Category Archives: General

Texas Court Dismisses Expert Witness in Environmental Contamination Lawsuit

The Texas Supreme Court vacated a $350,000 jury verdict last week due to insufficient testimony from the Plaintiff’s expert witness that improperly influenced the award. In an environmental contamination lawsuit between a Texas ranch and its neighboring metal processing plant, the Plaintiff’s case leaned heavily on the testimony of a real estate expert to ascertain long-term property damages. On review, the Texas Supreme Court rejected the reliability of the expert testimony, and struck down the high-dollar judgment.

Texas Ranch Seeks Stigma Damages after Contamination

The case, Houston Unlimited, Inc. Metal Processing v Mel Acres Ranch, arose after Houston Unlimited released liquid waste into a culvert that drained into a stock tank on the Mel Acres Ranch. The Plaintiff requested the Texas Commission on Environmental Quality (TCEQ) to enforce action against Houston Unlimited for noncompliance with environmental regulations, and compel the processing plant to cease operations that risked contamination on ranch lands. After Houston Unlimited took corrective action, the company determined that there was no ongoing effect on Mel Acres Ranch and thought the matter was resolved.

Mel Acres disagreed, and filed a lawsuit seeking damages for a decrease in the fair market value of the ranch due to contamination and the stigma of contamination that effected the ranch’s reputation. According to the lawsuit, the ongoing damage to Mel Acres came in the form of a negative stigma associated with contamination, even if the actual contamination had a minimal or short-term effect on the value of the property. Texas law is not clear on whether stigma damages are allowed in real estate contamination actions, but Mel Acres pursued the option due to no specific legal position denying it.

Mel Acres’ tactic worked, and after trial a Texas jury awarded the Plaintiffs $350,000 for the ongoing effect of negative stigma created by the contamination caused by Houston Unlimited.

Contaminated Ranch Relies on Real Estate Expert for Diminution of Value

Critical to the Plaintiff’s case was the testimony of real estate expert witness, Kathy McKinney. McKinney is a licensed real estate appraiser who was called to testify about the effect contamination had on the lasting value of Mel Acres property. During her expert testimony, McKinney employed a “sales-comparison” appraisal approach to determine Mel Acres’ value when compared to other properties similar in size, location, date of sale, and physical attributes. Based on the comparison, McKinney determined that the Mel Acres Ranch had an “unimpaired” value of $2,329,000, which the Defendant did not dispute.

In determining the “impaired” value, however, McKinney branched off from the “sales-comparison” model due to lack of similarly effected properties to compare Mel Acres to. Instead, McKinney found two properties, both of which had experienced environmental contamination that did not have a long-term effect. In each case, McKinney found that the properties sold for a much lower price than the appraised value, and determined that contamination like Mel Acres had suffered caused a 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} loss of market value.

Texas Supreme Court finds Contaminated Property Appraisal Unreliable

Although the Texas Supreme Court ducked from the determination of whether or not stigma of formerly contaminated property damages are available under the law, the Justices found no problem dismissing McKinney’s expert witness testimony due to lack of reliable facts and poor methodology. While the Court accepted the sales-comparison approach, it took issue with the method McKinney used to derive the impaired value of Mel Acres that was, in her expert opinion, negatively affected by stigma associated with contamination. Upon examining the details of the two previously contaminated property sales that McKinney compared Mel Acres to, the Court noticed that there were a number of factors that contributed heavily to the reduced sale price, all of which could have had more influence than the environmental contamination. Further, McKinney’s claim that Mel Acres had experienced 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} reduction of value was based on a guess rather than a formula that could reliable appraise property.

The Texas Supreme Court found McKinney’s entire expert testimony relied on a series of assumptions about proper sales comparisons, and how stigma of contamination could impact property value. Without reliable facts or proven methodology to base her expert testimony on, McKinney was dismissed as a witness because her opinion improperly influenced the trial. Without testimony from a reliable real estate appraisal expert witness, the Court dismissed the jury award for contamination stigma damages.

Employment Damages: Sometimes Plaintiff Loses

Sometimes, the facts support an opinion of no damages, as I recently testified in a state court which largely agreed with me. What happened?

This was a dispute between an employee and former employer with multiple causes of action. Having left the company after working 6 years, the plaintiff ended up suing the company for past and future wages.

I considered two issues:

How long it would take such a person to find a job and, once found
How that job would compare with their past job as per pay.

