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Construction Expert for Complex Litigation

By: Derek Graham, an ALM listing expert.

Finding the right construction expert for defect and workmanship claims expert is a slippery slope for attorneys whose specialty is not construction. A typical strategy to find a construction expert is to retain an engineer or architect expert, since like attorneys, they are degreed and licensed. I believe that, for some, there is a tacit notion that having a degree makes one a more qualified witness. This boot-strap stereotype does a disservice by significantly narrowing the field of candidates, and disqualifying some of the best resources.

The other reason attorneys default to architects is because architects routinely inspect tradesmen work quality for approval or rejection as a daily part of their office. So as it should be, per the AIA contract family. Thus, it is understandable for an attorney to seek an architect to render an opinion on defective workmanship. A tradesman would be at least equally as capable as the architect. Indeed, just as architects provide expert opinions on defective work, so can many tradesmen testify on the nature of architectural errors and omissions that contribute to a given defect, as good or better as any architect.

“The knee-jerk selection of an architect as a construction expert is misguided. It is a vestige of the old stereotype that architects are more educated and sophisticated than builders.

Yet even within firms that specialize in construction litigation, many attorneys don’t have the precise knowledge required to understand the complex science of defects at higher levels of luxury, such as custom high-end residential construction. The same can be said of mediators and arbitrators who may be unfamiliar with ultra-high-end work. This latter condition can be problematic, as it may preclude the reliability of the construction expert. The subjective nature and lack of consensus about what constitutes high quality further compounds the problem. It is therefore necessary to establish the value of a construction dollar on each distinct project.

The Almighty Construction Dollar

Every project has a design intent and vision built into the design documentation that is meant to set the bar for quality. The level of quality is what determines the value of a construction dollar on a project. Quality levels can sometimes be ascertained directly from the price per square foot for different types of construction. For high-end construction, the range is wide. It is not enough to say “I want the best,” or “I want the highest quality,” because no two architects will measure quality in the same way.

An architect less experienced in high-end is more likely to under-design for his clients than a seasoned high-end architect, simply because his concept of high-end is limited, and not sophisticated enough to make subtle adjustments depending on his clients’ design intent. This will become painfully evident after all of the costly infrastructure is installed, and when there is little or no time left in the schedule to make amends.

“In the 19th century United Kingdom, architects and builders were required to maintain budgets. They absorbed any overages.

Boutique” architects designing ultra-high-end projects end up all over the map in terms of the integrity of their designs and the cost to build their projects. The same is true of high-end contractors, who aspire to this most lucrative building sector. Such disparity lends itself to the wild fluctuations in practice that invariably lead to defect complaints.

Of course, it is the construction expert who will ultimately evaluate and assess workmanship defects. However, it is up to the attorney to choose the right expert for the case. In order to do this, an attorney should have at least a basic understanding of what makes high-end residential construction litigation so very different from all other construction litigation, such that he can make the most informed decision, and choose the right expert for his case.

Luxury: Custom or off the Rack

Custom high-end residential construction must be differentiated from luxury residential construction: whereas both niches are in the top price tier, luxury construction – in modern parlance, nowadays refers to redundant Modernist glass tower condominiums featuring fit-outs designed by boutique architects and interior designers. The units all receive the same interior treatments. Such standardization keeps these construction schedules moving forward and defects to a minimum. There is little time or interest in customizing luxury developer work, as customizations simply slow down the cycle.

As one would expect, defect claims are (nowadays) unusual in luxury residential development. Custom high-end residential construction also features accomplished designers and architects; however, these designers are tasked with creating a more or less unique design according to each of their clients ’budgets and vision. That may not sound like much, but it can be a long, drawn out, tedious process. The level of scrutiny is considerably higher in custom high-end residential construction than it is in developer work. Accordingly, an architect can cycle (design and build) several identical apartments in a fraction of the time it would take to design one or two customized units.

“design standardization in the high-end is more efficient, but NYC is still the most expensive place to build on the planet.

The timeline from design through build is considerably longer in custom high-end residential construction, than it is in the developer market, because custom work invariably requires an extended design and development window before construction drawings can be developed. Production and installation is also protracted.

“Building are going up at a feverish pace, yet any efficiencies have done little to reign in skyrocketing costs.

A developer I work with needs about sixteen-weeks to turn around a typical two-bedroom unit, in an eighteen-story condo. All the units have construction drawings, and preorder of standard materials. There is little or no design and development period. By comparison, a similar gut-renovation for a custom high-end renovation might have a twelve month design window, and twelve to eighteen month construction window.

Finally, there are no close working relationships to gum up the works between developer architects and condominium buyers, whereas building custom homes can best be described as a short, stormy, three-way marriage between the boutique architect, the well-heeled – and not atypical arrogant owners, and the contractor. Such projects are often fraught with indecision, lack of documentation, and persistent change orders. I believe that the more personal a construction contractual relationship becomes, the more the likelihood for conflict. This circumstance describes a majority of the cases I have been involved with.

Your construction expert

The trouble with finding experts offering opinions on high-end residential construction architectural workmanship defects is that projects with defect claims typically involve systemic defects across five or ten trades. Defects are abundantly evident in a job gone south across the entire project. Depending on the value of each component of the claim, you might seek an expert who specializes in the area where the most substantial claims lie, rather than try to find a construction expert for every condition.

Why are defects often systemic? Because it is typically the general contractor who is responsible for hiring craftsmen with the appropriate skill-level for a given project. The contractor determines what skill-level is appropriate, and builds the project based on that rubric. If it turns out that the general skill-level of the tradesmen he hires is below the architect and owners’ standards, it will be evident in most of the visible work – particularly, all the finish and cabinetry trades. It will also be evident behind the walls and ceilings.

Why would a contractor endeavor to build to a level below what would be acceptable to the owner? Sometimes, he does so inadvertently: he may be ignorant, incapable, or inexperienced in the level of workmanship and quality expected of him; he honestly believes he can deliver high-level work, and may even have a different conception of what it should look like, or he may simply be trying to maximize his profit by skimping on lower-paid, unskilled tradesmen. This latter circumstance is not inadvertent, and is considered to be unscrupulous business practice.

“Specialization is key, yet never assume you a licensed engineer automatically trumps a building industry expert. My argument is that the former lacks practical experience, and the latter theoretical experience.

All construction experts are not equal. Construction expert engineers tend to be specialized: if you want an opinion, for example, on a structural, electrical, or plumbing claim, you would seek an expert in his respective calling, who need not necessarily be an engineer. However; interior fit-out seldom requires an engineer’s opinion, nor does it merit one. Typically an expert in a trade such as woodworking, or ornamental iron, could assess architectural defects within their bailiwick, and they may appear to be the one in the best position to do so; however, that does not guarantee they will make a good witness.

A construction expert may have any specialty, or they may be trying to be the one-size-fits-all expert. I am dead-set against a construction expert offering opinions on matters for which he or she has little or no practical exposure or insight. Turning away work is an exception that few experts take, or can afford to take, and that is why there are so many experts practicing outside their element.

Do Architects Make Better Experts than Trade-Experts?

Many architects also provide construction expert witness services to support defect claims. Some are better at it than others. Their dalliance into the defect construction expert market is not welcome by those in the construction industry. Yet, few architects I have met have actually ‘worked the tools,’ a prerequisite to expertise in means-and-methods and critical insight to the comprehensive nature of a given defect. In other words, they may be able to identify the defect, but will be hard put to demonstrate cause, its impact, or the cost of remediation, due to limited technical prowess. For that reason, architects with little or no field experience bring less to the table than a seasoned trade expert.

