Contents:
When expert witnesses testify that they charge so much per hour, i.e. $1,000 for
in-court time as a replacement for lost office income, they must be aware of a standard
line of cross-examination this frequently results in.
Q. Do you make $1,000 an hour in your office?
Q. Do you take two weeks vacation?
Q. Do you work five days a week, 40 hours a week?
Q. Are you testifying here today under oath that you make $2,000,000 a year?
Q. So your $1,000 an hour for your testimony is more than just "compensation
for your lost time out of the office", isn't that correct?
Note: Expert witness bias and pecuniary interest are fair subjects for cross-examination.
For additional information see the case of Clark v. Doe, 695 N.E.2d 276 (Ohio App.
1 Dist. 1977).
How did an HIV positive, intoxicated pedestrian hit while crossing in the middle of a street end up with a jury verdict of $15.2 million? Attorney Nicholas Papain of Sullivan and Lipakis explains:
The Plaintiff was crossing Bedford Avenue from the west side to the east side in the
middle of the block when he was struck by a northbound New York City police car which was
on a non-emergency assignment. Bedford Avenue was a one-way street with five lanes
consisting of three travel lanes and one parking lane on each side.
Plaintiff sustained a severe closed head injury with subarachnoid and intracranial
bleeding and contusions of the brain rendering plaintiff comatose for a period of time
after the occurrence. He was confined to Kings County Hospital for approximately five
weeks and then transferred to a Connecticut rehabilitation center where he remained for
approximately 1 1/2 years. He was then transferred to a Massachusetts rehabilitation
center where he remained for almost three years. He was then transferred to a Queens
County health care facility where he has been for the last nine months. Discharge to home
is conditioned upon his having 24-hour supervision. Due to his brain injury, plaintiff had
no recall of the accident or of the facts and circumstances surrounding it. Defendant
Murphy contended that he was travelling in the left travel lane when a moving van in front
of him braked causing him to steer the police car into the center lane (third lane) at
which point his partner yelled "Watch out" and he subsequently learned that the
right front corner of his car struck plaintiff who was crossing from defendant's left to
his right. Defendant never saw plaintiff as he was crossing or at the point of impact. Two
independent eyewitnesses testified that the police car was going between 45 and 55 miles
per hour and never slowed down and that the impact took place in the right hand travel
lane (fourth lane) as plaintiff was about to enter the parking lane (fifth lane). Both
witnesses testified that plaintiff was walking at all times with one testifying that he
was doing so briskly. Neither witness noted a moving van in front of the police car. The
speed limit was 30 miles per hour. Defendant's retired partner was not called as a
witness. Defendant called a toxicologist who testified that a blood test showed a blood
alcohol level of .13. On direct he opined that plaintiff's blood alcohol level at the time
of the occurrence was .14 which would have impaired plaintiff's motor reaction skills. On
cross-examination he admitted that the blood alcohol level at the time of the accident may
have been as low as .11. Neither eyewitness noted any conduct suggesting that plaintiff
was intoxicated. As a result of his brain injuries, plaintiff's neurologist testified that
he will require 24-hour supervision for the rest of his life.
Plaintiff called a neurologist, medical cost consultant, and economist. Counsel for the
City of New York called no expert witnesses on damages. Why? For additional information
contact Nicholas Papain, Esq. at 212-732-9000.
How did Knoxville, Tennessee attorney Farrell A. Levy utilize an engineer and accident
reconstruction expert to prove his case? Attorney Levy explains:
This unfortunate accident happened on April 6, 1991, when a Navistar diesel school bus was
exiting the interstate while carrying mostly adult passengers who were members of a local
church. The church group had been to see an inspirational religious speaker at a local
arena. The driver and several passengers testified that as the bus began to go down the
exit ramp, the driver applied the brakes, but the bus did not slow down. Instead, the bus
continued to travel at approximately 50 mph until it reached the bottom of the exit ramp.
At that point, the driver steered the bus to miss other traffic exiting the interstate.
The bus then went across four lanes of traffic and a medium ditch, down a hill, where it
then overturned. When the bus turned onto its left side, the passengers on the right side
of the bus were slung to the left side of the bus resulting in severe injuries to numerous
passengers.
This bus was equipped with a hand throttle which allowed the bus to be warmed up at higher
rpm's than idling speed. After the accident, witnesses and law enforcement officials who
entered the bus found the hand throttle completely engaged so that the bus would have been
operating at maximum power. At that point, investigators concluded that the sole cause of
the accident was that the driver was negligently using the hand throttle as a cruise
control. Unlike a cruise control, the hand throttle did not disengage when the brakes were
applied. The driver ardently denied that he had used the hand throttle as a cruise
control. He testified he may have accidently pulled out the hand throttle when he was
trying to pull the engine's kill switch. The kill switch was located immediately to the
side of the hand throttle. Initial analysis by local law enforcement investigators showed
that the brakes were adjusted properly and were performing properly.
Through discovery and our expert's analysis, we discovered that the bus should have slowed
quickly with the application of properly performing brakes even if the hand throttle was
fully engaged. This allegation was contrary to the testimony of all passengers on the bus
who testified that the bus did not slow any when the brakes were applied.
Roy Gottschalk did extensive testing of the braking systems of the subject bus. Navistar
declined to test the subject bus. In fact, proof showed that Navistar had never even field
tested an identical bus with the size and type of brakes that the bus involved in the
accident had. Over the years, Navistar had reduced the size of the brakes and changed the
type of linings. After testing the subject bus, Mr. Gottschalk was able to give the jury
several expert opinions that explained how the accident happened.
