Resources for Attorneys

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.

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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.

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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, www.heliconfoundationrepair.com/fraudulent-sinkholeclaims-increase-as-geologists-blame-currrent-weather-trends/ (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).

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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.

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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).

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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.

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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).

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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.

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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.

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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.

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ForensisGroup articles provide information about legal matters related to the expert witness industry. Legal information is not the same as legal advice. While ForensisGroup goes to great lengths to ensure that the information it offers is useful and accurate, we always recommend that you consult a professional before acting on any legal information read on the Internet.

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