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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.

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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’s facts are wrong:

An expert’s opinion is unreliable if his or her facts are wrong. As the Supreme Court explained, if “the foundational data underlying the opinion is unreliable, … any opinion drawn from that data is likewise unreliable.” Havner, 953 S.W.2d at 714. One variant of this argument is when the expert makes unwarranted assumptions. For example, the Seventh Circuit affirmed the exclusion of a “lost profits” expert on the basis that his assumptions about market penetration were “optimistic.” Target Market Pub., Inc. v. ADVO, Inc., 136 F.3d 1139, 1144 (7th Cir. 1998). Target Market is significant because the expert’s assumptions were similar to the defendant’s own projections of potential profits in its marketing plans. Id. The Seventh Circuit held that experts still needed to prove the assumptions behind such projections. See Id. at 1145 (“The [marketing] plan sought to demonstrate what Select Auto’s profits might be given certain assumptions that had not yet, and might never, come to pass.”).

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Advertising expert witness Paul Wright, is a principal of SignValue. This SignValue survey includes bad news for print media:

1) Contrary to previously published survey results, 24.7% of all respondents here indicated that their 2009 media expenditures will remain flat to potentially increase approximately 10% over 2008.

2) As a result of economic slowdown, 40% of respondents shifted dollars into e-mail marketing from print.

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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:

Sometimes even the results of a survey pre-test can be valuable. Pre-testing or pilot testing a survey is a standard research practice that often improves the survey by eliminating confusing wording or awkward question sequences. In addition, pre-testing can provide a rough indication of the likely results of a full-scale study. While the information that comes from pre-testing is not as precise as the results of a full-scale survey, the data can have an important impact on the strategy of the parties.

• In a case alleging trade dress infringement, the parties were attempting to negotiate a settlement while a pre-test of a survey was being conducted on behalf of the plaintiff. When the plaintiff’s representative in the negotiation introduced that very day’s pre-test results into the discussion, the defendant accepted the settlement offered.

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