Three Myths About Hiring Expert Witnesses

Expert witnesses can be the key to successfully litigating a dispute. Experts are a valuable resource for attorneys and society has high expectations for them in terms of what they can do.  Here are three myths about hiring an expert witness, and the truth behind those myths: Myth #1: Hiring An Expert Witness Will Help … Continued

Assessing Your Expert’s Credentials: Educational Background

The educational background of an expert witness is one of the considerations involved in the expert selection process.  There is a distinction between the quality of education versus the quantity of degrees. While the number of degrees possessed by an expert can certainly be of value, understanding the quality of such degrees is of equal … Continued

Assessing Your Expert’s Credentials: Certifications, Licenses, Publications, Memberships, Affiliations, Awards & Reputation in the Community

Navigating through the abundance of information contained within an expert’s CV, can be both a difficult and time-consuming process. In addition to prior experience and level or degree of education, there are a variety of other factors that can greatly contribute to the overall level of expertise, such as certifications, licenses, publications, memberships, affiliations, awards, … Continued

Assessing Your Expert’s Credentials: Prior Work Experience

The prior work experience of a potential expert witness is perhaps one of the most crucial of considerations. Similar to other assessment processes associated with the selection of an expert, it is necessary to consider prior experience in conjunction with other credentials.   Litigators should examine the relevance between an expert witness’ prior experience and the needs presented … Continued

Can You Use Expert Testimony for Zoning Hearing?

Landfill zoningAmerican Jurisprudence states that it is common to use expert witness testimony at zoning board of appeals hearings, and courts have held that an administrative agency such as a zoning board of appeals can’t disregard competent expert testimony and rely on its own knowledge on issues which the board members have no expertise.  However, representations of lay witnesses don’t necessarily have to be accepted.

What to Expect From Expert’s Free Initial Consultation?

Free initial consultationThe purpose of the free initial discussion is to determine if and how an expert witness can help you in clarifying the technical and scientific issues, thus giving you the advantage for your case.  The initial conversation with experts can help you determine if you have the right expert discipline in mind.  The attorney can benefit by gaining better technical knowledge or clarification on the case without obligation.

The length of the initial discussion varies greatly depending on the expert and the type of case involved.  Some experts limit the initial phone conversation to 30 minutes while others are more flexible.   For example, medical doctors might limit the initial phone call to 15 minutes with an attorney on a personal injury matter.  On the other hand, a software engineer expert witness might spend over an hour on the phone with the patent attorney for a major patent infringement case.

What to do if Your Expert Witness Passed Away? Tips on Contingency Planning

An attorney complied with Federal Rules of Evidence, gave disclosure of his expert witness, including any required written report or statement in lieu of a written report, and the case is moving towards a trial date certain.

Unfortunately, his expert witness unexpected passed away.  Such a statistically improbable event can, and does, happen.  An example is the high profile patent infringement case, Apple v. Samsung, where Apple’s initial damage expert witness passed away.

Significant Reduction in Damage Awards Amounts in Patent Litigation Suggests Substantial Impact of Expert Testimony

Patent License AgreementAccording to data provided in PWC’s 2012 Patent Litigation Study, there was a decline in median damage award amounts of more than 50% in patent infringement disputes from the period between 2001 to 2005 and the period between 2006 to 2011—from $8.7 million to $4 million, respectively. What is most intriguing about this data is that there has been neither a decline in patent litigation, nor a decline in patent applicants. In fact, both have increased at a substantially similar rate.

Calculating Reasonable Royalties in Patent Infringement Disputes

Calculating damages for royaltiesDamages for reasonable royalties, in comparison to damages for lost profits, generally correspond to an assumption based upon what the parties would have agreed upon if they had negotiated a royalty amount prior to an infringement. This concept is referred to generally as ‘hypothetical negotiation.’ There are several techniques, both using the hypothetical negotiation approach, as well as other more analytical based approaches, that have been used in prior cases for the calculation of reasonable royalty damages in patent infringement matters, including the 25 percent rule of thumb, Georgia-Pacific factors, and the Nash Bargaining Solution. In recent years, however, the techniques employed by experts in the calculation of royalty damages in patent infringement disputes, have been subject to heightened judicial scrutiny.

How To Calculate Damages in Patent Infringement Disputes? Lost Profits, Reasonable Royalties & Price Erosion

Royalties in a cash bagCompensatory damages in patent infringement cases are generally based upon reasonable royalties, lost profits, price erosion, and in some cases, a combination. Pursuant to 35 U.S.C. 284, which provides in part, “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.” As such, in cases where a claimant can prove, or elects to prove lost profits, this method will be applied. However, in matters where a claimant cannot prove, or elects not to prove lost profits, compensatory damages can be assessed based upon reasonable royalties.

Judicial Discretion in the Calculation of Damages in Patent Disputes

Patents and damage calculationsFor more than half a century, the U.S. patent system has been the subject of very little congressional reform. However, with the rise in patent litigation over recent years, the need for system improvement, restructuring, and modification was addressed by Congress in 2011 with the enactment of the Leahy Smith America Invents Act (AIA). Notably absent from such reform, though, was the presence of directorial principles to address issues concerning damage calculations in patent infringement disputes.

What are the Differences Between An Expert Witness and A Consultant (Non-Testifying Expert)?

Expert consultationWhen litigating any case requiring the assistance of an expert, it is important to find the right expert as early in the case as possible. The expert will need to prepare for discovery and depositions, and can help the attorney prepare his or her discovery requests and questions for opposing witnesses. In complex cases, sometimes it is a good idea to retain an expert to act not as a witness, but as a consultant to help prepare the case, in addition to hiring an expert witness.

How to Look For an Expert Witness for a Medical Malpractice Case

Hammer and stethoscope - imagery for medical malpracticeWhen handling a medical malpractice (or “MedMal”) case, finding the right medical expert should be an attorney’s top priority. Medical malpractice occurs when a health care provider is negligent, whether by act or omission, in the provision of treatment or care to a patient. The treatment is considered negligent when it falls below the standard of care that would be exercised by a reasonably prudent medical professional and results in injury or death to the patient.  Identifying the standard of care is critical in these cases, so a qualified medical expert witness is the key to proving a medical malpractice case. In fact, some states even require that legal counsel provide a statement of merit before filing a medical malpractice claim on behalf of a client. For these reasons, finding the right medical expert witness should be the first step for a MedMal attorney when taking on a new case.

Can an Expert Witness Work on a Contingency Basis?

Fees for expert witnessesNearly every state has provisions included within their Rules of Professional Conduct, which expressly prohibit the use of contingency fees for experts. Even in jurisdictions that have not fully addressed the issue within their Rules of Professional Conduct, implications derived from the Rules of Evidence and Rules of Civil Procedure clearly support an argument against the use of such fees for experts. In addition, case law has long provided that contingency fee agreements for witnesses are against public policy.

How to Run a Conflict Check For Expert Witnesses?

Conflict of interest using an expert witnessWith the significant impact an expert witness can have on a case, it is imperative to run a conflict check before an attorney hires an expert witness. The purpose of a conflict check is to ensure that an expert witness can serve a client free from any conflicts of interest. Conflicts of interest can prevent an expert witness from committing to a client at all, or could lead to the expert being distracted by another interest or commitment to someone else. Indeed, an expert witness can be disqualified by the court or another party due to a conflict of interest, so conflict checks are crucial before an attorney selects an expert witness for the case.

What is Expert Witness Designation Fee?

Expert witness testimony - swearing inExpert witnesses spend years acquiring the knowledge, expertise, and skills that make them experts in their fields. As such, it is not surprising that expert witnesses expect to be compensated for their time and knowledge. Some expert witnesses request a retainer or an upfront monetary deposit (sometimes non-refundable) in order to secure their services.

For litigations, a party may obtain discovery by demanding that all parties exchange information about each other’s expert witnesses after the parties in a case set the initial trial date. Designation is essentially naming the expert witness by the retaining party in the case. But, what happens if the case settles shortly after paying the retainer and before the expert has done any work? Is it appropriate for the expert to ask for a designation fee? Is it appropriate to request such fee in the first place? What are the standard practices related to designation fees? Following is an analysis of the pro’s and con’s of expert witness designation fees, as well as a brief overview of common practices related to these fees.

