Filed under: Trial Strategy

The Challenge of Presenting Treating Physicians

 

By: E. Drew Britcher and Armand Leone,  of the New Jersey Law Journal, an ALM publication.

Lawyers from both sides of the litigation aisle have long battled over the presentation of opinions by treating physicians, not only with each other but with the physicians themselves and with the strategic and practical considerations of producing them. This should not be a surprise to anyone who has tried more than a few cases, but jurors tend to be more suspicious of the opinions of doctors who have been retained for litigation purposes. This was effectively confirmed by the New Jersey Supreme Court in Stigliano v. Connaught Labs , 140 N.J. 305 (1995), when the court stated:

Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of retained experts.

However, despite that credibility, the AMA’s position in section 9.07 of their Principles of Medical Ethics that physicians must reasonably cooperate with their patient’s litigation support, and the decision in Spaulding v. Hussain , 229 N.J. Super. 430, 440 (App. Div. 1988), noting that “unless otherwise agreed, a physician treating an accident victim ‘impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries,” many doctors are less than cooperative in a patient’s litigation.

Following the Stigliano decision, where neither of the involved doctors had prepared any reports of their opinions, it became accepted that doctors could testify to any opinion on causation that they had arrived at, during the course of their medical treatment. Subsequently, the Rules of Court were amended to reflect a requirement that the identity of experts and treating physicians, who would testify at trial, and their reports, be produced in discovery. While this represented no change as to experts or treating physicians offering certain opinions arrived at for the purpose of the litigation, such as an opinion on permanency, to many, this is a departure from what the court said in Stigliano.

 

Enter the court’s decision in the matter of Delvecchio v. Township of Bridgewater , 224 N.J. 559 (2016), a LAD case where the testimony of a treating physician regarding a plaintiff’s disability was sought to be introduced. The court, citing to past precedent, cited with the Stigliano matter, stated:

The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert witness, his or her testimony is limited to the diagnosis and treatment of the individual patient. Given that distinction, if a particular claim requires testimony beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert, conforming to NJRE 702 and 703.

Delvecchio, 224 N.J.at 579.

This requirement places the attorney that is seeking that doctor’s testimony at conflict with the doctor, who takes the position that they did not bargain for being involved and inconvenienced by the plaintiff’s litigation or who demands an outrageous fee for meeting their ethical obligations to their patient. Plaintiff’s counsel sought to have the court conclude that the report required by the combination of Rules 4:17-4(a), (e) and 4:10-2(d)(1) is only an obligation that exists if one is prepared—a contention the court specifically rejected. “Under the court rules, a party seeking to present physician testimony at trial must disclose the substance of the witness’s anticipated testimony, and the basis for that testimony, if requested to do that in discovery.”

So, what is a lawyer supposed to do when a doctor refuses to prepare a report? On the plaintiff’s side, one alternative is to have all the plaintiff’s medical records reviewed by a separate physician and have that doctor examine the patient and testify to the whole of the opinions needed about care, treatment, causation, disability and permanency. This would lose the innate credibility that a truly coincidental treating physician’s would potentially hold. So, the alternative is that an attorney should contact the physician and his/her staff and arrange to speak to the physician at a time convenient to the doctor and determine what opinions are not reflected by the doctor’s records and prepare a summary of the treating physician’s anticipated testimony. Should the doctor remain recalcitrant to writing a report or agreeing to an interview, one can always serve the doctor with a subpoena for a deposition. While this may not enamor one to the doctor, it will often get their attention sufficiently to get them to agree to one or the other. Not only is this something that practitioners have done in such situations before Delvecchio, the use of a summary of opinions is an authorized approach in our Rules regarding criminal procedures, as well as being what the court suggested that the Civil Practice Committee consider as an amendment to the rules at issue.

Let this not suggest that this is only the plaintiff’s counsel’s headache. The decision would seem to place a similar onus on defense counsel who might want to elicit testimony from treating physicians that is damaging to the plaintiff, akin to what the defense obtained in Stigliano. So how do they comply? The answer lies in the use of the interview process under Stempler v. Speidell , 100 N.J. 368 (1985). The defense attorney should send the plaintiff’s counsel an authorization to be signed by their client permitting an interview of the treating physician, arrange for the same, and then likewise prepare and serve a summary of the physician’s anticipated testimony. The failure to do so would seem to place defendants in a similar position of possibly being barred from calling the treater.

This approach by each side should not only satisfy the adversary and the court, it should let the practitioner sleep more soundly at night.•

 

Britcher and Leone and are founding partners of Britcher Leone LLC (www.medmalnj.com) based in Glen Rock.

Leave a Comment May 12, 2017

Expert Witness Confronts Pharmaceutical Giant, GSK.

Originally published in The American Lawyer, an ALM Media publication, March 22, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Roy Storm, The Am Law Daily

The bad blood between Dr. David Healy and GlaxoSmithKline plc brewed up long before the psychiatrist took the stand in a Chicago federal court last week to testify that the pharmaceutical giant hid the risk of suicide in its blockbuster antidepressant Paxil.

Healy’s testimony is the bedrock of a claim brought by the widow of a Reed Smith partner who committed suicide in 2010 while taking a generic version of Paxil. GSK argues that Stewart Dolin’s death was the result of stress from a diminished role at the firm following a 2007 merger. Dolin’s widow, who claims her husband died from an adverse reaction to Paxil, is seeking $12 million from GSK.

All GSK has wanted is for the fast-talking psychiatrist to stop testifying.

Healy, a professor at a British university and a practicing physician in Toronto, has been a thorn in the pharmaceutical giant’s side since about 1999, when he wrote “The Antidepressant Era” and first began raising concerns about GSK’s clinical trials related to antidepressants known as SSRIs, or selective serotonin reuptake inhibitors. In 2005, The New York Times profiled Healy, noting that he was “internationally known as both a scholar and a pariah.”

“You don’t really know who you can trust,” Healy told the paper.