These questions were addressed with pooled Displaced Worker Survey data from 2008, 2010, and 2012 and appropriate econometric methods controlling for economic conditions, age, education, location, industry and occupation of plaintiff.

I also considered extent of wage loss due to skill erosion associated with plaintiff voluntarily being out of the labor force for 2.3 years, an application of human capital model with Current Population Survey data. Because defendant kept open the plaintiff’s prior position at a wage 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} above that which plaintiff could find after 50 weeks of searching, my opinion was no damages.

Litigation is risky. In this instance I was retained by defense counsel, but my opinion would have been the same if I’d worked for the other side.

Prudent Corporate Governance: A Board’s Dilemma

This article discusses the roles and duties regarding the effective and steady stewardship of a board of directors, including management of workflow information.

The following questions should be asked (or demanded) by each board member from their organization:

Ask for a written meeting agenda
Study the agenda
Ask for accurate and timely financial information
Ask questions and request timely answers
Strive for perfect attendance from all directors
Dissent where warranted
Call for recorded votes
Demand accurate and timely minutes for all board and committee meetings
Demand independent investigations when needed
Blow whistles when warranted.

As everyone knows, managing an organization is not an easy undertaking. Successful companies employ a continuous process that addresses and acknowledges a constant flow of information. The primary focus of both the board and corporate management is to identify problems before they seriously constrict and assault the overall condition of their company. A recent case illustrates this. The company had been in business for over 35 years and for most of those years it operated in a prudent manner and was successful from a financial perspective. However, in recent years the company started experiencing liquidity problems, causing operational problems. These issues had a damaging impact on the company’s relationship with its consortium of banks.

The management team and board of directors chalked up little credibility with its bankers as evidenced by a placement of a series of forbearance agreements. These agreements placed certain restrictions on the company’s operations, including oversight by an independent advisor. Instead of working with the banks in an attempt to deal with the swirling financial issues, the company’s management and shareholder resisted efforts to resolve the company’s financial (liquidity) problems. Rather than working on the development of a strategy on the company’s long term survival, the board and management served as impediments to resolving the problems.

Any constructive efforts made by the management team to resolve the company’s problems were stonewalled by the following issues:

The shareholder had complete control of the board – three members of the board were insiders that worked for the company and three of the four outside directors were family members of the shareholder.
As a result of this structure, the shareholder had total control which resulted in a lack of independence on the part of the board.
The lack of adequate financial controls resulted in a forensic audit that revealed the owner had several million dollars of personal expenses that could not be substantiated as legitimate business expenses.
The lack of prudent oversight and financial controls resulted in the following :
- Resignation of all the inside directors
- Resignation of the company’s CFO due to potential liability regarding the quality of the company’s financial information
- Resignation of the company’s independent auditors based on a question regarding the “going concern” concept.

Conclusion: Effective and serious stewardship as a director requires the board to have the courage to exercise savvy judgment independent of management. These types of issues will remain in the spotlight of public accountability with corporate governance failings and oversight issues leading to litigation and often will serve as a subject for a Wall Street Journal page-one article or Bloomberg online analysis.

With the threat of harm to reputation, costs of remedial action(s) required along with possible significant fines, an astute board cannot afford to make bonehead decisions. As new risks emerge and breed, success increasingly relies on the board to see the crises coming, to demand and evaluate the information needed to make critical business decisions and then, armed with that information, have the courage to carry through.

Firearms Expert Witness Testifies in Wisconsin Murder Trial

Last week, a Wisconsin Rapids, WI judge sentenced Joseph Reinwand to life in prison after a jury found him guilty of murdering Dale Meister in 2008. The trial concluded a six-year investigation and prosecution, and featured convincing expert testimony from a firearms analyst taking the stand for the prosecution.

Joseph Reinwand Convicted of First-Degree Murder

Joseph Reinwand was convicted of first-degree intentional homicide for the 2008 shooting of Dale Meister. The two men were connected through Reinwand’s daughter, with whom Meister was embroiled in a bitter custody dispute over a daughter the two shared, and apparently had a contentious relationship prior to Meister’s death. According to prosecutors, Reinwand visited Mesiter in March, 2008 with the premeditated intent to murder him, and did so by shooting him multiple times in the chest.

Throughout the trial, prosecutors called several witnesses, many of whom testified that Reinwand had threatened to kill Meister on several occasions and frequently argued with the father of his granddaughter. Key among the witnesses against Reinwand was a firearms expert who testified to jurors that bullets extracted from Meister came from a gun that the defendant possessed at the time of the murder.

