by

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

· The parties have non-lawsuit reasons to settle. There may be non-lawsuit related reasons to settle. The existence of the lawsuit or a “bad” result may trigger losses in business relationships or a negative impact on a business marketing plan. The parties may also have an ongoing business relationship which would be costly to terminate. There are lots of business and personal reasons to settle, and if these are present they will motivate the parties to seek a negotiated result.

· While the liability, damages or collection issues remain, there is no clear barrier to recovery and payment of any judgment by the plaintiff. A lawsuit is a three legged stool: liability, damages and collection. All three have to be present in order for the case to have value from the plaintiff’s perspective. If any of these three legs are missing, the plaintiff has problems and needs to assess what course is the best way to move forward. Indeed, a modest settlement may be in order in such a case. But if there is no clear barrier to the plaintiff and the stool has some strength in all three legs, then the parties should be talking seriously about resolving the lawsuit. There may be a disagreement over the numbers, but that is why mediation is attractive at a timely point in the litigation process – to save the time and expense of trial, and eliminate the risk of a disappointing result.

by

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

Continue reading

by

Roger A. Lenneberg of Constructive Solutions, LLC can tell you that the best experts know more than just their field-they know how to be a witness. His seminar Law, Evidence & Testimony For Building Forensics Experts – What to Say, When to Say It, and How to Say It is designed to provide experts with the knowledge and skills necessary to prepare and deliver effective, convincing testimony. Presenters include:

Mr. Lenneberg, with 25 years experience as a trial lawyer and mediator in the construction industry. He is a frequent lecturer on construction law and mediation. He also offers seminars for contractors on risk and project management. Roger is the past Chairman of the Construction Section for the Oregon State Bar and is admitted to practice in Oregon and Washington.

Laura Dominic, Tsongas Litigation Consulting, Inc., with 12 years of experience as a jury consultant. She has worked with hundreds of witnesses to improve confidence and credibility. She has given many seminars and participated in witness training workshops for all types of lay and expert witnesses. Her services also include strategic case presentation, creating persuasive demonstrative exhibits to support witness testimony, jury selection, and pre-trial jury research.

Continue reading

by

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

The attorney/expert relationship is a tricky business in that experts are employed on behalf of one litigant–but are we members of the litigation “team?” One gratifying experience was working with a local attorney on a non-compete challenge to a proposed new business. Over several months, counsel and I separately compiled evidence. We met periodically to sift and consolidate our documentation. We analyzed possible opposition arguments. To prepare me for trial, counsel simply posed questions he might ask in direct, to hear how I would respond.

Unquestionably, being in the same city facilitated communication. Although counsel never attempted to influence my perspective, we worked first in parallel, then in convergence, and our interaction felt very much like a collaboration. Strictly speaking, it was not; although experts may become personally invested in cases, attorneys should work with us not as “team members,” but as independent, unbiased contract consultants.

Continue reading

by

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

The Texas appellate courts have a deep interest in experts. Since 1995, few topics have consistently generated as many opinions from the Texas appellate courts as has the topic of expert testimony. The Texas legislature has also taken an interest in experts. The Legislature recently tightened the longstanding requirement in medical malpractice cases that plaintiffs provide an expert report to support their claims. The Legislature has also started requiring expert reports in other types of lawsuits.

The starting point for any discussion of experts is Rule 702. The U.S. Supreme Court inaugurated the current approach to Rule 702 in its landmark 1993 decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Texas Supreme Court adopted Daubert less than two years later in 1995. E.I. Dupont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Following Daubert and Robinson, a body of case law developed in Texas setting out (1) the substantive standards for evaluating the admissibility of expert testimony and (2) the procedures for preserving error when challenging experts. Soon after Robinson, however, the Texas Supreme Court applied the standards for the admissibility of experts at trial to appellate “no evidence” challenges to final judgments. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711-14 (Tex. 1997).

Continue reading

by

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:

· There has been cooperation among the parties and their counsel during the litigation process. This is key. No doubt a case has a greater potential for settlement when the parties are “firm but fair” with one another. They cooperate without compromising their clients’ rights or position. They exchange what they know is discoverable and they diplomatically but firmly protect what is not. They prepare their client for participation in the litigation process. For example, I try not to intervene at my client’s deposition. He or she is prepared to tell the story, and tell it truthfully. I don’t need to make inappropriate speaking objections or interfere with my opponent’s questioning unless counsel is violating the rules, being rude, harassing my client, or asking questions about irrelevant or privileged matters. Then, rather than arguing on the record and creating useless transcripts, I state my position and deal with this bad behavior appropriately as the rules permit. But, if we are conducting the case within and in accordance with the rules, the prospective of a cooperative discussion about resolution is highly likely.

Continue reading

by

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

Continue reading

by

Tobacco control expert witness Dr. Michael Siegel has served as an expert witness in several major tobacco litigation cases. The associate chairman and a professor in the Department of Community Health Sciences at Boston University writes on the electronic cigarette issue:

Connecticut Attorney General Richard Blumenthal recently announced plans to seek a ban on the sale of electronic cigarettes in the state. This ill-advised decision follows a federal Food and Drug Administration report that put a scare into electronic cigarette users across the country, telling them that these battery-powered devices – which deliver nicotine without burning tobacco like conventional cigarettes – are dangerous because they contain carcinogens…

However, the FDA failed to mention in its press conference that the levels of tobacco-specific nitrosamines (the carcinogens) detected in electronic cigarettes were extremely low, below the level allowed in nicotine replacement products, such as nicotine patches, inhalers and gum. The agency is not threatening to take nicotine patches or gum off the market, although they too contain detectable levels of carcinogens…

Continue reading

by

In the recent case of Freed v. Geisinger Medical Center, the Pennsylvania Supreme Court held that a nurse was qualified to testify as a medical malpractice expert witness. The ruling overturned a prior decision by the Court of Common Pleas, which had disallowed the testimony, stating that a nurse is not qualified to give a medical diagnosis. In this medical malpractice case, allegations of substandard care were leveled against the nursing staff at a rehabilitation hospital where the plaintiff, Rodger Freed, was being given rehabilitative treatment for a spinal cord injury that left him a paraplegic.

The state Supreme Court stated that to qualify as an expert witness in a given field, a person needs only to “possess greater expertise than is within the ordinary range of training, knowledge, intelligence, or experience.” This ruling means that in cases where nursing care standards are breached, and that breach causes an injury, a nurse can testify to the causes of that injury.

Excerpted from 24-7pressrelease.com.

by

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

Timing and Duration

Too frequently, attorneys seek expert consultation after substantially completing discovery–almost as an afterthought, as though attorney or client decide that a credible objective opinion might add weight to their arguments. Invariably, this results in the urgent need call: “We’ll overnight the discovery, but we need your feedback by next Friday latest.” It’s not unusual for the expert to accept the challenge, only to hear nothing more for months.

Continue reading