Healy has been a longtime expert witness in cases against GSK. His all-day direct examination in Chicago last Thursday was followed by a six-hour cross-examination this week. Healy said he had testified in more than 10 cases against GSK, something the company’s lawyers at Dentons and King & Spalding made a spirited effort to prevent in the Dolin case.

Healy’s testimony, for instance, was admitted in a suit in the Southern District of Indiana involving the sister of a priest who committed suicide after taking paroxetine, the trade name for Paxil. That case appears to have settled in 2011. And in 2015, Healy was an author of a new review of clinical Paxil trials on teenagers, which led to headlines that the drug was unsafe for teens.

The heart of Healy’s testimony contends that GSK artificially inflated the number of suicides and suicide attempts committed by members of the placebo group during clinical trials for Paxil. That had the effect of minimizing the risk of suicide associated with the antidepressant, meaning there was no warning of suicide risks on the drug’s label.

In the Dolin case, GSK’s lawyers filed a motion to exclude Healy’s testimony in the Dolin case, writing a 46-page memorandum with 70 attached exhibits arguing that Healy was a financially biased witness with an axe to grind against GSK.

The filing asserts that the lead plaintiff lawyer in the Chicago case, Michael Baum, a senior managing partner of Los Angeles-based Baum, Hedlund, Aristei & Goldman, is an investor in a company founded by Healy. That company runs a website, RxISK.org, which GSK’s lawyers said helps promote suits against the pharmaceutical industry. The filing also said Healy’s personal blog showed his bias against GSK, including his purported belief that the company helped get him fired from a previous professor position and may have been behind an investigation that could have led to his medical license being revoked in the U.K.

U.S. District Judge James Zagel ruled that Healy (pictured right) could testify in the Dolin case. But at the trial, presided over by U.S. District Judge William Hart, lawyers could not ask Healy about his blog or his personal relationship with GSK.

King & Spalding life sciences and health care litigation co-chair Andrew Bayman asked Healy if his website was intended to make it easier for the public to file suits and to garner work for himself as an expert. Healy testified that he bills $750 an hour to testify and $400 an hour to review cases.

But as was the case with many of the points that Bayman tried to pin Healy down on, the psychiatrist was prepared with a response to that charge in court Monday.

The website “has nothing to do with supporting lawsuits. This is all about minimizing the problem so there won’t be lawsuits,” Healy said, adding that Baum’s investment in his company, “would probably put him out of business.”

Proceedings in the Dolin case are continuing this week in Chicago. Some of his former Reed Smith partners are expected to take the stand.

 

Roy Strom is based in Chicago, where he writes about the business of law and the changing nature of law firm client relationships. He can be reached at rstrom@alm.com. On Twitter: @RoyWStrom.

Leave a Comment March 24, 2017

The ‘Mudano’ Rule: Conflicting Expert Opinions Often Prove Fatal

Originally published on The Legal Intelligencer  an ALM Media publication, March 16, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Daniel E. Cummins

A plaintiff’s personal injury case can go off the rails when the plaintiff’s medical experts offer opinions that conflict with one another. This may typically arise where one expert for the plaintiff opines that a particular injury was caused by the subject accident and yet another expert questions whether the injury is indeed related.

Under Pennsylvania Rule of Evidence 702, titled “Testimony by Expert Witnesses,” it is provided, that “a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion” if the expert’s specialized knowledge is beyond that of a layperson and such knowledge will assist the jury to understand the evidence or determine a fact in issue.

Generally speaking, the admissibility of expert opinion is a matter left largely within the broad discretion of the trial court, as in Bolus v. United Penn Bank, 525 A.2d 1215, 1225 (Pa.Super. 1987).

Where a plaintiff’s experts conflict with one another, the plaintiff is likely to be faced with a defense motion in limine seeking to preclude each expert’s opinion on the basis that allowing such evidence would only serve to confuse, and not educate, the jury.

Notably, in the separate scenario where the defense produces conflicting expert reports in a civil litigation matter, the defense may still be permitted to proceed with the expert testimony as the defense does not bear the burden of proof at trial. The remedy for the plaintiff in this regard is to point out to the jury the conflicting nature of the opinions of the defense experts in an effort to discredit the defense.

The ‘Mudano’ Rule

Under what has become known as the Mudano rule, the Pennsylvania Supreme Court in Mudano v. Philadelphia Rapid Transit, 289 Pa. 51, 60, 137 A. 104, 107 (1927), has held that the testimony of a plaintiff’s medical experts must be reasonably consistent with one another such that, with respect to the plaintiff’s experts, “there must be no absolute contradiction in their essential conclusions.” The court further stated that a plaintiff has a “duty to furnish consistent, and not inconsistent, advice—otherwise the jury would be confused rather than instructed.”

The Pennsylvania Supreme Court reiterated the Mudano rule in case of Brannan v. Lankenau Hospital, 417 A.2d 196 (Pa. 1980). In Brannan, the court cited Mudano for the proposition “that a plaintiff’s case will fail when the testimony of his two expert witnesses is so contradictory that the jury is left with no guidance on the issue, see also Menarde v. Philadelphia Transportation, 103 A.2d 681 (Pa. 1954) (The Pennsylvania Supreme Court applies Mudano rule to the plaintiff’s expert reports); see also Halper v. Jewish Family and Children Services of Great of Philadelphia, 963 A.2d 1282, 1287 (Pa. 2009) (The Pennsylvania Supreme Court applies the Mudano rule to the plaintiff’s expert reports).

Even if a plaintiff attempts to supplement his discovery responses to only identify one of the two conflicting as the only expert the plaintiff will call at trial, the Mudano rule will be implicated when the defense cross-examines the plaintiff’s expert with respect to the separate, contradictory opinion of the plaintiff’s other expert.

