Mining Engineer Expert Witnesses:  Do Experts Need Design Experience to Testify in a Product Liability Case?

A product-liability case stemmed from an accident where Plaintiff, a coal miner, sustained injuries to his left hand while using the Defendant’s equipment (a roof bolter). Plaintiff claimed that the injury occurred because he was holding onto the handle of the roof bolter which extended his hand beyond the roof and outside the protective operator … Continued

Using Cross Examination to Uncover Expert Witness Bias

Utilizing expert witnesses, as well as challenging the opinions of opposing experts, is one of the essential functions of today’s litigator. This article addresses the issue of uncovering expert witness bias using different techniques that are base upon theories of varying degrees of truthfulness. As skilled practitioners have noted, it is important for attorneys to … Continued

Psychiatrist Expert Witness Testimony Withstands Daubert Challenge in Malpractice Lawsuit

Mental Health Expert

In a recent case in Alabama, the Defendant tried to exclude the opinion of a medical expert witness by stating that the expert cannot prove causation.  The psychiatrist expert witness was able to withstand the challenge because of his qualifications, use of reliable methods, and his ability to provide sufficient evidence. The Plaintiff developed a … Continued

Direct Examination of Experts: How to Come out Ahead

When attorneys retain an expert witness, many factors must be considered to ensure that the expert’s abilities are maximized before a court. The direct examination of friendly experts provides lawyers with a critical opportunity to make their experts’ qualifications clear to a jury. This article discusses some techniques that practitioners may wish to use during … Continued

ForensisGroup Hillside Holiday Gifts 2015

  Happy Friday! The staff at ForensisGroup would like to wish the children and families over at Hillsides a warm and happy holiday. We are extremely fortunate and grateful to be part of Hillside’s Holiday Giving bringing magic and joy to families around the holidays. ForensisGroup continues to contribute our support with Hillsides for over a … Continued

Is there Prejudice When A Retained Expert Witness is Called to Testify for Opposition

Swearing in of Expert Witness

This case, stemming from an auto accident involving a country’s reserve deputy, was heard on appeal to the Missouri Court of Appeals following a jury verdict against the County.  The County brought five points on appeal, one of which concerned the admission of an expert witness testimony.  The County’s retained expert witness was being called … Continued

Katharine Hepburn’s Home at the Heart of Real Estate Broker Expert Testimony in Insurance Dispute

The Appellate Court of Connecticut recently heard the appeal of a title insurance company against insured developers.  The case involves over the insurance company’s obligations under the policy to compensate the developers for the borough’s claimed ownership of 30-foot wide discontinued road. Defendants purchased the subject property for $6 million, which had been the beachfront … Continued

ForensisGroup is a Student Sponsor for TTAB Event at Loyola Law School

ForensisGroup, Inc is proud to be the Student Sponsor at the The Trademark Trial & Appeal Board Event located at Loyola Law School on November 13th, 2015.  The Los Angeles Intellectual Property Law Association ( is the hosting the event for attorneys and law students in Southern California. The event hearing was preceded by a question-and-answer session with the esteemed panel, … Continued

Challenging Expert Testimony in Federal Court

Expert Testimony

Expert witnesses play an indispensable role in litigation, regardless of what side a party is on. Accordingly, it is important to know the ins and outs of challenging expert testimony. This article answers basic questions and provides practitioners with a guide on how to best challenge expert testimony in federal court.

ForensisGroup’s President and CEO, Ms. Mercy Tolentino Steenwyk participates in the Youth Business Alliance as a Guest Speaker

ForensisGroup’s President, Ms. Mercy Tolentino Steenwyk, recently participated in the Youth Business Alliance (YBA) as a Guest Speaker.  She shared her valuable skills and knowledge with a group of students from Alliance Ouchi High School and Alliance Collins High School as part of the “Business & Careers” program. As the CEO of ForensisGroup, Ms. Steenwyk … Continued

ForensisGroup Nominated As the Best Expert Witness Provider 2015

ForensisGroup, Inc has been named THE BEST EXPERT WITNESS PROVIDER in The Recorder’s 2015 poll!  We would like to thank The Recorder ( and everyone who cast their vote! We work hard at providing excellent services to each of our clients and are pleased to know that our efforts have been recognized in such a great … Continued

Questions over Drug Pricing emphasize the need for Pharmaceutical Expert Witnesses