Class Certification in Securities Actions: Mortgage Underwriting and Misuse of Discretionary Pricing Authority

Lawsuit filingSince the onset of our nation’s mortgage crisis, there has undoubtedly been a rise in securities related litigation involving claims of discriminatory practices in mortgage lending and underwriting based upon misuse of discretionary pricing authority, specifically in the wholesale mortgage market. Many of these actions have been brought forth in the form of class actions. This article explores recent decisions occurring at the class certification stage, and the profound implications such rulings have, and will continue to have, on the manner in which similarly situated class actions are litigated.

Where to Find an Expert Witness for Cases in Alaska and Hawaii? The Golden State.

California state flagExpert Witnesses are the small percentage of individuals who are the best of the best in their respective industries. Under the best of circumstances, a good expert witness can be hard to find, and if a case teeters on that expert witness’ opinion, only the best will do. But for non-continental states like Hawaii and Alaska, finding an expert witness that is both qualified and free of conflicts can be a nearly impossible task given the small populations and geographical isolation.

How to Use A Financial Expert Witness? The Effective and Efficient Use of Financial Expert Witnesses: Recommendations from the Institute for the Advancement of the American Legal System and the American Institute of Certified Public Accountants

Financial Expert WitnessThe founding principles of the Unites States Civil Justice System are grounded upon resolving matters in an efficient manner, while also safeguarding the legally bestowed right in having access to courts through fair and just determinations. Few deny the validity of the notion that there is clearly room for improvement in our judicial system. This topic has been the subject of several studies. This article explores the recommendations of a recent study examining the role of financial experts in civil disputes, through the eyes of those most directly involved.

How to Compensate an Expert Witness for Travel Fees

Expert witness travellingBeing an expert witness requires knowledge, skills, education, experience, and training. Thus, expert witnesses are not always available in the exact location an attorney needs them to be. As a result, attorneys are often forced to hire out-of-state expert witnesses. But, many attorneys are unsure how to compensate such an expert witness for travel expenses.

Generally, the topic of expert witness compensation is a sensitive topic and rarely discussed. There do exist a number of guidelines issued by various professional organizations to which experts belong, but often these are completely voluntary standards. The standards usually are little more specific than what the expert should bill ethically and in a manner that does not jeopardize his or her ability to remain objective, such as having a stake in the outcome of the case. Indeed, many experts are, themselves, reluctant to discuss compensation for what are, perhaps, obvious reasons.

Evaluating and Instructing Expert Witnesses for Medical Malpractice Cases

Medical MalpracticeExpert witnesses involvement in litigation is becoming more and more prevalent, while the legal standards for evaluating the admissibility of the science upon which that testimony is based is still as vague as ever. Experts need to understand what goes on in the courtroom, the possible implications of their testimony, and the professional standards to which they are likely to be held. This guide is designed as a brief overview of some concepts the legal professional should follow in order to adequately train and evaluate a potential expert witness.

Questions to Ask the Expert Witness on Cross-Examination

Swearing in of Expert WitnessThe goal on cross-examination of the opposing expert witness is not just to ask questions; it is to weaken credibility, reliability, and weight.  Many litigators engage in cross-examination with an expert witness. Also note that even if an attorney is proficient in this approach, it may not be the most strategic one.

There are five key questions applicable to any expert witness and reasons why you should ask the opposing expert witness:

1.    What materials did you review to form your opinion?

There are two goals in asking this question.  First, to challenge whether the expert witness prepared using all available materials, whether supportive or contradictory to his theory of the case.  Second, to find out if there were more materials available than was provided to you through discovery.  Ideally, the response of the expert witness amounts to as much information in the same format as you were provided.  This would put the two of you on an equal footing.

How to Successfully Prepare to Cross-Examine Expert Witnesses

Cross-examining expert witnesses can be one of the more challenging and intellectually intimidating tasks that litigators face. Preparedness is essential to any successful cross-examination. Any successful cross-examination of an expert witness requires thorough preparation and execution, as there is less of a margin for error than with other witnesses.

The first thing to do to prepare to cross examine an expert witness is to clearly define your goals. You should write out a detailed litigation plan and make sure that your goals are attainable and not over-reaching. As Dan Boone wrote in Canadian Lawyer, “Don’t try to get away with broad sweeping questions that overreach attainable goals.”

How to Choose a Business Valuation Expert

A business valuation ledgerIt is important to find the right expert witness in cases that require a business valuation. You want to make sure that you retain a valuation expert who has experience that is relevant to the particulars of your case. If, for example, you are hiring a business valuation expert for a case involving patents, you want to be certain that the expert has a thorough knowledge of patent issues on the particular product or process and any relevant local laws pertaining to intellectual property and the standards of the specific industry involved.

How are Expert Witnesses Used

What Qualifies a Witness as an Expert?

Witnesses are generally divided into two categories: fact witnesses and opinion witnesses. The former category involves witnesses with first-hand knowledge of events or facts related to the trial. Opinion witnesses, on the other hand, provide their opinions in order to help resolve the trial.

The Post-Daubert Effect: Expert Testimony in Antitrust Litigation

Justice wieghts and gavelMatters involving anti-trust litigation are a highly complex area of litigation, for several reasons. First, the subject matter and parties involved in anti-trust litigation are ever expanding, partly due to advances in technology. Second, depending on the particular matter, anti-trust matters may involve state and/or federal law. Third, and most intriguing, are the controversial issues that anti-trust litigation presents in evidentiary matters related to expert testimony from economist in the post-Daubert era. It is the intent of this article to focus on this third area, in light of the available data, which demonstrates an overwhelming amount of evidentiary challenges.  There are disparities between Plaintiffs and Defendants in both the quantity of challenges and the frequency of exclusion.   We will examine the resulting effects such judicial determinations have had on anti-trust litigation outcomes.

Finding an Expert Witness: Directory vs. Referral Sites

Finding the right expert witness...There was once a time when people used phone books and called operators when looking for goods or services. However, the Internet has become the go-to medium for finding the products and services we need. Not surprisingly, when attorneys need to find expert witnesses to support them during litigation, the Internet is also the first place that many of them are looking.

Intellectual Property: Understanding the Differences Between Patents, Copyrights, Trademarks, and Trade Secrets

Intellectual property (IP) is a blanket term that describes a number of distinct types of intangible assets—creations of the mind—to which one can claim exclusive rights. Since there are several forms of intellectual property, it is easy to confuse them. However, the main forms of IP: patents, copyrights, trademarks and trade secrets have very different legal implications.

The Role of Experts in Fraudulent Transfers Adversarial Proceedings in Bankruptcy

There has been a notable increase in litigation regarding loan defaults since the onset of our nation’s financial crisis. Apart from private sector actions brought forth in both state and federal courts, there has also been an increase in adversary proceedings arising in Bankruptcy Courts. Many of these disputes involve allegations of fraudulent transfer and conveyance in the commercial lending industry. Pursuant to section 9017 of the Bankruptcy code, the Federal Rules of Evidence apply to Bankruptcy proceedings. As such, the use of expert testimony in such proceedings is not only permissible, but is a common method of presenting evidence, whether for supporting or negating purposes. In consideration of recent decisions on this subject matter, this article explores the role of experts in Bankruptcy proceedings involving loan defaults in the commercial setting.

Levels Of Evidence And Expert Testimony

Scientific research is quite different from legal research. Law is outcome-centric. In other words, we have a desired result and we identify facts and theories that support our desired outcome. Conversely, science is research-centric. Scientists begin with hypotheses, but permit the research to dictate the conclusion.  It’s similar to deciding which is more important: where you’re going or how you get there? Lawyers are concerned with the destination, scientists with the journey. For a true scientific researcher, the goal is to confirm your hypothesis, but it isn’t essential.

Expert Witnesses and The Fight Against Patent Trolls

Patented StampPatent law and antitrust law are converging due to the alleged threats to the economy by “patent trolls”.  This could open up new avenues of patent and antitrust litigation, requiring not only the use of patent infringement expert witnesses, but also those in the antitrust field, such as antitrust and business expert witnesses.

So-called patent trolls, entities who sue businesses for violating patent rights possibly without justification, have been portrayed as antagonists using the legal system to prey upon unsuspecting businesses.  These Non Practicing Entities (NPE’s) may have huge portfolios of patents and may sue anyone and anything that may arguably be infringing on these patents.  Because of how they’re structured, NPE’s can’t be counter-sued under patent law.  It’s been estimated that more than half of the 4,000 patent infringement cases filed last year were filed by NPE’s.