In such a case, the jury would still be faced with conflicting opinions by two experts from the plaintiff’s side of the matter, i.e., the very situation that the Mudano rule holds will cause the plaintiff’s case to fail. The defense argument will be that the plaintiff should not be allowed to put the court, the parties, the attorneys and the jurors through the time and expense of the trial by simply choosing to identify one expert and ignoring the contradictory opinions of his or her other expert. Such evidentiary gamesmanship should not be countenanced by the courts where the purpose of a civil trial is get to the truth of the claims and defenses asserted.

Not Applicable to Defense

The courts of Pennsylvania have rejected attempts by plaintiffs to have the Mudano rule applied to defense experts that conflict with one another. The courts have reasoned that the rule should not apply to the defense case because the defense does not bear the burden of proof at trial.

Plaintiffs may cite to the case of Smith v. German, 253 A.2d 107 (Pa. 1959), in support of an argument that the defense must produce consistent evidence in an effort to disprove causation between an accident and a plaintiff’s alleged injuries.

However such an argument has been rejected by more recent Pennsylvania appellate court decisions. In Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003), the Pennsylvania Superior Court stated that its “research indicates that Smith has never been cited in subsequent cases for the proposition that in all cases where a defendant challenges the causation element of a plaintiff’s case, that he must produce independent evidence of his own. In fact, we can find no case citing to Smith that applies the case to the defendant. In large part, Smith, as it may apply to a defendant, appears to be an anomaly limited to the facts of that case.”

Rather, in personal injury matters, the defense has no burden of proof on the issue of causation and, therefore, the Mudano is inapplicable to the defense evidence. As emphasized by the Pennsylvania Superior Court in the Kennedy case, when there is some evidence of other causes of a plaintiff’s alleged injuries, the burden of proving these other causes does not shift to the defense. To the contrary, as confirmed by the Kennedy court, absent special circumstances, a defendant carries no burden of proof in a civil litigation matter.

Stated otherwise, “a defendant may choose to present no evidence and may simply argue that the plaintiff has not met its burden of proof. A jury may find for the defendant in such a situation.” The Kennedy court also pointed out that the Smith decision “does not require a defendant … to present independent medical testimony specifically linking the alleged injuries to another cause.”

Moreover, it has otherwise generally been held as a principle of Pennsylvania law that an opinion offered by the party, i.e., the defendant, not having the burden of proof need not be as precise as an opinion offered by the party with the burden of proof, as in Neal v. Lu, 530 A.2d 103, 109-110 (Pa. Super. 1987).

It Comes Down to Sufficiency of Expert Evidence

It has generally been held by the courts of Pennsylvania that the effect of a conflict between the testimony of different experts called by a party is in reality a question of the sufficiency of the evidence.

In the case of conflicting expert opinions presented by a defendant not having the burden of proof, the courts will allow the issue to proceed to the jury for the jury’s consideration as to what weight to be applied to such contradictory evidence.

However, conflicting expert opinions on the plaintiff’s side of the case will often prove fatal. Such evidence fails to satisfy the plaintiff’s burden of proof, renders the plaintiff’s case speculative and, if the case were allowed to proceed to verdict, would cause the jury to engage in impermissible guesswork on the important issues presented in the case.

Accordingly, where a plaintiff’s experts conflict with one another, the courts will likely preclude such experts under the Mudano rule and then proceed to enter a nonsuit in favor of the defense due to the plaintiff’s failure to meet his or her burden of proof on the case presented. •

 

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

Leave a Comment March 17, 2017

Motion Denied Because of Expert Witness Testimony

Originally published in The New York Law Journal an ALM Media publication, March 13, 2017.

*Part of the ALM family of award-winning legal products and publications.*

  • Supreme Court, Nassau County, IAS Part 7
  • 601626/2014
  • Justice Arthur M. Diamond
  • For Plaintiff: For Plaintiffs: Kushnick Pallaci, PLLC.
  • For Defendant: For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

Cite as: Percora v. Bankers Standard Ins. Co., 601626/2014, NYLJ 1202780991401, at *1 (Sup., NA, Decided March 1, 2017)

CASENAME

Frank Percora and Lisa Percora, Plaintiff v. Bankers Standard Insurance Co., ACE Private Risk Services, Defendants

601626/2014

Justice Arthur M. Diamond

Decided: March 1, 2017

ATTORNEYS

For Plaintiffs: Kushnick Pallaci, PLLC.

For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

The following papers having been read on this motion:

Notice of Motion 1

Opposition 2

Reply 3

 

Defendants herein move for summary judgment to dismiss the Plaintiffs’ complaint pursuant to CPLR §3212. Plaintiffs oppose the instant application. After consideration, Defendants’ motion is denied in its entirety.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Summary judgment is the procedural equivalent of a trial and must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable. Rivers v. Birnbaum, 102 AD3d 26, 953 NYS2d 232 (2nd Dept., 2012). In considering a motion for summary judgment, the function of the Court is not to determine issues of fact or credibility, but merely to determine whether such issues exist. Id. at 42, 243.

In general, it is the insured’s burden to establish coverage and the insurer’s burden to prove the applicability of an exclusion. Great American Restoration Services, Inc. v. Scottsdale Insurance Co., 78 AD3d 773, 911 NYS2d 142 (2nd Dept., 2010). An exclusion from coverage must be specific and clear and any ambiguity must be construed most strongly against the insurer. Id at 776, 142. The test for ambiguity is whether the language is susceptible of two reasonable interpretations, and the focus of the test is on the reasonable expectations of the average insured. Id. at 776, 142-143.

The action before the Court arises out of damage to Plaintiffs’ home in Long Beach, New York, as the result of Superstorm Sandy. Plaintiffs’ complaint has a single cause of action for breach of contract. The allegations in the complaint refer to damage to Plaintiffs’ home solely caused by the high winds of the storm, only. The interrogatories of Plaintiffs attached to Defendants’ moving papers acknowledge that they did not have a flood insurance policy in place at the time the alleged damage was sustained to their home.

