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Debra Cassens Weiss reports Attorney Fee Expert Angers Judge, ABA Journal, 11/19/07.

A Philadelphia judge has chastised an expert witness for his testimony challenging attorney fees in two cases, including the class action case against Wal-Mart for unpaid overtime. In opinions issued last Wednesday, Judge Mark Bernstein criticized the defense witness, John Marquess of Legal Cost Control Inc., for testimony in the Wal-Mart case and in a successful class action suit against Kia Motors America Inc., the Legal Intelligencer reports. Bernstein awarded $45.7 million in attorney fees and $3.6 million in expenses in the Wal-Mart case.

In the Kia case, Bernstein said Marquess gave a biased review that was ‘intentionally factually restricted.’ Bernstein had awarded $4.125 million in fees in the suit, which had contended brakes on 1995 to 2001 Kia Sephias needed to be replaced about every 5,000 miles. The jury ordered Kia to pay $5.6 million, or $600 each, to the 9,402 class members. Bernstein had been ordered by a Pennsylvania superior court to write an opinion justifying the fees.

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Kansas State University Professor and expert witness Bob Shoop has been writing about teacher sex abuse cases since 1984. The child sex abuse expert witness says that “consistently most studies have indicated that between 5 and 10 percent of the students in a high-school setting have had an inappropriate relationship with an adult.” An AP investigation has found that more than 2,500 educators have been accused of misconduct and victims were 80% students.

Jeff Kuhner, communications director for the Thomas B. Fordham Foundation, said there are many reasons why most of the abuse goes unreported, but underneath is a bureaucracy looking out for its own. “You have public school unions who are very deeply entrenched, who are more interested in protecting the interests of their members and teachers than they are in serving students,” he said.

Roy Einreinhofer, spokesman for The National Association of State Directors of Teacher Education and Certification, operates a voluntary database to track offenders and says the list is long. “The clearinghouse contains around 37,000 names,” he said, “and that increases at a rate of about 2,500 or so a year.”

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on selecting the attorney to communicate with experts.

In large cases, designating a point person whose responsibilities include communicating with the experts avoids unnecessary work and ensures coordination of expert research and legal strategy. The point person should be quanitatively skilled and have some decision-making authority or direct access to a senior case manager.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on managing documents.

On smaller cases, sending all documentation to the experts and spending time reviewing the materials with them is often most efficient. On the other hand, ten boxes of documents accompanied by a two-sentence cover note – something we’ve experienced – is not an effective way to proceed. On the largest cases, direct access to the document management system is by far the best way to manage the process effectively.

In one recent case, the law firm we were working with installed its proprietary document management system and database program on our computers to provide us with electronic access to all documents. In real time, we could query the fully text-searchable database for documents or keywords. This saved considerable time and money (and trees) despite the initial investment. If such a system cannot be made available to the expert, try at least to provide documents in a searchable format on CDs.

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on managing the information flow in your case.

When massive amounts of documents and facts are involved, it is tempting to restrict the amount of information flowing to experts. However, because the expert is independent and must consider all relevant information, such an approach can backfire, leading to surprises in deposition or testimony and potential amendments to a report. Providing access to all documents and fact witnesses while assisting the expert in the selection of relevant documents is the safer way to proceed, and can be done efficiently. Costs can be minimized by relying on those working under the expert’s direct supervision (and at lower rates). Such staff can pre-screen client personnel for discussions with the expert, review documents, and develop factual summaries that consist of quoted excerpts and are devoid of opinion.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

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The Sun Times reports: An Ontario Municipal Board hearing into a proposed Wal-Mart in Port Elgin was suspended as lawyers and OMB officials went behind closed doors for most of the day Thursday. One of those witnesses was Laura Robinson, who was introduced as an violent crime expert witness speaking on violence against women. Robinson supports FOSS’s stand that any large development on the land in question will compromise the safety of recreational trail users. “It’s a story that needs to be told,” she said. “As an athlete I understand that you’re already taking a risk due to the inherent danger of sport . . . there is a responsibility to reduce other risks. Not knowing who is around the corner is a danger. Wal-Mart’s own expert witness called the trail curve an ambush site. That’s frightening.”

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An Expert Witness Defense Fund was established today by the Free Software Foundation and the Recording Industry vs The People blog (run by copyright attorney Ray Beckerman) to help defendants cover the costs of entertainment and media expert witnesses used to defend themselves against file-sharing lawsuits brought by the recording industry. “This could be a real catalyst in the file-sharing litigation,” Beckerman said. If you agree and want to contribute to the fund, the FSF has a page set up for contributions. If you’ve found yourself on the wrong end of a file-sharing lawsuit, you can e-mail Beckerman with the subject “Technical Expert Funding Request.”

Ars Techica reports that cases will have to meet certain criteria to benefit from the fund including the defendant’s willingness to see the case through to conclusion, the importance of the case to critical legal issues, the amount of money spent by the defendant and/or the attorney fighting the infringement claims, the need for assistance and technical expertise, and the competing needs of other cases.

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A San Francsico federal grand jury has indicted Barry Bonds on four counts of perjury and one count of obstruction alleging that he “knowingly and willfully” made material false statements regarding his use of performance-enhancing substances during his grand jury testimony in the into the Bay Area Laboratory Cooperative. Bonds had a grant of immunity during his 2003 testimony with one exception: If he committed perjury or made a false declaration, he could be charged.

Columbia University law professor John C. Coffee Jr., a white-collar crime specialist, said it will be hard to prove that Bonds knowingly made a false statement with the intent of misleading the grand jury. “You can imagine the defense putting on expert witnesses about how Bonds could have believed this was some of exotic” but legal product, Coffee said, reports LATimes.com.

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The West Virginia Supreme Court of Appeals has ruled that Ohio Circuit Judge Arthur Recht improperly excluded neurosurgery expert witness Peter Sheptak in a trial over a car crash. The decision means Sheptak can to testify for Lambert Jones II, whose Ford Probe rear ended a Lincoln driven by George Naum in 2003. Naum claims the collision caused a concussion, headaches, dizziness, confusion, and memory problems but the expert witness said “this was an extremely low level impact with no significant discernible damage to either vehicle. I find it highly unlikely that the patient suffered a concussion during the impact,” he wrote. “I also feel it highly unlikely that he struck his head on the roof as he reported to several physicians.”

Naum’s attorney had argued that Sheptak could not testify about any change in velocity that Naum experienced because Sheptak was not a biomechanics expert witness.

As reported in the WVRecord.com

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The West Virginia Supreme Court of Appeals recently held that although a medical expert witness does not use the medical tools alleged to have caused harm does not mean he or she may not testify to the standard of care needed while using them. The court found the fact that urology expert witness Dr. Robert Lewis “uses a different method to perform a urethral dilation procedure does not disqualify him from giving testimony on the standard of care to be employed when performing this type of procedure.” LegalNewsline.com also reports:

“What this case demonstrates is how this Court’s decision to abandon the locality rule in medical malpractice cases in favor of a standard of care more national in approach is often misemployed to prevent qualified physicians from offering testimony in cases brought under the (Medical Professional Liability) Act,” Justice Joseph Albright wrote.

“As we observed in Paintiff (v. City of Parkersburg, 1986), the need for employing a locality rule in medical malpractice cases was no longer present due to the omnipresence of medical information relative to the treatment of diseases and injuries.”