Mr. Gottschalk testified that the brake lining showed significant evidence of overheating
caused by a braking system that was not properly sized and balanced between front and rear
brakes. His tests on the subject bus showed that the bus failed to stop within normal
distances even when the brakes were cool. He concluded that on the night of the accident
the brakes' performance were decreased even more by being overheated from the bus being in
heavy high-speed traffic. As a result, he concluded that when the driver applied the
brakes, the brakes provided little braking power. Therefore, the driver quit braking after
a few second because the bus did not appear to be stopping and he needed to take other
emergency action to prevent the bus from striking traffic at the end of the exit ramp. Mr.
Gottschalk further testified that Navistar's developmental testing of the braking system
was inadequate and did not meet industry standards.
The proof showed that the hand throttle used in this bus was an old design and that
Navistar had newer designs available that automatically released when the brakes were
applied. Other available hand throttles were easier to disengage in an emergency situation
and could not be used to increase the engine to maximum rpm's.
The jury found Navistar was totally at fault and exonerated the driver. Interviews with
jury members revealed that the jury was very impressed with the time and effort our expert
spent testing the bus. The jury concluded that if the brakes had worked as intended the
bus would have stopped even if the driver had applied the hand throttle. They further felt
that a hand throttle like the one on the subject bus should not have been placed on a
school bus.
For additional information contact Farrell A. Levy, Esq. at 423-966-7665.
How did New Jersey attorney Phillip L. Faccenda obtain a $2,691,486 verdict for a
family whose home was flooded due to a negligently obstructed drainage system? The wife of
the plaintiff suffered a herniated lumbar disc when she slipped and fell in the water.
Attorney Faccenda explains how the use of multiple experts, some of whom had little
courtroom experience, helped to obtain the verdict:
There were several expert witnesses who were quite effective. Nicholas Mazzagatti, PhD, is
a Board Certified Psychologist who is treating both the husband and wife for
post-traumatic stress disorder. He was effective in his explanation as to how the
condition arose out of the problems experienced by my clients over an extended period of
time. He was very effective in utilizing the DSMIII psychological/psychiatric diagnostic
manual which lists several specific criteria and then proceeded to explain how the
individual plaintiffs met these criteria.
Use of the DSMIII was also effective in cross-examining the defense expert who was a
psychiatrist. We also utilized the services of a vocational/economic loss expert, Dr.
Robert Wolf, who presented the wage loss calculations and an explanation as to the
vocational limitations of the plaintiff husband. Dr. Gary Goldstein, who testified through
videotape deposition, effectively presented the nature and extent of the orthopedic injury
sustained by plaintiff wife. Plaintiffs' liability expert, Louis Pace, was an engineer
employed by the New Jersey Department of Transportation, Division of Highways/Bureau of
Drainage who presented a straightforward explanation of the engineering principles
involved and explained the causation and deviation. It is believed that his lack of
extensive courtroom experience was a strong, positive aspect of his credibility,
particularly when compared to the obviously seasoned defense expert engineer. The same
applies to plaintiffs' expert contractor, Albert Leming, who was obviously lacking in
courtroom experience but provided the benefit of his practical experience in the field.
For additional information contact Phillip L. Faccenda, Esq., at 609-428-3939.
How did Chicago attorney Donald Nolan prove a spinal fracture six months after a
construction worker fell 20 feet through a corrugated steel shed?
Attorney Nolan explains the crucial role of the expert witness:
Our expert witness helped to educate the jury with the vital information pertaining to
brain injuries and therefore, helped us prove "the invisible injury".
They brought to light that emergency rooms commonly fail to identify a brain injury if
there are no physical signs of head trauma. Because Mr. DeLaRosa did not suffer a blow to
the head and seemed to appear functionally "normal", he was not immediately
diagnosed with a traumatic brain injury. Furthermore, our Expert Witness likewise
explained the mechanism of Mr. DeLaRosa's injury--though he did not suffer a blow to his
head, he did sustain a brain injury through the force exerted through his spine. Our
experts proved that when he fell and landed on his feet and then buttocks, the non-direct
force through the spine and spinal cord caused his brain to be jarred against the bony
ridges lining the interior of the skull, causing nerves in the brain to become stretched
or deformed leading to organic changes that interfere with the brain's normal functioning.
Mr. DeLaRosa, as proved by our expert witnesses, sustained not only spinal compression
fractures, but also a mild traumatic/organic brain injury manifested by several headaches,
memory and concentration difficulties, nausea, personality changes, and mood swings.
Therefore, these sustained injuries led to a $5.6 million verdict in favor of Mr. DeLaRosa
for past and future medical expenses, loss of normal life, past and future pain and
suffering, and to his wife, Rosa DeLaRosa, loss of consortium.
For additional information contact Attorney Donald J. Nolan at 312-372-5400.