Firearms Expert Testifies for Prosecution

Recognizing the need for hard evidence to tie Reinwand to the murder weapon, prosecutors called William Newhouse, a firearms and tool markings expert who retired after a career working for the Wisconsin State Crime Lab. Newhouse was first tasked with analyzing bullets taken from Meister’s body and a cartridge taken from his couch and comparing them to an unfired bullet that was recovered from Reinwand’s garbage during the investigation. Newhouse testified to the jury that the bullets were identical.

Going further, Newhouse’s expert testimony connected the bullets from Meister and Reinwand’s garbage to a handgun that several witnesses had seen in the defendant’s possession prior to the murder. According to Newhouse, the bullets had unique characteristics that could only have come from a Jennings handgun made between 1983 and 1985 – the same type of weapon that people had seen with Reinwand or in places where he had access. Additionally, Newhouse was able to match a piece of a handgrip that was found in Reinwand’s truck with a Jennings handgun, and strengthen the evidence that the defendant had been connected to the weapon that killed Dale Meister.

Defense attorneys for Reinwand did not present an expert witness to counter the physical evidence against him, but did press Newhouse on cross-examination about the method he applied to connect a handgun fragment to the same Jennings model possessed by the defendant.

Wisconsin Man Sentenced to Life in Prison

Joseph Reinwand declined to take the stand to testify in his own defense, but throughout the trial defense attorneys questioned the validity of the prosecution’s witnesses against him. Pointing out that the threats issued by Reinwand were vague and second hand, and reminding jurors that DNA evidence was not able to place the defendant at the scene with a high degree of certainty, Reinwand’s defense strategy was to undercut the strength of the evidence against him.

Upon conclusion of the trial, jurors took less than two hours to convict Reinwand, and Wood County Circuit Judge Greg Potter delivered a life sentence without possibility of parole only days after the guilty verdict was announced. Reinwand, who is 55, requested a sentence review after 20 years, but with the weight of evidence pointing to a premeditated and ruthless shooting, Judge Potter denied the request in favor of a life sentence without further consideration.

Evidence uncovered during the investigation of Reinwand suggests that he may have had a hand in the 1984 shooting death of his former wife. Prosecutors representing the county Reinwand lived in at the time of the 1984 death have filed a charge of first-degree murder in that case, and, despite the life sentence, it is likely a second murder trial will take place unless he pleads guilty.

Federal Government Disallows Forensic Expert in Wrongful Death Case

In the continuing wrongful death trial filed by family members of a man killed when a passenger airplane crashed into his home, attorneys for the defendants suffered a blow this week when the federal government forbid access to a forensic expert witness. Litigants who wish to use expert witnesses employed by the federal government must satisfy specified requirements, and attorneys for Continental Airlines were unable to meet the threshold in this case.

Wrongful Death Trial for Airplane Crash Victim Continues

The family of Douglas Wielinski, who was killed when Continental Airlines Connection Flight 3407 crashed into his home, filed a wrongful death lawsuit against the airline. As we posted last month, a significant portion of the Wielinski’s damage claim hinges on the family’s contention that Douglas did not die immediately, but suffered through the post-crash fire that trapped him in the home. Under wrongful death law, family members may recover extra damages when a victim suffers between the moment of the accident and the time of their death, and the Wielinksi’s are scheduled to use forensic expert witnesses who will testify that Douglas’ autopsy suggests he was still alive after Flight 3407 crashed.

Defense attorneys who represent Continental Airlines have countered with their own expert witnesses who have planned testimony that suggests Mr. Wielinski was killed immediately. The defense encountered a setback, however, when a forensic anthropology expert witness who had worked the scene of the crash was blocked from testifying by the US Department of Health and Human Services.

Federal Agency Blocks Forensic Expert Witness Testimony

Attorneys for the defendants identified Dr. Dawnie Steadman, currently the director of the Forensic Anthropology Center at the University of Tennessee at Knoxville, who was part of a group of anthropologists called to the site of 3407’s crash to help identify victim remains. Dr. Steadman is a forensic expert witness with experience in several other victim identification operations, including the 9/11 World Trade Center attacks. Defense attorneys intended to ask Dr. Steadman to testify that Wielinski’s remains suggested he died upon impact rather than suffer.