Reverse Redlining in Mortgage Lending: The Expert’s Role in Meeting Evidentiary Standards

Man holding a model of a houseAlthough in their broader historical sociological meaning, the terms redlining and reverse redlining refer to discriminatory practices based upon geographic location in a wide variety of service industries, the terms are currently most commonly associated with the mortgage lending industry. As defined in United Companies Lending Corp. v. Sargeant, 20 F. Supp. 2d 192, 203 n. 5 (D.Mass.1998):

“Redlining is the practice of denying the extension of credit to specific geographic areas due to the income, race, or ethnicity of its residents. The term was derived from the actual practice of drawing a red line around certain areas in which credit would be denied. Reverse redlining is the practice of extending credit on unfair terms to those same communities.”

Determining Proper Allocation of Expert Witness Resources in Intellectual Property Disputes: Weighing Liability versus Damages

When litigation is necessary to resolve matters concerning alleged violations of intellectual property rights, the multitude of remedies available under both state and federal law often result in complex pleadings containing multiple counts. In addition to claims brought pursuant to state law, such as common law unfair trade competition, or similar remedial provisions contained within state regulations pertaining to Business and Professions, intellectual property claims generally involve allegations of violation(s) in federal law. Common claims brought forth pursuant to federal statute include those for False Advertising and Unfair Competition, Patent Infringement, and Trademark Infringement. This article explores solely the issue of claims brought pursuant to federal provisions, as codified by United States Code.

Antitrust Laws and Small Businesses

Antitrust attorneysAntitrust laws make headlines when major corporations, like those in the banking or airlines industry, plan on merging.  Antitrust can be a complex area of law, requiring the use of mergers and acquisition expert witnesses, economists, and industry specific business expert witness in order to prove a case.  But it’s not just big businesses that are impacted by antitrust law.

Developer Strikes it Rich with Award in Trade Secrets Case of Oil Drilling Software

Typing on a laptopA software developer brought claims against a consulting firm for misappropriation of trade secrets under Texas common law and theft of trade secrets under Texas Theft Liability Act (TTLA).

A software company (“Company W”) developed software that allowed oil companies to “plan, procure, and pay for complex services”—all online. The software featured: “dynamic templates” that adjusted cost and supply estimates. Company W was, according to its CEO, the only company offering complex services software from 2000 to 2005. The software was not a stand-alone solution, but needed other companies’ software to perform core accounting functions.  To fill this technology gap, it contracted with SAP in 2005.  The agreement allowed Company W to integrate its complex services software with SAP’s accounting software. As part of the agreement, Company W provided its program code to SAP.

Intellectual Property Disputes: Knowing Additionally Available Remedies

Elements that make up Intellectual PropertyProper damage or liability assessment considerations, in terms of suitability of expert witness services which are engaged for testimonial purposes in intellectual property disputes, require litigators to possess sufficient knowledge of all available remedies. However, this must also include a full understanding as to applicable standards and criteria for assessing damage awards, as well as any limiting factors associated with remedial provisions. This notion is particularly exemplified given that intellectual property disputes often involve overlapping requests for relief, wherein, the singular actions of the alleged violator, allow for recovery pursuant to separate and distinct statutes. For example, with regard to patent infringement, 35 U.S.C. 289 provides an additional remedy for infringement of design patent, as follows:

Whoever during the term of a patent for a design, without license of the owner,

(1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or
(2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.

Property Valuation: Expert Witnesses In Lay Clothing & The Federal Rules of Evidence: Part II: The James River Test


Part I of this series discussed whether opinion testimony about property valuation should be considered lay testimony under FRE 701 or expert witness opinion, according to FRE 702. This Part addresses a 10th Circuit case that established a test to help make this determination.

In 2011, the 10th Circuit attempted to reconcile what testimony should be admissible with respect to property valuation and what standards should be applied to testifying witnesses. In James River v. Rapid Funding, property valuation testimony was the key issue, and the Court considered whether a vital witness’s testimony should have been excluded, under FRE 701. See James. River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207 (10th Cir. 2011). The 10th Circuit provided a clear opinion on the matter, which several other courts have since adopted. See, e.g., Ryan Dev. Co., L.C. v. Indiana Lumber. Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123524 (D. Kan. 2011).

Property Valuation: Expert Witnesses In Lay Clothing & The Federal Rules of Evidence: Part I: Recent Trends & Challenges

Protperty paperwork and door keysIntroduction:

For decades, debates have ensued as to who may give opinion-based testimony in civil litigation with respect to the value of real property.  Property valuation issues have created questions and problems for courts and rule-making bodies, particularly with respect to Federal Rules of Evidence (FRE), namely 701-702.  See, e.g., “Expert Testimony in the Guise of Lay Testimony: Property Valuation,” Federal Evidence Review (May 8, 2011).  A recurring issue in such cases hinges on whether the testimony proffered is lay or expert testimony, under FRE § 701-702.  Confusion has arisen because in certain circumstances, FRE 701 does permit lay witnesses to testify about the value of their property, but many courts have construed the Rules as narrowly as possible, often excluding lay testimony.  As recently as April of 2013, a court was forced to consider whether a debtor was a lay witness or expert, and based on that finding, what portions of the debtor’s statement were admissible versus which parts were barred by hearsay rules, under FRE 703.  Although the court ruled against the debtor, it stated that the matter would be heard at a later date and emphasized that its decision was a tentative ruling only.  See “Instructions For Pre-Hearing Dispositions,” Motion to Value Collateral of Valley First Credit Union, U.S. Bankruptcy Court (E.D. Cal.) (Apr. 2, 2013).

Expert’s Vision Cloudy on Testing Standards in Contact Lens Infringement Case

Recently, a personal health care product company (“Company R”) appealed from the district court’s judgment that a multinational health care company (JJVC) and its Advance® and Oasis® contact lenses didn’t infringe Company R’s U.S. Patent No. 5,712,327 (‘327 patent) for soft gas permeable contact lens. Company R challenged the trial court’s grant of judgment as a matter of law and its denial of Company R’s motion for a new trial.

Why You Should Use an Independent Expert Witness Rather than a Company Employee Expert

Picture of a justice buildingAmong the most important factors in moving ahead in a lawsuit is budget. Even the deepest pockets would rather save a buck than spend a buck. Common sense. But there are times when we rationalize irrationally because of the temptation of short-term thrift. As litigators, we have all experienced clients who are quite vocal and forceful in being frugal with respect to retaining expert witnesses.

Their reasoning seems almost self-evident and inescapable: why employ an outside expert to testify about a company when they already have an employee who already knows the business inside and out, and won’t cost a dime? An outsider will have to spend an inordinate amount of time getting up to speed with respect to the client’s business. While the employee expert can hit the ground running.  It’s this logic that oftentimes compels clients to be very forceful and sometimes intransigent when it comes to utilizing internal experts rather than external experts.

Case Study: Expert Witness “Crosses the Border” to the Land of Inadmissibility

An attorney and his law firm appealed a judgment in favor of the plaintiff, on behalf of nine other former clients (“former clients”).  The former clients claimed that he improperly deducted certain expenses from their recoveries when they settled personal injury suits against a pharmaceuticals company.

The attorney represented the former clients in litigation for personal injuries from taking the prescription diet drugs fenfluramine and phentermine—commonly known as “fen-phen.”  A federal multidistrict litigation (MDL) court certified a nationwide class action and designed the procedures to be followed by litigants who wanted to opt out of that and pursue individual claims.  One of the requirements was that opt-out litigants had to establish their eligibility to sue by taking an echocardiogram which resulted in a “FDA-positive.”  The attorney involved set up a nationwide echocardiogram program supervised by a board-certified cardiologist at a cost of more than $20 million.  More than 40,000 potential clients were screened and roughly 8,000 of them had “FDA-positive” echocardiograms that allowed the attorney to pursue their individual. His clients signed written contingency fee agreements that allowed him to recover reasonable expenses from each client’s claim. The attorney ended up with fee agreements with 8,051 clients.

Case Study: Expert Testimony Necessary on Relevant Standard of Care in Investment Fraud Case

Man in cuffs - arrested for launderingThe matters before District Judge Linda R. Reade in this case included the plaintiffs’ Motion for Partial Summary Judgment on Count IV against investment advisor Enterprise. This count alleged negligence and engaging in and attempting to engage in money laundering transactions.