Defendants’ motion for summary judgment to dismiss the complaint is based upon the premise that all of the damage to Plaintiffs’ home as a result of the storm was caused by water, which is excluded from coverage under the policy. In support of this position, Defendants attach excerpts of depositions transcripts taken of Plaintiff Frank, as well as three expert witnesses disclosed by Plaintiffs during discovery. None of these transcripts are in their completed form and all have had pages from the transcript removed prior to submission herein. Defendants have not attached an affidavit or a complete deposition transcript such that would allow the Court to consider their papers to be sufficient to consider judgment as a matter of law. By reasons of this defect, the Defendants’ request is appropriately denied in its entirety. See Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 864 NYS2d 554 (2nd Dept., 2008); see also generally Marks v. Robb, 90 AD3d 863, 935 NYS2d 593 (2nd Dept., 2011).

Even assuming, arguendo, that Defendants did properly include full copies of certified depositions transcripts of the Plaintiff and/or any one of its experts, Defendants motion still cannot be granted. It appears uncontroverted by the papers that Plaintiffs did not have flood insurance for the subject property; moreover, nowhere in Plaintiffs’ opposition papers do plaintiffs suggest that damage caused by water should be covered under the policy, as the exclusion clause for water is clear. Instead, Plaintiffs argue that the damage asserted that is part of the denial of coverage by Defendants was for wind damage, which is clearly covered under the policy terms.

In reviewing the complete transcript of Plaintiffs’ expert witness Boccia, as well as the complete transcript of expert witness Wallwork, both attached to Plaintiffs’ opposition papers, there are triable issues of fact that are certainly outstanding. For example, Defendants in their moving papers suggest that both of these witnesses acknowledge that the damage to the home of Plaintiffs was caused by water only. However, the completed transcript of Mr. Boccia on pages 62 through 69 make clear that damage can be attributed to wind, or water, or both, and that damage, such as racking, can be attributed to wind alone regardless of the water damage that may have occurred to the home. Similarly, Mr. Wallwork testified that he too was able to parse out damage cause by wind alone versus damage caused by water either in whole or in part. For this reason, granting of summary judgment to Defendants would be improper, and the instant motion is hereby denied.

Given the foregoing, the parties are directed to appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on March 30, 2017 at 9:30 am.

This hereby constitutes the decision and order of this Court.

Dated: March 1, 2017

Original Source: http://www.newyorklawjournal.com/id=1202780991401?keywords=expert+witness&slreturn=20170210091937 

Leave a Comment March 10, 2017

AVOIDING THE TERM “REASONABLE DEGREE OF SCIENTIFIC CERTAINTY”

by: Dennis J. Ryan, an ALM Listing Expert

Recently, the National Commission on Forensic Science published a Views Document by the Subcommittee on Reporting and Testimony dealing with the terminology “Reasonable Degree of Scientific Certainty” or any variation of the term which may be discipline-specific.  The Commission was highly critical of using the term in testimony by forensic experts, and suggested that the scientific community should not encourage the use of this terminology. The Commission recommends abandoning this phrase, which has been used for many years in courts across the United States.  The Commission admits that there is no clear alternative to the term “reasonable degree of scientific certainty,” and they admit that work is needed in this area to strengthen terminology for expressing an expert’s opinion.

The term “reasonable degree of scientific certainty” is not defined in any standard medical or scientific journals; rather, it is a legal term that was first linked to opinion testimony in a 1969 case (Twin City Plaza Inc. v. Central Surety & Ins. Corp 409 F.2d 1195, 1203 (8th Cir. 1969). The Daubert-related cases, Daubert, Joyner and Kumho, and the Federal Rules of Evidence 702-705 do not require any similar language.  The Daubert and Frye tests serve to exclude any speculative testimony and preclude the need for any such language relating to scientific certainty.

The Commission recommended that courts discontinue using the term “reasonable degree of scientific certainty” because it could result in confusion for those involved in court cases.  The commission states: “In the courtroom setting, the phrase risks misleading or confusing the factfinder” and “has no scientific meaning and may mislead jurors or judges when deciding whether guilt has been proved beyond a reasonable doubt.” In a 2014 case in Hawaii (State v. DeLeon, 319P.3d 382, 403 (Haw.2014) the court said “trial courts should not require a ‘reasonable degree of scientific certainty’ before admitting expert opinions.”

The lack of a common definition of this word across the sciences, or even within a discipline of science, is confusing and frustrating.  If one was to assemble a room of legal professionals, there would be a host of different definitions for the term, and no common definition would result.  The same would hold true for a room of scientific scholars. A juror may, on the other hand, have a totally different understanding of the term and may equate it to finding of proof beyond a reasonable doubt.

Much work is needed to strengthen the terminology a forensic expert uses to expresses their opinions. The goal is to minimize any misleading or confusing terminology.

Leave a Comment June 29, 2016

Tech in Trial: Advancing Techniques Means Increased Preparation

If a Picture is Worth a Thousand Words, Is a Trial Tech Expert Worth $200 an Hour?

Originally published on: The Litigation Daily, November 10, 2015

By: Jenna Greene

 

Andrew Cox, who leads Thompson Hine’s product liability practice, is a Gen Xer, the kind of guy you might think would be all over using technology in the courtroom. He even has a goatee.

But the 43-year-old litigator is distinctly old-school when it comes to presentations in court.

He won a trial in May, a defense verdict in Ohio state court case involving a fatal plane crash.

The plaintiffs used fancy animation—a short video depicting their version of what went wrong.

Cox had a big aerial photo of the airport mounted on a magnetic board. And he had magnets showing where each eye witness was positioned, plus a magnetic airplane he could move across the photo.

“We used it in the opening, our experts used it, we used it in the closing,” he said. “And it was tangible—a Google Earth photo. People knew it was real.”

As for the animation, he said the plaintiffs lawyers were constantly starting, stopping and replaying it, dividing the jurors’ attention between the screen, the expert witness and the tech doing the rewinding.