In September, the House Committee on Oversight and Reform, led by two government officials, began investigating one pharmaceutical company’s drug pricing policies. The investigation has led to requests to subpoena the company’s CEO and to force that person to testify before the government about allegedly significant price increases in two drugs that are commonly used … Continued

Agricultural and Economic Expert Witnesses become Vital as GMO Corn Litigation Proceeds

Agricultural experts

Recently, litigation against a manufacturer of genetically-modified corn has been drawing nationwide attention. Over 20 states are already involved in lawsuits, and industry estimates place plaintiff damages at $2.9 billion. Tim Landis, “Lawsuits pile up nationwide in case of genetically modified corn,” The State Journal-Register, Sep. 21, 2015. This article explores the litigation and emphasizes … Continued

Court Strikes Materials Engineering Expert Testimony in Residential Fire Case

A fire as a result of lightning destroyed a home in Missouri. The homeowners’ insurer reimbursed them for their loss, received an assignment of their rights, and filed a diversity products liability action against a manufacturer of corrugated stainless steel tubing (“CSST”) that brought propane gas from an underground storage tank into the home.  Both … Continued

Arctic Drilling & Legal Issues: The Risks, Benefits, & the Oil and Gas Expert Witnesses: Part II: The Consequences of Drilling

Oil and gas fields

Introduction: Recently, the Obama Administration seemed to give unconditional approval to one oil company’s request to drill in the Arctic region, with exploratory operations originally scheduled to begin this summer. However, as many experts from members of regulatory agencies to oil and gas expert witnesses in the industry have pointed out, any company that wishes … Continued

Arctic Drilling & Legal Issues: The Risks, Benefits, & the Expert Witnesses: Part I: Can Drilling Operations Begin?

Introduction: When the Obama Administration recently gave its approval for a round of drilling by a petroleum company in the Arctic region, many members of the media thought that the results would be a foregone conclusion. Upon further review, however, this hardly seems the case, and the legal issues and hurdles that drilling in the … Continued

The Admissibility of Expert Witness Testimony in Texas: A Guide for Attorneys: Part I: Assisting the Trier of Fact

Expert Testimony

Introduction: Although the landmark United States Supreme Court case of Daubert v. Merell Dow Pharmaceuticals created a set of guidelines for when and how to admit expert testimony in many cases, standards for admissibility vary from state to state. See generally Daubert, 509 U.S. 579 (1993). In Texas, practitioners should be guided by the Texas … Continued

California Litigators: To Daubert or not to Daubert?


Introduction: Until a few years ago, the California Supreme Court made it clear that in cases involving questions about an expert witness’s credibility, the federal rule articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) was not followed in California. However, after its recent decision in Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. … Continued

Dairy Company Cries over Spilled Milk in not Discrediting Accounting Expert

The Plaintiff in the following case was a Canadian dealer of a Wisconsin dairy manufacturer’s equipment for 20 years. He claimed that the Manufacturer forced him to sell his dealership to a neighboring dealer at a below-market price. The jury agreed and awarded Plaintiff $471,124 in damages and Manufacturer appealed. Dealers were assigned territories with … Continued

Eleventh Circuit Says Expert Slips Up on “False Sense of Security” Theory in Slip and Fall Accident

Slip and fall cases with an allegedly dangerous or defective surface frequently involve the surface’s coefficient of friction (COF) or “the degree of slip resistance.” The higher the COF, the less slippery the surface will be. Evidence concerning a surface’s COF is typically presented by expert witnesses. The expert will opine on the appropriate COF … Continued

Blast Off: A Rocket Crash & the Potential Legal Implications for the Aviation Expert Witnesses and Aerospace Industries

Introduction: In October of 2014, a co-pilot’s mistake led to the crash of a tourist space plane, which the National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA) subsequently investigated. Recently, the results of those investigations were made public, causing much speculation among aerospace and aviation expert witnesses, as well as giving rise to … Continued

Exchanging Expert Witness Information in California

Introduction: According to the California Code of Civil Procedure (CCP), certain procedures exist for the exchange of expert witness information during a lawsuit. See CCP §§ 2034.010-2034.730. This article discusses those procedures and offers guidance to attorneys, supplied by the Continuing Education of the Bar California organization (CEB). CEB, “How to Guide: How to Exchange … Continued

