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Psychiatry expert witness Dr. James Missett took the stand Wednesday in the final day of testimony in Marshall Doud’s murder trial. Doud, 43, is accused of smothering his wife, Morgana, on Sept. 4, 2007, but has testified that he has no recollection of killing her. The couple’s three teenage children found their mother’s dead body on her bed a few hours after Doud left their Mentel Avenue home and drove into the Santa Cruz Mountains. He has testified that he lost about two hours of memory during the early morning hours, which was when Morgana, 42, died.

Dr. Missett, the only expert to testify during the seven-day trial, was called as a witness for the District Attorney’s Office to share his opinion on consciousness and memory lapses. Defense attorney Art Dudley asked Missett if there were levels of consciousness, and the doctor said consciousness is “graded” and that it’s possible to be awake and still unconscious. The doctor said outside factors, including stroke, a blow to the head or being under the influence of drugs or alcohol – could impair someone’s ability to recollect their actions. Doud was using a therapeutic dose of anti-depressants at the time of his wife’s death, but Missett said that amount of the drug should not affect memory retention.

Excerpted from MercuryNews.com.

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Elizabeth G. Rudolph, lawyer, nurse and legal nurse consultant, is the founder of Memphis-based Jurex Center for Legal Nurse Consulting. Rudolf writes on nurses as expert witnesses:

Expert witnesses for legal issues involving medical matters aren’t always doctors because nurses often have more firsthand knowledge about a disputed practice or protocol….”Over the last several years, nurses have been testifying either for or against nurses, and physicians testify either for or against physicians,” she said. “In the past, physicians had been able to testify for or against nurses, and in some jurisdictions they still do. But now judges have wanted nurses for and against nurses, and physicians for and against physicians.”

Once a nurse completes training from an experienced trial lawyer and acquires the required number of hours, he or she can apply for certification from the American Society of Legal Nurse Consultants. This organization does not offer a teaching program but does provide certification…

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

“I do not want legal research regarding theories, defenses, etc. I want my liability expert to provide opinions on the facts.” That rebuke came from an attorney who did not appreciate my suggestion that he might litigate his case under contract theory (breach of implied warranty) as well as tort theory. To someone relatively new to litigation support, this underscored a fundamental question: What exactly is the expert’s role?

After all, many “facts” are disputable. Proficient experts should perform thorough investigations, during which we may assemble a wide ranging body of relevant information – some of which may suggest alternative paths for pursuing a case. Competent litigation consultants can help attorneys win and triers of fact decide issues fairly. But some attorneys do not want comprehensive case analysis from their experts. Years after that reprimand, I still encounter ambiguity in attorney expectations. While experts should not presume to instruct attorneys on the law, consulting is what we do. Are we not to be proactive in providing all advice we feel qualified to offer? At the same time, to what extent can we involve ourselves while preserving our objectivity should a case go to trial? It is, in the words of Gilbert and Sullivan, “A seeming paradox!”

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In Daubert: Very Convoluted, Usually Confusing to Many, Nevertheless Elegant, Armand Rossetti writes:

Pretrial Daubert hearings are essentially motions in limine that ultimately decide whether an expert is qualified, and whether that expert: 1) has based an opinion on sufficient facts or data; 2) will be able to testify using “reliable principles and methods,” and; 3) has applied the principles and methods reliable to the particular facts of a given case.

The Daubert factors are based Rule 702 of the Federal Rules of Evidence, which is used to examine an expert’s testimony as a whole. In addition under Rule 703, experts may reasonably rely on documents and information that may be inadmissible during trial. It is also Rule 703 that forms the basis for inquiry, concerning the reliability of any data that supports expert testimony. Furthermore, Rule 703 relaxes the requirement that experts need to acquire personal knowledge about the matter to which they testify. Finally, Rule 703 has little to do with whether an expert’s testimony, as a whole, meets Daubert standards. That determination rests with Rule 702.

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In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes:

When a personal injury or wrongful death case involves agricultural or grounds maintenance equipment, it will usually be necessary to retain an agricultural engineering expert to assist with the case. In most such cases, the agricultural engineering expert should start with a review of relevant industry and government standards. Most of the standards in this field are industry consensus standards, not mandatory government standards. Applicable government standards are few, but important.