Initially, 70 plaintiffs filed a complaint in October 2012 against 13 defendants.  Count I of the Complaint alleged that Enterprise violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). Count II of the complaint alleged that Enterprise conspired to violate RICO.  Count III alleged a breach of contract against Enterprise, and Count IV of the complaint alleged negligence against Enterprise. Counts 3 and 4 were brought by 41 individuals who maintained self-directed IRAs with Enterprise. The only remaining Defendants in this action were Enterprise and Sigillito, another investment advisor.

Sequestration of Expert Witness Sparks Appeal in Fire Case

Row of refridgerators in a school kitchen.A Pennsylvania high school’s insurer brought a subrogation action for strict liability and breach of warranty against the manufacturer of a refrigerator that allegedly caused fire at the high school.

The Appellant is this case was an insurance company (“Indemnity”), which was the subrogee of the Unionville–Chadds Ford School (“School”).  Indemnity brought suit against an appliance manufacturer alleging strict liability and breach of warranty in the U.S. District Court for the Eastern District of Pennsylvania.

Appellate Court Reveals Expert OK to Testify in Trade Secrets Case

An Indiana software company brought an action against its former employees and new employer alleging violations of non-compete covenants and interference with their business by divulging confidential information and trade secrets.

The plaintiff company, in an interlocutory appeal, asked the Indiana Court of Appeals to review the trial court’s ruling to exclude the testimony of its expert witness on economics and business valuation.

Tow Truck Operator Expert: Assessing ‘Use’ in Insurance Coverage Disputes

As with any matter involving insurance coverage disputes, it is first necessary to assess whether the provisions of the policy specifically provide for coverage to a particular individual given the facts surrounding the incident. In cases in which a Plaintiff is seeking to confirm the availability of an employer’s insurance coverage, determinations commonly hinge upon whether the insured vehicle was being utilized for the purpose for which it was insured. Often time, considerations concerning ‘use’ include the evaluation of whether the injured was acting within the scope of his or her employment, such that the presence of an active relationship exists. For limitation purposes, this article focuses on an evaluation of the availability of insurance to truck drivers injured while allegedly acting within the scope of their employment as tow truck operators.

Tow Truck Operation Expert–Proving or Negating the Existence of Special Circumstances

Toe Truck and OperatorIt is a well-established fact of law that the attachment of liability in a negligence action requires an initial determination as to the presence of a duty owed to the injured by an alleged tortfeasor. Therefore, in order for a Plaintiff to properly attach liability to an owner or bailee of a motor vehicle which has been stolen by a thief, it is necessary to show that the owner or bailee of such vehicle had a duty to protect third persons. Many jurisdictions follow the general rule that imposition of a duty is appropriate only if it can be shown that special circumstances exist which are sufficient to evoke a duty of care. Absent “special circumstances,” the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. Richards v. Stanley (1954) 43 Cal.2d 60, 65-66 [271 P.2d 23]; See also  Cruz v. Middlekauff Lincoln Mercury, Inc., 909 P.2d 1252, 1255 (Utah 1996).; Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 15 P.3d 1283, 1287 (2001); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986)Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 635 (Minn. 1978)Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932 (Mo. Ct. App. 1976)Felty v. City of Lawton, 578 P.2d 757, 761 (Okla. 1977).
“Considering special circumstances, then, is just another way of examining the degree of foreseeability of injury and whether the owner is subject to a duty to exercise reasonable care.” Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153, 1164-65 (1988). As with any negligence action, the specific circumstances of a case will guide the Court in its determination as to the appropriateness for application of the rule. As observed in Hergenrether v. East, 61 Cal.2d 440, 445 (1964), “each case must be considered on its own facts to determine whether the joint effect of them in toto justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of a vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.” A number of special circumstances have been specifically enumerated among the jurisdictions that have imposed a duty upon the owner or bailee of an unattended tow truck which was stolen by a thief and subsequently caused injury to a third person. For limitation purposes, this article focuses on the imposition of a duty of care to owners or bailees of tow trucks.

Case Study: Expert Witness Shielded with Protection of Absolute-Privilege Doctrine

In the fifth lawsuit between the parties’ litigation that has lasted nearly a decade, the respondents argued that the district court erred by dismissing or restricting their claims against and expert witness and some of the defendants based on absolute privilege.  The Minnesota Court of Appeals held that an expert witness who submits an affidavit in the course of a legal proceeding is absolutely immune from liability under the absolute-privilege doctrine.

Florida Shifts Expert Testimony Standard

Florida state flagFlorida Governor Rick Scott recently signed controversial legislation which overturned the long-standing thresholds as to what type of expert witness testimony is admissible in state courts.

HB 7015 restricts Florida state courts concerning the admission of expert testimony by abolishing the 90-year old Frye standard.  Frye allowed scientific evidence to be admitted if it was “generally accepted” as being reliable within the relevant scientific community. The new legislation sets out more rigorous criteria.  The shift is to Florida’s standards for evaluating the admissibility of expert witness testimony away from the Frye standard to the Daubert standard, which is used in federal courts and other states.

Case Study: Unlicensed Petroleum Engineering Experts May Gush on the Stand, Even if Law Caps Testimony

Petroleum engineerThe owner of the gas rights in a shallow zone brought action against the owner of the gas rights in deep zone of a specific Mississippi property.  The claim was that the shallow zone owner had a legitimate ownership interest in these rights and asserted conversion and negligence against owner of the deep zone. The Supreme Court of Mississippi held inter alia that as a matter of first impression, the statute making it unlawful to practice engineering in state without a license did not preclude an out-of-state engineering expert from testifying at trial.

Everything You Wanted to Know About School Safety But Were Sued First

On June 14, 2013, the nation paused to pray and remember the unspeakably horrific shooting, a massacre that claimed 26 lives, on December 14, 2012, at the Sandy Hook Elementary School, in Newtown Connecticut. The cruel irony, as legions of the country’s experts, myself included, continue to engage in differential diagnoses and soul-searching for answers as to who and what went wrong, is that Sandy Hook Elementary School probably could not have done anything more, different or better, to protect its students. Short of constructing a walled-in campus inside of which students would receive provisions and other necessities from the outside.

Lessons from the Supreme Court in International Law: what Attorneys should know and the Critical Role of Experts

Kiobel v. Royal Dutch Petroleum was a landmark case before the U.S. Supreme Court, involving questions of international law, jurisdiction and legal fora, and what attorneys should expect, when international human rights issues against corporations are adjudicated in U.S. courts.  The Supreme Court, in a unanimous opinion, discussed the issues at hand and, in so doing, helped put both American plaintiff and defense attorneys on notice, as to what to expect and how to best plan for cases involving corporate governance and international law.  See, e.g., Rich Stamp, “Supreme Court Observations: Kiobel v. Royal Dutch Petroleum & the Future of Alien Tort Litigation,” Forbes (Apr. 18, 2013).

Setting Your Sights on a Firearms and Ammunition Expert

Firearms - HandgunIn the past six months, the complexity of statutes and regulations has significantly increased for Federal Firearms Licensees (“FFL”).  New statutes, regulations, and guidance documents are being issued by federal, state, county, and local municipal bodies.  Audits remain a routine part of business operations.  And various organizations and associations are actively pursuing lawsuits on issues of constitutional law, including the Second Amendment to the United States Constitution.

Securities Law: A New Direction for Litigators and Experts, or a Fluke in the Trends?

2012 saw an interesting and highly unpredictable number of cases pertaining to securities litigation being filed; taking into account the Presidential election, the so-called “Fiscal Cliff,” AND Hurricane Sandy, statisticians and analysts alike are scratching their heads to determine the future of securities litigation.  See, e.g., Suzanne Dawson, “PwC Releases Latest Securities Litigation Study,” PricewaterhouseCoopers (Apr. 9, 2013).  As one securities expert explains:

While the first three quarters of 2012 saw an average of 46 cases, securities litigation filings decreased dramatically in the fourth quarter, to 33 cases—the lowest level since the 30 cases filed in the second quarter of 2009… In the U.S., the last quarter was affected by two pivotal events: the impending presidential election and the political uncertainty inherent in the run-up, and a looming “fiscal cliff” of automatic tax hikes and government spending cuts. …Superstorm Sandy may have played a role by interrupting transportation, shutting down power, and blocking access to the Internet and phone service in the Northeast, thereby disrupting law firms, courts, and financial markets. Id.