An Arbitrator’s Discretion Concerning Expert Witness Statements

A contract dispute between a financial advisory firm and a medical device developer was submitted to an arbitration presided over by an independent International Chamber of Commerce (“ICC”) arbitrator. A final arbitration award was issued in favor of the medical device developer. The financial advisory firm petitioned to vacate the arbitration award and the medical … Continued

Litigation over Toxic Fumes & the Airline Industry: What the Toxicity Expert Has to Say

Introduction: Last month, a number of flight attendants filed suit against an airline manufacturer, alleging that toxic fumes from the plane’s exhaust air-conditioning system were released and caused each of the litigants to experience immediate and longer-term health problems. In the midst of this litigation, various toxicity experts have begun to weigh in on the … Continued

ForensisGroup Accepts the 2015 Los Angeles Business Journal Asian Business Finalist Award

ForensisGroup and President & CEO Mercy T. Steenwyk were recognized and awarded the Los Angeles Business Journal Asian Business Finalist Award on Wednesday July 8th, 2015 at the Omni Hotel in Los Angeles.  Ms. Steenwyk and Ms. Cherry Deleon, Vice President, represented ForensisGroup at the ceremonies. Matthew A. Toledo, LABJ’s Publisher and CEO, Betty Uribe of California … Continued

Challenged Expert Testimony in Class Action Certification and the Daubert Standard

Expert testimony was at the heart of a recent appeal in the Third Circuit dealing with Rule 23(f) in an antitrust class action. At issues was whether that rule requires challenged expert testimony to be scrutinized under Daubert. The plaintiffs were purchasers of blood donation compatibility products. The defendant was one of two companies alleged to … Continued

Retained and Non-retained Expert Witnesses: What Attorneys in California Should Know

When litigation involves expert witnesses, perhaps no distinction has proven itself more confusing than the California Code of Civil Procedure (C.C.P.) policy regarding retained versus non-retained expert witnesses. Practitioners in California must be aware of which category their own (and their opponents’) experts should fall into, and litigators must also know how to challenge and … Continued

Legal Malpractice Claim Requires Expert Witness Testimony if Negligence is Not Clear and Palpable to Most Lay Persons

Missouri law states that expert testimony is required on the duty of care owed to a client in a legal malpractice claim. The Eighth Circuit’s recent decision ruled that the legal malpractice lawsuit without an expert witness is invalid. A former client brought an action alleging that his former attorney, who was convicted numerous counts … Continued

Discovery Deadline Is Not Always the Same As Expert Disclosure Deadline: Student Sues University for Violation of ADA, but Fails to Follow Federal Rule for Expert Disclosure

A participant in a doctoral program sued his university, alleging that his termination from the program was based on his post-traumatic stress disorder (PTSD) and in violation of the Americans with Disabilities Act (ADA). One of the issues on appeal was the exclusion of the Plaintiff’s expert witnesses as they were untimely disclosed and not … Continued

The California Evidence Code: Expert Testimony and Hearsay

Civil litigators in California and their California expert witnesses are bound by the California Evidence Code. One of the most difficult matters to understand pertains to hearsay evidence, particularly in the context of expert testimony. This article examines the permissibility of hearsay evidence by expert witnesses in the California courts, using the California Evidence Code … Continued

Can a Non–Retained Expert Witness be Compelled to Testify at Deposition?

The above question was asked in litigation by workers who conducted restoration and removal work after the September 11, 2001 terrorist attack at the World Trade Center (WTC). The workers brought claims seeking compensation for injuries incurred by inhaling toxic fumes. The workers moved to compel deposition of expert witnesses and serve amended expert disclosures. … Continued

Cinco de Mayo: Expert Witness in Spanish

According to the United States Census Bureau, Mexico is the third largest trading partner for the U.S.  American businesses have strong partnerships with the manufacturers and producers in Mexico. The Mexican economy and law affect many industries here in the States. ForensisGroup celebrates Cinco de Mayo with our neighbor country on May 5th, 2015. It’s to … Continued

First Circuit Judge Says Don’t Change Expert Witness Strategies Mid-Stream in Hazardous Material Exposure Case

A Senior Circuit Judge of the United States First Circuit Court of Appeals recently heard the appeal of some current and former employees of a defense contractor who brought a suit seeking relief for beryllium-related diseases. Although Beryllium is an important substance needed for manufacturing, even modest exposure can cause Chronic Beryllium Disease (CBD).

