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In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on failure to treat or erroneous treatment:

The most common way in which doctors are negligent by failing to treat a medical condition is when they “dismiss” the presenting symptoms as temporary, minor, or otherwise not worthy of treatment. This situation may result in an exacerbation of the underlying condition or injury, causing further harm or injury. For example only, an undiagnosed splinter or chip in a broken bone may result in the lodging of a piece of bone in soft tissue or internal bleeding caused by the sharp edge of the splintered bone.

Erroneous treatment is most likely to occur as a result of a misdiagnosis. However, a doctor who has correctly diagnosed a disease or condition may nonetheless fail to properly treat it. Other times, negligence is the result of a doctor attempting a “novel” treatment that fails, when in fact a more conventional treatment would have been successful.

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In Successfully Locating A Business, zoning and land use expert witness John J. Wallace writes on a retailer’s biggest challenge:

California’s innovative shopping centers are home to many retailing firsts — and today they are home to many first-time retailers. This new breed of store owner tends to be strong on operations, such as merchandising and service, and weak on business experience. Thus, they often run afoul of retail fundamentals — particularly site selection.

Locating a retail store in today’s centers has become more subtle and complex, but it remains the single most important factor in a merchant’s success. Even for established and successful retail chains, location typically accounts for more than 90 percent of the variation in performance among outlets.

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In Using A LNC As A Expert Fact Witness, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Although treating physicians have an understanding of the care given to a patient, they seldom have the time to read a medical record from start to finish. Even if requested to do so by the attorney, the demands on a physician’s time prevent him from having the needed hours to read a medical record and provide the attorney with a detailed report of the care given to a patient. Even if the physician was able to perform this service, the cost would be prohibitive for many plaintiff or defense attorneys.

Family members are often acutely aware of the care received by the patient, but have no knowledge of its significance and are unable to explain the reasons for such care to a judge or jury. On the other hand, the legal nurse consultant (LNC) has the special knowledge, training and skill to educate the triers of fact about the care given to a patient as documented in the medical record. This can be extremely important in very complex and lengthy medical cases. The LNC serving as a fact witness does not express opinions about the quality of care or the treatment given, but educates the judge and jury on the care given and the patient’s response to this care.

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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.

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In Dram Shop Laws – Improving Public Safety, dram shop expert witness Maj. Mark Willingham of Alcohol Solutions, LLC, writes:

The business model under which the alcoholic beverage industry operates can be antithetical to the elements of responsible retailing. In many cases tips; a significant part of servers’ income, come from “good service” which often equates to heavy pours of alcohol, frequent replenishment, and a wink and a nod at increasing intoxication levels. Beverage retailers often utilize questionable promotions, two for one or all you can drink specials, for example, to gain a competitive advantage or to maintain marketing parity with other retailers. The choices bar owners and bartenders make in over-serving their guests often eliminate the choices their guests might have in moderating their drinking behavior.

No one will argue that the impaired driver in an alcohol related crash is blameless. The decision to have the first, second or perhaps the third drink rests solely with the drinker. At a certain point, however, the drinker loses his or her ability to make rational decisions about further alcohol consumption. The drinker’s ability to engage in appropriate behavior and make rational decisions is diminished. It is a truism worthy of a scientific designation; the more alcohol one consumes, the lower one’s ability to assess their own intoxication and assess their own ability to safely operate a motor vehicle. This most certainly creates a “Catch 22” logic model in which the person the retailer often believes responsible for determining whether their faculties are impaired becomes more and more impaired with each drink the retailer serves.

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In Air Rage, aviation expert witness Capt. Bob Norris writes:

What are some of the reasons for the increase in passenger disturbances? Serving unlimited alcohol on flights, particularly in first and business class is encouraged by many airlines. With the decrease in cabin pressure at normal cruising altitudes, boarding the flight on an empty stomach can cause inebriation much more quickly. Additionally with airlines prohibiting smoking on their flights, smokers tend to substitute alcohol for cigarettes. Arriving early for a flight and the long delays experienced at most airports, therefore boarding the aircraft already inebriated. It is often difficult for the passenger agent with the brief contact they have with the passenger’s prior and during boarding to detect that a passenger has had too much to drink.

Paying several hundred or even thousands of dollars for an airline ticket seems to give some people the sense they can do whatever they please on an airplane. Many of the passengers are successful entrepreneurs, business leaders, or even professional athletes or entertainers who are use to being in control of their personal and professional lives and resent giving up control to airline employees. They may resent obeying safety rules, fastening seat belts, returning to their seats during expected turbulence, and turning off devices like cell phones or laptop computers.

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In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Still other courts hold that no report is required from a hybrid witness, regardless of the nature of the opinion testimony they will provide, if they were not “retained or specially employed” to provide expert testimony. E.g., Denson v. Northeast Ill. Regional Commuter Railroad Corp., No. 00 C 2984, 2003 WL 1732984 at *1 (N. D. Ill. Mar. 31, 2003) (“There is no indication that any of the three treating physicians from whom plaintiff may elicit expert opinions was retained or specially employed for that purpose. Therefore, the report requirement does not apply for their testimony.”).

Though hybrid witness issues most often arise with respect to testimony from treating physicians, they also plainly can arise in other contexts as well. See, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 246 F.R.D. 56, 59 (D.D.C. 2007) (allowing a hybrid witness to testify as to “information gained in his role as Executive General Adjuster with respect to the incident in question” but not to “offer his independent opinions regarding causation, or damages assessments made either after litigation commenced or independent of his assessment of damages as a function of his job as an insurance adjuster”).

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In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on failure to diagnose or erroneous diagnosis:

Generally, a delay or failure to diagnose a disease is actionable, if it has resulted in injury or disease progression above and beyond that which would have resulted from a timely diagnosis. This situation may be difficult to prove. For example, a patient may ALLEGE that a doctor failed to timely diagnose a certain cancer, resulting in “metastasis” (spread of the cancer to other organs or tissues). But experts may TESTIFY that “micrometastasis” (spreading of the disease at the cellular level) may occur as much as ten years before a first tumor has been diagnosed, and cancerous cells may have already traveled in the bloodstream and lodged elsewhere, eventually to grow into new tumors. Therefore, it may be difficult in some cases to establish that a patient has suffered a worse prognosis because of the failure or delay in diagnosis.

If a patient is treated for a disease or condition that he or she does not have, the treatment or medication itself may cause harm to the patient. This is in addition to the harm caused by the true condition continuing untreated.

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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.

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In Dram Shop Laws – Improving Public Safety, dram shop expert witness Maj. Mark Willingham of Alcohol Solutions, LLC, writes:

A foreseeable and preventable tragedy unfolds several times a day somewhere in the United States. Over fifteen thousand people are killed and thousands more are seriously injured in impaired driving crashes in the United Sates each year. Even more shocking is that half of these deaths and injuries can be attributed to drivers who were coming directly from a beverage license premises where they were over-served or allowed to over-consume alcohol.

Beverage alcohol is the only universally available consumer product that has the capacity to cause changes in the consumer’s emotional state, his or her cognitive ability, gross and fine motor skills, and can diminish the drinker’s ability to make rational decisions. Beverage alcohol is widely sold and consumed in businesses that are primarily accessible through the use of personally operated vehicles creating a reasonable expectation that many customers will also drive those vehicles away from the bar or restaurant. Many will be under the influence of the intoxicating effect of the product and unable to safely operate those vehicles. At least 80 million trips are made annually in the United Sates by drivers with a BAC over .08.

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