How did Florida Attorney Richard D. Schuler obtain a $6.3 million vedict for nursing home neglect leading to the drowning of a patient? His chief expert witness was registered nurse Yvonne Renshaw-Hulley. Attorney Schuler explains:
She is a registered nurse in Tampa, Florida. Ms. Renshaw-Hulley has extensive
experience in both setting up Chapter 400 nursing care centers in Florida as well as
analyzing cases of nursing home neglect. She is very familiar with the Federal guidelines
regarding nursing home care. In this case, she testified that the Boca Raton
Rehabilitation Center not only was negligent, but was grossly negligent and operated with
callous disregard for its patient, Charles Barnes, in the following respects:
(a) Being understaffed at the time of Mr. Barnes's disappearance;
(b) Failing to use a wander-guard bracelet on him although it had a history that he had
been a wanderer and he had brain damage from seven strokes;
(c) That there was a failure to provide adequate care plan for Mr. Barnes in view of his
wandering tendencies and brain damage;
(d) That the nursing home failed to maintain its premises in that the sliding glass door
in Mr. Barnes's room was broken and stuck in the open position;
(e) That there was a total lack of supervision in that Mr. Barnes walked out of the
nursing home, without being detected, and was gone for nearly three hours before he was
determined to be missing;
(f) There was no adequate security at the front door of the premises;
(g) That the nursing home failed to realize that Mr. Barnes was frequently leaving the
premises, unsupervised, and crossing a four lane highway and was thus, because of his
physical impairments, a danger to himself and others. That the failure to realize that Mr.
Barnes was frequently leaving the premises in the twenty months prior to the incident
where he left and was found drowned, constituted callous neglect for his welfare.
Furthermore, if the nursing home was aware of his leaving the premises and failed to chart
it, this also represented gross neglect since its major obligation was to know where their
patient was as he was placed there for supervision and for a structured environment.
Attorney Schuler explains that Ms. Renshaw-Hulley was instrumental in proving liability
and obtaining a verdict of $1.85 million in compensatory damages and $4.5 million in
punitive damages. For additional information contact Attorney Richard D. Schuler at
561-689-8180
How much are the top forensic economists getting for their time and for testifying?
According to the Wall Street Journal, some forensic economists are billing anywhere
between $490 an hour and $800 an hour! Professor Robert E. Hall of Stanford is quoted as
saying, "It does what we call keeping the children in shoes."
MIT Professor Franklin M. Fisher is the chairman of the economics consulting firm, Charles
River Associated, Inc. His 11 percent share of the public company has been valued at more
than $12 million.
For additional information see the June 5, 1998 issue of the Wall Street Journal, pages B1
and B11, "A Lucrative Sideline Grows for the Economists".
The Spring issue of Experts had an excellent article entitled "18 Ways to Increase
Your Business". The 18 methods suggested are:
1) Advertise your services and credentials in legal periodicals;
2) Contact law firms in your area;
3) List your business in expert witness databases;
4) Become listed with expert referral services;
5) Start a newsletter;
6) Teach an MCLE seminar;
7) Publish news releases about your MCLE course;
8) Hire an intern;
9) Write columns and articles;
10) Try direct mail;
11) Coordinate all company literature;
12) Produce a company brochure;
13) Network within your industry;
14) Question current clients;
15) Attend convention and trade shows;
16) Become listed in different directories;
17) Put a picture on your resume;
18) Establish local media contacts.
For a copy of the complete article contact Rosalie Hamilton at 800-456-5484, ext. 138.
Here are actual statements of drivers who filled out insurance forms and attempted to summarize the key points in as few words as possible:
The other car collided with mine without giving warning of its intention.
I thought my window was down, but I found it was up when I put my head through it.
I collided with a stationary truck coming the other way.
A truck backed through my windshield into my wife's face.
The guy was all over the road. I had to swerve a number of times before hit him.
I pulled away from the side of the road, glanced at my mother-in-law and headed over the
embankment.
In an attempt to kill a fly I drove into a telephone pole.
I had been shopping for plants all day and was on my way home. As I reached an
intersection a hedge sprang up, obscuring my vision and I did not see the other car.
I had been driving for 40 years when I fell asleep at the wheel and had an accident.
I was on the way to the doctor with rear end trouble when my universal joint gave way
causing me to have an accident.
As I approached an intersection a sign suddenly appeared in a place where no stop sign had
ever appeared before. I was unable to stop in time to avoid the accident.
To avoid hitting the bumper of the car in front I struck a pedestrian.
My car was legally parked as it backed into another vehicle.
An invisible car came out of nowhere, struck my car and vanished.
I told the police that I was not injured, but on removing my hat found that I had a
fractured skull.
I was sure the old fellow would never make it to the other side of the road when I struck
him.
The pedestrian had no idea which way to run as I ran over him.
I saw a slow moving, sad faced old gentleman as he bounced off the roof of my car.
The indirect cause of the accident was a little guy in a small car with a big mouth.
I was thrown from my car as it left the road. I was later found in a ditch by some stray
cows.
Attorney Elliot W. Stone, President of Medquest, an expert witness and litigation
company, gives attorneys the following advice on how to deal with expert witnesses:
Like most people, experts prefer working with individuals who are professional in every
sense. Their full cooperation is essential to case success; you should treat them
accordingly.
I recommend meeting the expert in person at the earliest possible time. Present yourself
as an informed, high-quality advocate and you will increase the expert's cooperation and
the likelihood of a favorable opinion.
Evaluate the expert's appearance, envisioning a jury's immediate impressions. If
necessary, recommend appropriate attire for the courtroom. Overly casual or flashy
clothing will distract jurors from the actual testimony. For men, dark suits connote
credibility and light blue or pastel shirts are better accepted than stark white shirts.
For women, a string of pearls or a scarf will draw attention to the face, encouraging
jurors to look directly at her during testimony.
Read articles by the expert and express interest in his/her specialty. Return calls
promptly. Establish a lead time for scheduling, keeping in mind the expert's professional
commitments. Send copies of trial schedules and other developments to avoid surprises.