New Medical Malpractice Legislation in Florida: The Implications for the Legal Community & Expert Witnesses

Medical stethoscopeAttorneys and expert witnesses should be aware of recent legislation passed in Florida, which deeply divides the legal and medical communities, potentially changes the manner in which medical malpractice lawsuits will be tried and ultimately determined, and affects every litigator, in Florida and beyond.

In April 2013, the Florida Senate approved Senate Bill (SB) 1792, which “requires that expert witnesses called against a defendant doctor practice the exact same kind of medicine and not just be in “similar” fields.” ”Florida Senate Passes Bill on Medical Malpractice Expert Witnesses,” Associated Press (Apr. 15, 2013).  Moreover, under the bill’s provisions, any medical provider who has treated a patient and is called to testify is permitted to, “breach patient confidentiality and give attorneys information about a patient’s treatment.” Id.

Video Expert Witnesses—Optimizing Legal Support Resources

Video evidence and analysisBecause a multitude of methods exist by which video evidence can become tainted, evaluative measures should likewise include an equally diverse analysis. The complexities involved in establishing the authenticity, reliability, and credibility of video evidence requires comprehensive video analysis, which is more appropriately provided from an expert specialized in the field of video examination. However, legal support services employed for video analysis purposes, must be carefully selected such the expertise provided is both suitable and comprehensive, but also affordable.

Geological Expert Witnesses & Trends in Florida: Whether the Weather Matters, and What Attorneys should be Prepared to Handle

Experts in geology and sinkhole studiesFlorida, of late, has had many recent trends in civil litigation and requests for new legislation, particularly in the context of expert witnesses.  See, e.g. Helicon Foundation Repair, “Fraudulent Sinkhole Claims Increase As Geologists Blame Current Weather Trends,” Seffner, FL: Sinkhole News, (retrieved Jun. 3, 2013).  Many Florida residents have “been accused of spending insurance payouts on items not connected to foundation and cosmetic home repairs dues to sinkhole claims,” and, moreover, “insurance companies are requesting….legislatures change…laws concerning sinkhole claims.” Id. A “sinkhole” is a phenomenon, whereby groundwater dissolves and creates a void.  See Claims Journal, “Florida Property Insurer’s Board Reviewing Sinkhole Rates” (Oct. 13, 2011).

Business Records & Expert Witnesses: What Attorneys should know about the Shifting Burden of Proof & FRE 803(6)

Business records and documentationThe Federal Rules of Evidence have long provided myriad hearsay exceptions, in cases when testimony is introduced. One of the most important hearsay exceptions, particularly with respect to expert witness testimony, is the “business records” exception. FEDERAL RULES OF EVIDENCE (FRE) 803(6). Although many attorneys have an extensive level of familiarity with FRE 803(6) and the business records exemption, trends indicate that the burden of proof has changed, significantly affecting each litigator’s practice and every expert witness who relies upon business records to assist jurors in understanding testimony.

Civil Torts arising from Criminal cases: Circuit Splits should give Pause to Attorneys about Experts & “Hearsay” Testimony

Over the past year, not only have several circuit splits occurred, in cases where criminal defendants sue parties in civil court, claiming a tortious violation of their rights, but attorneys need to be aware of what is taking place in different geographical areas and the implications for their expert witnesses. Much of the controversy has centered on the standard of review for expert testimony on appeal.  With respect to this, one case has caused many legal analysts to do more than merely raise their eyebrows in confusion: Wagner v. County of Maricopa, where the Ninth Circuit Court of Appeals admitted to an existing “open issue in the circuit and circuit split on ‘whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review.’” “Prospective: Ten Key 2013 Evidence Issues,” Federal Evidence Review, (Jan. 1, 2013) (citing Wagner, 673 F.3d 977, 980 (9th Cir. 2012).

Part III: Consumer Products—Strict Liability and Breach of Warranty

Quality and consumer products visualizationMost jurisdictions allow consumers to bring claims under the concept of strict liability, that is, the manufacturer is held to be strictly liable simply for having placed a defective product into the stream of commerce which results in injury to the consumer. Strict liability for consumer products arose as a matter of public policy, with the intent to provide consumers with a means of legal recourse in the event of injuries sustained as the result of a defective product.  Strict liability has often been referred to as no-fault liability, in that, actions permitting claims of strict liability, can allow for recovery without the need to prove manufacturer fault.

Part I: Consumer Products—An Introduction to Liability

Household consumer productsConsumer Product Liability is a general terms that encompasses a much broader topic. To best understand the term, it is first necessary to know precisely what a consumer product is. When presented in its most simplistic terms, a product that is made available for consumption by the general public, and thus placed into the stream of commerce, is typically considered to be a consumer product. Pursuant to 15 U.S.C. §§ 2301(1) and (3):

  1. The term “consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed

Case Study: Condo Owner Tries to Trip up Expert Witness when Disclosed after Discovery Deadline

CondominiumsIn a recent case, the Connecticut Supreme Court held, inter alia, that trial court did not abuse its discretion in allowing testimony by an expert who was disclosed by the plaintiff several months after the discovery scheduling deadline and one week before jury selection began.

A condo resident, who was also president of the condominium association’s board of directions, brought claims including negligence per se against the Condominium Association (condo) and the Management Company (management company, hired by the association) for injuries she sustained when she missed a concrete step while coming down from a roof deck of condo building. The plaintiff brought an action, alleging, inter alia, that the defendants negligently maintained the original step in violation of the building code.

The Confrontation Clause, The Supreme Court, & Experts: Recent Trends and Helpful Guidance

Crime lab workerOne of the most pressing issues before attorneys and courts has arisen in the wake of a highly unclear decision issued by the Supreme Court, concerning the Confrontation Clause of the Sixth Amendment to the Constitution, and whether expert testimony is permissible under that Clause.  See Williams v. Illinois, 132 S.Ct. 2221 (Jun. 28, 2012).  After the Supreme Court issued a 5-4 decision, with two separate pluralities (4 concurring opinions) and one lone dissent, the lower courts have had a trying time applying Williams to expert testimony.  For the litigator, however, it is important to understand what Williams did and didn’t say, what lower courts are likely to do, and why all of this greatly affects experts.  Whether the case at hand is civil or criminal, Williams has been discussed and grappled with by nearly every lower court and, accordingly, regardless of practice area, its potential implications should be made clear to every attorney.

Case Study on the “Exceptional Circumstances” Test

Mortage applicationThe “exceptional circumstances” test is used to determine if a party can depose an examining physician who is not designated by the other party as an expert witness.  In this recent case from Nevada federal court, a mortgagor sought to depose a non-designated psychologist who had examined the mortgagor pursuant to court-ordered independent medical examination.  The defendants filed emergency motion for protective order and motion to strike mortgagor’s expert designation of the psychologist.

Lessons from the Supreme Court in International Law: what Attorneys should know and the Critical Role of Experts

Kiobel v. Royal Dutch Petroleum was a landmark case before the U.S. Supreme Court, involving questions of international law, jurisdiction and legal fora, and what attorneys should expect, when international human rights issues against corporations are adjudicated in U.S. courts.  The Supreme Court, in a unanimous opinion, discussed the issues at hand and, in so doing, helped put both American plaintiff and defense attorneys on notice, as to what to expect and how to best plan for cases involving corporate governance and international law.  See, e.g., Rich Stamp, “Supreme Court Observations: Kiobel v. Royal Dutch Petroleum & the Future of Alien Tort Litigation,” Forbes (Apr. 18, 2013).

Case Study: Bank Miscalculates Expert’s Value in Defining Directors’ Duties

A bank brought action against an accounting firm and its partner for aiding and abetting former bank directors in breach of statutory duties, professional negligence, breach of fiduciary duty, and statutory violations.  The Court of Appeals, held that statutory language stating a bank director’s duties did not make an accounting firm’s expert witness’s testimony unnecessary with regard to the specific duties of the directors.

Are the Requirements for Psychiatric Expert Testimony Becoming Too Precise?

In the most recent March issue of The Journal of the American Academy of Psychiatry Law 41:1:134-136 (March 2013), authors Dor Marie Arroyo-Carrero, MD, and Charles Dike, MD, MPH, MCRPsych, wrote a fascinating article regarding a Missouri wrongful death matter and the admissibility of psychiatric testimony. The crux of the issue involves the American Psychiatric Association’s (APA’s) “bible,” Diagnostics and Statistical Methods IV (DSM IV).

