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In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:

Until the law on the issue settles there are some practical steps counsel should take to address hybrid witnesses:

(1) Make sure that the witness really is a “hybrid” witness. The fact that the witness happens to be a treating physician, for instance, might not be the end of the analysis. See, e.g., Kirkham v. Societe Air France, 236 F.R.D. 9, 12-13 (D.D.C. 2006) (noting that a treating physician may be “retained or specially employed” under Rule 26 and thus an expert from whom a report is required if, among other things, they base opinions on something other than their own examination of the party such as the medical records of another physician or if they are compensated or expect compensation for their time preparing to testify);

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

The problem appears to be growing, based on limited data from a few airlines; it is obvious that the industry needs a central database of uniform reporting to measure scope and changes in the incidence rate.

• It is a multifaceted problem, requiring cooperative efforts from many different directions–e.g., airlines, law enforcement, prosecutors and judges, not to mention public awareness. Tough prosecution and sentencing can be an effective deterrent.

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In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on substandard care, treatment or surgery:

The standard of care which is owed to people as a patients is that which represents that level of skill, expertise, and care possessed and practiced by physicians found in the same or similar community as the relevant one, and under similar circumstances. However, the advent of “national board” exams for new doctors and “board certifications” for doctor-specialists has resulted in a more uniform and standard practice of medicine not dependent upon geographic locality.

All licensed physicians should possess a basic level of skill and expertise in diagnosing and treating general or recurring types of illnesses and injuries. Thus, a general practitioner who has administered substandard cardio-pulmonary resuscitation (CPR) to a heart attack victim (who subsequently dies as a result of the substandard care) cannot defend that he or she was not a “cardio-pulmonary specialist.” A general practitioner from virtually any other area in the United States could most likely testify as to the level of care and expertise that is to be expected under the circumstances. Conversely, a board-certified cardiopulmonary specialist could not testify that the general practitioner should have done everything that the specialist might have done with his advanced skill and training. Nor, under the locality rule, could an oncology specialist in private practice in Smalltown, U. S. A., be held to the same standard of care as an oncology specialist in a large urban university teaching hospital that has state-of-the-art equipment and facilities.

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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:

As customers move through a center, whether on foot or by car, the repeated exposure to signage provides a form of advertising. A concentrated shopping area can generate a sense of activity and critical retail mass that initially attracts people, then keeps them coming back.

Consider that it is almost impossible for small stores to operate successfully from second floors, half-floors, subfloors or any other spot out of the retail line of sight, and without frontage to the flow of shoppers. Second floors only work when the anchor tenants have entrances on that level to generate shopper traffic. Otherwise, upper levels generally provide very poor retail locations. Some center owners solve the problem by turning second story retail space into offices or professional personal service establishments. Others have encouraged ground floor tenants to expand upward and include another story, while retaining a ground floor entrance.

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In Use of a Legal Nurse Nurse Consultant in Client Interviews, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Nurses learn communication and interviewing strategies as part of their basic interpersonal and assessment skills in the first semester of training. It is a basic skill that nurses use on each patient admission (or visit to the physician in his office); on each day the patient is in the hospital and even at the beginning of each nursing shift on each hospitalized patient. We are skilled in active listening and the subsequent collection of critical data.

The rapport established between the plaintiff and the attorney and/or staff at the initial interview may have far reaching consequences in terms of the accuracy and completeness of information obtained. Plaintiffs need to believe that the attorney and staff are advocates, working on their behalf, in order to maintain a trusting and amenable relationship. During the initial interview the legal nurse consultant can:

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Poultry production in the Illinois River watershed multiplied over the past half-century, a scientist testified Thursday in Oklahoma’s pollution lawsuit against the Arkansas poultry industry. Companies went from producing about 12 million birds in 1950 to about 152 million in 2002, said J. Berton Fisher, one of Oklahoma’s expert witnesses.

Oklahoma is suing 11 poultry producers, including Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cargill Turkey Production LLC, George’s Inc., George’s Farms Inc., Peterson Farms Inc. and Simmons Foods Inc., accusing them of polluting the one million-acre watershed with bird waste. Pollution expert witness Fisher also testified about how the watershed’s hills, thin soils and rocky, porous terrain allowed contaminants to seep into streams and groundwater. For decades, farmers have used chicken litter as a cheap fertilizer to grow other crops. Oklahoma argues runoff from those fields contains bacteria that threatens the health of people who fish and raft in the watershed each year.

Excerpted from www.newstin.com.

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When hiring an annuities expert witness, it may be a good idea to study the appropriate terminology. The Annuities Institute offers an extensive list of annuity terms including:

Annuity An annuity is a contract issued by a life insurance company that provides for tax deferral of investment income until withdrawn from the contract. An annuity can also be referred to as a contract or agreement by which one receives fixed payments on an investment for a lifetime or for a specified number of years.

Deferred Annuities (Tax Deferred)

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

The significant increase in load factors experienced over the last 10 years have given rise to considerable overcrowding, which for some individuals causes aggression, and deep frustration, and a propensity toward air rage. Most airlines have cut back on amenities like meals, boarding passes, and even leg room, so people who normally never cause a problem may feel compelled to lash out in frustration. As I fly as a coach passenger in the B-757 I feel like I am in a cattle car, wedged in the middle seat between two larger than normal size individuals, unable to move. When the person in the seat in front of me slams back their seat to recline, I am jammed in the gut by my computer. Standing in line with only three blue-rooms, unable to pass in the aisle when the food carts are in use is enough to cause frustration too most passengers. As the airlines try and fill all seats, the crowding conditions will continue and only exacerbate the already unacceptable situation.

The airlines deport thousands of illegal immigrants each year. Many are a high risk because they have been indicated for criminal acts and not escorted by armed INS agents. These individuals are being sent back against their will and none to happy about it. On a flight from Los Angeles to El Salvador two-dozen criminal immigrants were on board, just out of jail. Several stole liquor from the service cart and became drunk; a 12-year-old girl was inappropriately touched by one of the men. Additionally, some of these deportees have contagious diseases that are common to their areas and can affect other passengers.

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In Acoustic Signal Analysis For Forensic Applications, acoustics expert witnesses Durand Begault and Christopher Peltier write:

Acoustical analysis of audio signals is important in many legal contexts for determining the authenticity, originality, and continuity of recorded media; determining the circumstances of events in question that may have been recorded; for determining the audibility of signals; and for identification or elimination of talkers as a match to an unknown exemplar.

Recorded media are analyzed in forensic applications using both familiar techniques (waveform and spectral analyses) and more novel methods (e.g., ferro fluid development of media; specialized tape heads with nonstandard reproduction characteristics; crystal microscopy; detection and matching to power grid frequencies). Audibility analyses frequently require careful reconstructive field measurements and criteria in excess of normally accepted standards. Voice identification-elimination protocols must account for examiner bias and exemplar quality and can be described using a receiver operator curve (ROC) model.

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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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