Contents:
Attorney James Butler obtained a $36.9 million verdict in a Samurai rollover case. He
was aided in part by the minutes of Suzuki's PR firm meeting which stated:
It is imperative that we develop a crisis plan that will primarily deal with the
"roll" factor. Because of the narrow wheel base, similar to Jeep, the car is
bound to roll over.
IT IS IMPERATIVE THAT WHENEVER THE CAR IS PHOTOGRAPHED, THAT ALL FOUR WHEELS BE ON THE
GROUND!!!
When can a judge refuse to permit you to refresh your memory from a document while you
are on the witness stand? When the court believes that the witness is testifying
"directly from it" rather than using it with the legitimate intent of refreshing
his own independent recollection.
The judge may say something like, "I'm not going to have him read the document into
evidence." See Strickland Tower Maintenance v. AT&T Communications, 128
F.3d 1422 (10th Cir. 1997).
What factors do courts consider in determining if expert testimony is sufficiently reliable?
(1) Whether experts are "proposing to testify about matters growing
naturally and directly out of research they have conducted independent of the litigation,
or whether they have developed their opinions expressly for purposes of testifying." Daubert
v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).
Reliability and Daubert
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an
unfounded conclusion. See General Elec. Co. v. Joiner, 118 S.Ct. 512, 519
(1997) (noting that in some cases a trial court "may conclude that there is simply
too great an analytical gap between the data and the opinion proffered").
(3) Whether the expert has adequately accounted for obvious alternative explanations. See Clear
v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert
failed to consider other obvious causes for the plaintiff's condition). Compare Ambrosini
v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the possibility of some uneliminated
causes presents a question of weight, so long as the most obvious causes have been
considered and reasonably ruled out by the expert).
(4) Whether the expert "is being as careful as he would be in his regular
professional work outside his paid litigation consulting." Sheehan v. Daily Racing
Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See also Braun v. Lorillard Inc.,
84 F.3d 230, 234 (7th Cir. 1996) (Daubert requires the trial court to assure itself
that the expert "adheres to the same standards of intellectual rigor that are
demanded in his professional work.").
(5) Whether the field of expertise claimed by the expert is known to reach reliable
results. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)
(rejecting testimony based on "clinical ecology" as unfounded and unreliable).
Comments to the proposed amendments to the Federal Rules of Civil Procedure and Evidence
(pages 104 and 105).
Two important safety briefs were recently released by Triodyne, Inc. The first is on
"Interlocked Barrier Guards" and the second on "Foot Control
Activation".
For "Foot Control Activation" Safety Brief 9/98 and "Interlocked Barrier
Guards" Safety Bulletin 9/98, call 847-677-4730.
How does Denver attorney Malcolm E. Wheeler attack and shred expert witnesses? How can you as an expert be prepared for this kind of frontal attack?
The National Law Journal in its November 23, 1998 article entitled "He
Studies Hard and Shreds Their Experts" described some of his techniques:
... before he took the deposition of the plaintiff's expert on the design of seatbelt systems, he went through 40 to 50 transcripts of cases where he had testified and picked out all the stuff that would be useful. In another case he did not confront the witness, Billy Peterson, in the depositions. But in his cross-examination at trial, he attacked immediately. He made the questions increasingly technical, revealing his own knowledge of the Escort and putting Mr. Peterson further on the defensive. Mr. Wheeler pointed out the discrepancies between the expert's testimony in the depositions and at trial (he was now describing the belt retractors as automatic locking retractors, or ALRs) and asked when the witness "figured out that lap belt retractor in this car was not an emergency locking retractor but was an automatic locking retractor." "I don't recall when the very first time was, sir," Mr. Peterson replied.
Conclusion: As an expert you must be prepared for this kind of an attack when involved
in high profile cases.
Should an expert witness be permitted to testify that a sidewalk was in disrepair and
posed a safety hazard to pedestrians due to "slab displacement, severe spalling,
deterioration, and cracking"? No, according to a Delaware Court, as the standard of
care is not so specialized as to require expert testimony. The court stated:
It is for the jury to determine whether in light of their common experience in human
affairs the defendant failed to act as a reasonable person would have noted.