My uncle was an FAIA. He rebuilt an 18th century farmhouse, turned wood, and was hands-on as they come. I’ve met very few besides him of that caliber.

For my money, trade experts typically have vastly more experience than architects in terms of number and diversity of projects. For example, within his own small firm, a project architect may have been involved with three of his own projects a year, for twenty-years, whereas an architectural millwork expert may have built fifteen of his own projects each year, for twenty-years.

The same is even true of assessing the value, integrity, of architectural drawings. The tradesman has the advantage again – in addition to his three-hundred built projects, he has estimated thousands of drawings, with hundreds of different architects, as opposed to the narrow exposure of an architect, who only sees the comparatively few jobs that he is commissioned. Thus, who would be in a better position to testify as to what is typical across the industry?

” a site superintendent can read drawings as well as an architect. The difference is – the former is a builder, the latter a facilitator.

In terms of technical insight: if for instance, a kitchen is to be designed, the architect will generally prepare basic elevations and details, which are relatively schematic, as compared to the copious shopdrawings a millworker’s draftsman will have to prepare based on the architect’s schematics. The notion being that the architect is not concerned with how the cabinets will be constructed: only that they look like his drawings. That being said, who is in a better position to opine on the nature of a structural defect?

Finally, when it comes to valuation of a claim, most architects will simply not be able to do the math. Although they are supposed to have a general knowledge – $/square-foot, depending on building type, of the construction dollar on their projects, they will be hard-put to give any detailed sort of breakdown, or even accurate unit-price, in the way that a seasoned construction estimator or general contractor might. When architects require cost control of their clients’ construction budgets, they are typically wholly reliant on their general contractor’s estimator to generate any sort of detailed budget, or value engineering options. After all, architects are not contractors.

On the other hand, well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”

Final Selection

Whether you plan to solicit a construction expert opinion from an architect, a tradesman, or both, use these Best Practices in selecting your high-end expert:

1. Educate yourself about the specific nature of the claim: this knowledge will help you in determining which construction expert you might seek.

2. Set up a game plan to determine which experts you will call to testify: architect, tradesman, other …

3. Interview at least three experts for each area of expertise you expect to provide testimony

a. Have they testified before?

b. Have they prepared construction expert witness reports?

c. Are they experienced in high-end construction?

d. Do they have experiences in similar cases?pert

4. Ask for statement of qualifications

5. Contract: no expert should be retained without a contract. Most experts have their own form.


Well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”

The answer is: it depends. The defect(s) may be a function of an architect’s errors and omissions, for which most architects are insured against. Perhaps he specified incompatible materials, or stressed material beyond their tolerance. In that circumstance, an architect may provide the best opinion., Alternatively, there may have been nothing wrong with the specification of the materials, and the defect may be wholly attributable to poor workmanship. To be sure, a peer tradesman is well positioned to give an opinion on the nature of the defect. However; any decent architect can also assess the same cosmetic defects.

At the end of the day, it is not the specific vocation of the expert, but the integrity of the construction expert witness and the experience and insight he has to offer that should inform your expert selection. There are some great expert architects and tradesmen in the industry who are well suited to certain types of claims. The trick is to find just the right one for your case.

Leave a Comment May 30, 2017

Rising to the Challenge: Junior Attorneys Utilize Expert Witnesses in the Courtroom


Originally published in The New York Law Journal , an ALM Media publication, on March 31, 2017.

By: Michael Rader

Much ink has been spilled in recent years about the “vanishing jury trial” in America. With fewer jury trials and more at stake in many of the cases that are tried (for example, large patent infringement cases), opportunities for junior attorneys to participate meaningfully in trial advocacy have evaporated. Federal judges have increasingly expressed concern about who will be prepared to try the complex cases of the next generation.

Creating opportunities for young lawyers to take an active role in today’s trials is not, however, just a way of preparing the legal profession for the future. It is also an important strategy for serving clients in the present. Young lawyers often work more closely than senior lawyers with the witnesses who will testify at trial and are in a unique position to present those witnesses’ direct testimony. Eager to gain trial experience, young lawyers invariably bring an outstanding level of preparation to the task. Finally, advocacy by young lawyers can be refreshing—and most importantly, persuasive—to judges and juries.

Earlier this year, an organization called Chiefs in Intellectual Property (ChIPs) published a survey identifying 19 recent orders from federal judges across the country encouraging law firms to provide relatively inexperienced lawyers with opportunities for trial advocacy and oral argument.

For example, Judge Indira Talwani of the District of Massachusetts issued a standing order in 2015 directed expressly to “Courtroom Opportunities for Relatively Inexperienced Attorneys.” It provides: “Recognizing the importance of the development of future generations of practitioners through courtroom opportunities, the undersigned judge, as a matter of policy, strongly encourages the participation of relatively inexperienced attorneys in all court proceedings including but not limited to initial scheduling conferences, status conferences, hearings on discovery motions and dispositive motions, and examination of witnesses at trial.”


Similarly, a standing order concerning the conduct of jury trials, issued by Judge William Alsup in the Northern District of California in 2016, explains: “The Court strongly encourages lead counsel to permit young lawyers to examine witnesses at trial and to have an important role. It is the way one generation will teach the next to try cases and to maintain our district’s reputation for excellence in trial practice.”

Many of the standing orders directed to participation by junior lawyers include provisions requiring adequate preparation and supervision by more senior lawyers (which would surely be implicit in any event). Others include a variety of other special provisions. For example, a standing order issued in early 2017 by Magistrate Judge Christopher Burke in the District of Delaware indicates that the court will make an extra effort to grant oral argument—and will strongly consider allotting additional time for oral argument—when young lawyers are slated to argue.

A review of the standing orders compiled by ChIPs shows a strong trend of increasing judicial concern about this issue. While eight such orders were issued between 2005 and 2015, 10 were issued in 2016 alone. It is now a best practice, in addition to scrupulously following applicable local rules, for counsel to check whether a judge has a standing order concerning the participation of young attorneys.

As always, it is important to know the judge, who may have strong feelings about this issue even if he or she has not issued a standing order. For example, Judge Allison Burroughs of the District of Massachusetts makes it a practice to offer law firm associates an opportunity to argue a motion even after the lead attorneys have finished their presentation on that same motion. In January 2016, she wrote in the Boston Bar Journal that she hopes “litigants will see it as an opportunity to make their points one more time, rather than as a potential pitfall for the young and unwary.” Associates attending court hearings should make a special point of being well-prepared to take judges like Judge Burroughs up on such an offer.

While many of the judges who have issued standing orders like those discussed above have done so out of concern for the future of the trial bar, law firms and clients should appreciate that involving junior team members in trial work and oral argument has a more immediate impact: It benefits a client’s representation in multiple ways.

When it comes to examining a witness at trial, junior lawyers frequently have a distinct advantage over their more senior colleagues. It is very often the junior lawyer who spent significant time with the witness during the discovery process and in the weeks and months leading up to the trial. In the case of an expert witness, the junior lawyer probably played a key role in drafting the expert report. In the case of a fact witness, the junior lawyer probably worked with the witness to prepare a detailed outline of the direct examination. Direct examination is challenging, and it is critical that the examining attorney and the witness know each other well.

Knowing the witness is even more important for re-direct, which is impossible to script fully in advance. Successful re-direct requires knowing what the witness knows and what the witness will say when questioned on a topic. Cross-examination may cover unanticipated subjects, making it difficult to conduct re-direct without the rapport that comes from a lawyer and a witness having spent significant time together. With that in mind, clients should appreciate that the individual best positioned to present a witness’s direct testimony at trial may be the junior attorney who worked with that witness over the course of the case.