An Attorney’s Guide to Effectively Cross-Examining Expert Witnesses at a Deposition

Countless scholarly articles have been written to address the art of cross-examining expert witnesses during trial. However, less attention has been paid to strategies for cross-examining an expert during a deposition. It is of equal, if not greater import, to have a masterful cross-examination during the deposition of an opposing expert for many reasons. This … Continued

Gas Explosions and the Importance of Investigation by Experts

A series of gas explosions occurred on the East Coast in recent months, and some resulted in severe injuries and property damages. Gas leaks are relatively common, but they should be handled with caution even though most do not result in explosions. A gas leak smells like sulfur, some describe it as “rotten eggs”. According … Continued

Judge Explains Difference Between Federal Rule 26 (a)(2)(C) and Rule 26 (a)(2)(B) for Expert Reports in Pharmaceutical Product Liability Case

This lawsuit is one of over 800 product liability suits that were pending against the Defendant Pharmaceutical Company’s products. Its drug is used for the prevention of bone fractures in patients with hypercalcemia from cancers. All pending cases concerned the Defendant Company’s alleged failure to warn of the risk of disease of the jaw associated … Continued

Land Surveying Expert Witness’ Opinion Admitted into Evidence Despite Failure to Disclose During Discovery

The Missouri Court of Appeals, Eastern District affirmed a circuit court’s decision that a land surveyor expert witness’s testimony should be admitted into evidence at trial for consideration in an easement case. Appellants (dominant tenement owner) appealed from the trial court’s judgment in favor of Respondent (servient tenement owner) that the easement was valid. A … Continued

Can An Expert Witness Rely on Estimates Provided by A Client for Lost Profits Calculation? Judge Says Estimates Needs “Reasonable Certainty”

The U.S. Court of Appeals for the Fifth Circuit recently heard a patent appeal and decided that where an expert merely offers his client’s opinion as his own, that opinion may be excluded. Plaintiff, the assignee of an expired Japanese patent, appealed in a breach-of-contract suit claiming damages from Defendant’s failure to maintain the patent … Continued

When is an Expert’s Opinion a “Net Opinion” and Inadmissible?

Under New Jersey law, the “net opinion rule” is essentially “a longstanding rule that dictates exclusion of expert testimony that contains ‘bare conclusions,’ unsupported by factual evidence.” Federal District Court in New Jersey addressed the question on “net opinion” in a premise liability case against a retail establishment. Plaintiff fell outside of Defendant’s store and … Continued

Expert Witness Allowed in Discrimination Case to Support Methodology of Hiring

District Judge in the Eastern District of Pennsylvania reviewed an expert’s qualification, reliability, and “fit” to determine if the expert witness can be admitted in a case. The judge was presented with motions to exclude the expert testimony of a human resources expert witness in an employment discrimination case. The judge’s analysis focused on the … Continued

How Does the Court Determine if an Economics Expert Witness is Qualified for a Pyramid Scheme Case?

Several factors are to be considered when a court determines the admissibility of an expert witness. The Federal Trade Commission (FTC) brought action against multi-level marketing business under the Federal Trade Commission Act alleging unfair and deceptive practices for business’s alleged operation of a pyramid scheme. Part of this appeal concerned the admissibility of an … Continued

Florida and Daubert a Year Later: How Expectations for Expert Witnesses Have Changed

In 2013, the Florida legislature adopted the standard outlined in Daubert v. Merrill Dow Pharmaceuticals (509 U.S. 579) as the requirement that expert witnesses must meet in order to provide testimony in court. A little over a year later, the implications of that legislative decision are many, with numerous issues arising that pertain to expert witnesses. This article discusses the … Continued

Should Patent Expert Witnesses be Members of the Bar?

For most attorneys, the practice of their chosen specialty only requires a law degree and bar admission. Not so for patent attorneys. The United States Patent and Trademark Office requires attorneys to pass an additional test to become a patent attorney. The prerequisites for sitting for the exam are provided in the General Requirements Bulletin … Continued

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

Can An Expert Witness Opine On Someone’s State of Mind?