Clearly establish fees for trial, deposition, and consultation, as well as any
compensation for cancellation or rescheduling. I suggest prompt payments, including a
"good faith" retainer.
Finally, I urge you to communicate the ultimate results of a case, especially to experts
who testified. They really do care.
Medquest, "The Expert Review", Summer 1998. For additional information call
212-725-8000.
The thousands of unresolved silicone breast-implant cases may be decided not by juries or judges but by the panel of four court-appointed experts. The scientific panel has just released its results:
The main conclusion that can be drawn from existing studies is that women with silicone
breast implants do not display a silicone-induced systemic abnormality in the types or
functions of cells of the immune system.
The report is damaging to the outstanding cases. However, counsel for the plaintiffs are
looking forward to deposing the panel. The four panel members are Betty A. Diamond, a
microbiologist and immunologist at New York's Albert Einstein College of Medicine; Barbara
S. Hulka, a University of North Carolina epidemiologist; Nancy I. Kerkvliet, a
toxicologist from Oregon State University; and Peter Tugwell, chairman of medicine at the
University of Ottawa.
The use of this type of appointed panel of experts may be used as a model of resolving
difficult scientific issues in future high-profile litigation.
What are the top ten things you as an expert should be ready for on cross-examination?
Attorney Ken Halpern explains his techniques to attorneys:
General Cross-Examination Techniques
How you handle the cross-examination of an expert witness is case specific. While with
some lay witnesses cross-examination may not be necessary, it is almost always necessary
with expert witnesses. The cross-examination of an expert may include some, or all of the
following ten areas:
1. Credentials - Does the expert witness have the appropriate background to state a
credible opinion?
2. General Knowledge in the Field - Cross-examination can be particularly effective if a
witness is not familiar with the basic information of the field.
3. General Knowledge of the Case - You can devastate a witness if they are unfamiliar with
relevant facts of the case.
4. Facts Underlying the Opinion - If the expert's opinion is based on certain facts or
assumptions and you can attack the credibility of the facts, the opinion is necessarily
weakened.
5. Opinions - You can attack the expert's opinion directly.
6. Knowledge of the Literature - If properly prepared, you can attack the knowledge of the
expert using literature in the expert's field.
7. Use the Expert to Support Your Case - Use the expert to confirm facts important to your
case.
8. Use the Expert to Develop Damages - Get the expert to show how serious the injury is.
9. Credibility of the Witness - You can attack the credibility of the expert witness by
showing prior inconsistent statements, or in many other ways.
10. Bias - By way of literature, prior depositions, or by establishing the existence of an
ongoing relationship with the opposing counsel, etc., the expert witness can be shown to
be biased.
For additional information contact Kenneth W. Halpern, Esq., Kenneth Halpern &
Associates, 233 Needham Street, Newton, MA 02164, 617-244-2100.
Mark Weingarten, Esq., of Philadelphia, Pennsylvania, recommends that attorneys ask for
a discount when dealing with experts. His suggestions for holding down expert witness fees
are as follows:
There are certain experts who might be willing to defer payment until the case is entirely
resolved (although I have yet to actually meet such an expert). In the alternative,
perhaps an expert, given a face-to-face discussion with counsel, might be willing to work
at a rate representing a discount from his or her usual hourly fee. After all, part of our
daily professional activities is negotiation on behalf of our clients. There is no reason
to limit these negotiations to defense counsel and adjusters. Negotiations over fees can
be conducted with expert witnesses as well.
For additional information and the entire two-page article 20 PLW 1340 Practice Pointers,
call Mr. Hank Grezlak at 215-557-2486.
Supreme Court Justice Stephen G. Bryer has endorsed the movement among trial judges to
appoint neutral experts to help them sift through scientific evidence. Justice Bryer said
that he welcomed the American Association for the Advancement of Science's offer to set up
a pilot program to help federal judges find "neutral experts".
Ms. Deborah Runkle will run a five-year program that will select neutral experts by
contacting "scientific organizations, universities, computer databases, and tapping
into the `old boy network'".
Can an expert witness be employed as a salaried employee of an appraisal firm that has
executed a contingent fee agreement and then testify as an expert witness? No, according
to the Supreme Court of Colorado.
In the City & Cty. of Denver v. Bd. of Assessment, 947 P.2d 1373 (Colo. 1997)
case, an appraisal firm contracted with taxpayers and was to be paid a fee depending on
the firm's assigned appraiser obtaining an outcome favorable to the firm's taxpayer
client. The court rejected the contingent agreement and stated:
The 1996 version of section 12-61-712(1) made it unlawful for "any person" to
act as an "appraiser" or "expert witness" and receive a contingent
fee. The question before us under the explicit language of the statute is not whether the
evidence presented by the appraisers was or was not competent but, rather, whether these
appraisers were permitted to appear at all. We hold that this provision banned the
appraisers and the employer appraisal firms from appearing and acting in the capacity of
appraisers or expert witnesses before the BAA under contingent fee agreements.
Corporations act through agents. The appraisal firms should not have allowed their
employees to act as appraisers or experts under the contingent fee agreements. Likewise,
knowing of the contingent fee agreements before making their appearances, the employees
should not have proceeded to deliver their appraisals or expert opinions to the BAA.
Can a search firm that obtains expert witnesses on behalf of a litigant be compensated
on a contingency fee basis, i.e. 20 percent of the recovery to the firm and a flat rate to
the experts? The Supreme Court of Illinois recently answered the question with a
resounding NO!
