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

In civil actions involving alleged negligence on the part of a professional, such as a claim of medical malpractice, expert testimony serves to educate the court and jury on the relevant standard of care to which the professional must be held. Evidence law allows a wide berth for expert witnesses. A person sworn as an expert during a trial can testify based on personal experience and insight; on observation and examination of other evidence submitted at trial; or even on out-of-court observations and knowledge of statements made by others in the profession. Ordinarily, such testimony would be inadmissible as hearsay.

The legal profession has long recognized the limitations of expert testimony. The Supreme Court of the United States clarified the parameters needed to qualify expert witnesses testifying in federal courts in Daubert v. Merrell Dow Pharmaceuticals, a 1993 case in which each side produced expert testimony contradicting the other. Since that case and its progeny, federal judges have had discretion to exclude expert testimony that falls short of standards for reliability, scientific methodology, empirical testing and peer review.

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A Boston federal jury on Friday ordered Joel Tenenbaum to pay a total of $675,000-$22,500 per song-to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Excerpted from ArsTechnica.

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No one can pinpoint why Diane Schuler, 36, drove the wrong way on a familiar suburban New York parkway for nearly 2 miles before slamming head-on into another vehicle, killing herself and seven others. A medical examiner is digging deeper for answers after ruling that Schuler didn’t have a heart attack or stroke behind the wheel, and plans further testing to determine whether she had signs of an advanced diabetic condition.

After forensic pathologists ruled out a stroke, aneurysm or heart attack, Dr. Kunjlata Ashar, deputy medical examiner for Westchester County, said she would test Schuler’s eye fluid for evidence of heightened blood sugar levels, a possible sign of ketoacidosis. Noted pathology expert witness Dr. Michael Baden, however, doubted that possibility for Schuler. “People just don’t have a hypoglycemic crisis out of the blue,” said Baden.

Excerpted from TownHall.com.