For additional information see Freiman v. Evans, Delaware Superior Court, New
Castle, Civil Action # 94C-02-231-JOH (8/19/97).
What are the most frequent causative agents for slip, trip and falls? The Triodyne
Safety Bulletin (June 1998) abstracted the cases reported in the Cook County, Illinois
Verdict Reporter. The results are as follows:
1997
Number Percentage
Trip hazard 23 15.33%
Floor
8 5.33%
Wet
Floor
13 8.67%
Elevator Floor
8 5.33%
Sidewalk:
Ice/Snow
15 10.00%
Holes/Grating
7 4.67%
Asphalt/Pavement:
Slippery
4 2.67%
Hole
7 4.67%
Ice/Grease
5 3.33%
Number Percentage
Platform
0
Ground
2 1.33%
Carpet/Mat
5 3.33%
Grass
0
Ramp
1 0.67%
Scaffolding
0
People Mover
1 0.67%
Industrial Site
1 0.67%
Chair/Toilet
1 0.67%
Steps/Stairs
15 10.00%
Ladder
8 5.33%
Other
26 17.33%
Total
150 100%
For additional information contact Triodyne at 847-677-4730.
All experts should obtain, read, and understand the G.E. v. Joiner case. The
U.S. Supreme Court has issued its decision in the much-awaited General Electric v.
Joiner case no. 96-188 (12/15/97). This case involved the plaintiff who developed
small-cell lung cancer and sued the manufacturer of the PCBs, derivative furans, and
dioxins.
The Supreme Court reversed and remanded the case and held:
1. Abuse of discretion - the standard ordinarily applicable to review of evidentiary
rulings - is the proper standard by which to review a district court's decision to admit
or exclude expert scientific evidence. Contrary to the Eleventh Circuit's suggestion, Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, did not somehow alter this general
rule in the context of a district court's decision to exclude scientific evidence. Daubert
did not address the appellate review standard for evidentiary rulings at all, but did
indicate that, while the Federal Rules of Evidence allow district courts to admit a
somewhat broader range of scientific testimony than did pre-existing law, they leave in
place the trial judge's "gatekeeper" role of screening such evidence to ensure
that it is not only relevant, but reliable. Id., at 589. A court of appeals applying
"abuse of discretion" review to such rulings may not categorically distinguish
between rulings allowing expert testimony and rulings which disallow it. Compare Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 172, with United States v. Abel, 469
U.S. 45, 54. This Court rejects Joiner's argument that because the granting of summary
judgment in this case was "outcome determinative", it should have been subjected
to a more searching standard of review. On a summary judgment motion, disputed issues of
fact are resolved against the moving party - here, petitioners. But the question of
admissibility of expert testimony is not such an issue of fact, and is reviewable under
the abuse of discretion standard. In applying an overly "stringent" standard,
the Eleventh Circuit failed to give the trial court the deference that is the hallmark of
abuse of discretion review. pp. 4-5.
2. A proper application of the correct standard of review indicates that the District
Court did not err in excluding the expert testimony at issue. The animal studies cited by
respondent's experts were so dissimilar to the facts presented here - i.e., the studies
involved infant mice that developed alveologenic adenomas after highly concentrated,
massive doses of PCBs were injected directly into their peritoneums or stomachs, whereas
Joiner was an adult human whose small-cell carcinomas allegedly resulted from exposure on
a much smaller scale - that it was not an abuse of discretion for the District Court to
have rejected the expert's reliance on those studies. Nor did the court abuse its
discretion in concluding that the four epidemiological studies on which Joiner relied were
not a sufficient basis for the experts' opinions, since the author of two of those studies
ultimately were unwilling to suggest a link between increases in lung cancer and PCB
exposure among the workers they examined, the third study involved exposure to a
particular type of mineral oil not necessarily relevant here, and the fourth involved
exposure to numerous potential carcinogens in addition to PCBs. Nothing in either Daubert
or the Federal Rules of Evidence requires a district court to admit opinion evidence which
is connected to existing data only by the ipse dixit of the expert. pp. 6-9.