The importance of the DSM IV cannot be overstated. It is the sine qua non for much of prescriptive medicine and analysis for mental disorders today. When it was first published in 1952, it contained 102 diagnoses in 130 pages.  DSM II was published in 1968, listed 182 disorders, and was a svelte 134 pages long. By 1980, the DSM-III grew to 494 pages and listed 265 diagnostic categories. The current edition, DSM IV published in 1994, (allegedly soon to be replaced by the DSM V), has ballooned to 297 disorders in 886 pages.

Expert Witnesses & Gender Dynamics: What Every Attorney should know about Female Expert Witness

What gender is your expert witness?To many attorneys, it may seem self-evident that a good expert witness, whether male or female, will be well-received by courts and juries, regardless of sex or gender.  Certainly, in this new year and century, that is the hope.  However, many studies, both anecdotal and statistical, have found that female expert witnesses, who are not coached to prepare themselves for gender biases, may have difficulties on the stand.  Thus, it becomes imperative for attorneys to be aware of these biases, to train their experts appropriately, and to effectively counteract those predispositions, ultimately making their credible female experts even more effective in testimony.  Moreover, there are strategies to help attorneys utilize their female experts in a way that makes them perceptually more likable than their male counterparts, so the techniques discussed herein apply to all attorneys and to coaching men and women, in distinct ways that will sway jurors and deter intrusive cross-examination.

Case Study: Trustee Gambles on Experts’ Testimony to Recover Millions from Casino

CasinoExpert testimony was one of the key issues in a recent case in Federal District Court in Nevada, where a bankruptcy trustee sought to recover $10 million from a Las Vegas casino in an alleged Ponzi scheme.  District Judge Phillip M. Pro was presented with Motions for Summary Judgment by Defendant (“Casino”).  Also before the Court were the Casino’s motions to exclude the expert testimony of RL, AS, and PD.  The plaintiff (“Trustee”) opposed those motions.

Case Study: Anti-shoplifting device patent stolen by competitor, expert says

Patent infringementTwo competitors in the “resonance tags” manufacturing business are involved in a recent patent infringement litigation.  Resonance tags are electronic anti-shoplifting devices that are attached to merchandise so if the tag is not deactivated by a cashier at check-out, the tag triggers an alarm when those goods move past detectors at the store’s exit.

In litigation over the design of these electronic anti-shoplifting devices, a jury found the defendant company did not infringe on the plaintiff’s patent.  The U.S. District Court for the Eastern District of Pennsylvania also found case “exceptional” as to 35 U.S.C. § 285 and awarded the defendant roughly $6.6 million in attorney fees, costs, and interest.  The plaintiff company appealed that award.

Hydraulic Fracking: Why it’s Newsworthy and the Role of Expert Witnesses

Hydrolic frackingHydrauling fracking (also known as “fracturing”) has been a practice of fossil fuel providers for decades.  It has been in practice since 1949, and analysts estimate that globally, some 60% of new oil or gas reservoirs and wells were located and mined using hydraulic fracking technology. Montgomery, Carl T. & Smith, Michael B. “Hydraulic fracturing. History of an enduring technology,” Society of Petroleum Engineers 26–41 (2010-12-105).  Recently, however, a controversy has arisen between the benefits of the fracking process and its potential environmental implications.  Legislation, proposed legislation, and litigation have ensued, all echoing a certain call: that the legal community is in dire need of an educated understanding of fracking, and expert witnesses are the very people to give us that lesson.

Case Study: Expert Witness OK to Testify to Facts Outside Specialty and Without Examining the Patient

The court of appeals in Nebraska recently held that an expert witness may testify to facts outside the field of his specialty so long as he shows familiarity with the specialties and the treatments provided.  The court also said that a physician need not examine a patient in order to provide testimony if the testimony is based on scientific, technical, or other specialized knowledge and assists the trier of fact to understand the evidence or to determine a fact in issue.

When the Expert Witness is Unavailable to Testify

Expert swearing inRecent litigation news around the death of an expert witness at or near the time of trial is a poignant reminder about the critical importance of preparation for trial, including the use of understudies in case the star cannot take center stage.

Strategies for Litigators to make the Most of Their Expert Witnesses: Part III: How Attorneys can Best Prepare their Experts for Trial


Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, and how to anticipate opposing counsel’s objections and best prepare.

Part II noted mechanisms attorneys can avail themselves of, to most-successfully train their expert witnesses before a case goes to trial.

This Part involves strategies that attorneys should be aware of, based upon empirical and sociological data, to help coach their witnesses and make their experts’ testimony appear to be as qualified and outstanding as the experts truly are.

Strategies for Litigators to make the Most of Their Expert Witnesses: Part II: Pre-Trial Strategies for Attorneys to Best Prepare Experts


Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, the importance of understanding how placing an expert in the right category can assist attorneys in anticipating and avoiding opposing counsels’ potential objections to various aspects of expert testimony, but also understanding how to plan ahead, thereby making use of the Federal Rules of Evidence and other mechanisms for make the best possible use of expert witnesses.

When An Expert Tells A Different Story after Motion for Summary Judgment

A court is entitled to disregard “inescapably and unequivocally contradictory” new testimony of an expert witness based on the “sham issue of fact” doctrine.

Recently the Second Circuit Court of Appeals in a per curiam opinion said that district court was entitled to disregard the contradictory new testimony of physician, as expert witness, relating to his knowledge of patient taking drug, as it was undoubtedly manufactured to avoid summary judgment against the plaintiff.

Case Study: Airline’s Industry Expert Cleared for Take-off in Suit with Passengers

AirportDistrict Judge Miranda M. Du in Nevada recently heard arguments on a motion to exclude the testimony of Defendant’s airline industry expert witness.

The plaintiffs were nine passengers (“the Nine”) who traveled on a flight from Vancouver to Las Vegas in 2003.  The Nine alleged that the flight captain and two flight attendants accused them of criminal interference with an air crew.  The flight was diverted to Reno, and the Nine were removed from the plane.

Strategies for Litigators to Make the Most of Their Expert Witnesses: Part I: Pre-Trial Strategies: What Kind of Expert are you Working with?


Every attorney who has tried a case and retained expert witnesses realizes the value of expert testimony, but do all litigators truly understand the best ways to strategically utilize their experts and therefore, maximize their prospects for success?  This article investigates some common ambiguities and approaches for attorneys with respect to expert witness testimony and, based upon several psychological studies and statistical analyses of jury behavior, offers strategic advice to litigators, allowing them to deploy their experts in the most valuable manner possible.  To assist in comprehending both the basis and content of the proposed strategies in this article, several instances of expert testimony, involving the most effective ways to prepare for cases and use experts, will be discussed.2

Trade Secret Experts Not So Top Secret

Trade secretsThe White House recently announced its “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets” (February 2013).  At 131-pages, it’s packed full of information from a lesser-known agency, the Defense Security Service, which builds on industry reports to develop analytical assessments of threats to U.S. information and technology.

Trademark Infringement Experts: The Benefit of Due Diligence in Consultation and Litigation

The interpretive nature of trademark related litigation as it correlates to issues such as public perception, confusion, dilution, and deception, can be highly problematic when attempting to prove or disprove the existence of a trademark infringement. Pursuant to 15 U.S.C 1127, commonly known as the Lanham Act, the term “trademark” is defined to include “any word, name, symbol, or device, or any combination thereof—

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if the source is unknown.”

Independent Experts in Oil and Gas Mergers and Acquisitions; Defusing the Factors that Can Inflame Litigation

Oil and gas fieldsIntroduction

Mergers and acquisitions are a hot topic in the oil and gas industry at present.  This article sets out some of the human factors that can affect a business decision about a proposed merger or acquisition and the ways that use of an outside expert during the merger process can favorably affect potential litigation over the transaction.  Specifically, this article analyzes the interaction of psychological factors at play within the framework of objective factors in a dynamic field such as oil and gas in Texas.

Patent Litigation Trends in California: Patent Infringement Expert Witnesses, Damages, & the Nash Bargaining Theory

Patent litigation is on the rise, and the number of patent infringement suits before the courts is at an all-time high.   See “2012 Patent Litigation Study,” PriceWaterhouseCoopers (PWC), 2012.  However, many attorneys and litigants are unaware of what the current trends are with respect to damages, if a party prevails in patent litigation.  Patent infringement experts are critical to this process, so it is important to understand recent changes in judicial findings, regarding expert testimony and measuring damages.