The court found that contingent agreements induce witness finders to produce the
contracted for testimony through improper means, i.e. the finder has an incentive to
locate a person who will maximize the finder's recovery and not serve as a reliable
witness.
For additional information see First Nat'l Bank of Springfield v. Malpractice Research,
Inc., 688 N.E.2d 1179 (Ill. 1997).
Attorney Walter R. Lancaster, a litigator with the Chicago office of Kirkland and
Ellis, recommends the following when cross-examining expert witnesses:
Know your prey: Your goal should be to know the expert as well as she knows herself.
The only way to beat an expert is to be a better expert: To destroy an expert you must
know more than the expert knows.
Don't plan to ask, plan to attack. Your plan should be to destroy the expert in the
deposition.
Establish who the expert is early on. Right out of the box you will have to let the expert
know that you know as much or more about the expert's field than he does.
With experts it's better to cut their position into little pieces.
For additional insight on this subject, see the article entitled "Choosing Your
Weapons: The Art of Expert Cross-Examination", Journal of Litigation ABA, vol. 24
no. 1.
Attorney Rodney G. Romano of West Palm Beach, Florida, writes in the "Good Counsel" section of the June 1998 issue of Trial Magazine:
Cross-examine experts effectively
Do not expect to win the opposing expert over to your point of view. Hit the most
important points, then sit down. If, for example, the defense medical examiner testifies
that there is no objective proof of your client's injury, cover the points you know he or
she will concede to, and do not argue about the others.
Remember, the expert has been paid to help the defense and expects to get future business
based on his or her testimony.
Gauge the expert's appeal. If the expert is a hired gun who will say whatever he or she
gets paid to say and takes untenable positions, and you can show that to the jury, attack.
But if the expert comes across as honest and reasonable with opinions that harm your case,
point out the expert's lack of opportunity to know all the facts, any records the expert
has not reviewed, and any point that makes his or her opinion unreliable or incomplete.
For additional information contact Atty. Romano.
The AMA House of Delegates recently voted that doctors' expert witness testimony should
be the legal equivalent of "practicing medicine" and thus be restricted to only
the states in which the doctor is duly licensed. The proponents of this vote cited the
need to limit "junk science", "egregious medicolegal testimony", and
"inappropriate medical testimony". The result of this type of action can be
severe limitations on the ability of physicians to testify as an expert medical witness.
In a startling development, the 5th Circuit Court of Appeals
sitting in New Orleans found that a board certified pulmonary specialist should not be
permitted to testify on causation in a toxic gas spill case. The testimony of Dr. Danie
Jenkins was stricken as it was found to be speculative and based on clinical observations
rather than on peer-reviewed scientific studies.
Dr. Jenkins based his opinion on causation on the following:
(1) the toluene manufacturer's material safety data sheet, or MSDS, warned that
exposure to fumes from toluene could cause lung injuries; (2) Moore had an onset of
symptoms shortly after his exposure to toluene; (3) an article in a medical journal that
linked RADS to toluene exposure that was also cited by Alvarez; (4) Jenkins's training and
experience; and (5) his examination and his test results.
For additional information see the case of Moureo v. Ashland Chemical Corp., 151
F.3d 269 (5th Cir. 1998).
The Daubert seminars which have been attended by over 300 judges nationwide have come
under attack. It was recently reported that the project was funded almost exclusively with
a $300,000 grant from the civil justice reform group. This is a defense-oriented corporate
counsel lobbying group. Harvard law professor Charles Nesson, who heads up the project,
said, "It's a total screwup on my part."
For additional information see the National Law Journal, March 23, 1998, p.10, "The
Two Sad Stories of Professor Charles Nesson."
Who do attorneys call when they are checking the likelihood that a document was created
on a computer system? They call a software forensic expert. Attorneys are now routinely
making discovery requests for copies of electronic mail and backup tapes. These experts
are billing out at $2,000 per day or more. The forensic technologists bring order to the
mass of information filed on a computer referred to in the trade as the "defecating
elephant syndrome".
How did Philadelphia attorney Peter M. Patton utilize the testimony of a mechanical
engineer to obtain a $560,000 verdict for a 67-year-old man who suffered a severe
laceration to his arm? Attorney Patton explains:
The turnstile was used to rotate a 20,000-pound coil of steel after a coil had been
removed from the exit end of a coil slitting line. A hydraulic motor powered the three-arm
turnstile.
Plaintiff's expert, Dr. Richard Harkness, demonstrated to the jury that as sold, the
three-arm turnstile was in an unsafe condition. One liability theme which he conveyed was
that the turnstile, which had a hydraulic motor, should also have had a hydraulic lock.
The lock's purpose was to keep an object moved by hydraulic power in position.
Using design diagrams of Production Machinery, Dr. Harkness was able to demonstrate that
hydraulic lock circuits were provided on other elements of the coil slitting line. He made
the point that just as those other hydraulic elements had a hydraulic lock so, similarly,
should the hydraulic-motor-powered turnstile.
Dr. Harkness also showed the jury that the turnstile could have been provided with a
hydraulic brake, similar to a drum brake used on the rear wheels of automobiles. He showed
a design diagram of such a brake, and explained that it could have been integrated into
the design of the subject turnstile.