Dr. Steadman’s expert testimony hit a snag, however, when the US Department of Health and Human Services refused her involvement in the case. Although Dr. Steadman is a private citizen, and was at the time of the crash, the forensic anthropologists used to identify victim remains that she was a part of worked under the Disaster Mortuary Operational Response Team (DMORT). DMORT is a team under the authority of the Department of Health, and, as such, Dr. Steadman’s work at the scene of the 3407 crash comes under the umbrella of federal government authority.

In order to obtain testimony from an expert witness whose work is regulated or overseen by a federal government agency, attorneys must meet the criteria outlines in the Touhy Regulations for expert testimony.

Touhy Regulations for Expert Testimony

The Touhy Regulations of expert witness testimony are in place to prohibit unauthorized release of information by current or former agency employees. Each federal government agency conducts a Touhy review before authorizing use of an expert witness whose work was under its supervision. When making a Touhy decision, agencies consider a number of factors, including:

How badly the litigants need the expert witness in question
Whether or not the testimony serves the public interest
Whether or not the expert’s information is privileged
How releasing the expert testimony fits with the agency’s mission

Each agency is given significant discretion in its Touhy review, and when the United States is not a party to the litigation, it is unlikely that an expert witness subject to Touhy regulations will be permitted to testify. Should litigants find their need for the disallowed expert testimony to be dire, it is possible to request a court intervene and subpoena the witness. In this case, defense attorneys for Continental elected to simply replace Dr. Steadman with another forensic expert witness rather than appeal the Department of Health’s Touhy decision.

BP Deepwater Spill Negligence Appeal Centers on Expert Testimony

In September, a federal judge determine that British Petroleum (BP) was “grossly negligent” for its role in the 2010 Gulf oil spill, exposing the company to potentially $18 billion in additional fines – raising BP’s total costs of the disaster to over $50 billion. Earlier this month, BP appealed the decision arguing that expert witness testimony was unfairly used as evidence.

Federal Judge finds BP Grossly Negligent for Deepwater Disaster

US District Court Carl Barbier determined that BP had been grossly negligent in its duty to prevent and minimize the Deepwater Horizon oil rig explosion that killed 11 men and poured millions of gallons of oil into the Gulf of Mexico. Central to Judge Barbier’s determination was his finding that cement used to seal the well had been improperly placed by BP, and the resulting structural damage had caused the explosion. Judge Barbier will hold a separate hearing starting in January to determine how much of the potentially $18 billion in fines to assign.

BP officials expressed their disagreement with the decision, saying, “The finding that it was grossly negligent with respect to the accident and that its activities at the Macondo well amounted to willful misconduct is not supported by the evidence at trial.” BP has long contended that Halliburton, which was responsible for providing the cement that proved fatal to the rig, was the party which deserved most of the blame, but Judge Barbier disagreed by attributing 2/3 of the blame to BP and only 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to Halliburton (the remaining 30{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of responsibility was assigned to Transocean, which owned the Deepwater rig).

Earlier this month, BP submitted an appeal of the decision, focusing specifically on Barbier’s reliance on information from an expert witness report prepared by Halliburton petroleum engineer, Gene Beck.

BP’s Appeal Focuses on Expert Witness Testimony

Gene Beck, called as an expert witness by Halliburton during earlier phases of the trial, testified in court that the casing surrounding the cement – which BP was responsible for placing – was weakened by improper installation. According to Beck, this weakened casing allowed a breach through which oil and gas could leak into the well and cause the blowout. Although Beck’s hypothesis could prove useful in diagnosing the disaster, he neglected to include it in the report he submitted as evidence. After Beck’s expert testimony, BP attorneys asked that his weakened casing theory be dismissed because it “wasn’t fair” to discuss a hypothesis that was not in Beck’s report. Barbier agreed, and Beck’s expert testimony about the weakened casing was omitted from the trial record.

In issuing his opinion that assigned BP 2/3 of the responsibility, however, Barbier relied extensively on Beck’s expert weakened casing theories that he ordered stricken during trial. BP’s appeal argues that Barbier improperly used Beck’s hypothesis because the company did not have an opportunity to rebut the expert witness testimony. According to its appeal, BP was unfairly denied the chance to present a counter argument – leaving Barbier to base his decision on incomplete facts and insufficient evidence.