An excerpt of the case is set forth below:
Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat
broader range of scientific testimony than would have been admissible under Frye, they
leave in place the "gatekeeper" role of the trial judge in screening such
evidence. A court of appeals applying "abuse of discretion" review to such
rulings may not categorically distinguish between rulings allowing expert testimony and
rulings which disallow it. Compare Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172
(1988) (applying abuse of discretion review to a lower court's decision to exclude
evidence) with United States v. Abel, supra at 54 (applying abuse of discretion review to
a lower court's decision to admit evidence). We likewise reject respondent's argument that
because the granting of summary judgment in this case was "outcome
determinative", it should have been subjected to a more searching standard of review.
On a motion for summary judgment, disputed issues of fact are resolved against the moving
party - here, petitioners. But the question of admissibility of expert testimony is not
such an issue of fact, and is reviewable under the abuse of discretion standard.
We hold that the Court of Appeals erred in its review of the exclusion of Joiner's
experts' testimony. In applying an overly "stringent" review to that ruling, it
failed to give the trial court the deference that is the hallmark of abuse of discretion
review. See, e.g., Koon v. United States, 518 U.S. (1996) (slip op., at 14-15). We believe
that a proper application of the correct standard of review here indicates that the
District Court did not abuse its discretion. Joiner's theory of liability was that his
exposure to PCBs and their derivatives "promoted" his development of small cell
lung cancer. In support of that theory, he proffered the deposition testimony of expert
witnesses. Dr. Arnold Schecter testified that he believed it "more likely than not
that Mr. Joiner's lung cancer was causally linked to cigarette smoking and PCB
exposure". App. at 107. Dr. Daniel Teitelbaum testified that Joiner's "lung
cancer was caused by or contributed to in a significant degree by the materials with which
he worked". Id. at 140.
Petitioners contend that the statements of Joiner's experts regarding causation were
nothing more than speculation. Petitioners criticized the testimony of the experts in that
it was "not supported by epidemiological studies ... [and was] based exclusively on
isolated studies of laboratory animals." Joiner responded by claiming that his
experts had identified "relevant animal studies which support their opinions".
He also directed the court's attention to four epidemiological studies on which his
experts had relied.
The District Court agreed with petitioners that the animal studies on which respondent's
experts relied did not support his contention that exposure to PCBs had contributed to his
cancer. The studies involved infant mice that had developed cancer after being exposed to
PCBs. The infant mice in the studies had massive doses of PCBs injected directly into
their peritoneums or stomachs. Joiner was an adult human being whose alleged exposure to
PCBs was far less than the exposure in the animal studies. The PCBs were injected into the
mice in a highly concentrated form. The fluid with which Joiner had come into contact
generally had a much smaller PCB concentration of between 0-500 parts per million. The
cancer that these mice developed was alveologenic adenomas; Joiner had developed
small-cell carcinomas. No study demonstrated that adult mice developed cancer after being
exposed to PCBs. One of the experts admitted that no study had demonstrated that PCBs lead
to cancer in any other species.
Respondent failed to reply to this criticism. Rather than explaining how and why the
experts could have extrapolated their opinions from these seemingly far-removed animal
studies, respondent chose "to proceed as if the only issue [was] whether animal
studies can ever be a proper foundation for an expert's opinion." Joiner, 864 F.Supp.
at 1324. Of course, whether animal studies can ever be a proper foundation for an expert's
opinion was not the issue. The issue was whether these experts' opinions were sufficiently
supported by the animal studies on which they purported to rely. The studies were so
dissimilar to the facts presented in this litigation that it was not an abuse of
discretion for the District Court to have rejected the experts' reliance on them.
The District Court also concluded that the four epidemiological studies on which
respondent relied were not a sufficient basis for the experts' opinions. The first such
study involved workers at an Italian capacitor plant who had been exposed to PCBs.