Dr. Harkness contrasted these devices with the restraining device found on the turnstile
as sold. That device was an index pin, which was a spring-operated pin that slipped into
an indent in the turnstile's base at three points, separated by 120 degrees, in the
turnstile's rotation path. Testimony showed that the spring-operated index pin did not
brake or hold the turnstile in place. As a result, the turnstile had a tendency to drift,
as it did in the incident in which Mr. Best was injured. In other words, if the
spring-operated pin for some reason did not hold the turnstile at the index point, then
the turnstile, weighed down by a 20,000-pound coil, could drift some 119 degrees, or
one-third of a circle. In some cases, the turnstile could even drive past the next index
point.
For additional information contact Peter M. Patton, Esq. at (215) 665-1600
Professor Ralph L. Barnett of the Illinois Institute of Technology has written an
important eight-page article entitled "Design Defect: Doctrine of Alternative
Design" which critiques the American Law Institute's Doctrine of Alternative Design
and its restatement of the law: third; torts: products liability.
Here is a small taste of the article:
The alternative design doctrine for defective product design is defined by both
subparagraph 2(b) of the Restatement and about 150 pages of commentary. This may be
distilled into the following approximate statement of analysis theory:
A product is defective in design if a safer reasonable alternative design could have been
adopted at the time of sale where reasonableness is judged by a broad based safety-utility
balancing analysis.
In essence, the alternative design doctrine states that my dog is prettier than your dog;
therefore, your dog is ugly. The doctrine does not accommodate the notion that both can be
pretty. All comparisons are made using advanced salesmanship techniques that bear no
relationship to the protocols of science or technology; it's called "junk
science".
For a copy of the full article, volume 13 number 4, call Tridoyne at 847-677-4730.
When will an expert be disqualified for a prior relationship with a party? The
courts use a two-prong approach. First, was it objectively reasonable for the fist
party who retained the expert to believe that a confidential relationship existed?
Second, did that party disclose any information to the expert? An expert should be
disqualified of both inquiries are answered in the affirmative. Disqualification ,
however, is inappropriate id either question is answered in the negative. Therefore,
even if the party who first retained the expert reasonably assumed the existence of a
confidential relationship, disqualification is not warranted where no privileged or
confidential information was passed.
Can an expert witness/consulting firm meet with one side in a $186 million case three
times and eventually go to work for the opposing side? Yes, if the party who eventually
retains the expert can prove that no confidential information was or will be disclosed.
This was the situation in the recent case of Western Digital Corp. v. Superior Court, 71
Cal.Rptr.2d 179 (Cal.App. 4 Dist. 1998).
The deciding factor in these cases will normally be the adequacy of the screening wall. In
the Digital case, the following affidavit was found to be sufficient:
The declaration of each member of the Carter team contains the following statement:
"I have never spoken to anyone about or been told about, directly or indirectly,
anything at all having to do with what was discussed at a meeting or meetings between Rock
Hankin and Wally Jones ... and [Amstrad's counsel] ... I have been informed about the
importance of my not discussing our efforts for Irell & Manella or Western Digital
with Mr. Hankin or Mr. Jones or anyone else that I know or believe spoke to [Amstrad's
counsel] about the dispute between Amstrad and Western Digital ... I have not had any such
conversations or communications with any such persons and will not do so in the future.
Conclusion: If you are involved in a "beauty contest" to determine if you will
be retained, keep confidential information and the access to it to a minimum.
Why did Tim Peterson die? On January 27, 1995, he was operating a model HL2500A Gehl Skidloader, was found with his head between the right lift arm of the subject skidloader and the body of the skidloader. He was crushed to death by the arm of the skidloader. Accident reconstruction suggests that he was attempting to change buckets while standing inside the skidloader, leaned forward under the arm to pull the attachment pin when his body inadvertently struck the hydraulic handle directly in front of him causing the bucket to lower and the arm to crush him.
Minneapolis attorney, Stanley E. Karon, describes how he utilized engineer and expert
Lee Sapetta to obtain a $1,000,000 settlement:
The expert witness that made the case for me was Dr. Lee Sapetta, SAPETTA ENGINEERING,
8345 Fairchild, Moundsview, MN 55112. Dr. Sapetta was the first to identify the defect in
design for me. He was able to demonstrate that the hydraulic system would not lock as it
was designed and when one got off the seat the bucket would fall quite rapidly. This was
contrary to the design specifications.
Dr. Sapetta performed subsequent examinations which confirmed that improper maintenance of
the linkage of the subject skidloader was part of the cause of the bucket fall. For
additional information call Stanley E. Karon, Esq., at 612-349-2880 or (fax) 612-349-2884.
An expert witness with a PhD in organic chemistry has been testifying for nine years as a forensic toxicologist in criminal cases, including murder cases. What makes this case unusual is that in fact the expert had no PhD and was just a laboratory technician and is currently under investigation for perjury.
For additional information on this and other "false credential cases" see the
Winter 1997 issue of Scientific Sleuthing or fax 202-994-9446.
The 246-page handbook from the June 18 and 19, 1998 Seventh Annual Expert Witness and
Litigation Seminar is available from SEAK, Inc. The topics covered in the handbook are:
- A view from the bench: Expert witness testimony
- Persuasive courtroom graphics and multimedia
- Impeachment of expert witnesses: What the expert can do to protect himself/herself
- Ethics of expert witnessing: Some issues and ideas
- The law relating to scientific evidence: The gatekeeper's tools
- Marketing roundtable
- Presenting science in the courtroom: Use and abuse of forensic experts
- Use of OSHA policy and standards and national standards in civil litigation
- Cross examination of expert witnesses
- Collection and control of trace evidence
- Crime scene profiling in premises security litigation
- Use and abuse of expert witness testimony in high stakes litigation
- Expert witness bloopers: Courtroom demonstrations by expert witnesses
- Maximum damages through the use of expert witnesses: Help us help you
- Trick questions and trial tactics
- Junk science in the courtroom: Where is the beef?