“I’ve never seen a perfect animation,” Cox added. In this video, a small detail was off: the accident took place in Ohio in March, when the trees are still bare. In the animation, the trees were green and leafy.  It was a subtle reminder that the events depicted weren’t real, he said.

In the end, neither the video nor the magnet photo was probably the deciding factor for the jury. But it’s all part of the bigger task at trial: to tell your client’s story.

The question is, what visual aids will help accomplish that, and which might be glitzy distractions? Do you have the wisdom to tell the difference?

Robb Helt, director of trial technology for Suann Ingle Associates, makes a compelling case that the best reason to hire a tech consultant is not to get “someone sitting behind the scenes putting things on a screen and pushing buttons,” he said. “A monkey with enough bananas can push buttons.”

Rather, trial technology consultants offer experience—the best of them have seen more trials than most lawyers. Helt, for example, has racked up 513 trials, arbitrations and mediations since 1999. Among them: 16 months as Halliburton’s trial technology consultant in the Deepwater Horizon oil spill litigation.

As a result, he said, he’s developed  “a really good feel for what’s worked here and not there.”

Lawyers often “have an idea of what they want, but not what they need” when it comes to using technology to present their cases, Helt continued.

For about $200 to $250 an hour, consultants can help figure that out, design the graphics and make sure it all works seamlessly in court. They can also make sure lawyers don’t “over-egg the pudding” with too many high tech elements, Helt added.

But it’s not the easiest time to be a trial technology consultant. For starters, fewer cases are going to trial. And the technology is getting easier to use—which means more lawyers are bypassing the consultants and doing it themselves.

In large part, credit the iPad and apps like TrialPad, which for about $130 can do nifty things like highlight text, create side-by-side document comparisons and edit and show video clips.

“An iPad not only increases an attorney’s mobility in the courtroom, but it also allows the attorney far greater control over the presentation of evidence to the judge and jury,” wrote Alexander Rusek of White Law in an article  last year for the American Bar Association’s trial evidence committee. “No longer must an assisting attorney attempt to coordinate the presentation of exhibits or highlight or enlarge the exact portion of an exhibit for the presenting attorney.”

Which is great, provided the attorney doing the presenting knows what he or she is doing.

Solo practitioner Carolyn Elefant, who writes the blog My Shingle, last month told of prepping for her first jury trial in more than a decade. She opted to use an iPad for photos, charts and presenting impeachment material to the witnesses. And she learned how to do it 10 days before the start of trial.

She won three six-figure verdicts for her clients.

“While ultimately, it was the strength of the prep, the evidence and fact and expert witnesses and not the iPad that produced the win, the iPad allowed me to present that evidence in a far more professional and seamless a manner than would have been possible at my last trial ten years ago,” she wrote.

Contact Jenna Greene at jgreene@alm.com or on Twitter @jgreenejenna.

Original Source: http://www.litigationdaily.com/id=1202742147525/If-a-Picture-is-Worth-a-Thousand-Words-Is-a-Trial-Tech-Expert-Worth-200-an-Hour?mcode=1202615798744

Leave a Comment November 11, 2015

Legaltech News: Digital Forensic Testimony 101

A panel of forensic investigators and expert witnesses gathered to discuss pitfalls and tips in testifying.

Originally published by: Legaltech News

By: Sean Doherty

Digital forensic investigators get their day in court but it may never end for some who regularly testify as expert witnesses. At CEIC (Computer Examinations and Investigations Conference) in Las Vegas on May 19,  a panel of forensic investigators and expert witnesses gathered to discuss some of the pitfalls to avoid and tips for navigating the hot seat between judge and jury.

The panel entitled “Forensic Evidence in Court,” was moderated by Suzanne Widup, senior analyst at Verizon Enterprise Services, and included David Cowen, partner at G-C Partners; James Vaugh, managing director at Intelligent Discovery Solutions; Jonathan Rajewski, director at Senator Patrick Leahy Center for Digital Investigation; and Sheryl Falk, partner at Winston & Strawn.

The format for the panel was entirely interactive. Widup had a list of questions for the panelists posed via email and questions were presented from the audience.

QUESTION AND ANSWER

Attendee: How do you get qualified on the stand as an expert?

Cowen: That, probably, is the easiest part. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), layed down three foundations: qualified by education, experience, or by training. You don’t have to have all three. You only need one. The important thing when you’re doing it is that you’re an expert in your field. They will go through your background and experience to understand what it is that fits the criteria that you are in fact an expert in the field. In the legal world expert is a pretty vague word. It’s anyone who knows more than the layman.

Attendee: What are the differences between a testifying and a consulting expert?

Vaugn: Hired as a consultant. Later you may become an expert. Or you can be hired as the expert and you will do some expert consulting. The difference there being what’s discoverable from the beginning vs. what’s not. What are you going to put in emails vs. not. Everything from the time you become a consultant is arguably discoverable.

Cohen: I think you’re going to hear the word discoverable, a lot.

Attendee: Do any of you have any experience with the Office 365 litigation hold feature and is it sufficient on the court to do discovery on mailboxes in litigation hold after the fact? Although it preserves all user data, it may or may not preserve all system data.

Vaugh: I would love to hear what Sheryl has to say as a lawyer, but I want to respond as a technical consultant. The fact is that there is no tool that is perfect. It is what is available, does the tool work, has the tool been validated, have you tested the tool, can you replicate the results, and if so, does it meet the standard of reasonableness. That’s really what your faced with, it’s not perfection. And there is a difference in collecting for electronically stored information and forensics.

ADVICE

Do not bring a computer to a deposition unless there is a request to image it at the deposition.

Eye contact: Making eye contact is a big thing. Whenever you answer a question, try to make eye contact with the judge or jury because they are the only people who matter when you testify. When you make eye contact with the judge or jury, you add to your credibility. It does you no good to look at the lawyer when answering questions.