Bertazzi, Riboldi, Pesatori, Radice & Zocchetti, Cancer Mortality of Capacitor
Manufacturing Workers, 11 American Journal of Industrial Medicine 165 (1987). The authors
noted that lung cancer deaths among ex-employees at the plant were higher than might have
been expected, but concluded that "there were apparently no grounds for associating
lung cancer deaths (although increased above expectations) and exposure in the
plant." Id. at 172. Given that Bertazzi et al. were unwilling to say that PCB
exposure had caused cancer among the workers they examined, their study did not support
the experts' conclusion that Joiner's exposure to PCBs caused his cancer.
The second study followed employees who had worked at Monsanto's PCB production plant. J.
Zack & D. Munsch, Mortality of PCB Workers at the Monsanto Plant in Sauget, Illinois
(Dec. 14, 1979) (unpublished report), 3 Rec., Doc. No. 11. The authors of this study found
that the incidence of lung cancer deaths among these workers was somewhat higher than
would ordinarily be expected. The increase, however, was not statistically significant and
the authors of the study did not suggest a link between the increase in lung cancer deaths
and the exposure to PCBs.
The third and fourth studies were likewise of no help. The third involved workers at
a Norwegian cable manufacturing company who had been exposed to mineral oil. Ronneberg,
Andersen, Skyberg, Mortality and Incidence of Cancer Among Oil-Exposed Workers in a
Norwegian Cable Manufacturing Company, 45 British Journal of Industrial Medicine 595
(1988). A statistically significant increase in lung cancer deaths had been observed in
these workers. The study, however, (1) made no mention of PCBs and (2) was expressly
limited to the type of mineral oil involved in that study, and thus did not support these
experts' opinions. The fourth and final study involved a PCB-exposed group in Japan that
had seen a statistically significant increase in lung cancer deaths. Kuratsune, Nakamura,
Ikeda, & Hirohata, Analysis of Deaths Seen Among Patients with Yusho - A Preliminary
Report, 16 Chemosphere, Nos. 8/9, 2085 (1987). The subjects of this study, however, had
been exposed to numerous potential carcinogens, including toxic rice oil that they had
ingested.
Respondent points to Daubert's language that the "focus, of course, must be solely on
principles and methodology, not on the conclusions that they generate." 509 U.S., at
595. He claims that because the District Court's disagreement was with the conclusion that
the experts drew from the studies, the District Court committed legal error and was
properly reversed by the Court of Appeals. But conclusions and methodology are not
entirely distinct from one another. Trained experts commonly extrapolate from existing
data. But nothing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence which is connected to existing data only by the ipse dixit
of the expert. A court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals,
Inc., 959 F.2d 1349, 1360 (CA 6), cert. denied, 506 U.S. 826 (1992). That is what the
District Court did here, and we hold that it did not abuse its discretion in so doing.
We hold, therefore, that abuse of discretion is the proper standard by which to review a
district court's decision to admit or exclude scientific evidence. We further hold that,
because it was within the District Court's discretion to conclude that the studies upon
which the experts relied were not sufficient, whether individually or in combination, to
support their conclusions that Joiner's exposure to PCBs contributed to his cancer, the
District Court did not abuse its discretion in excluding their testimony. These
conclusions, however, do not dispose of this entire case.
Respondent's original contention was that his exposure to PCBs, furans, and dioxins
contributed to his cancer. The District Court ruled that there was a genuine issue of
material fact as to whether Joiner had been exposed to PCBs, but concluded that there was
no genuine issue as to whether he had been exposed to furans and dioxins. The District
Court accordingly never explicitly considered if there was admissible evidence on the
question whether Joiner's alleged exposure to furans and dioxins contributed to his
cancer. The Court of Appeals reversed the District Court's conclusion that there had been
no exposure to furans and dioxins. Petitioners did not challenge this determination in
their petition to this Court. Whether Joiner was exposed to furans and dioxins, and
whether if there was such exposure, the opinions of Joiner's experts would then be
admissible, remain open questions. We accordingly reverse the judgment of the Court of
Appeals and remand this case for proceedings consistent with this opinion.
It is so ordered.