As numerous standing orders reinforce, it is crucial for senior counsel to ensure that junior attorneys are well-prepared for every task. The investment of time required to prepare a junior attorney to examine a witness or conduct an important argument can be substantial, but this type of hands-on mentoring is one of the most rewarding aspects of legal practice.

With few if any exceptions, junior lawyers avail themselves of mentoring and prepare extremely well when given such opportunities. In 2011, Judge Denise Casper of the District of Massachusetts observed that earlier standing orders from judges in her district “had the desired effect of having more well-prepared junior attorneys attend status conferences, argue motions to the Court, and, under appropriate supervision, examine witnesses at trial.” It is understandable that clients expect senior lawyers to argue important motions and present important witnesses, and senior lawyers certainly must earn their keep. However, clients should also keep an open mind and be prepared to discuss staffing decisions with senior lawyers, who may exercise their professional judgment to instead prepare a junior lawyer to undertake some of those same tasks.

Involving diverse talent in trial work and oral argument also helps hold the interest of the audience (whether judge or jury). In patent litigation, for example, most cases involve a claim construction hearing (known as a Markman hearing) that can last several hours or sometimes even multiple days. A single advocate, no matter how talented, may begin to bore the judge after many hours at the podium. A change of pace is almost always welcomed by judges and juries alike.


With age comes wisdom. It has been said that the wisest individual is one who learns from every person. Today, many judges—the most experienced trial experts in the legal profession—are recommending that junior lawyers be afforded substantive opportunities in court. Senior trial attorneys should take note and learn from those recommendations in implementing winning strategies for their clients.


Michael Rader, a litigation shareholder at Wolf Greenfield, heads the firm’s New York office.

Leave a Comment April 28, 2017

Using Computer Forensics Expert Witness to Investigate Employee Data Theft

By: Timothy M. Opsitnick, Joseph M. Anguilano and Trevor B. Tucker, JURINNOV, Cybersecurity Law & Strategy

This article appeared in Cybersecurity Law & Strategy, an ALM publication for privacy and security professionals, Chief Information Security Officers, Chief Information Officers, Chief Technology Officers, Corporate Counsel, Internet and Tech Practitioners, In-House Counsel. 

Over 25% of employees steal proprietary data when departing a company or organization. See, “Employee Departure Creates Gaping Security Hole, Says New Data,” Biscom. To that end, our experience shows that departing employees have a sense of ownership over the data that they copy. Intellectual property commonly stolen includes customer lists, secret formulas, source code, strategy documents and other trade secrets. The information is often used against the organization when the former employee goes to work for a competitor or decides to start a new company.

When suspicions of employee data theft arise, it is important to engage a computer forensics expert to perform a theft-of-IP analysis in order to preserve electronic data and uncover important evidence. Using specialized software, the expert can reveal digital footprints such as:

  • USB activity;
  • Files recently opened;
  • Cloud storage usage;
  • Files sent to personal email accounts; and
  • Recently printed documents.

The results of the analysis can provide the foundation for legal action such as a temporary restraining order, permanent injunction, subpoena of personal devices, or other litigation to prevent the misappropriation of company data.

When Employee Data Theft Is Suspected

Employee data theft occurs most frequently just prior to, or immediately after, an individual’s termination or resignation from an organization. Telltale signs that an investigation is warranted include unusual activity by the employee, such as:

  • Plugging a personal USB thumb drive or hard drive into a computer;
  • Coming into work at odd hours or establishing remote desktop connections during off-hours;
  • Transferring large amounts of data on the company network;
  • Visiting file sharing sites like Dropbox or Google Drive; or
  • Sending emails with attachments to personal accounts.

If there are concerns that a departing employee has stolen proprietary data, then it is important to take steps not to delete important electronic evidence located on his or her computer. If the computer is powered on, then leave it on, because important evidence may be stored on the computer’s random access memory and could be deleted if the computer is powered off. Also, ensure that the computer cannot be accessed remotely by disconnecting it from the network.

If the computer is already turned off, then place it in secure storage. Furthermore, confirm that the employee’s login credentials are disabled or have been changed, but do not let the IT staff reinstall the operating system or reassign the computer to another employee. Such actions could destroy or overwrite any evidence of wrongdoing. Finally, resist the temptation to “take a peek” at what is stored on the computer by turning it on and accessing files because this could alter the data, thereby making the investigation more complex.

If the suspected employee had a company-issued cell phone, place it in secure storage as well. Smartphones hold an abundance of useful information, such as text messages, emails, call logs, Internet activity and more. The simple act of resetting the phone, however, can permanently destroy this data.

IP Theft Investigations

Preserving and Analyzing Electronic Evidence

The first step in a theft of IP investigation is to forensically preserve the data on the employee’s device(s). The computer forensics expert will create chain of custody documentation, photograph the hardware, and verify the integrity of the preserved data, among other things. These steps ensure that the electronic evidence will be admissible in court.

Once the data is preserved, the next step in the investigation is to perform an analysis to identify software and artifacts that may be indicative of IP theft. These areas on a typical Windows installation include:

  • USB activity;
  • Files recently opened or deleted;
  • Cloud storage;
  • Personal email accounts;
  • Internet history report; and
  • Printed documents.

USB Activity Analysis

Many of today’s USB devices, such as thumb drives and external hard drives, have enough storage capacity to save an entire copy of a user’s hard drive. As such, they are one of the most common tools used to steal data. The good news is that using a USB device leaves behind a trail of digital evidence that can prove invaluable to an investigation.

Analyzing a user’s USB activity can reveal several key facts regarding what was connected to the computer and when. In most cases, forensic experts can determine the serial number and/or brand of the USB device, as well as the first and last time the device was connected to the computer. In some instances, they may also be able to verify each time a specific USB device was connected.

Often, the analysis will reveal that an external USB hard drive or flash drive was connected for the first time during an employee’s last week of employment. While most analyses reveal a new USB connection, it is also possible that a device used throughout the duration of the suspect’s employment was never returned. A device such as this would likely contain numerous documents and files that were related to the employee’s day-to-day activities and could contain value to a competitor. If it is a requirement that employees return company-owned USB drives at the end of their employment, forensic experts have the ability to verify whether or not that policy was upheld.

While confirming that a USB device was connected to a computer is significant, it is even more important to know what files were accessed and potentially transferred to the device. The Microsoft Windows operating system creates various artifacts when a user opens a file or folder. These artifacts indicate what was opened, when it was opened and from where it was opened. A classic red flag is if the employee was opening files during the last week of employment that were not related to the work being performing during that time.

Another consideration is the organization’s data access policy. If data access restrictions are not in place, then the employee may be able to access company files unrelated to current work that are stored on the network. The existence of these artifacts when combined with a USB activity timeline can indicate a high probability that data was copied off the system.

Last, the artifacts can also contain specific information about where the file existed. If a file was opened from a USB drive, the artifact will indicate this, providing factual evidence that the suspect is in possession of a USB drive that contains specific files. For example, combining a USB analysis and files recently opened analysis could show that on Oct. 7, 2016, at 7:22:08 a.m., a non-company-issued SanDisk thumb drive with serial number 851450 was plugged into the computer for the first time and a file titled “Client Contact List.xlsx” was opened.

Cloud Storage

If the analysis shows that certain files were accessed but no USB activity was detected, the next step in the investigation is to identify evidence that a cloud storage provider such as Dropbox, Google Drive or Microsoft OneDrive was accessed. The purpose of these applications is to share and sync data across multiple computers. For example, Dropbox may have been surreptitiously installed on the employee’s work computer as well as his or her home computer. Consequently, the simple act of syncing a company file to Dropbox will instantaneously also make that file available on the employee’s home computer.