To support its position, BP included an expert witness report from David Lewis, chairman of Blade Energy Partners, who argued that Beck’s weakened casing theory was unreliable. Lewis undercut the weakened casing argument by saying that even if BP’s casing was subject to the conditions that Beck hypothesized, the impact would not have been enough to cause the breach. Beck’s own expert witness report, which was admitted during trial, was unable to identify the specific cause of the failure. BP’s appeal not only argues legal reasons by Beck’s weakened casing theory was improperly used, but also presents an alternative for Barbier to consider.

Barbier’s Ruling Based on more than Excluded Expert Opinion

Legal experts acknowledge that Barbier improperly relied on Beck’s expert witness testimony about the weakened casing, but are quick to point out that the judge joined several arguments for BP’s negligence, including: BP’s insistence on drilling deeper than safety provisions allowed, other expert witness testimony that offered theories consistent with Beck’s, and evidence that Halliburton’s cement was not the root cause of the spill. Despite flaws in its appeal, with over $18 billion on the line, expect BP’s resistance to extend the trial well into next year.

Report Indicates DOJ Spent Unauthorized Millions on Expert Witnesses

A recent report indicates that the US Department of Justice paid $15 million for expert witnesses who were not needed by federal prosecutors, and an additional $10 million on experts whose use was not clearly defined. The report, released by the Justice Department’s inspector general, revealed poor governance of the DOJ’s expert witness program that resulted in unjustifiable payments.

DOJ Hires Unnecessary Expert Witnesses

The Inspector General (IG) report reviewed 729 expert witness contracts across the US and found that 74, over 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}, did not meet the federal guidelines for obtaining witness services. Of those 74, 43 were hired “before or without a court docket date,” which is one of the criteria of the federal expert witness spending guidelines. In the other 31 cases, the IG report found: (1) there was no indication that expert testimony was anticipated, (2) expert services were provided for cases heard outside of the federal judicial system; or (3) administrative services were the primary purpose. All three uses of experts are not approved under the spending guidelines.

These 74 contracts totaled $15.2 million, which is close to 9{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the close to $180 million that was spent on the cases the IG reviewed. The IG report was not finished, however, as investigators also discovered questionable spending on experts for reasons that were unclear.

IG Report Finds Suspect Expert Hiring

In addition to the 74 contracts that seemed in clear violation of expert witness spending guidelines, the IG report found 39 expert contracts that could not be verified. In these 39 cases, the IG could not determine if the contracts fell within the federal spending guidelines because either the contract terms were too vague or the guidelines themselves were. These 39 contracts totaled $10 million, bringing the total amount of money that was either misspent or unsupported to $25.2 million.

The expert witness contracts costing the federal government millions of dollars without adequate support under spending guidelines, but the agreements were not the only questionable expert spending decisions made by the DOJ.

Expert Witness Report Reveals Excess Spending

The IG report also found several instances of unallowable or unsupported travel expenses paid to expert witnesses by the DOJ. The report noted more than $24,000 spent on hotel charges that were not permitted under spending guidelines, and 26 instances of unauthorized first class travel for experts. Going further, the IG identified more than $100,000 spent on computers that were not solely used by experts – a practice that is not permitted. The IG investigation also uncovered $1.2 million spent on expert witnesses in cases that were not tried in US courts.

At the conclusion of its report, the IG expressed the need for greater institutional control across the DOJ to limit the occurrence of impermissible expert witness spending. With President Obama requesting more than $270 million for the DOJ’s expert witness program, the work done by the Inspector General highlights the need for better financial accountability. The report made 12 recommendations to both strengthen the expert witness spending guidelines and improve training of those responsible for monitoring the expert program’s financial decisions. Improved education across the DOJ staff and regular auditing of expert witness spending should, according to the IG, limit the unauthorized financial decisions that have cost the federal government millions of dollars.

Forensic Experts Duel in Plane Crash Wrongful Death Suit

A wrongful death lawsuit filed by family of a man killed when Continental Airlines Connection Flight 3407 crashed into his home began last week, and will feature important expert witness testimony regarding how much the deceased suffered between the accident and his death. Flight 3407 crashed on February 12, 2009 into a house in Clarence Center, New York killing all 49 passengers and Douglas C. Wielinksi, who occupied the Clarence Center residence. Five years after the accident, only Mr. Wielinski’s case remains unsettled, and family members will turn to medical expert witnesses in an effort to prove they are due substantial damages for the victim’s pain and suffering after the crash.