The U.S. Supreme Court has agreed to decide if the Daubert doctrine should be applied
to "nonscientific experts". The court has agreed to hear the case of Kumbo
Tire Co. v. Carmichael, No. 97-1709. In that case a five ear old tire failed and
allegedly caused an automobile accident. A mechanical engineer issued a report
containing his opinion that the tire failed due to a manufacturing defect. The
proposed testimony was disallowed under a Daubert analysis.
The court will decide if engineering experts and their testimony will be subject to the
Daubert standard. The lower federal courts have inconsistently applied the Court's
Daubert analysis to testimony by engineering experts.
A sharp split among the circuits has developed, with five circuits having found Daubert
inapplicable to an engineering expert's testimony and five circuits concluding Daubert
does indeed apply to such testimony.
The proponents of utilizing the Daubert standards for engineers argue:
This case, moreover, presents a logical next step for the Court in providing guidance to
the lower federal courts concerning their role in assessing proffers of expert testimony
under Rules 104 and 702 of the Federal Rules of Evidence. In Daubert, the court
considered "novel scientific" testimony. Next, in Joiner, it determined
the appropriate standard of review for the courts of appeals in considering Daubert
rulings. This case presents an issue not yet determined but calling for an answer: whether
the Daubert factors are properly applied to assess reliability of testimony by an
expert engineer. The time for the Court to answer this important question has arrived.
Expert witnesses are being asked with some frequency to testify on behalf of an adverse
party. Experts should be extremely careful in these situations not to engage in conduct
which can be construed as an ethical violation, legal violation, or conflict of interest.
The courts have routinely found that the expert will not be permitted to suggest or
mention that the adverse party had originally consulted him. In addition the expert will
be prohibited from relying on any confidential information.
Should you or shouldn't you be listed in an internet directory of expert witnesses? The following is an article prepared by ExpertPages:
You probably have asked yourself, "Can the Internet generate assignments for me as
an expert witness?" The answer is a clear "Yes"! In fact, many of your
colleagues are now generating lucrative expert witness and legal consulting assignments
though the Internet that they never would have had without the Internet.
Expert witnesses typically are retained by law firms, corporate legal departments, often
at insurance companies, and government agencies. The vast majority in all three categories
now have Internet access. For example, the most recent American Bar Association study
shows that in mid-1997 over 58 percent of all law firms were using the Internet, up from
just 14 percent in 1996. The percentage is even higher today.
Younger associates and paraprofessionals at law firms, and juniors in corporate legal
departments and government agencies commonly are given the task of locating experts. In
recruiting these experts, they routinely turn to the Internet, as the Internet is their
first stop in most research assignments. To them, "printed" means out of date
and old fashioned.
"How do attorneys find me when they are looking for an expert witness on the
Internet?" You can spend the time and money to create and promote an individual
Website of your own, and hope the lawyers looking for an expert stumble across it. Far
better, and more cost effective, is to list on a heavily accessed Internet directory of
expert witnesses.
The Internet has created an exciting opportunity to generate expert witness and legal
consulting business from attorneys, insurance companies, and government agencies that
never knew of you, and would have been highly unlikely to find you. Internet directories,
such as ExpertPages, and individual expert's Websites, have forever changed how lawyers
and their assistants find and retain experts.
A listing on ExpertPages.com is the most effective way to generate new expert witness and
legal consulting business from the legal, insurance, business, and government agency
communities. ExpertPages's toll-free number is 800 ITS-LEGAL (800-487-5342).
Medical malpractice is an interesting and challenging field for the biomedical
scientist. It offers the opportunity to apply his specialized knowledge and experience in
the legal arena by participating in the defense of a doctor unjustly accused of injuring a
patient, or in supporting the claim of a patient who has been harmed by the negligence of
a physician.
Medical malpractice litigation revolves around the theory of negligence. To prove
negligence the plaintiff must establish: a) a duty owed to the patient by the treating
physician; b) a breach of that duty; c) injury or damage; and, d) proximate cause. Breach
of the duty owed to the patient requires proof of the acceptable standard of care, a
standard that has been defined as "what the reasonable person of ordinary prudence
would do under like circumstances" 498 S.W.2d 388, 391.