The good news is that cloud storage applications often have corresponding log files and databases that record what files the user accesses and what activities are performed. These logs can signify files have been uploaded to the cloud in the past even if they have already been deleted from the shared folder. Some of these applications even save deleted data in a separate “hidden” folder on the computer itself that users typically are not aware of. As a result, a theft of IP analysis may show that Dropbox was installed on the user’s work computer and that early in the morning on Oct. 7, 2016, 50 files were deleted and the “hidden” folder reveals these were company files.

Personal Email Accounts

Some individuals may use their company email to send attachments to their personal email account such as Yahoo or Gmail. In these cases, forensic experts are able to perform a preservation of the employee’s work email to identify and document the evidence of misconduct.

Internet History Report

An Internet history report can be generated that shows, inter alia, recent Internet searches, websites and pages visited, cookies from websites, and Internet downloads that occurred. Such information is helpful in establishing what an individual thought was important or even their state of mind. For example, analysts have discovered that individuals have searched on how to delete data or copy data surreptitiously and that they reviewed websites that were in essence “how to manuals” to perform certain deleterious acts.

Paper Documents

Finally, individuals who are a little less aware of more modern techniques to copy data will simply print the documents they wish to take out the door. In these cases, forensic experts are able determine the last known print date of Microsoft Office documents.

Deliverables and Project Timeframe

The turnaround time for a theft of IP analysis performed by an analyst is typically one week. Deliverables provided will be easy to understand in the form of spreadsheets, HTML reports, and written reports containing the findings of the analysis. A forensic expert should also spend time with the client either over the phone or in person to discuss the reports in detail so that they know exactly what a report contains and the assumptions and opinions of the forensic expert. If necessary, an expert will also provide depositions or expert witness testimony regarding the authenticity of the evidence and their findings.

Timothy M. Opsitnick is president, Joseph M. Anguilano is director of operations, and Trevor B. Tucker is a forensic analyst of JURINNOV, LLC. JURINNOV, LLC, a wholly-owned subsidiary of Technology Concepts & Design, Inc. (TCDI), a technology company that provides cybersecurity and e-discovery services.

The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.

Leave a Comment April 14, 2017

Ineligible Expert Insufficient to Justify Continuance, Court Rules


By: Ben Seal

Originally published in The Legal Intelligencer, an ALM media publication on April 3, 2017.

A legal malpractice plaintiff is not entitled to a continuance to seek an expert to testify despite learning shortly before a scheduled trial that his intended expert was ineligible, the Pennsylvania Superior Court has ruled.

A split three-judge panel issued a March 27 memorandum finding that Aldis Rutyna should have known that his medical expert had signed a consent judgment precluding him from testifying against the medical center involved in Rutyna’s underlying medical malpractice case. The trial court correctly dismissed the case with prejudice due to Rutyna’s inability to produce an expert witness, the appellate court determined in Rutyna v. Schweers.

Attorney William S. Schweers Jr. of Harrington, Schweers, Datillo & McClelland filed a medical malpractice complaint on Rutyna’s behalf against the University of Pittsburgh Medical Center in 2006 alleging negligence during back surgery. But Rutyna did not file a certificate of merit, leading to a judgment of non pros and the case being dismissed, Senior Judge Eugene Strassburger wrote for the 2-1 majority.

The following year, Rutyna and his wife filed a complaint against Schweers alleging breach of contract and vicarious liability for failure to file the certificate of merit. After a winding course of litigation that Judge Carl Solano described in his dissent as “convoluted,” a trial was set for June 2016, but the Rutynas requested a continuance just two weeks prior upon learning from Schweers about their expert’s inability to testify against UPMC.


Schweers filed a motion in limine seeking to preclude the expert, Dr. Mark Foster, from testifying because he was not qualified under the MCARE Act due to his failure to practice within the subspecialty at issue. Schweers also made an oral motion for nonsuit based on the Rutynas’ lack of a qualified medical expert. Both motions were granted, leading the Rutynas to appeal to the Superior Court.

On appeal, the Rutynas argued that Schweers waited too long to object to Foster’s qualifications, an argument Strassburger said was without merit because there is no requirement that an objection be made before voir dire.

“The trial court could not make a determination regarding Dr. Foster’s qualifications without conducting voir dire,” Strassburger said. “However, the trial court could not conduct voir dire under these circumstances because, as the Rutynas acknowledge, Dr. Foster would not testify.”

In reviewing Foster’s qualifications, Strassburger said that because he no longer practices as an orthopedic surgeon, he did not meet the standards set forth by the MCARE Act to testify as an expert against an orthopedic surgeon. Foster’s lack of qualifications factored into the court’s response to the Rutynas’ argument that their case should not have been dismissed because Foster’s inability to testify was caused by Schweers’ actions.

“Even if Dr. Foster were otherwise available, i.e., he had not signed an agreement not to testify, he would have been precluded anyway under MCARE,” Strassburger said.

He also rejected the Rutynas’ argument that they should have been given additional time to find a replacement expert, quoting the trial court’s ruling in the process.

“‘This case is over a decade old. … The only “surprise” that befell [the Rutynas] respecting the scheduled trial in this matter was that [Dr. Foster] had determined months in advance that he would not offer testimony against [UPMC],’” Strassburger said.

Finding no abuse of discretion by the trial court, he affirmed the order. In his dissent, Solano said the Rutynas should have been granted a continuance because there was no evidence they were negligent in not learning of Foster’s agreement sooner.

James R. Cooney of Pittsburgh represented the Rutynas. He said he thought it was “the type of case that cried out for a continuance, even though it’s been around for a while,” and noted his disappointment for his injured client.

Kenneth Schott III and James Schadel of Burns White in Pittsburgh represented Schweers. Schott did not return a call for comment.

Contact managing editor Zack Needles at

Leave a Comment April 7, 2017

Texas Lawyer: 13 Must-Ask Questions Before Enlisting An Expert Witness

Originally published in Texas Lawyer, an ALM Media publication, April 20, 2016

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

By: Quentin Brogdon

Expert witnesses can make or break a case. Trial lawyers thoroughly investigate opposing experts, but often fail to subject their own experts to that same high level of scrutiny. The consequence of hiring the wrong expert can include the striking of the expert, sanctions, massive wasted financial resources, and even the dismissal of a party’s claims or defenses. When it comes to hiring experts, an ounce of prevention is worth a pound of cure.

First, determine whether the headache of dealing with an expert is really needed. Even if experts are allowed to opine about an issue, you may not want to hire an expert if expert testimony is not required. The decision not to hire an expert may be based on considerations of expense, the potential for the expert to contradict other experts or fact witnesses, or a concern that the jury may not find testimony from a hired expert on the particular issue to be persuasive or credible.

Some issues generally are inappropriate for expert testimony. Texas courts have prevented experts from testifying about: 1. pure questions of law; 2. mixed questions of fact and law, if not confined to relevant issues and based on the proper legal standard; 3. subjects within the jurors’ common knowledge; 4. the truthfulness of a witness; 5. whether conduct is outrageous; and 6. the dollar value of love and affection.

If you must hire an expert, you can avoid much future aggravation by running from experts who: 1. act unethically; 2. have problems communicating; 3. have been struck by other courts; 4. have a criminal or disciplinary history; 5. have taken prior inconsistent positions under oath or in publications; 6. have only expressed opinions in the context of litigation; 7. have inappropriate internet postings by, or about them; 8. have promised expertise in an unrealistic number of different areas; 9. are evasive about case budgets or tasks to be performed; 10. are unwilling to comply with your guidance about their role in the case; 11. brag about verdicts they enabled or prevented through their brilliant testimony and expertise, 12. send spontaneous, ill-advised emails at every stage of their thought processes, 13. demand that you immediately file a motion to modify the scheduling order’s expert report deadline to fit their busy schedule; 14. make “promise the moon” statements, such as “I’m going to win this for you;” or 15. try to act as a lawyer or delve into settlement discussions or case strategy.