Compliance with applicable industry standards is not compulsory, but the failure of a machine to conform to applicable consensus safety standards gives a plaintiff attorney strong ammunition against the designer, manufacturer, dealer, and/or rental agency. Conformance with applicable consensus safety standards is usually not a complete defense, but certainly makes a defense attorney’s job easier.

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In Physicians giving expert testimony are regulated by law, professional associations, B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD write:

Both the legal and medical professions must contend with self-declared expert witnesses, who promote their availability to testify before courts in return for financial compensation. Reports of lucrative compensation for expert witnesses fueled concerns that some individuals were abusing the judicial process, and that the safeguards provided by Daubert and its offspring of legal cases were insufficient to protect defendants from overly zealous expert testimony that might mislead the court and jury, misstate the relevant standard of care, and impede justice.

Professional associations

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Petrochemical expert witness Douglas Buchan testified for the plaintiff in the U.S. District Court in Green Bay and describes how the lawsuit led to the State of Wisconsin changing the law to cover and protect the public with the installation of propane systems.

The Higdon family filed a complaint against Cedar Grove Resort, some construction companies, a utility and their insurance companies claiming that negligence caused propane explosions in Ellison Bay in 2006. The fire caused the death of Patrick and Margaret Higdon and injured twelve others. The family was awarded a settlement worth more than $21 million.

The case led to the State of Wisconsin changing the law in that State to cover and protect the public with the installation of propane systems in that state. This new regulation will save lives and increase the safety of propane gas pipeline installations and systems in the State of Wisconsin. All the propane gas pipelines that are currently installed and those being installed underground in public places are now required to be registered with the State’s One Call office. Suppliers and construction companies must follow new rules when dealing with propane and the law creates a communication system for underground gas lines.

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The Texas Alcoholic Beverage Commission acknowledges that numerous agency policies were violated during the June 28 inspection of the Rainbow Lounge, Fort Worth, TX, and that disciplinary actions are pending against the agents involved. “There were so many violations that one could readily assert that they had no business walking through the door,” said State Rep. Lon Burnam D-Fort Worth, who met with TABC’s executive director on Wednesday to discuss the report. The 32-page document, which was the result of an internal affair investigation by the TABC, outlines what happened during the controversial inspection at the gay bar, which led to six public intoxication arrests and left one bar patron, Chad Gibson, seriously injured.

A separate investigation and report will address the agents’ alleged use of force. Because that report will include statements by TABC employees, Fort Worth police officers, eye witnesses and police procedures expert witnesses, it will take longer to complete, agency officials said.

Excerpted from StarTelegram.com.

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In Survey Research to Support Litigation, survey research expert witness Dr. Larry Chiagouris writes:

Survey research is used to provide greater levels of understanding in a wide variety of disputes. Issues such as consumer confusion, misleading advertising claims, disparagement, copyright infringement and trademark disputes can be better assessed as a result of developing and executing survey research. The purpose of this monograph is to aid attorneys in understanding what research standards and guidelines might be relied upon in their use of survey research.

Attorneys will often refer to documents well established within the legal profession. Those documents include: Manual for Complex Litigation, Fourth or material found within subject matter guides such as McCarthy on Trademarks. While these documents provide discussion concerning a wide variety of issues, these are not the only documents that should be considered during the planning, execution or evaluation stages of survey research.

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In Positive Trend for Defendants in Product Liability, Nick Rees of PublicNuisanceWire.com interviews Jim Beck, of counsel at Dechert LLP in the mass torts and product liability group.

PNW: How has the use of expert witnesses evolved?

BECK: Daubert v. Merrrell Dow Pharmaceuticals, Inc. really brought a revolution in expert witnesses. It’s created a willingness of courts to act as gatekeepers and view expert witnesses critically. Basically, the other side can cross examine expert witnesses at trial. It used to be a hands-off attitude by the court, but now they have to evaluate the reliability of the testimony as well as several other factors. It doesn’t matter what standard that you apply, the simple act of applying that standard, given how poor a lot of these expert opinions are, has had a very beneficial effect.

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