Product Liability, “State of the Art” Design, and What Should be Expected of Experts

On both a national scale and in California courts, product liability cases increasingly require the use of expert witness testimony on both sides, to determine whether a specific manufacturer should incur liability in court for an alleged product defect.  A product liability expert witness can be the key in such cases, because many jurors’ most probing inquiry in such cases often and inaccurately revolves around the issue of whether the product conforms to the standards of a particular industry.  The actual legal standard for product liability cases dealing with negligence is whether or not the product was “state of the art” at the time it was manufactured.

Going to Credibility and Weight – Not to Admissibility

It’s an important distinction to master:  whether the testimony of the expert witness goes to a credibility determination to be made by the trier of fact or whether the testimony of the expert witness may be inadmissible as per a ruling from the bench.

Trial attorneys tend to be well prepared.  Trial is a serious matter, generally conducted with advance notice.  And a combination of factors, including the attorney’s own reputation, generally creates a suitable level of advance preparation.  The corollary of this observation tends to be that the witness offered as an expert gets qualified and the testimony elicited on direct examination tends to get admitted.

Sociological Analysis on Juror Impact of Expert Testimony in Awarding Damages

Often times, the considerations in jury deliberations are unrelated liability or fault, and may focus on the fixed amounts, perceived as adequate compensation, to each juror. Some jurors may have preconceived notions that attorneys ask for more than is required to adequately compensate an injured party. Some jurors may consider factors such as attorney’s fees, taxable portions of award amounts, or the Plaintiff’s Insurance, to provide a framework for arriving at an award amount. Whatever factors a juror utilizes to reduce or supplement an award amount, this perception of a base award amount must first be established.

What to Make of the Expert Witness C.V.

'C.V.' or curriculum vitaeHow many times do we hear the advice to limit one’s resume to one page?  But when it comes to written credentials, when does the resume become a “curriculum vitae” and do any page limits apply?

The general rule of thumb on resumes is that once a person begins publishing, lecturing, and training others, the resume changes structure into the “curriculum vitae.”  The “CV” can be thought of as a bibliography of one’s career.

Why California Courts May Exclude Expert Testimony and how to Prevent This

In California, nearly every type of civil litigation involves the use of expert witnesses and their testimony.  However, the trial judge, as gatekeeper, can and often does preclude certain expert testimony from being considered evidence in a case.  The clear dilemma for legal practitioners and litigants is to ensure that the expert testimony they utilize will not be excluded but will, instead, be considered reliable and persuasive to judges and juries.

Hiring the Right Forensic Accounting Expert Witness

Attorneys, judges, and forensic accountants view the expert witness from different perspectives. Attorneys’ hire expert witnesses to arrive at favorable conclusions for the case, and to rebut the opposing expert. Judges will rely on the experts’ knowledge and give more weight to their conclusions, when the judge cannot reach one without such assistance.

Expert witnesses in medical malpractice litigation: Challenges, trends, and strategies to obtain the best testimony

Since at least the late 19th century, the legal and medical professions have attempted to grapple with how to utilize paid expert witnesses in a manner most conducive to the interests of litigants and justice.  Medical expert testimony differs from other types of expert testimony in that medical experts typically do not use as many objective criteria as other types of experts.  Unlike an actuary, for example, who can point to a specific formula used to assess the amount of damages due to an individual, medical experts are limited, to an extent, in making such objective assessments of when the “standard of care” has been neglected.

Tips on Expert Witness Discovery

Gavel on paperIs there anything worse than the feeling when you receive the demand for expert witness information during litigation?  Even if the demand is appropriately crafted to comply with applicable rules of discovery, you have tactical decisions to make.

First on the list of discovery response concerns is whether you have retained an expert witness.  You may be in the uncomfortable position of heading into the discovery stage of litigation with only preliminary work undertaken in your selection process.  Do you ask for an extension to respond or do you timely acknowledge you have not retained an expert but will update when you do?

Using expert witnesses and testimony in civil trials: Ensuring that your experts are the best you can get.

Since the early 1990s, expert witness testimony has been on the rise and, as more experts have testified in civil cases, more challenges to their qualifications have ensued.  Here, we explain two concepts concerning expert witnesses and testimony: (1) what the standard for a “qualified” expert is, and (2) how to best ensure that, when using expert testimony, you get the most qualified person possible.

Finding The Medical Malpractice Expert Witness

Medical malpractice cases can involve claims for significant injury with corresponding demands for significant damages.  It is an area of law that predictably requires the testimony of an expert witness.

Just how closely do you need to tie your expert witness to the allegations at hand?

Taking to Heart an Expert’s Change of Mind

When to hire an expert witness is a strategic decision trial attorneys take seriously.  In some states in certain types of lawsuits, an expert witness must provide an opinion before a case can even be filed.  In other cases and jurisdictions, it can come down to the wire of a court order to exchange expert witness reports.  It can even be done during trial where a rebuttal is needed.

Becoming an Expert in Hiring an Expert

Regardless of the area of law, if you plan to present an expert witness for testimony, you need to think about expert witness trial testimony before and during expert witness selection, as well as early on in your working relationship.  Here are four tips for you to consider in this regard.

Construction Delays: Who is Qualified to Offer Expert Opinion

A large portion of litigation claims arising from construction projects stems from delays in the work schedule.  This sounds simple enough, but the actual cause of the delay can be quite complicated and confusing.  Was it the weather, lack of materials, safety issues, labor strife, or was it something else?  Was the delay foreseeable and preventable?

Creative Use of Experts in the Preparation of Corporate Governance Cases: Part 2

Part 2:  Fiduciary Duty Experts

By Donna C Kline, Attorney at Law

The conceptual and moral nature of corporate governance and corporate negligence litigation

The elements and nature of corporate governance litigation are well known to all commercial litigators, but a brief review of the conceptual structure of corporate governance places the role of experts in perspective.  In particular, it shows how an expert on fiduciary duty can help counsel formulate the story of the case.

Creative Use of Experts in the Preparation of Corporate Governance Cases

Part 1:  Industry Experts

By Donna C Kline, Attorney at Law

Early, creative, and well-focused use of consulting experts in corporate governance litigation can help the lawyers assemble the four key components of a successful trial.  Although a corporate governance case may involve sophisticated business concepts and complex technical or financial facts, the case still must be presented in a persuasive manner to a jury of ordinary persons who have only a few days to gain an appropriate understanding of those concepts and facts.  To persuade the jury to return a favorable verdict, the facts must be presented in a manner that dovetails with the legal instructions that the judge will give and that resonates with the jury’s moral sense of the case.   This article describes the vital role that an industry expert and a fiduciary duty expert can play in trial preparation.

Testing the Limits of Discovery of Non-testifying Experts

In a recent patent infringement case from the District Court for the North District of Illinois, Judge Amy St. Eve granted Plaintiff Sloan Valve Company’s (Sloan) motion for a protective order.  The order barred the Defendants, Zurn Industries, Inc. and Zurn Industries, LLC (Zurn) from deposing a Sloan attorney on the plaintiff’s patent infringement contentions.  Zurn was creative in its use of the Rules of Civil Procedure, but those efforts did not convince the judge who ruled against them.

Trends in Expert Testimony Requirements for Class Action Litigation

When the Supreme Court heard arguments in Comcast Corp. v. Behrend last week, there was a great deal of talk about the Daubert test for admissibility. Because the Court’s ruling could have enormous impact on how expert witnesses are evaluated for class action litigation, it is worth reviewing what really Daubert requires, especially as it relates to the landmark Wal-Mart Stores v. Dukes case from last year.

Finding the Perfect Expert Witness: Why an Expert Must Wear Many Hats

Attorneys looking for expert witnesses to solidify their positions need to consider several factors when choosing an expert. If an expert possesses certain skills while lacking others, he or she might hinder a case more than advance it. For example, you might find an extremely qualified expert who is respected in his field. However, if he is not a competent public speaker, it could be detrimental if the case goes to trial. An expert witness must be something of a Renaissance man (or woman), possessing a variety of attributes.

3 Typical Scenarios that Require Expert Witnesses

For every machine that breaks or heart that stops beating, there is someone who possesses the experience and training to answer why. In fact, for virtually any dispute brought to trial there exists someone who possesses that extra knowledge necessary to deliver a stronger—and hopefully winning—argument. In fact, certain situations demand expert testimony. At other times, expert testimony is necessary to offset an opposing legal team’s arguments. If, for example, you are the plaintiff in a case about corporate negligence and the defense hires a competent expert, showing up to trial without an expert of your own could be equivalent to bringing a knife to a gunfight.