If possible, it is best to meet the expert before hiring him to assess first-hand how the expert carries himself. Is he able to make eye contact when speaking? Does he appear to be credible and persuasive? Can he teach the judge and the jurors by reducing complex concepts to understandable basics?

You can get answers to the hard questions during the initial interview of the expert, or you can hear the answers for the first time during the expert’s deposition. During the interview of the expert, ask pointed questions, such as:

1. “Are you the best expert for this issue?” Given a chance, credible experts who appear to be a perfect fit often will confess that they are not the right expert, and that another expert or another type of expert would be a better fit.

2. “What in your background, experience, and training enables you to express opinions about this issue?” A qualified expert cannot help if he cannot sell the judge and jurors on his qualifications. Think long and hard before you hire any expert who cannot even sell you on his qualifications.

3. “Have you ever been prevented from testifying in any case by a court for any reason?” If the answer is yes, ask for case styles, attorneys, and reasons that the expert was prevented from testifying.

4. “Do you anticipate any problem in getting your report done before the expert designation deadline?” If there is a problem, you want to know about it now, not on the eve of the deadline.

5. “What testimony, documents, and information will you need to formulate and support your opinions in this case?” Let the expert tell you before he is hired what discovery you need to undertake to support and bolster his opinions. Do not allow the expert to get struck simply because you did not complete the underlying discovery necessary to support his opinions. Likewise, you need to know at the outset if the expert has unreasonable or impossible expectations.

6. “Have you ever testified for or against the opposing party before?” If the other side is familiar with your expert, you want to know that now.

7. Ask about publications, prior testimony, internet references, speaking engagements,

advertisements, membership in professional organizations, criminal and disciplinary history, and past representations about areas of expertise.

8. “Are there other types of experts with whom you typically work on these types of cases?” You may be speaking to only part of an expert team—all of whom are indispensable.

9. Ask pointed Daubert-based questions about: 1. testing of the expert’s theory; 2. the theory’s potential rate of error; 3. whether the theory has been, or could be subjected to peer review; 4. whether the theory has been generally accepted as valid by the scientific community; 5. the extent to which the theory relies on the subjective interpretation of the expert; and 6. the non-judicial uses that have been made of the theory.

10. Ask about previous testifying experience, including case

styles, outcomes of cases, names of hiring and opposing attorneys, Daubert strikes granted, cases against your opponent, ratio of plaintiffs’ to defense work, and ratio

of litigation consulting work to other types of work.

11. Explain that you expect to hear any and all misgivings about the case, up front, and that you are not looking for an outcome-oriented review. You do not want to learn for the first time during your over-eager expert’s deposition that he has serious misgivings about your case.

12. Ask about the expert’s experience with the opposing side’s experts and his opinion of them. If the opposing side has hired your expert’s best friend, mentor, or former employer, you need to know that now. Likewise, if your expert seems intimidated by the names or credentials of the other side’s experts, you may want to consider hiring a different expert.

13. Ask how your expert prefers to receive documents and communications. Some experts prefer everything in electronic format, while others still want everything in paper format. If an expert cannot, or will not review paper or electronic documents, you need to know that now.

If you do find the right expert, do not set up the expert to fail after you hire him. Promptly notify him of deadlines for expert reports, Daubert hearings, trials, and other relevant activities in the case, and periodically remind him of forthcoming deadlines.

In dealing with experts, an ounce of prevention really is worth a pound of cure.

Quentin Brogdon is a partner with Crain Lewis Brogdon in Dallas. He is board certified in personal-injury trial law by the Texas Board of Legal Specialization and in civil trial advocacy by the National Board of Trial Advocacy, and he is the vice president of the Dallas Chapter of the American Board of Trial Advocates. His email is

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Leave a Comment April 26, 2016

The Importance of Source Code Analysis for Investigations (Part 1)

Originally pushed for Legaltech News, an ALM publication

October 28, 2015

by Joe Sremack, an ALM Listing Expert

Source code analysis can provide critical insights needed to solve an investigation and answer key questions about how events occurred.


Source code analysis is a powerful tool that can answer questions that traditional investigative methods such as document review and data analysis cannot. Traditional methods answer questions about the whowhatwherewhen, and why of a matter, but may not fully answer how certain events occurred. Source code can be found within any organization, and many organizations are increasingly reliant on creating and customizing their own software. Source code analysis can provide critical insights needed to solve an investigation and answer key questions about how events occurred.

In Part 1 of this two-part series, Joe Sremack discusses the role of source code analysis for investigations.

What is source code?

Source code is a set of computer instructions written in a human-readable form. It is a set of text-based instructions written in a programming language, compiled or interpreted to perform one or more tasks, and the source code statements follow the programming language’s syntax and semantics rules. There are hundreds of known programming languages—thousands if you count obscure and task-specific languages—used for different purposes and with their own syntaxes and semantics. Once source code is written, it can be executed either by being compiled into an executable program or at runtime by an interpreter that translates the code into computer operations.

The format of source code depends on the language and Integrated Development Environment (IDE) used. Some source code is simply one or more text files. This is commonly the case for scripting languages, such as Python and Ruby. Other source code can combine text files and non-text file objects—such as pre-compiled libraries, GUI design files, and system configuration files. Compiled languages often have these non-text objects, which are combined in an IDE. Analyzing the text file–only source code can be accomplished with any text editor, but the non-text file objects may require specialized software to view.

Source code is as varied as the different types of software. Source code can be written for mainframe computers, personal desktop and laptops, servers, virtual environments, websites, business intelligence platforms, data transfer processes, data-centric mobile applications, and so on. Each environment can have a host of different types of software created for it—each with different programming languages. The source code for each can be analyzed to answer questions about how the software operated and what was performed.

Source code can be created by various people in different roles. Because code comes in many different forms, it is not only created by software developers and specialized programmers. While highly specialized, complex software may only be created by programmers, other types of source code can be created by people in different roles. Database queries, small scripts, and batch programs can all be created with relatively little programming knowledge or experience. This is important for investigations, because the investigator needs to consider who could potentially write source code and the types of programs that could be written. For example, an employee in a company’s payroll department may create logic using Excel VBA to generate ghost employee records that could be critical to the investigation.

Why analyze source code?

Source code is valuable for investigations for a number of reasons. First, source code contains information about the logic and business rules used to perform various operations. The operations of an organization may be described or documented, but those may not match the actual operations. Source code can be used to reveal the actual operations. For example, a healthcare company may claim that it does not modify certain types of medical records. If it relies on custom software for its medical record processing, that claim can be tested by reviewing the medical record processing software’s source code.

Second, the source code for key business operations contains information about the location and nature of the data used for specific operations. In an adversarial investigation, an investigator can locate key data repositories via the source code, rather than simply relying on potentially deceptive interview subjects. This enables an investigator to identify key data sources more completely and effectively.

Third, source code can be used to aid the data analysis process. The investigator can use the logic from the source code to determine the types of data to analyze and uncover relationships between various data sets. These insights can be used to understand business rules and help identify critical elements in the data that might otherwise go unnoticed.

Fourth, source code can be analyzed in relation to the data to identify discrepancies. Source code analysis can yield insights into the business rules for how the data should be stored. If an investigator is confident that data should not have been modified by anything except for that program, the data can be tested in relation to the business rules in the source code to identify anomalies. These anomalies, in turn, may point to non-standard or fraudulent activity performed outside of the business rules.