Judge: If you have any questions on the judge’s preferences, ask the lawyer. He or she will know all about the judge.

Notes: follow your standard practice in using notes to write reports. If you use notes, use fact-based notes and make sure your attorneys know. And if there is no request for notes from the opposing party, and you incorporate the contents of your notes into reports, then there’s no reason to keep the notes.

Plain talk: The art of testimony is being able to address your audience. You have to be able to beak down technical concepts and use simple analogies, while still technically true, describe what you are going to do in a way they can understand. Keep testimony simple and concise.

Preparation: To better prepare yourself, meet the lawyer and know what he or she will ask you ahead of time; or give them a list of questions to use. If you have to read from your report on the stand, you will lose credibility.

Yes-or-No. In a deposition don’t allow yourself to be limited to a yes or no answer. For example, Question: “Isn’t it true that you did this?” Answer: “Well, it sounds like you’re asking me a hypothetical, so I am going to give you a hypothetical answer” or “While that’s possible, it’s not plausible, and I’d like to explain to you why it’s not plausible.”

 
Original Source: http://www.legaltechnews.com/id=1202727360710/Digital-Forensic-Testimony-101#ixzz3bLTBauEc

 

Leave a Comment May 27, 2015

The Benighted Expert: Professional Literature in Court

Originally published for:  New York Law Journal

By: Timothy M. Tippins

From questions of property values in equitable distribution litigation to the psychological issues in custody cases, the domestic relations courts are awash in expertise, both real and contrived. It falls to the trial advocate to present the information that the court needs so that it can distinguish reliable testimony from the ersatz expertise that too often slithers into the courtroom.

One long-entrenched method of doing so is impeachment by treatise1 which consists of confronting the witness with published writings of respected figures in the field that contradict the expert’s testimony in some respect. Perhaps because this technique has been around for so long it tends to eclipse the broader importance of professional literature in measuring both the admissibility of and the weight to be accorded to an expert’s testimony. This article will examine the central position that professional literature occupies in the psychology expert’s world and its crucial evidentiary role in providing the very basis underlying expert opinions.

Impeachment by Treatise

The impeachment by treatise rule allows the cross-examiner to confront the expert witness with writings of other experts that purportedly contradict the position of the expert on the stand. Before being allowed to do so, however, the cross-examiner must first lay the required foundation by extracting from the witness a concession that either (1) the expert relied upon the work at hand or (2) the texts at hand are “recognized by the profession as standard authorities.”2 This foundational requirement, of course, empowers the witness to frustrate the cross-examination simply by refusing to concede that the writing is authoritative.

This power can be and is abused. Experts at times tender absurd denials of the standing of a respected work to evade proper exploration of their positions. Indeed, books written to assist the expert through the courtroom thicket sometimes suggest that the expert should rarely if ever concede the authoritative status of any text.3 Taken literally this would be equivalent to an evidence professor denying that Wigmore on Evidence is an authority in the field.

Some experts follow this course of action to a fault. One “expert” in infectious disease apotheosized this artifice when he testified “that he did not consider any books or articles in the field of infectious diseases ‘authoritative.’”4 Absorb that statement for a moment. It is tantamount to proclaiming, “I don’t hold with no book-learnin’.” It demands, of course, the next question: If not from the authoritative literature of the field, then from what source did this expert acquire his or her expertise?

Very recently a decision was reported wherein an expert, when asked from what source he derived the methodology that provided the underlying basis of his opinion, answered: from “my head.”5 Leaving aside for the moment the possibility that he was confused as to which anatomical hollow was the true cradle of his expertise, the question such an answer irresistibly invites is how the expert knowledge arrived in his cranial cavity in the first place.

The Basis of Expertise

To appreciate fully the incongruity of such flippant answers, one must consider them in the context of established evidence doctrine. Except in those relatively rare instances where the expert is testifying entirely on the basis of his or her own research, the expertise which he or she purports to bring to court necessarily depends upon the professional literature of the field. Recognition of this fundamental point is precisely why the law tolerates a hearsay basis with respect to the expert’s knowledge of the field. As the celebrated John Henry Wigmore wrote a century ago:

It would be absurd to deny judicial standing to such knowledge, because all scientific data must be handed down from generation to generation by hearsay, and each student can hope to test only a trifling fraction of scientific truth by personal experience.6

Thus, if the expert’s contention that there are no authoritative writings in his field were true, it would be time for him to depart the courtroom without another word spoken.

While some species of expertise can be acquired by experience alone, e.g., an antiques dealer who testifies to value based on decades of first-hand market transactions, others depend upon formal education, degrees, board certifications and the like. Psychology falls into this latter category.

A Scientific Discipline

Psychology defines itself as a scientific discipline. Every Psychology 101 textbook will contain a statement such as: “Psychology is the science of behavior and mental processes.”7 Consequently, to qualify as an expert in psychology one is required to have adequate formal credentials in this scientific field and, once so qualified, is expected to base his conclusions on the scientific knowledge of that discipline. That the expert must predicate his conclusions on the collective knowledge of his discipline is axiomatic. It was acknowledged by the U.S. Supreme Court in its landmark decision in Daubert v. Merrill Dow Pharmaceuticals.

Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Presumably, this relaxation of the usual requirement of firsthand knowledge…is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.8

Reliance upon the collective knowledge of the discipline, i.e., the professional literature, is the sine qua non of expert opinion formulation. It is precisely this that distinguishes an admissible expert opinion from an inadmissible personal opinion. This most fundamental of principles is recognized within the field of forensic psychology:

The defining attributes of an expert opinion relate…to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. If the accumulated knowledge of the expert’s field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert.9

Given that most custody evaluators do not conduct their own research they must necessarily rely upon the studies of others as reported in the professional literature. Therefore, it is against this professional knowledge base that the validity of their testimony must be measured. If the witness has based an opinion on neither first-hand research nor the professional literature of the discipline, the opinion ought to be rejected.