With the possible exception of limited circumstances that are self-evident, known as res
ipsa loquitor, an expert witness is required to define for the court the appropriate
standards of care, and possibly testify as to how the defendant physician's actions
conformed or deviated from these standards.
Federal Rule of Evidence 702 states: 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 in the form of an opinion or otherwise.
Expert witnesses asked to testify in medical malpractice cases are usually physicians who
specialize in a medical discipline related to the case. However, biomedical scientists who
are not physicians can often provide cogent and relevant information and/or testimony.
Qualifications to be accepted as an expert witness usually include a doctoral degree in a
basic medical science, teaching experience in a medical facility, publications in
scientific journals, and membership in professional societies. Clinical chemists,
pharmacologists, physiologists, micro-biologists, immunologists, and others may furnish
valuable input by acting as a testifying expert or as a litigation consultant.
The testifying expert plays an active role in the legal controversy. He will be examined
by the opposition at deposition and possibly later at trial. All of the expert's
activities relating to the case, as well as his work products, are discoverable. His
effectiveness as a witness during trial will be as much determined by his demeanor and
presentation in court as by his factual material.
Since 1993, many courts have adopted the Daubert standard, which holds that scientific
testimony must be screened by the trial judge to assure its relevance and reliability. The
Federal Judicial Center's Reference Manual on Scientific Evidence, intended as a guide for
judges, lawyers, and experts, asks a fundamental question: Is the expert qualified?
The opposition will try to negate or at least lessen the impact of the expert's testimony
by raising the question of his/her qualifications. A serious attempt will be made to
disqualify the nonphysician expert on the basis of a lack of clinical experience,
training, or education.
The litigation consultant who is not called as an expert witness is immune from these
challenges. Like a coach at an athletic event, he does not participate in the contest but
remains on the sidelines advising and counseling. The consultant is not subject to
examination by the opposition, and his activities and work products such as reports to the
attorney, are not subject to discovery.
The following three cases illustrate how a non-physician expert effectively functioned as
a consultant in malpractice actions:
Case 1. The plaintiff cut his leg on a fence while chasing his horse. The emergency room physician treated the wound and sent him home. He returned several hours later in great pain, and was again treated by the physician. The following day plaintiff consulted a surgeon who admitted him to the hospital and performed an extensive operation on the man's leg. The surgeon remarked that the emergency room physician had not properly cleaned and drained the wound. The patient sued the emergency room physician for malpractice. Acting as a consultant for the defense, the non-physician expert, familiar with minor surgical procedures, reviewed the emergency room physician's and nurse's notes, and was able to advise the defense attorney that treatment by the physician conformed to or exceeded the standard of care in such cases. The expert relied upon several textbooks of surgery.
Case 2. A woman fell and injured her knee. Following treatment by a physician in the emergency room of the local hospital, she subsequently developed a severe infection that over the course of several years involved the bones of her leg. The non-physician expert acting as consultant for the plaintiff's attorney, was able to suggest that the treating physician closed the wound prematurely which predisposed to the infection. The consultant's opinion was based upon his review of the standards of care as published in several textbooks of surgery.
Case 3. An infant developed severe seizures several hours after delivery, and the obstetrician was sued for permitting prolonged labor that compromised the oxygen supply of the fetus resulting in brain damage. The non-physician expert, acting as consultant for the defense, reviewed the mother's prenatal history and advised the defense attorney that the infant's seizures could have been caused by a specific infectious disease contracted by the mother during her pregnancy.
In the first two cases, the consultant dealt with the standard of care, the third case
was concerned with proximate cause.
An expert's opinion may be based upon his personal experience, experiments that he has
conducted that directly relate to the case or on scientific articles published by others
(F.R.E. 703). In some instances standards of care have been published by professional
organizations, and the non-physician expert may refer to and rely upon such sources. The
Hearsay Rule (F.R.E. 803) exempts material from learned treatises relied upon by the
expert witness in direct examination. The rule notes that "statements contained in
published treatises, periodicals, or pamphlets on a subject of ... medicine, or other
science or art, established as a reliable authority by the testimony or admission of the
witness ... may be read into evidence ..."