Other examples of goals for source code analysis include:

  • Analyzing similarities and differences between two sets of source code as part of an intellectual property dispute
  • Analyzing how a program’s behavior evolved over time
  • Locating security flaws


Investigators should consider source code when conducting investigations. Numerous forms of source code can exist, and since many organizations have customized software that performs business operations, the source code may be a valuable source of information. Source code analysis can help validate data analysis, identify data sources, pinpoint data anomalies and fraudulent activity, or highlight how a data breach occurred. Without source code analysis, the investigator may not have a full understanding of what actually happened.

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Part 2 of the series, covering the types of source code analysis that can be performed and how you can integrate source code analysis into an investigation, can be found on

Leave a Comment April 8, 2016

Uber Faces Plaintiffs’ Bid for Multidistrict Litigation

Originally published on: The National Law Journal, January 7, 2016

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

By: Amanda Bronstad

A new roadblock could lie ahead in Uber’s legal fight with its own drivers following a move by a New York plaintiffs attorney to coordinate a dozen lawsuits, including a high-profile class action in California challenging its employee classifications.

Most of the suits allege that Uber Technologies Inc. has misclassified drivers as independent contractors rather than employees who are entitled to unpaid wages, tips and reimbursement for gas and other expenses. Uber, based in San Francisco, offers a transportation service through a mobile application that connects drivers with customers.

A multidistrict litigation would coordinate all the cases before a single judge for pretrial purposes but, more immediately, could halt proceedings in individual cases where Uber has moved to dismiss the litigation, primarily citing arbitration agreements that drivers signed.

Hunter Shkolnik of New York’s Napoli Shkolnik, who has filed nearly half the suits, moved on Dec. 1 to coordinate all the cases into a multidistrict litigation proceeding. The U.S. Judicial Panel on Multidistrict Litigation has scheduled the matter for its Jan. 28 hearing in Fort Myers, Florida.

“We felt it was appropriate for those drivers in other states to have the same protections that they’re moving forward in California on,” Shkolnik said. He said he wouldn’t be surprised if more cases got filed in every state Uber is operating.

“We’re just getting contacted by drivers like crazy,” he said. “There are a lot of very upset drivers.”

Uber spokeswoman Jessica Santillo declined to comment but referred to the company’s Dec. 29 motion before the MDL panel that opposed coordination in part because “the tests for determining contractor status vary by state, with critical distinctions.”

Uber also parceled out the California case, stating it was “far too procedurally advanced to be consolidated or coordinated.”

The plaintiffs lawyer behind that California action, Shannon Liss-Riordan of Lichten & Liss-Riordan in Boston, filed a Dec. 16 motion opposing coordinating her case, which is scheduled to go to trial on June 20.

“After devoting countless hours and hundreds of pages of legal opinions to this case, it would be a grave mistake to transfer this case to another court at this late hour,” she wrote. Liss-Riordan did not respond to a request for comment.

A few of the cases allege that Uber rejected certain job applicants based on background checks that violate the U.S. Fair Credit Reporting Act. Attorney Bruce Greenberg, a member of Newark’s Lite DePalma Greenberg, who filed one those cases, opposed an MDL on Wednesday on ground that the claims are too different from the misclassification cases.

But Shkolnik disagreed that those claims couldn’t be part of an MDL. Shkolnik, who initially sought coordination before U.S. District Judge Orlando Garcia in the Western District of Texas, who is overseeing one case, later added the Northern District of California as a potential venue. He said he agreed with Liss-Riordan that U.S. District Judge Edward Chen, who is overseeing several cases against Uber, including hers, has made significant rulings, such as finding Uber’s arbitration agreements to be unenforceable and certifying a class of drivers. (On Monday, Liss-Riordan filed a new case in San Francisco Superior Court on behalf of drivers who were potentially left out of the class.)

“It was a very cogent argument that he has done so much work on the case,” he said. “It would be offensive for me not to say he would be a very good alternative.”


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Leave a Comment January 8, 2016

Ethnicity-Based ‘Economic Loss’ Testimony Unconstitutional

Originally published by: New York Law Journal

By: Michael Hoenig

In a bombshell decision issued on July 30, Eastern District of New York U.S. Judge Jack B. Weinstein held that it is unconstitutional to use ethnicity-based statistics to calculate future economic loss in a tort case. In G.M.M. v. Kimpson,1 an infant lead poisoning claim against a defendant landlord that resulted in a two-week trial and a plaintiff’s verdict of about $2 million, the judge ruled that the testimony of three economics experts (two for the plaintiff and one for defendant) could not rely on assumptions based on ethnicity—in this case the fact that the infant was Hispanic. The July 30 Memorandum and Order copiously explained the trial ruling and the reasons why such testimony is unconstitutional. Judge Weinstein found that use of “ethnicity-based statistics” to obtain a reduced damage award in calculating future economic loss violates due process and equal protection.

Weinstein’s decision could have profound impact on economic loss evidence in cases where consulting or testifying economists rely on assumptions and statistics based, in part, on ethnicity factors. For example, in personal injury cases involving youngsters, impairment of future earnings and earning capacity are often contested issues. Proverbially and exaggeratedly speaking, just to make a point, plaintiffs’ lawyers might like to posit that a 5-year-old claimant, were she not injured, would have become a neurosurgeon. The defense, however, might like to show that, based on ethnicity and economic strata data, the child likely would not have gone beyond a high school education, which translates into a lower range of earnings into the future.

This kind of debate, fortified by assumptions, statistics, trends, graphs and historical data, is subject matter routinely and typically reflected in a battle among experts. The economic loss damages in a given case can be significant. If a youngster could be projected out to graduating from university into high-paying professions, then a future worklife expectancy into the child’s 60s or 70s can support a high damage award. On the other hand, if the infant plaintiff is likely to engage in lower-paying work, then the economic loss projected forward for five decades or so justifies only a lower award. Weinstein’s ruling and rationales affect the permissible assumptions and statistical bases that expert economists can use and, therefore, perhaps also the quality of their testimony as well as the loss figures in their bottom-line opinions.

The Kimpson decision is lengthy and, as often in Judge Weinstein’s pivotal opinions, is lucidly erudite, chock-full of facts, statistics and data. Although infant tort claims are a natural arena in which the decision’s influence will be felt, that’s not the only area of potential impact. Economic loss issues affect adults in tort cases. Such questions can also arise in non-personal injury settings as well. Thus, especially if followed by other judges, the Kimpson ruling is something litigators need to review right away. They need to infuse its lessons into their trial evidence checklists when dealing with economist experts.

Then, there is the question of what Kimpson’s effect will or should be with respect to cases not yet tried but scheduled for trial soon in which the parties have hired experts, issued expert reports, exchanged experts’ depositions, filed pretrial orders and, in effect, are “ready to go.” Do these cases now warrant a revisit by the affected counsel and the filing of possible motions to preclude, curtail or modify evidence? Should applications for trial postponements be made or allowed to accommodate Judge Weinstein’s declaration of widespread constitutional effects?

Then there is the question of cases already tried to verdict yet still alive in the post-verdict pipeline, for example, where post-trial motions are pending. If the problem is one of constitutional dimensions and the verdict was based on evidence or economic testimony laced with unconstitutional ethnicity-based assumptions or data, should that issue now be considered at this stage? Does it matter if the issue was not preserved?

After all, Judge Weinstein acted on his own motion. Should other judges follow suit? And, how about cases on appeal? If the evidence was unconstitutionally infirm, is that a question that has some effect for the pending appeal? Perhaps the issue was waived, if the “prejudiced” party did not preserve the question by objection, motion or application. Or, does Weinstein’s conclusion have prospective effect only? Such thorny but practical questions warrant thoughtful consideration by counsel since, again, Kimpson has overt constitutional implications.