An oil company (MAR) recently brought suit against several defendants, including another energy company, for trade secret misappropriation in violation of the Ohio Uniform Trade Secrets Act (TSA). MAR alleged that defendants improperly used its confidential and proprietary information, including seismic data, to lease land and to drill in Northwest Ohio for oil and natural … Continued

Pasadena Bar Association’s Litigation Luncheon featured ForensisGroup’s CEO as a Panelist on the Topic of Expert Witness

ForensisGroup’s President and CEO, Mercy Steenwyk, was one of the panelists at the Pasadena Bar Association’s Litigation Section Meeting on Oct. 30, 2014. The topic of the meeting was “The 5 Biggest Mistakes to Avoid When Hiring An Expert Witness.” The event was held at Noor restaurant in Pasadena, California. Other panelists include Dr. Michel … Continued

Judge Tells Damages Expert in Patent Infringement Case to Re-Do Calculations

In a recent patent infringement case, the Plaintiff Programming Company and the Defendant Software Corporation asked the U.S. District Court Judge to rule on the parties’ motions in limine; this opinion focused on Defendant’s motions in limine to exclude the questionable opinion of Plaintiff’s damages expert. In scrutinizing an expert’s principles and methodology, the judge … Continued

ForensisGroup at AIPLA Annual Meeting 2014

The American Intellectual Property Law Association hosted the 2014 Annual Meeting at the Marriott Wardman Park Hotel in Washington, DC from Oct 22 – Oct 25.  More than 1,600 IP law attorneys and professionals attended the conference to get in-depth knowledge on the recent decisions and legal landscapes in IP law.  ForensisGroup exhibited at the … Continued

ForensisGroup at DRI 2014 Annual Meeting

ForensisGroup exhibits at DRI’s 2014 Annual Meeting at the San Francisco Marriott Marquis from Oct 22-24. More than 1,100 defense attorneys from around the nation attend the event to learn from landmark cases and network with professionals in the insurance industry.  The event features high profile speakers including David Drummon, Google’s chief legal officer, Chief … Continued

Is Expert Testimony considered “New Evidence”?

What happens when a defendant tries to use another parties’ expert deposition as new supporting evidence? In a recent case, the judge explains the importance of timeliness to file a motion and the criteria for “newly discovered” evidence. A shipping’s insurance company brought a breach of contract lawsuit against an international shipping company and two … Continued

Premises Liability Part III: General Trends in California and the Role Experts Play

Previous articles in this series have dealt primarily with premises liability in the context of sporting events or recreational facilities. This part addresses the general principles of premises liability in California, according to judicial rulings and statute, and seeks to describe the vital role that expert witnesses play in helping judges and juries resolve such cases. Other states … Continued

Premises Liability Part II: Spectator Injuries Resulting from Playing Sports and Expert Witnesses

Part I of this series discussed California’s recreational use statute in premises liability claims. Rather than dealing with injured sports participants, as the first article did, this part addresses spectator injuries when those injuries occur in sports and/or recreational facilities. This issue is far from settled; in fact, courts often find themselves taking into account … Continued

Premises Liability Part I: Recreational Immunity and Expert Witnesses in California

In general, premises liability law covers determining whether or not a landowner (or possessor) is legally responsible for injuries sustained by individuals while on the particular premises. The laws and judicial rules covering premises liability are myriad, varying from state to state and from case to case.  Many states, like California, have “recreational use” statutes, which … Continued

Forensic Expert Witness Association Meeting: Computer Forensics Experts and Their Role as a Witness in Theft of Trade Secret Matters

ForensisGroup shows support for the Forensic Expert Witness Association (FEWA), Los Angeles Chapter.  ForensisGroup attended FEWA’s Dinner meeting on September 25th, 2014 at Guidance Software, Inc.’s headquarters in Pasadena, California.  Mr. Erik Laykin from Duff & Phelps LLC moderated the panel on the topic of the role of expert witnesses in theft of trade secret … Continued

Non-Retained Expert Witness Disclosure: Is An Expert Report Required For A Treating Physician To Give A Testimony?

