to handle customers without supervision. Most of the larger financial institutions had similar training programs. What you see today is much different. Many bank employees only have training in their department and are unaware of what goes on in other areas of the bank. Make sure the expert that is engaged has the background and experience for the specific areas that your case involves. Just because he/she was a banker, doesn’t mean they have the expertise your case requires.

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

Enough cannot be said about this conflict between expert engineer and his employer (in the case of an agency) or the party to which he consults. The most valuable information an expert can give an attorney is first, to be absolutely and completely honest about all aspects of a case. It is very rare that there are not two sides to an issue. This is where the judge and jury come into play; they are the final arbiters. Their task is to determine which facts are to be accepted and which information is to be ignored, and the amount weight to be given to each expert’s opinion.

However, it is essential that the lawyer know and trust in his expert’s “unbiased” and “unlimited” view of the case. Agencies may try to save money by using in-house personnel as expert witnesses on cases, but this should be approached with great caution. After all, this same expert could have some involvement in the creation of the situation, and certainly has a stake in the outcome. This bias hurts the agency’s reputation or costs them funding resources. Also the expert employee who wishes to protect their employer may approach a case with tunnel vision and thereby limit the agency attorney’s view of the case, both good and bad. The reason why most agencies seek outside consultants is to ensure an unbiased view of the case.