Plaintiffs Allege Victim Was Alive After Plane Crash

Family of Mr. Wielinski filed a wrongful death lawsuit against Continental Airlines and Colgan Air, which owned and operated the plane, seeking compensatory damages for the 61-year-old’s wrongful death and pain and suffering. The timing of Mr. Wielinski’s death is important to the lawsuit because if family members can prove that he was alive between the time that Flight 3407 crashed and the time the resulting fire would have proven fatal, then they are entitled to significantly more damages for pain and suffering. The legal system has long recognized that even fleeting moments between an accident and death can warrant pain and suffering damages to wrongful death plaintiffs if the victim likely suffered pain or fear before succumbing to injuries.

In the case of Mr. Wielinksi, plaintiffs from his surviving family prepared three forensic expert witnesses to argue that the condition of the deceased’s body indicated he was not killed immediately as the airlines allege. The three doctors are all experts in forensic pathology:

Dr. Jonrika Malone: Dr. Malone, who conducted Wielinksi’s autopsy when she was with the Erie County Medical Examiner’s Office in 2009, noted that he had suffered multiple blunt force trauma to his chest and ribs, which led to his death. However, Dr. Malone, now a forensic pathology consultant in Alabama, agreed to testify on behalf of the Wielinski’s that the noted trauma did not kill Douglas or render him unconscious. Based on skull fragmentation, Dr. Malone argues that Wielinski was alive after the crash and burned to death by the resulting fire – causing him to suffer significant pain.
Dr. William R. Anderson: Dr. Anderson is a forensic pathologist and former medical examiner with over 6,000 autopsies under his belt, and he was hired by the Wielinski’s to conduct a medical review in order to testify that in his expert opinion Douglas was alive after 3407 crashed. Although Dr. Anderson could not tell how long Wielinski lived after the crash due to a lack of toxicology results, he prepared testimony to say that the fluid in Wielinski’s lungs indicates that his heart was beating while his house burned. Anderson supported his opinion by pointing out that there is no evidence to suggest that Wielinski was instantly killed by the plane because his injuries were not indicative of severe enough trauma.
Dr. Joseph L Burton: Dr. Burton is another forensic medical expert who examined Wielinski’s cause of death and determined that tissue of his lungs indicated they were filled with fluid – indicating that Douglas was alive and breathing for a period of time between 3407’s crash and his death.

All three of the Wielinski family expert witnesses were approved by New York State Supreme Court Justice Frederick Marshall, and will be allowed to testify during the wrongful death trial.

Airlines Counter with Forensic Expert Witness

Continental Airlines and Colgan Air have hired Dr. James R. Gill as a medical expert witness to testify in support of Wielinski’s autopsy which lists his death as immediate. Dr. Gill disputed the finding that Wielinski’s lungs were filled with fluid because the condition was not noted in the autopsy report, and there was no evidence of soot in his respiratory system – which is a common symptom among victims of fire. Dr. Gill agrees with the medical examiner’s report of Wielinski’s death, and has prepared expert medical testimony that Douglas died immediately from blunt force trauma when 3407 crashed.

Attorneys for the Wielinski’s unsuccessfully tried to keep Gill from testifying by arguing he had not based his analysis on scientific methods, but Judge Marshall allowed the defense to present Gill by saying the jury could decide which party’s expert has a better supported position. The trial began last week.

Sixth Circuit Allows Expert Testimony Lacking Daubert Requirements in Wal-Mart Injury Lawsuit

An expert witness on slip and fall injuries recently used by Wal-Mart to successfully defend a personal injury lawsuit was affirmed by the United States 6^th Circuit Court of Appeals last week despite objections from the injured plaintiff. In its ruling, the 6^th Circuit clarified the standard for non-scientific expert witnesses under the guiding principles of expert admissibility found in Daubert v Merrell Dow.

Wal-Mart Injury Leads to Lawsuit

Plaintiff Carolyn Wood filed her personal injury lawsuit against Wal-Mart after tripping on a quarter-inch lip of sidewalk in front of one of the company’s Tennessee stores and seriously injuring her hand. Ms. Wood fell where the asphalt of the parking lot transitions into the sidewalk, which was designed to be flush, but had become uneven after the parking lot asphalt settled. Ms. Wood’s lawsuit alleged two theories of recovery: 1) Wal-Mart was negligent for failing to repair and warn of the quarter-inch change in elevation; and 2) Wal-Mart was liable under the legal theory of negligence per se because the quarter-inch lip violated applicable building codes.