Non-physician biomedical scientists explaining aspects of anatomy, biochemistry,
pharmacology, immunology, microbiology, pathology, or other basic medical sciences can be
very effective as testifying experts for either plaintiff or defense. It is the writer's
opinion that for psychological rather than legal reasons, it is easier for a non-physician
expert to defend or justify a physician's actions than to disparage or criticize a
doctor's treatment. Hence, non-physician experts dealing with questions relating to
standards of care, especially when working for the plaintiff's attorney, may be more
useful as litigation consultants.
Dr. Ellner lives and works in Cortlandt Manor, New York; telephone: 914-736-2122; fax:
914-736-0223; email: pde1@columbia.edu; http:// lawinfo.com/biz/ellner.
A key expert in the General Motors crashworthiness litigation is being asked about a
report he wrote 25 years previously while working for GM. The expert witness battle has
been so fierce in the case the trial judge wrote: "When the elephants struggle it is
the grass that suffer." GM has been represented in the case by Kenneth W. Starr of
independent counsel fame.
The opinions continue to flow on the likely impact of the Joiner case. The conclusion
that many attorneys have reached is that:
Some judges will let in the evidence and some will not, and they will not be reversed by the appeals court.
-Arthur H. Bryant, Esq., Trial Lawyers
for Public Justice
Business leaders feel that this is a great victory and will keep out so-called junk science. Robin S. Conrad of the U.S. Chamber of Commerce stated:
The problem has been that until now, these so-called experts have been able to march into court and testify to just about anything... They may have a degree that would impress a jury but their conclusions are not grounded in science.
For additional information see the ABA Journal, February 1998, page 41, "Judges
Gatekeeper Rule Expanded".
Here are some important comment on the likely impact of the Joiner case:
"Evidence that was routinely admitted in the past may have a hard time qualifying."1
"It applies to every single case where there is any scientific, technical, or specialized testimony."2
"You simply can't cite a study and say since the study was valid, my opinion is valid."3
"As a result of the new ruling, plaintiffs must do a bang-up job at trial demonstrating that their expert's reasoning is sound."4
"States that haven't adopted the Daubert test yet may be more likely to do so in light of this opinion."5
For additional information see the Lawyers' Weekly USA, January 10, 1998, pages 1&15, or call 800-933-5594.
Notes:
1 Professor Edward I.M. Winkelried, University of California, Davis
2 Marc Klein, Esq., Newark, NJ
3 John Kester, Esq., Washington, DC
4 Professor James Starrs, George Washington University
5 Professor Michael Saks, University of Iowa
If you have any cases involving wire ropes, you should obtain NIOSH's 9/98 report "Model for the Structure of Round-Strand Wire Ropes". The abstract of the report is as follows:
The behavior of wire ropes used in hoisting is not well understood. In an effort to
improve this understanding, the structure of round-strand wire ropes was analyzed. This
report provides a generalized mathematical model that completely describes the geometry of
the wires. It consists of two sets of vector equations and is valid for any round-strand
wire rope.
One set of equations is used to trace the paths of wires that have the form of a single
helix; the other is used for the paths of double helical wires. The specific model for a
33-mm 6x19 Seale, independent wire rope core (IWRC), right regular lay wire rope was
presented as an example. The paths and the geometric properties of the wires, which
include the path length per lay of strand, the curvature, and the torsion, were determined
from this model. The effects of strain deformation were analyzed, resulting in a system of
equations for determining the structural parameters of the deformed rope. In future work,
the model could be used to analyze wire ropes of different constructions so that a more
scientifically based understanding of rope behavior can be established.
For a free copy of Publication No. 98-148, call 800-356-4674.
If you think your deposition testimony will be able to be used because you
are "unavailable", think again. In Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35 (Tex. 1998), the Texas Supreme Court found that the prior recorded testimony
of a CPA could not be introduced. The court found that despite the fact that he was a
resident of another state and on a European vacation he was not "unavailable".