Expert Testimony

Let’s briefly highlight select aspects of Judge Weinstein’s lengthy opinion. A mother sued on behalf of herself and her child claiming injury to the infant’s central nervous system caused by absorption of lead dust. Defendant was the owner and lessor of the apartment the plaintiffs lived in during the child’s gestation, birth and first year of life. The jury found the apartment contained lead-based paint that had not been properly removed or encapsulated. The jury returned a verdict of $2 million in favor of plaintiffs.

At trial the child was less than 4 years old. A critical factor in determining damages required ascertaining the infant’s prospects for obtaining post-secondary education degrees had he not suffered from lead poisoning. In contesting damages, defendant’s attorney attempted to show, through expert economic testimony, statistics and cross-examination of plaintiffs’ experts, that because the child was “Hispanic,” the likelihood of obtaining a bachelor’s, master’s or doctoral degree, and any corresponding elevated income, was improbable.

Judge Weinstein observed that the child’s father has a baccalaureate degree, the mother has a Master of Fine Arts. Both held “responsible income-generating jobs.” The family was “stable,” and the parents were “caring.” Based upon “his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings.” Treated by experts as a “Hispanic,” however, his potential, based on the education and income of “average ‘Hispanics’ in the United States,” was “relatively low.”2

At trial, the court ruled that, for the purposes of projecting damages, the “specific characteristics of the child and his family,” rather than the characterization of the child as a member of a particular ethnic group, “must be used” in determining damages. This ruling was based on the same constitutional and other factors relied upon in a 2008 decision, McMillan v. City of New York,3 which held that statistical evidence, used to prove that a spinal cord-injured “African-American” was likely to survive for fewer years than occidental persons with similar injuries, “violated the equal protection and due process clauses” of the U.S. Constitution, and “was inadmissible in computing life expectancy and damages.”4

Judge Weinstein posed the question and answer this way: “[C]an statistics based on the ethnicity (in this case ‘Hispanic’) of a child be relied upon to find a reduced likelihood of his obtaining a higher education, resulting in reduced damages in a tort case? The answer is no.”5

During trial, testimony regarding the future economic prospects of the child, had he not been poisoned with lead, were discussed by three experts: Dr. Kenneth W. Reagles, plaintiffs’ forensic rehabilitation expert; Dr. Frank Tinari, plaintiffs’ forensic economist, and Dr. Bernard F. Lentz, defendant’s forensic economist. Dr. Reagles noted the general “Hispanic” background of the boy, but placed primary reliance on the parents’ specific backgrounds.6

On cross-examination, defense counsel emphasized the “low general educational backgrounds of the ethnic group he characterized as ‘Hispanics’.” After a series of questions and answers along this line, the court precluded an answer “on its own motion” and “exclud[ed] ethnicity as a factor in damages computations.” The court then asked Dr. Reagles whether his testimony would be changed if the undifferentiated statistics with respect to “Hispanics” would be struck, to which the expert responded, “Not materially and substantially at all.”7

Court’s Ruling

The court explained outside the presence of the jury that it was basing its decision on the McMillan ruling regarding race sociology and statistics. Neither party objected to the ruling. Before plaintiffs’ separate economic expert, Dr. Tinari, took the stand, the court reminded the jury of its earlier ruling and instructed: “[y]ou cannot say that, for example, Hispanics generally go to college less than others and therefore use that statistic or that analysis or that chart.” Dr. Tinari was told to adhere in his testimony to that instruction. Dr. Tinari projected the child’s future economic losses to be between $2.5 and 4 million.8

Defense expert economist, Dr. Lentz, found that because the child-plaintiff was “Hispanic,” his “future economic loss of earnings was lower than that projected by plaintiffs’ forensic economist.” The court told Dr. Lentz about his ruling of unconstitutionality and instructed: “So all of your answers should be based on individual characteristics and not the general characteristics of a group, ethnic group. Is that clear to you?” Dr. Lentz responded: “I believe so, sir.”9 Taking the court’s ruling into consideration, the defense expert ultimately projected that if the child obtained a baccalaureate degree, his total future economic loss would be some $2.5 million. If he obtained only a high school diploma, the loss was projected as less than $1.4 million.10

In his Kimpson decision, Judge Weinstein explained at length the McMillan precedent11 and the unconstitutionality of “race” as a criterion for assessing damages (including the “equal protection” and “due process” principles).12 Tracing and discussing a number of scholarly sources, Weinstein said that “[e]thnicity, like race, as discussed in McMillan, is a fictitious, changing, and unreliable social construct.”13 It is “unconstitutional in a tort trial to premise projected societal and educational achievements on race or ethnicity to reduce tort damages.” Indeed, the “state itself discriminates by enforcing a substantive rule of discrimination—damages—based on race or ethnicity in reducing damages in tort cases. Such an illegal standard cannot be enforced by the courts.”14 Judge Weinstein hinted that the problem may extend to “gender worklife expectancy tables” but the court did not have to confront that issue in this case.15 Counsel and readers: Be alert to this gender evidence issue on the horizon!

There’s more, lots more and, so, only a careful reading of this studious opinion will uncover the potential to affect what presently constitutes the gigantic status quo of statistically based economic assumptions and expert opinions. Weinstein admonished that use of “ethnicity-based statistics” to obtain a reduced damage award in calculating future economic loss “is unconstitutional.” It violates due process “because it creates arbitrary and irrational state action, and equal protection, because it subjects the claimant to a ‘disadvantageous estimate’ of damages ‘solely on the basis’ of ethnic classification.”16

“Propelling race and ethnicity to the forefront of predictions about an individual’s future achievement ignores the myriad factors affecting an individual’s capacity to fulfill his or her potential.”17 And here’s another land mine of sorts for trial counsel to ponder: there may be times when the use of Federal Evidence Rule 403 to exclude “racially-, ethnically- and gender-based tables,” even when they have probative force and are therefore relevant, is justified.18


Judge Weinstein’s erudite opinion has some explosive potential to alter the quality, quantity and content of expert opinions regarding future economic loss as well as the tables, statistics, charts and data upon which experts rely—to the extent that they employ race-, ethnicity- or gender-based conclusions and assumptions. Counsel certainly have some interesting work ahead of them in order to keep pace. The bench and bar generally have some homework too. So do economic experts.


1. 2015 U.S. Dist. LEXIS 99715 (E.D.N.Y. July 30, 2013).

2. Id. LEXIS at *2-*3.

3. 253 F.R.D. 247 (E.D.N.Y. 2008).

4. Kimpson, supra n. 1, LEXIS at *3.

5. Id. LEXIS at *2.

6. Id. LEXIS at *8-*16.

7. Id. LEXIS at *15-*16.

8. Id. LEXIS at *17.

9. Id. LEXIS at *19.

10. Ibid.

11. Id. LEXIS at *20-*31.

12. Id. LEXIS at *31-*32.

13. Id. LEXIS at *50-*51.

14. Id. LEXIS at *53.

15. Id. LEXIS at *54.

16. Id. LEXIS at *63.

17. Id. LEXIS at *64.

18. Id. LEXIS at *78.


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Leave a Comment August 20, 2015

Judge Seeks Precision in Cephalon Expert Reports

Originally published by:

By: Saranac Hale Spencer

Defense lawyers have 30 days to whittle down their 13 voluminous expert reports to the essential points before the federal judge overseeing the case decides who will be allowed to testify to what at trial.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania, who is handling the case filed by the Federal Trade Commission and competing pharmaceutical companies against Cephalon and four generic drugmakers over their alleged reverse-payment settlements, asked the defense lawyers to distill the reports into seven-to-10 paragraph abstracts for the court to review.