Here are three typical scenarios that demand the use of an expert witness:

Patent Infringement: Expert Witnesses and the High Stake Technology Space

Major companies are involved in various important technological patent litigation cases requiring highly specialized experts working along top Patent Prosecution and Patent Litigation attorneys. These cases often arise when brands are competing in the technology space. Since many technical products are built on the shoulders of previous technology and designs, the line between innovation and infringement can, at times, blur.

Real Estate Expert Witnesses Can Impact Land Use Cases

Land Use Planning refers to a branch of public policy having to do with the regulation of land to be used in an efficient way.  Land use planning has a view to ensure that land is used in a way that supports the physical, economic and social well-being of a community.

Three Causes of the Subprime Mortgage Crisis

Illinois Attorney General Lisa Madigan’s recent lawsuit against S&P is the latest example of fallout from the subprime mortgage crisis. The mortgage crisis, one of the leading indicators of the U.S. financial crisis that began in 2007, was characterized by a marked increase in foreclosures and mortgage delinquencies. Subprime mortgages refer to mortgages that are risky and are considered to be of a lower quality than mortgages that are relatively secure. The increasing number of delinquencies led to a decline in mortgage-backed securities.

5 Ways to Stay Clear of Mortgage Modification Fraud

An unfortunate side-effect of the foreclosure epidemic is a rise in mortgage modification fraud. As the housing market has plummeted, scam artists have been able to convince desperate homeowners to pay a fee in exchange for false promises of lowering their mortgage or monthly payments.

Product Liability: How Expert Witness Testimony Affected the McDonald’s Coffee Case

Most people in the United States remember something about the Liebeck v. McDonald’s Restaurants case. The case involved a woman, Stella Liebeck, who suffered third degree burns after spilling McDonald’s hot coffee on her pelvic region. The case became famous due to the fact that Ms. Liebeck was eventually awarded $2.7 million in punitive damages. The case, which sparked a national debate about tort reform, is one of the most famous examples of a product liability suit.

When to Consult a Security Investment Management Expert Witness

When most people think of the word security, they might think of an alarm system that protects their home or car. However, in the world of finance, a security refers to a negotiable financial instrument representing value. Securities are qualified as debt securities (such as bank notes or bonds), equity securities (such as common stocks and mutual funds) and derivative securities (such as hedge funds and futures). Securities were originally represented by certificates, but increasingly, they’ve come to be represented electronically.

Protecting Your Business with Professional Liability Insurance

When operating a business that provides services to consumers, there is often an inherent risk of something going wrong. It’s possible for consumers to get food poisoning from a restaurant or to injure themselves while swimming in a public pool that isn’t properly constructed. No matter how well-trained a staff, the risk of consumer harm does not tend to disappear completely. That’s where liability insurance comes in. General liability insurance can protect businesses against acts that cause damage to people’s health or property.

Should Web Hosts Protect the Intellectual Property on their IPs?

In early March, Yahoo! filed a patent infringement lawsuit against Facebook. It’s spurring questions over whether or not patent law is too broad and if patent law needs to be reexamined. Patent law suits are becoming a standard part of the technology business these days. As more large websites go public, shareholders in IPOs have an interest in trying to make certain that they can be compensated for any unlawful uses of their intellectual property.

What Qualifies as Corporate Negligence?

Corporate negligence can often be difficult to establish. For a corporation to be declared negligent, it must be proven that a corporation or one of its employees did undue harm to a third party by breaching their responsibility.

Understanding the Industrial Engineering Industry

In order to find an engineering expert witness, it’s vital for attorneys to understand that the industrial engineering industry is multi-faceted. In addition to there being several types of industrial engineers, there are manifold career paths that might lead an engineer to expert qualification.

Legal Malpractice is a Growing Field of Law

Legal malpractice is a term that refers to breach of contract, breach of fiduciary duty or negligence by an attorney that causes harm to a client. For an attorney’s negligence to be considered malpractice, an injured party must prove that the attorney’s actions exceed poor strategy. Rather, it must be established that the attorney’s actions resulted in errors that no reasonable attorney would make.

Pregnant Women Still Face Employment Discrimination in the Workplace

Three fourths of women now entering the workforce will become pregnant on the job. The Pregnancy Discrimination Act (PDA) was designed to prevent employment discrimination when it comes to any aspect of pregnancy, including hiring, firing, promotions, layoffs, fringe benefits or any other terms of employment.  However, due to a gap between anti-discrimination and disability law, many women still face termination due to their pregnancies.

7 Ways that Workers Compensation Expert Witnesses Can Provide Support

Workers compensation expert witnesses possess specialized knowledge that can allow them to deliver credible analysis both prior to and during litigation. Since workers compensation trials can involve complicated technical issues, it can pay to retain a witness who is familiar with the particulars of your trial. Whether the trial involves insurance premiums, audits, code disputes or experience modification factors, experts can help you understand complex issues and minimize the impact of opposition experts.

SECB Calls for National Structural Engineering Certification

Structural engineering as a discipline is becoming increasingly complex. However, there are currently only 10 U.S. states that require any form of specific certification for structural engineers.

According to Jon Schmidt, Associate Structural Engineer and Director of Antiterrorism Services at Burns & McDonnell and Chair of the Editorial Board of STRUCTURE Magazine, “In today’s world of complex structures and 3D modeling, structural engineering is a partnership among architects, contractors and engineering firms. The structural engineer must be able to offer insightful and pragmatic suggestions, and doing that requires strong technical knowledge, depth of experience and problem-solving abilities that have been well-honed over time.”

How to Interview an Engineering Expert Witness

Engineering experts can offer vital litigation support and can help sway a judge and jury in your client’s favor based on the strong and objective technical analysis of the issues of your case. However, when you are considering retaining an engineering expert witness, it is paramount that you ascertain, not only his experience testifying as an engineering expert, but also his experience that is relevant to your specific case.

New York Expert Witness Cites the Importance of Consulting with Expert Witnesses

Dr. Donald M. May, Ph.D., a director in the Litigation and Corporate Financial Advisory Services Group at New York-based accounting firm Marks Paneth & Shron LLP, has released a statement citing the importance of including expert witnesses as consultants in preparation for litigation.

“In most cases, a law firm will bring in an expert witness near the end of the litigation process to report and testify.” Says Donald M. May, “But that’s not the most cost-effective way to use an expert.”

3 Effective Approaches to Expert Witness Business Valuation

Business valuation can be one of the most challenging aspects of commercial litigation. Forensic accountants are often hired as expert witnesses in order to give their expert opinion as to the value of a particular business. There are many factors that go into calculating the value of a business. When approaching business valuation, expert witnesses can take one of three distinct approaches, each with their own methodologies.

Construction Experts Help Expose Falsifications in Bay Bridge Structural Testing

Following a recent Sacramento Bee investigation, Caltrans fired two employees implicated in an assortment of problems involving tests conducted on the Bay Bridge and other structures throughout California.

The Bee reported that Duane Wiles, a technician who was responsible for testing bridge foundations and his supervisor, Brian Liebitch, were involved in at least three confirmed falsifications. The report also revealed several errors committed by Wiles that have called the validity of his testing methods into question, raising concern about several California structures.

What Attorneys Should Look For When Reviewing Expert Valuation Reports

One of the key duties of a forensic accountant is to provide business valuation reports. As the name implies, valuation reports estimate the value of a business. These reports are used by litigators for a variety of legal purposes including evaluating various partners’ share of ownership in facilitating buy-sell agreements, mergers and acquisitions.

Valuation reports can be a powerful tool in the courtroom, but litigators need to ensure that their experts have correctly prepared the valuation reports. There are several common errors that have been observed in valuation reports. Litigators should ensure that the purpose of the valuation has been clearly defined by the report. It is also essential that an overview of the company’s background, market, industry and competitors has been prepared.

Construction Expert Claims Language Barrier is Detrimental to Safety in the Construction Industry

Effective communication is important to safety in any work environment. In the construction industry, a lack of communication can cause property damage, injuries and even deaths. It’s no secret that there are many non-English speakers employed in the construction industry. According to construction expert Paul Gogulski, speaking English is necessary to avoiding hazards on construction sites.