Rule 26(a)(2)(C) requires the disclosure of non-retained experts to state “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the expert is expected to testify.” The extent of this disclosure and the need … Continued

ForensisGroup at LAIPLA’s Trade Secret Litigation Dinner

The Los Angeles Intellectual Property Law Association (LAIPLA) hosted a Trade Secret Litigation Dinner on September 23, 2014 to offer strategies and industry insight to IP law practitioners in the Los Angeles area. ForensisGroup is proud to be one of the sponsors for the trade secret panel. Tiffany Scurry, the Senior Director of Technology Rights … Continued

ForensisGroup at Pasadena Bar Association’s Judges Night Reception 2014

ForensisGroup attended the Pasadena Bar Association’s Judges Night Reception on September 19, 2014 to show our appreciation and support for the judiciary. The reception was held at the Old Mill Foundation in San Marino, California. The keynote speaker for the event was the honorable Judge Lance Ito. Attorneys and legal professionals in Pasadena and the … Continued

Banking Expert Witness Able to Withstand Motions to Exclude Expert Testimony

Earlier this year, a bank that purchased a construction loan sued the seller and its parent company for breach of contract, negligence, willful misconduct, and specific performance. The loan purchaser motioned to strike defendants’ expert’s testimony. Several issues in this case illustrate the importance of an expert witness with adequate preparation and coaching by counsel.  The … Continued

Judge Defines Role of Expert Witness for a Ponzi Scheme Case

The differences between an expert’s methodology and an expert’s opinion were discussed in a case stemming from the conviction of a money manager whose “Ponzi scheme” bilked investors out of $162 million. The money manager ran hedge funds in Florida that collapsed in January 2009 after some investors tried to retrieve their money. Plaintiff alleged … Continued

Phytoforensics Experts and Environmental Pollution Lawsuits

Recent breakthroughs in monitoring the environment could offer opportunities for governments, plaintiffs, and defendants alike to efficiently and effectively investigate, analyze, and respond to environmental pollution questions.  Advances made public in 2011 by Missouri University of Science and Technology brought forward the field of “phytoforensics,” giving environment experts a new set of tools. Similar to … Continued

The Importance of Disclosing an Expert Witness On Time

In Utah, the trial court excluded an expert witness because the attorney missed the expert disclosure deadline in a title insurance case.  As a result, the defendant won a motion for summary judgment because of failure to prosecute and the plaintiff’s inability to prove damages. The case highlights the importance of having an expert witness … Continued

Financial Expert Witnesses: Economists, Accountants, Appraisers and the Daubert Challenge

Introduction: Since 2008, litigation concerning the securities industry and financial sector has been on the rise. Because of increased regulation and enforcement, in addition to record numbers of corporate bankruptcies and restructurings, this litigation is expected to continually soar. Along with such litigation comes a demand for financial services experts. The questions pertain to the … Continued

The Automotive Industry, Class Actions, and the Role of Experts

Litigation involving the automotive industry is on the rise, and automakers in the U.S. are facing various lawsuits. Increasingly, a product recall by an automotive manufacturer leads to a class action lawsuit. Expert witnesses seem to be the key to class action lawsuits involving the auto industry, and both sides are mapping out plans of … Continued

Product Liability: Why Expert Witnesses are Critical to Winning the Case

Perhaps second only to medical malpractice litigation, product liability suits may require the largest amount of expert testimony. The U.S. Consumer Product Safety Commission regulates everything from battery acid to car seats, and it has issued voluntary regulations for dozens of products. However, voluntary guidelines, while useful, do not provide a clear legal standard for … Continued

Civil Liability for Experts: Possible? Probable? A Guide


When an expert witness testifies and a case is lost, most people would believe, correctly, that the expert does not receive any blame, at least not in the legal sense. In fact, for years, the U.S. has followed a common law doctrine that quite simply did not allow expert witnesses to be the subject of … Continued

Expert Witnesses in the World of Soccer and World Cup

Like everyone else in the world, ForensisGroup has come down with a severe case of World Cup Fever.  That got us thinking: many of our experts are actually involved in the world of soccer! Yes, even a professional expert witness service company like ForensisGroup gets a taste of the World Cup action. How is this … Continued

10 Signs of a Good Expert Witness

expert witnesses

Being deemed an Expert Witness in today’s legal system is an honor not to be taken lightly. Regardless of your discipline, you have reached gold medal status among your peers. Years of education, training, skill, experience and achievement have propelled you to the forefront of your field, and legal professionals consistently rely on your expert … Continued

ForensisGroup at LAIPLA’s Spring Seminar 2014

ForensisGroup attended the Los Angeles Intellectual Property Law Association’s  (LAIPLA) Spring Seminar 2014 as one of the gold sponsors at the event.   The seminar was held at the beautiful Ojai Valley Inn in Ojai, CA from June 6th to 8th 2014.   The seminar featured panels on patent law, copyright law, trademark law, FRAND, PTAB developments, … Continued

Expert Witness Submits a Report After the Discovery Deadline

The court can preclude an expert witness or expert report for failure to comply with discovery deadline, but the rule is not absolute. A recent case in Puerto Rico federal court explains how the court must analyze the situation. District Court Judge Daniel R. Dominguez for the District of Puerto Rico was asked to hear … Continued

Why Do Attorneys Use Forensic Accounting Expert Witnesses?