- The dynamics and mechanics of stairway slip and fall accidents
- What experts and attorneys need to know about working with juries
- Judge and juror perceptions of expert witnesses: An empirical study
- Daubert, G.E. v. Joiner and late breaking developments
- Communication with counsel
- How to conduct yourself at deposition and trial
- Toxicology: Exposure, causation and expert witness testimony
The price of the handbook is $55. To order call SEAK, Inc. at 508-548-7023.
How did Miami attorney Allan A. Joseph win a resounding victory in a legal malpractice
case? The key was the presentation of expert witness testimony. Attorney Joseph explains:
Statement of the Facts: Mr. Saber represented Mr. Stasch in connection with a foreclosure
proceeding. The lender successfully moved for summary judgment, and the property was sold
at a judicial auction. Thereafter, the lender moved for a deficiency judgment against Mr.
Stasch, which was ultimately heard on April 24, 1994. Mr. Saber appeared at this
deficiency hearing on behalf of Mr. Stasch, but presented no testimony. An Order of Final
Deficiency was entered against Mr. Stasch. Mr. Stasch thereafter filed this action for
legal malpractice alleging as grounds Mr. Saber's failure to prepare for the deficiency
hearing or to present expert testimony.
Use of Expert at Trial: At trial, we presented our expert, Ira C. Hatch of Vero Beach,
Florida. Mr. Hatch has litigated hundreds of deficiency proceedings and represented
thousands of real estate transactions and disputes. Mr. Hatch educated the jury on the
reasonable standard of care for a lawyer in South Florida litigating a deficiency hearing.
Mr. Hatch explained what must be proved to defend against a deficiency action, how it must
be proved, and what type of "competent" evidence must be adduced.
Moreover, Mr. Hatch explained the standard of care to prepare for a deficiency hearing.
Specifically, Mr. Hatch explained the different tools of discovery available to the lawyer
to learn what the moving party will seek to establish at trial. Significantly, Mr. Hatch
explained what must be done to retain an expert (appraiser), and to use the expert
(appraiser) at trial, both in terms of discrediting the moving party's case-in-chief as
well as presenting evidence in support of the defense. Finally, Mr. Hatch educated the
jury on the importance of trial preparation, including deposing, or at the very least,
interviewing, the moving party's expert.
Mr. Hatch's testimony helped the jury understand why Mr. Saber's representation fell below
the reasonable standard of care by failing to retain an expert and prepare for trial. His
testimony was a key, if not the key, to our success at trial. Indeed, recognizing the
weight which the jury would place on Mr. Hatch's testimony, we chose to offer Mr. Hatch as
our first witness. The results--the jury awarded us every penny we requested.
For additional information contact Attorney Allan A. Joseph at 305-374-5030.
Expert Witness Practices
All expert witnesses and trial attorneys should obtain and study the "recommended
practices for design professionals and scientists engaged as experts for the technical
review of others' work and providing testimony in public forums". A brief summary of
the recommended practices by the Interprofessional Council on Environmental Decision are
as follows:
1. Experts should serve the public interest.
2. Experts should conduct themselves in a professional manner.
3. Experts should serve only when qualified.
4. Experts should not be influenced by conflicts of interest.
5. Experts should actively seek information about the issue at hand and limit reliance on
assumptions.
6. Experts should not use requests for additional information in order to delay
proceedings.
7. Experts should discuss the standard of care employed by other experts only with
knowledge of the standard of care that applies.
8. Experts should insist upon conducting the research they need to render informed
opinions.
9. Experts should address other experts' opinions about the issues under consideration.
10. Experts should eliminate sensations, exaggerated, or disparaging statements from their
opinions.
11. Experts should be compensated only for their service.
12. Experts should use graphic representations only to clarify an issue.
13. Experts should supply information to the news media only when authorized to do so.
The new ICED document is available at a cost of $5. It may be ordered from ICED, c/o ASFE:
Professional Firms Practicing in the Geosciences, 8811 Colesville Road, Suite G106, Silver
Spring, MD 20910; tel. 301-565-2733; fax 301-589-2017; or e-mail info@asfe.org.
The Judicial Conference Advisory Committee on Evidence Rules has proposed dramatic
changes to Rules 701, 702, and 703 dealing with expert witness testimony. These are a
direct response to Daubert and its ambiguities.
These proposed rules are as follows:
Rule 701
If the witness is not testifying as an expert, the witness' testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness, and (b) helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue, and (c) not based on
scientific, technical or other specialized knowledge.
Rule 702
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise, provided that (1) the testimony is sufficiently based upon
reliable facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts
of the case.
Rule 703
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the hearing.
If of a type reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible in evidence in
order for the opinion or inference to be admitted. If the facts or data are otherwise
inadmissible, they shall not be disclosed to the jury by the proponent of the opinion or
inference unless their probative value substantially outweighs their prejudicial effect.
A decision on the changes is expected in early 1999.
The ASFE recently published a case history which is instructive for expert witnesses
dealing with guidelines and standards. The case involved the evaluation of the design of
an existing rockery as part of a forensic engineering engagement.