Suppose, for example, that a custody evaluator observes that one of the parents exhibited behaviors “A,” “B” and “C” and from these data-points concludes that the parent suffers from depression. The initial crucial question is whether that conclusion is supported by the empirical research reported in the professional literature.10 If only some idiosyncratically crafted paradigm of the individual witness supports his conclusion, what is at hand is an inadmissible personal opinion, not an expert conclusion. Such idiosyncratic assumptions or methodologies, not having been tested in the field and lacking general acceptance, should not even survive a Frye11 challenge. Even if the threshold issue of admissibility is ignored such an opinion ought to be given no weight.

The critical question, therefore, is to what extent are the expert’s conclusions supported by the literature? Perhaps even more fundamentally, to what extent is the witness even familiar with the published writings of the field? The trial lawyer will likely find these lines of inquiry fruitful. Reported research suggests that relatively few experts consider the literature in their practices. In one study, 27 percent of clinicians interviewed stated that “no empirical study had affected their work” and not a single “psychologist was able to identify a specific study or a specific instance of research use.”12 Given psychology’s self-declared status as a science, such a cavalier disregard of the expert knowledge base is nothing short of astonishing.

Custody Evaluators

The professional literature occupies a central position in the proper conduct of a custody assessment. The ethical and practice standards of the mental health profession require custody evaluators to keep current with and to use scientific knowledge in carrying out their forensic assignments.

The American Psychological Association’s (APA) Ethical Principles and Code of Conduct state:

Psychologists’ work is based upon established scientific and professional knowledge of the discipline.13

The APA Guidelines for Child Custody Evaluations state:

Although psychologists take care to acquire sufficient knowledge, skill, experience, training, and education prior to conducting a child custody evaluation, this acquisition is never complete. An evolving and up-to-date understanding of child and family development, child and family psychopathology, the impact of relationship dissolution on children, and the specialized child custody literature is critical to sustaining competent practice in this area.14

Likewise the Association of Family and Conciliation Courts’ Model Standards of Practice for Child Custody Evaluation instruct that:

A child custody evaluator shall have specialized knowledge and training in topics related to child custody work and shall keep abreast of the ever evolving research in the field.15

Clearly, the profession itself recognizes that the scientific literature is the touchstone for the formulation of psychological conclusions. Thus, to properly assess the expert’s conclusions, one must look to the published writings. Significantly, what is not there is as important as that which is because the burden rests upon the expert to offer up the empirical research that reflects general acceptance in the scientific community of the principles or methods upon which each inference rests.16 Such burden placement is consistent with scientific practice:

A basic tenet of science is that the burden of proof always falls squarely on the claimant, not the critic. Consequently, it is up to the proponents of these techniques to demonstrate that they work, not up to the critics of these techniques to demonstrate the converse.17

In other words if the evaluator searches the professional library and, like Mother Hubbard, finds the cupboard bare, then he or she should not opine at all on the particular issue. To disregard the absence of scientific knowledge or to ignore contrary research runs afoul of the ethical and practice standards of the profession and results in the presentation of shoddy, unreliable work-product.

Conclusion

The professional literature of the expert’s discipline must be the anchor of his or her opinions. When expert witnesses deny the respected status of all or virtually all existing literature, such denials raise critical questions as to intellectual integrity of their conclusions. Accordingly, it behooves attorneys to master the literature of that expert’s discipline and be positioned to use it in court both through cross-examination and by presenting expert rebuttal testimony establishing the true status of the texts in question.

Endnotes:

1. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); see also, Hastings v. Chrysler Corp., 273 A.D. 292, 294, 77 N.Y.S.2d 524 (1st Dept. 1948); Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (2d Dept. 1977); Mark v. Colgate, 53 A.D.2d 884, 385 N.Y.S.2d 621 (2d Dept. 1976).

2. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); see also, Hastings v. Chrysler Corp., 273 A.D. 292, 294, 77 N.Y.S.2d 524 (1st Dept. 1948); Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (2d Dept. 1977); Mark v. Colgate, 53 A.D.2d 884, 385 N.Y.S.2d 621 (2d Dept. 1976).

3. Brodsky, S.L., Hendricson, S., “Testifying in Court: Guidelines and Maxims for the Expert Witness,” pp. 119-123 (APA, 1991).

4. Lipschitz v. Stein,10 A.D.3d 634, 636, 781 N.Y.S.2d 773 (1st Dept. 2004) [italics added].

5. Toomey v. MillerCoors, — F.Supp.3d —, 2015 WL 667508 (E.D.N.Y.), NYLJ Feb. 27, 2015.

6. John Henry Wigmore, Greenleaf on Evidence,(16th Ed. Rev.), §430(l), p. 529 (The Lawbook Exchange, 2001).

7. Morris, C.G., Maisto, A.A., “Psychology: An Introduction,” (Prentice Hall, 2002), p. 4 (Italics added)

8. 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Italics added); This is a fundamental evidentiary principle concerning expert testimony and is not dependent upon whether one is a Daubert jurisdiction.

9. Martindale, D.M., “Cross-examining Mental Health Experts In Child Custody Litigation,” The Journal of Psychiatry & Law, 29/Winter 2001, 483-511

10. Even assuming that the diagnostic conclusion is supported by research the next critical inquiry is whether there is research demonstrating that there is a nexus between the diagnosis and the question of parenting capacity. Without such a nexus, the diagnosis is not relevant.

11. Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923).

12. Cohen, L.H., Sargent, M.M., Sechrest, L.B., “Use of Psychotherapy Research by Professional Psychologists,” American Psychologist, February 1986 Vol. 41, No. 2, 198-206 (1996).

13. Ethical Principles Of Psychologists And Code Of Conduct, §2.04, American Psychological Association, (2002).

14. Guidelines for Child Custody Evaluations in Family Law Proceedings, §4, American Psychologist, December 2010.

15. Model Standards of Practice for Child Custody Evaluation , §1.1, Family Court Review, Vol. 45 No. 1, January 2007 pp. 70–91.