Forensic accounting is one of the most in-demand expert witness disciplines.  A forensic accountant is much more than fact witnesses such as a bookkeeper, the tax preparer, or even the CPA.  The forensic accounting expert is a linguist of numbers and narratives. Recent news brings us a portal into the secret world of Swiss bank … Continued

ForensisGroup’s Top Five of the Month

We specialize in finding very hard-to-find experts for patent litigation, product liability, premises liability, and other complex lawsuits. Check out five of our interesting expert requests this month.  At ForensisGroup, we are the Expert of Experts. 1.  Turbo Charger Expert An attorney wants a highly qualified mechanical engineering expert for a complex product liability case. … 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

Can An Attorney Use An Opponent’s Previous Expert Witness?

The break-up of a small business led to plenty of litigation over a number of issues. The California Court of Appeal reviewed the trial court’s decision to disqualify an attorney because the opposing party claimed to have conveyed confidential information to his expert witness on a prior matter. Dispute arose between a seafood business (“Seafood … 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

ForensisGroup Participates in Flintridge Prep’s Junior Internship Program

ForensisGroup participates in Flintridge Prep’s Junior Internship Program on May 19, 2014. Two student interns from the local high school shadowed Mercy Steenwyk, President and CEO, and various executives at ForensisGroup.  The students gained first hand experience on the daily operations within the best expert witness service company.  The interns gained knowledge and experience on … Continued

Did the Expert Witness “Invade the Province” of the Jury?

The Illinois Court of Appeals recently reviewed a case on whether or not a fire science expert witness usurped the role of the jury and prejudiced the Plaintiff at trial.  This case of potential “jury invasion” stems from a residential fire claim.  The Defendant Contractor installed flooring in the insured’s home, which included applying floor … Continued

Do You Need A Public Relations Expert Witness?

For people and companies whose values go up and down in tides of public opinion, an expert witness in public relations can be a partner to both the legal team and the crisis management team.  Among other things, a public relations expert witness is the behind-the-scenes surveyor of the publicity surrounding cases who assists trial … Continued

Los Angeles Business Journal Named ForensisGroup’s CEO as a Finalist for the CEO of the Year Award at the Women Making a Difference Conference

ForensisGroup’s President and CEO, Ms. Mercy Steenwyk, was named by the Los Angeles Business Journal as one of the top five finalists for the CEO of the Year Award at the Women Making a Difference Conference. The Los Angeles Business Journal hosted the event on May 8th, 2014 at the JW Marriott at L.A. LIVE.   … Continued

The Expert Witness on the Impact of Public Education

American parents are turning to the courts to try to secure education reform via lawsuits.  Innovative claims are emerging against Common Core, Individualized Education Programs, and even tenure – all in the name of damages caused by public education. Education experts have created the possibility for the claims.  As school budgets soared and federal and … Continued

ForensisGroup’s Law Student Essay Competition: The Use of Expert Witnesses

ForensisGroup, the nation’s premier expert witness referral company, is proud to announce its Law Student Essay Competition. This competition is intended to encourage new ideas around issues related to expert witnesses. Participants will write an essay exploring original use-cases about how expert witnesses can help jurors to understand technical issues in complex cases or explore … Continued

Expert Witness Referral and Consulting Firm ForensisGroup Featured on Viewpoints with Terry Bradshaw – Press Release

ForensisGroup, the nation’s leading expert witness and consulting services company, was featured on the television program Viewpoints with Terry Bradshaw on May 15th, 2013. The segment was broadcast nationally on Discovery Channel Transponder as well as broadcast on several regional cable networks. During the feature, ForensisGroup CEO Mercy Tolentino Steenwyk shed light on the importance … Continued

The Emerging Environmental Impact and the Pollution Expert Witness

What happens when an amateur nature photographer captures photographic evidence of a biohazard near the water?  While the government response is likely to involve panoply of people – and experts in their field – what about the role of an environmental pollution expert witness on site for local residents and environmentalists? Not every circumstance that … Continued

Expert Witnesses in Fine Arts

In the book, Provenance, by Laney Salisbury and Aly Suj, the story is a fascinating account of an elaborate art forgery scheme, compiled from various trial archives and witness interviews.  It raises some interesting questions around how much of the art in museums and collections is real or fake.  How do experts prove authenticity and … Continued

Can You Use Expert Testimony for a 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.