He made the request toward the end of a Daubert hearing, which allows parties in a case to challenge expert testimony before the start of trial and is named for the 1993 U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, on Monday.

“They need to be precise, with facts to back up opinions,” Goldberg said of what he expects from the abstracts. “I want it succinct.”

The hearing was permeated with differing interpretations of the U.S. Supreme Court’s 2013 opinion in Federal Trade Commission v. Actavis, which dealt with the issue of reverse-payment settlements, which are the deals made by major pharmaceutical companies with generic drugmakers in order to keep the cheaper drugs off the market.

“This is the playbook,” Goldberg told the dozens of lawyers gathered in the courtroom, referring to Actavis.

“You’re hyper-focusing on one section and I think that you’re losing sight of what I think is, frankly, the prevailing guidance from the Supreme Court, which is, it’s a rule-of-reason case,” Goldberg told Russell Chorush, of Heim, Payne & Chorush in Houston. Chorush is on the team representing one of the plaintiffs in the case, King Drug Co.

In January, Goldberg denied the defendants’ motion for summary judgment, ruling that challenges to reverse-payment settlements don’t have a new threshold to meet, in an opinion that defined the contours left open in Actavis.

Actavis primarily instructs that the familiar antitrust rule-of-reason analysis be applied to cases challenging reverse-payment settlements. This analysis does not include a ‘threshold burden,’” as the defendants had argued.

Cephalon, the maker of the name-brand wakefulness drug called Provigil, and the four generic drugmakers with which there were deals, ranging from $25 million to $164 million, are the defendants in the case. They argued that with the Actavis opinion, the Supreme Court had introduced a new threshold for challengers to meet in cases like this.

The majority’s opinion in Actavis, while it does emphasize the importance of the size of the payments and the ability to justify them, it doesn’t explicitly spell out a threshold encompassing those two things.

Goldberg integrated the duty to address the size and the justification for the payment into two different parts of the rule-of-reason analysis.

Since it was introduced in the U.S. Supreme Court’s 1918 decision in Chicago Board of Trade v. United States, the burden-shifting rule-of-reason analysis applied to antitrust cases has stayed, essentially, the same, according to the opinion.

The plaintiffs bear the initial burden to show that the deals they challenge have had anti-competitive effects. If they meet that bar, then the burden shifts to the defendants to show that the challenged deal had contributed to objectives that promote competition. Following that, the plaintiffs can come back and demonstrate that the challenged deal wasn’t necessary to promote competition.

The judge then considers the arguments and balances them to rule on whether the deal was anti-competitive.

“We’re going to get into issues about anti-competitive versus competitive and burden-shifting as I’ve explained it, and we’re going to, mostly, I think, as the trial is going to occur, is going to be about explaining the supply agreements and things like that—and that is the bulk of the case,” Goldberg told Chorush at the hearing Monday.

Later, the judge suggested bifurcating the case, which also involves both patent and antitrust claims, saying, “Maybe we do bifurcate the Walker Process and Actavis cases and maybe in the Actavis case we just have a trial about the agreements and keep the patent out of it.”

In 2011, Goldberg found that Cephalon’s patent was invalid and that the company committed fraud on the patent office by concealing the fact that a French company, Laboratoire L. Lafon, had actually developed the drug.

Not only did Cephalon hide from the U.S. Patent and Trademark Office that the French company had invented the drug, with the active ingredient of modafinil, it also misled the office by suggesting that it had altered the particle size of modafinil, according to that opinion, the judge had found.

Lawyers on Monday had differing views of the extent to which the patent could be discussed at trial.
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Leave a Comment April 20, 2015

Expert Allowed at Class Certification Stage in Egg MDL

Saranac Hale Spencer, The Legal Intelligencer

The grocery stores and restaurants that have alleged price-fixing among the country’s major egg producers can present an economist as an expert witness while they seek to get class certification, the federal judge handling the case has ruled.

U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania announced the decision in an opinion in In re Processed Egg Products Antitrust Litigation.

Since 1993, when the U.S. Supreme Court issued the standards to which expert witnesses are to be held in its decision in Daubert v. Merrell Dow Pharmaceuticals, district courts have played the role of gatekeeper, ensuring that expert witnesses offer reliable scientific evidence to the courts.

It is less than crystal clear how those standards are to be applied at the class certification stage.

“A threshold question is whether, and to what extent, Daubert applies at the class certification stage,” Pratter wrote. “Although there is no definitive Third Circuit precedent on point, the general consensus appears to be that the court should subject expert witnesses to Daubert scrutiny at the class certification stage of the litigation.”

She cited to two major cases in Pennsylvania federal courts in recent years—In re Chocolate Confectionary Antitrust Litigation, which was in the Middle District of Pennsylvania, and In re Flonase Antitrust Litigation, which was also in the Eastern District—as well as dicta from the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes for support.

The issues examined in a Daubert hearing for an expert about class certification are likely to overlap with substantive issues to be weighed in the ultimate decision, Pratter explained.

“That is because the reliability of the means of proving classwide impact frequently factors into the predominance determination in antitrust class actions,” she said.

Referring to the proposed expert, Gordon Rausser, Pratter said, “The court need not find that Dr. Rausser’s methods are, by themselves, sufficient to show, say, a common impact or that there is a reliable means of proving damages on a classwide basis—only that his methods are reliable and useful to the questions to be addressed at class certification. Therefore, though some extent of overlap is inevitable, deeming Dr. Rausser’s expert testimony admissible under Daubert does not preclude the court from denying class certification.”

The defendants in the case, the egg producers, had argued that Rausser’s model for prices in the egg market wouldn’t pass the standard set by the U.S. Supreme Court in its 2013 decision in Comcast v. Behrend, which came out of the Eastern District of Pennsylvania.

There, the Supreme Court cited to Dukes, which had rejected a class certification for more than a million women who alleged that Wal-Mart maintained a system of gender discrimination in its pay and promotion policies.

In the Comcast decision, the majority of the divided Supreme Court had ruled the model the plaintiffs had offered to the trial court in order to show their common injury, that Comcast’s practice of excluding competitors had resulted in higher costs for cable subscribers, didn’t actually satisfy the federal rule requiring predominance of an issue in order to get class certification.

When the Third Circuit upheld the district court’s opinion, it had ruled that at the certification stage, plaintiffs need not “tie each theory of antitrust impact to an exact calculation of damages.”

However, the Supreme Court disagreed. Class determination, the majority said, quoting from an earlier case, “generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action. It is clear that, under the proper standard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis.”

The egg producers tied their argument to a similar idea.

“Defendants argue that Dr. Rausser’s regression, which models price, not supply or flock size, does not fit the plaintiffs’ theory that defendants conspired to reduce the supply of egg-laying hens,” Pratter said. “Defendants argue that in light of the Supreme Court’s decision in Comcast, the failure to closely tie the model exhibiting damages to the theory of the injury makes the model unreliable.”

Rausser had defended his method by arguing that “the evidentiary record shows a constraint on the growth of supply, so he does not need a model to demonstrate it—his model just measures the extent to which it caused prices to go up as a way of showing classwide impact,” Pratter said.

She agreed with the plaintiffs that Comcast wouldn’t bar Rausser’s model at this point in the litigation.

“Without making any pronouncements about the ultimate ability of direct purchaser plaintiffs to clear the Comcast bar, the court notes simply that, for Daubert purposes at least, the model proposed by Dr. Rausser is reliable and fits the case,” Pratter said.
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