The ASFE comments are instructive:
I thought I understood the issue well and could easily explain the differences between
guidelines, standards, and so on. When you are serving as an expert, however, you are
"playing" in attorneys' field of expertise, and must respond to the questions
they ask. The multiple definitions of standards, including those commonly understood, can
be made even more confusing than they already are, and that's exactly what happened during
the deposition. The other side has it easy. All they have to say is, "This is the
standard. It should have been followed. It wasn't, and that caused problems. I was
damaged. Pay me." A judge or jury can grasp that quickly. The defendant then has to
explain that some standards are not standards, and that standard methods sometimes are
standard and sometimes not, and so on. A lay trier of fact can become totally confused,
especially when a defendant engineer, contractor, or owner has to admit that following a
standard may not compromise quality and could yield a workman-like result. Your best
defense is staying out of litigation, which means that client education is a must. In this
latter respect, note that I subsequently spoke with the contractors group that put out the
rockery standard. They immediately recognized the problem and the liability they could be
creating for their own members. They will keep the document, but they will retitle it, by
removing the word "standard".
How did San Diego attorney James R. Lance prove that a helicopter lost a main rotor
blade and crashed when the helicopter was never recovered? He used the testimony of the
plaintiff, passenger, and expert witness testimony to tie it all together.
Attorney Lance explains the crucial role the experts played:
The experts did not have the benefit of inspecting and analyzing the helicopter or any of
its components.
Our accident reconstruction expert, Kenneth Orloff, did an outstanding job of teaching the
jury the mechanics and dynamics of helicopter flight and explaining his opinion that the
crash was caused by the loss of the main rotor blade. Our metallurgist, Robert Waldron,
also did an outstanding job of explaining the corrosive effects of saltwater on the blade
retention system utilized by McDonnell Douglas.
The case was very difficult from a liability standpoint and required a tremendous team
effort. Clearly, the expert witnesses were an essential part of that effort. For
additional information contact James R. Lance at 619-231-8666.
How did Philadelphia attorney James E. Beasley obtain a $2,050,000 verdict for a
full-term infant who sustained a right brachial plexus palsy as a result of a negligent
delivery? Attorney Beasley explains:
Plaintiff's obstetrical expert, Marshall Klavan, MD, testified that the defendant
obstetrician's negligence included the failure to recognize multiple prenatal maternal
risk factors for shoulder dystocia; the failure to formulate a contingency plan to deal
with shoulder dystocia in a patient at increased risk for delivering a child with shoulder
dystocia; the failure to have anesthesia personnel available to provide adequate uterine
relaxation for delivery of a child with shoulder dystocia; the application of fundal
pressure during delivery; the application of the vacuum extractor on at least ten separate
occasions during delivery, as confirmed by the parent-plaintiffs and by the nursing notes
in the mother's hospital chart; and application of excessive traction to the fetal head
during delivery of the fetal shoulders.
Minor-plaintiff's treating neurologist, Samuel Tucker, MD, gave testimony regarding the
anatomy of the brachial plexus and the physiology of a brachial plexus injury, in general,
and the application of those principles to minor-plaintiff. He testified regarding the
present condition of the child's injuries, the future surgical and medical treatments
contemplated, and the long-term implications of brachial plexus palsy upon
minor-plaintiff's occupational, recreational, and social activities as he grows into
adulthood.
Plaintiff's vocational and economic experts, Donald Jennings, PhD, and David Hopkins, ASA,
estimated the future lost earning capacity associated with the functional deficits
supported by the testimony of minor-plaintiff's treating neurologist.
For additional information contact Attorney James E. Beasley at 215-592-1000.
Attorney Patrick A. Malone finds that expert witnesses are "too malleable in their
views, too prone to charm the jury, and they cost too much".
Attorney Malone, a partner in the D.C. law firm of Stein, Mitchell and Mezines concludes
his informative article on expert witness testimony by stating:
Behind these questions lies a long-festering tension that will remain unresolved for the
foreseeable future: We are suspicious of those who profit from swearing to tell the truth,
but we are afraid that without them in court that search for truth will be frustrated. So
we turn to them as civilizations once turned to their Delphic oracles: eager to worship
them, but ready to destroy any who fail to deliver the certainty we seek.
For additional information see the April 1998 issue of the Washington Lawyer, "Expert
Witnesses and the D.C. Court of Appeals", pages 36-39, or call 202-331-7700.
The U.S. Supreme Court has ruled that a former General Motors employee cannot be
stopped from testifying on behalf of plaintiffs. The expert, Ronald E. Elwell, worked for
GM for 30 years and had agreed previously as a part of an employment dispute not to help
plaintiffs without GM's consent.
Attorney Roman M. Silberfeld of the Los Angeles firm of Robbins, Kaplan,
Miller and Ciresi, writing for the National Law Journal, expressed his concern that with
peer review as the basis for acceptance, we could be faced with chains of experts vouching
for other experts. He stated:
With peer review as the basis for the acceptance of an expert witness, over time, we could
face chains of experts testifying to the merits of other experts. Uncontrolled, this
results in trials of trials, or multiple, expensive minitrials, and it is likely to happen
in cases in which groups are sharply and honestly divided - as clinicians and medical
research scientists are over issues of chemical sensitivity.
I predict that it won't be long before we see "peer-group shopping" among
plaintiffs and defendants.
For additional information see the January 19, 1998, article "Scientific Law of
Intended Consequences", page A-22.