16. People v. Wesley, 83 N.Y.2d 417, 442, 633 N.E.2d 451, 611 N.Y.S.2d 97 (1994); see also, People v. Angelo, 88 N.Y.2d 217, 666 N.E.2d 1333, 644 N.Y.S.2d 460 (1996).

17. Lilienfeld, Lynn & Lohr, “Science and Pseudoscience in Clinical Psychology,” Guilford Press, 2003, p. 3.
Original Source: http://www.newyorklawjournal.com/id=1202719630250/The-Benighted-Expert-Professional-Literature-in-Court#ixzz3TcrbI78D

Leave a Comment March 6, 2015

Expert Heavy Plaintiff Wins Against Big Tobacco

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Plaintiff: Smoking Cigarettes Caused Husband’s Death

Amount: $6,000,000

Type: Verdict-Plaintiff

State: Florida

Venue: Federal

Court: U.S. District Court, Middle District of Florida, Jacksonville

Injury Type(s):

other-death
other-loss of society
cancer-lung
arterial/vascular
pulmonary/respiratory-chronic obstructive pulmonary/respiratory disease

Case Type: Products Liability – Tobacco, Failure to Warn, Manufacturing Defect

Case Name:

Ellen Gray, as personal representative of the Estate of Henry Gray v. R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, and Liggett Group, LLC, No. 3:09-cv-13603-WGY-HTS

Date: January 29, 2015

Parties

Plaintiff(s):

Ellen Gray (Female),

Estate of Henry(deceased) Gray (Male, 63 Years)

Plaintiff Attorney(s):

Sarah R. London; Lieff, Cabraser, Heimann & Bernstein, LLP; San Francisco, CA, for Ellen Gray,Estate of Henry(deceased) Gray
John Spragens; Lieff, Cabraser, Heimann & Bernstein, LLP; Nashville, TN, for Ellen Gray, Estate of Henry(deceased) Gray

Plaintiff Expert(s):

Alan Feingold; M.D.; Pulmonology; Miami, FL called by Sarah R. London, John Spragens
Neil Grunberg; Ph.D.; Addiction Behavior; Bethesda, MD called by Sarah R. London, John Spragens
Robert Slaton; M.D.; Internal Medicine; Gainesville, FL called by Sarah R. London, John Spragens
Robert Proctor; Ph.D.; Historian; Stanford, CA called by Sarah R. London,John Spragens

Defendant(s):

Liggett Group, LLC,  Philip Morris USA, Inc.,  Lorillard Tobacco Company,  R.J. Reynolds Tobacco Company

Defense Attorney(s):

Steven N. Geise; Jones Day; San Diego, CA, for R.J. Reynolds Tobacco Company
Aviva L. Wernick; Hughes, Hubbard & Reed, LLP; Miami, FL, for Lorillard Tobacco Company
Kelly Anne Luther; Kasowitz Benson Torres & Friedman LLP; Miami, FL, for Liggett Group, LLC
Joyce D. McKinniss; Jones Day; Cleveland, OH, for R.J. Reynolds Tobacco Company
Jeffrey Wagner; Kaye Scholer, LLP; Chicago, IL, for Philip Morris USA, Inc.

Facts:

In 1995, Henry Gray, 63, died of lung cancer in Gainesville.

Ellen Gray, representing the estate of her husband, sued R.J. Reynolds Tobacco Company, Philp Morris USA, Inc., Lorillard Tobacco Company, and Liggett Group LLC, alleging products liability.

The estate alleged that negligence on the part of the tobacco companies caused Gray’s death, as a result of being addicted to nicotine. The estate further alleged that as a result of using the products of the parties sued, Gray suffered from cancer which caused his death. All of the sued parties with the exception of R.J. Reynolds Tobacco Company were dismissed before trial. It was determined that Gray mainly smoked cigarettes manufactured by R.J. Reynolds Tobacco Company. The case stemmed from the Florida state court class-action case, Engle v. R.J. Reynolds Tobacco Co. In 2000, a jury in Engle rendered a $145 billion punitive damages verdict in favor of a class of Florida smokers allegedly harmed by their addiction to nicotine. In 2006, the Florida Supreme Court reversed that award and decertified the class action, but allowed potentially thousands of lawsuits to be filed.

The estate claimed Gray began smoking at age 16 – before the package warnings of the health hazards and addictive nature of cigarettes were required. The estate’s expert tobacco historian testified that R.J. Reynolds engaged in fraud and conspired to conceal the health effects of cigarettes and their addictive nature. Gray’s treating physician, an internist, testified that, based on his care and treatment, addiction to cigarettes containing nicotine caused Gray’s lung cancer, chronic obstructive pulmonary disease (COPD) and vascular diseases. He further testified that there were no other significant risk factors for any of Gray’s diseases, aside from his 90-pack-per-year smoking history. The estate’s addiction expert testified that Gray was addicted to cigarettes.

Defense counsel denied all of the estate’s claims, contending that Gray was not addicted to smoking. The defense further claimed that Gray chose to smoke knowing the risks and bore personal responsibility for the consequences of that decision.

Injury:

Gray’s wife sought to recover damages for loss of society, companionship and protection, as a result of her husband’s death

Result:

The jury found Henry Gray was addicted to cigarettes containing nicotine. The jury found the addiction to cigarettes containing nicotine was a legal cause of Henry Gray’s injuries, and also found that smoking cigarettes was a legal cause of Henry Gray’s death.

Further, the jury found that Henry Gray did not rely to his detriment on statements made by R.J. Reynolds that concealed or omitted material information concerning the health effects and/or addictive nature of cigarette smoking.

The jury found R.J. Reynolds 50 percent negligent and Henry Gray 50 percent negligent.

Finally, the jury determined that Ellen Gray’s damages totaled $6 million. Because of comparative negligence, the award was reduced to $3 million.

 

Leave a Comment February 12, 2015


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