Expert Witness in FAPE Cases Against School Districts

“FAPE” stands for “Free Appropriate Public Education.” FAPE requires school districts to provide access to general education and to specialized educational services, free of charge, to students with disabilities.  Part of the Individuals with Disabilities in Education Act (1990, amended 2004), FAPE provisions give parents and educators a structure to approach modifications and accommodations in … Continued

Construction Expert to Stand When 10 Tons of Concrete Falls

Imagine that you’re walking through a parking garage and you hear a crack and have only a split second to respond.  The sound you hear could be warning sound of 10-ton concrete ceiling panels becoming detached and dropping down on you. This scenario is a real personal injury case. If the victim hires your law … Continued

Today’s In Demand Expertise: Biomedical Engineering Expert Witness

Certain careers have a title that sounds like an expert – medical doctor, physicist, chemist, and biomedical engineer.  By the sounds of it, you know it involves advanced degrees, research, and precision. The biomedical engineer expert witness may be called to consult on products liability cases, particularly those involving medical devices.  In these cases, the … Continued

What to Expect from an Expert’s Free Initial Consultation?

Free initial consultation

The 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 Agreement

According 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.

How Important is an Expert Witness in the Eyes of the Jury?

Can you tell when the jury is convinced by your argument?  According to jury members in the recent Apple v. Samsung trial, it was Apple’s damages expert witness who provided the testimony that put the jury on track to award $290 million in damages in favor of Apple.  The jury deliberated for two days before … Continued

Calculating Reasonable Royalties in Patent Infringement Dispute

Calculating damages for royalties

Damages 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

Royalties in a cash bag

Compensatory 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 calculations

For 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?

Expert Consultant

When 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 malpractice

When 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 witnesses

Nearly 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 witness

With 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 an Expert Witness Designation Fee?

Expert witness testimony - swearing in

Expert 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 filing

Since 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.

Expert Witness Provider and Referral Firm ForensisGroup featured on Moving America Forward with William Shatner

On August 23, 2013, ForensisGroup’s CEO Mercy Tolentino Steenwyk was interviewed on Moving America Forward with William Shatner, an in depth television program that airs nationally on television. Expert Witness Referral Firm ForensisGroup featured on Moving America Forward with William Shatner Transcript follows: William Shatner: Welcome to our series Moving America Forward. Each week, we … Continued

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

California state flag

Expert 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 Witness

The 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 travelling

Being 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 Malpractice

Expert 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 Witness

The 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.

Potential Product Liability with Rear View Cameras in Vehicles

The U.S. Transportation Department (DOT) is being sued to issue the long-delayed rule requiring rear view cameras as a standard feature in new cars. According to Bloomberg, three advocacy groups and two parents are pushing for DOT to enforce the rear-view mirror requirement. The rule was supposed to be issued by the department 2 1/2 … Continued

Potential Product Liability with Rear View Cameras in Vehicles

The U.S. Transportation Department (DOT) is being sued to issue the long-delayed rule requiring rear view cameras as a standard feature in new cars. According to Bloomberg, three advocacy groups and two parents are pushing for DOT to enforce the rear-view mirror requirement. The rule was supposed to be issued by the department 2 1/2 … Continued

How to Choose a Business Valuation Expert

Business Valuation Expert Witnesses

It 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 gavel

Matters 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.

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.”

The Role of Experts in Bankruptcy Proceedings: Loan Defaults

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 Stamp

Patent 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 house

Although 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 attorneys

Antitrust 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 laptop

A 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 Available Remedies

Elements that make up Intellectual Property

Proper 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

Protperty paperwork and door keys


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: Trends

Protperty paperwork and door keys


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 building

Among 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.

Expert Testimony Necessary in Investment Fraud Case

Man in cuffs - arrested for laundering

The 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.