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Aquatics expert witness and president of a national parasail operators association Arrit McPherson testified in a Coast Guard hearing Friday that he routinely takes two safety steps in his business, either of which may have been critical in preventing the deaths of two women Aug. 28 while parasailing at Ocean Isle Beach. The expert witness told Lt. Chester Warren, the Coast Guard’s lead investigator into the accident, that he has his marine radio on when he takes customers on parasail flights. Before they embark, he has them read safety information that includes how to unhook the harness from the sail if they land in water. That is reinforced verbally and with demonstrations once customers are aboard.

Those steps were not taken for N.C. Watersports customers the day Cynthia Woodcock of Kernersville, N.C., and Lorrie Shoup of Granby, Colo., were killed. Witnesses who were on the N.C. Watersports boat with the victims when the incident occurred said they got no safety information before or during that 1 p.m. trip. The line connecting them to the boat broke and the women were carried to their death near the Ocean Isle fishing pier.

Excerpted from charlotteobserver.com.

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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on expert reports:

By statute, Texas requires expert reports to prosecute various types of lawsuits-most notably medical malpractice lawsuits. This paper will not list every such requirement, but will list a few of these statutes and discuss, in particular, the medical malpractice requirements in some detail.

1. Texas Requires Expert Reports in Medical Malpractice Cases. The most litigated expert report requirement is the one that applies to medical malpractice cases and to other “health care liability claims.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon 2005 & Supp. 2006).

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Medical expert witness Dr. Mark Palumbo testified Wednesday in the medical malpractice lawsuit against St. Joseph Hospital, WA, and two doctors. After having surgery at the hospital Oct. 7, 2004, a blood clot formed in Martin’s neck, which restricted her breathing and caused swelling and eventual brain damage. The expert voiced criticism of the care Martin received from neurosurgeon David Goldman and said the brain damage she suffered following surgery was preventable.

“The standard of care was not met for Carol Martin,” Palumbo testified. “It’s a known complication. You must have knowledge of the potential ramifications. I believe the … brain damage was preventable in this case.” Palumbo is one of several expert witnesses to give testimony critical of Goldman, Schroeter and the nursing staff.

Excerpted from www.bellinghamherald.com.

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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:

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Hydrology and groundwater expert witness Rick Van Bruggen, P.E., D.WRE, writes on whether expert witnesses are “recession proof.”

As an expert witness I am seeing that, while our field of work is not completely “recession proof,” it does seem to be significantly buffered from the full effects of a recession. The fact is, litigation does not stop during an economic downturn, but the nature of it may. As with the recession of ’01-’02, the impact of this recession on my expert witness work seems to have been delayed by some three to six months from the initial impact felt by the industrial sector of the economy, and the scope of that impact seems to be somewhat less ( I haven’t laid myself off… yet). Hopefully, as with the last recession, I will also see my business come back early-on, as the economy starts to improve. Of course, the big unknown now is how deep, and for how long, our economy will be in the tank.

Another trend I have seen is that, while my caseload is usually split 50/50 between defense and plaintiff work, I am approached by more council for defendants, verses plaintiffs, on new cases during a recession. This may speak to the fact that plaintiffs have to foot their own bills to initiate and maintain a piece of litigation, but defendants have to defend themselves, no matter what. While the number of civil cases that I get through insurance company subrogation seems not to have changed (I’m a flooding expert and it will always continue to flood somewhere), I would imagine that experts involved in more criminal cases would see an increase in their caseload, as the crime rate always seems to go up during hard times.

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Based on a ruling from a Charleston judge, Bausch & Lomb Inc. plans to seek to dismiss the majority of active lawsuits stemming from the 2006 global recall of a top-selling contact lens solution. David C. Norton, chief U.S. District Court judge in Charleston, last week granted the eye-products maker’s request to exclude the testimony of a medical expert in more than 1,000 complaints that have been filed by individuals.

Bausch & Lomb already has paid out more than $250 million to settle about 600 lawsuits linking MoistureLoc to a potentially blinding fungal infection known as Fusarium keratitis. But after a three-day hearing in New York in June on the admissibility of expert evidence, Norton said in an Aug. 26 ruling that there is no reliable scientific basis in the 1,024 remaining complaints for arguing that MoistureLoc caused various eye infections. He said attorneys who were relying on the opinion of corneal specialist Dr. Elisabeth Cohen to support their cases “did not submit any peer-reviewed studies, articles or case reports concluding that there is a causal relationship” between MoistureLoc and the infections.

Excerpted from postandcourier.com.

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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert testimony does not fit the case:

The expert testimony must also “fit” the facts of the case. That is, the expert must testify about scientific theories that have a direct impact the case at hand. One interesting case-where the Court of Appeals rejected a challenge to an expert based on lack of “fit”-was the decision in Gigliobianco v. State, 179 S.W.3d 136, 141-42 (Tex. App.-San Antonio 2005) aff’d, 210 S.W.3d 637 (Tex. Crim. App. 2006). Gigliobianco involved an allegation of drunk driving. The state submitted breath test results that the police took some time after the arrest. The Defendant objected that the results should have been excluded under Rule 702 “in the absence of retrograde extrapolation proving his alcohol content at the time he drove.” Id. at 141. Without such an analysis, he argued, “the State’s expert’s testimony did not ‘fit’ the facts of the case because the expert did not know … his alcohol content when he drove.” Id. The Court acknowledged the “fit” requirement: “Expert testimony must be sufficiently tied to the facts to meet the simple requirement that it be helpful to the jury.” Id. at 142 (citations omitted). But the Court still found that the evidence was relevant and admissible. Id. (“the intoxilyzer test results and the expert testimony were properly admitted because ‘they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove.'”

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Do you need to hire a forensic science expert witness? The University of Alabama describes what these professionals do:

Most forensic scientists work in a lab doing “traditional” forensic science (DNA, drugs, trace, etc.). Analyzing evidence in the lab requires an undergraduate degree in chemistry, biology, or a related natural science field (like biochemistry, pre-med, microbiology, etc.). The job of a forensic analyst is for the most part limited to lab work (and testifying in court). It is rare that a forensic scientist will be required to visit crime scenes. In some forensic labs, the analysts may assist sheriff’s departments at the crime scene in rural areas, while crime scenes in the city are handled by the city police.

This leads us to the other side of forensic science, the crime scene work. Most often, crime scenes will be processed by licensed police officers trained to be a part of the department’s crime scene unit. Although crime scene technicians will be responsible for the collection of evidence and processing crime scenes, they will not have much to do with the investigation or the analysis of the evidence. Unfortunately, the common portrayal of crime scene investigators (such as the characters on CSI) is a lousy portrayal of the profession since those characters have their hands in all aspects of the investigation and in reality a person will only work in one area (lab vs. crime scene vs. investigation). The fact is, most of the investigation (interviewing suspects and witnesses) is completed by licensed police officers.

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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.

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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.