Negligence per se allows recovery for injuries suffered because the defendant violated a law, regulation, or, in this case, construction codes. Unlike general negligence, which considers a number of factors, negligence per se only requires a plaintiff to prove that a violation of an applicable law occurred and the injury resulted. In this case, Ms. Wood’s per se argument relied on the interpretation of two building codes that defined the area where she fell as a “means of egress,” which are required to be flush. During trial, the parties presented competing expert witnesses to interpret the codes, with Wal-Mart using an architect named Mr. Edwards to inform the jury that the area in question was not considered a means of egress, and therefore the store was not in violation of building codes.

The trial court did not instruct the jury on negligence per se, meaning that Ms. Wood’s only hope of recovery was on a general negligence claim. When the jury found in favor of Wal-Mart, Wood filed an appeal claiming that Mr. Edwards was not a reliable expert witness under the requirements of Daubert because his testimony was not adequately supported by scientific evidence or methodology.

Sixth Circuit Affirms Wal-Mart Trip and Fall Expert Witness

On appeal, the 6^th Circuit rejected both of Ms. Wood’s challenges to Wal-Mart’s use of Mr. Edwards as an expert witness regarding the applicable building codes. Wood, citing Daubert’s requirements on expert witness reliability, argued that Mr. Edwards should not have testified because his analysis of the situation was not supported by generally accepted authority or reliable testing, did not reflect industry standards, and did not offer peer reviewed or published opinions. These factors are critical to a Daubert analysis, and Edwards’ testimony was built solely on his personal knowledge and experience with construction and the housing codes in question.

The 6^th Circuit acknowledged the lack of support for Edwards’ opinions, however, pointed out that the list of Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” The Court clarified that non-scientific expert witnesses, like Mr. Edwards, can establish the relevant reliability by drawing on personal knowledge or experience, and it is up to a trial judge to determine if a non-scientific expert relying on experience is sufficiently reliable given the circumstances. In the Wal-Mart case, Mr. Edwards had been an architect for over 40 years and had specific experience with the codes in question – more than enough to justify the trial court’s admission of his expert testimony.

By affirming Wal-Mart’s expert witness in this trip and fall case, the 6^th Circuit reminded litigants that trial courts have a great deal of latitude when allowing testimony from a non-scientific expert whose testimony is based on personal experience. Under Daubert, judges are afforded room to evaluate a non-scientific expert’s qualifications and experience when determining admissibility of testimony.

Expert Witness Provider Sues Louisiana Law Firm in Fee Dispute

An expert witness provider is suing a Louisiana law firm for allegedly failing to pay for the expert services provided. US Forensic LLC filed its lawsuit last month after the firm of Anzelmo, Milliner & Burke LLC did not pay the full amount for expert witness services provided.

Expert Witness Provider Sues Law Firm

US Forensic filed its suit alleging that it entered into an agreement with Anzelmo, Milliner & Burke to provide expert witnesses for the firm’s use in trial. The agreement stipulated that the firm would pay plaintiffs US Forensic $11,173.50 for expert services provided to the defendants. The plaintiffs asserted in the lawsuit that the law firm breached the contract by only paying a partial amount totaling $4,813.50 – less than half of the agreed upon amount – before claiming that the firm no longer needed US Forensics’ services since the case had settled.

In response to accusations that it had breached the expert witness contract, Anzlemo, Milliner & Burke argued that the expert witness provided by US Forensics did not satisfy the performance the firm had expected when the contract was formed. Pointing to inconsistencies in the expert’s deposition, testimony, and background, the firm stopped payment on a check to US Forensics citing failure to perform to the standards of the agreement.

Plaintiffs US Forensics are seeking damages in the amount of $4,813.50 for alleged breach of contract and unjust enrichment. The case will proceed over the coming weeks after the two sides go through the pre-trial process.

Expert Witness Fee Dispute Highlights New Market

As use of expert witnesses has become commonplace in both civil and criminal trials, a market for connecting law firms to experts has emerged. Firms are able to reach out to expert witness service providers for access to experts in a wide variety of fields that can accommodate legal needs regardless of the specific issues central to a dispute. Whether the expert provider contracts directly with the law firm or simply acts as a directory, the market for expert witness service providers has grown substantially and is one that savvy lawyers and firms are familiar with.

The US Forensics lawsuit also highlights the importance of being familiar with expert witness contracts prior to entering a relationship. Lawyers and firms must be careful shoppers for expert witness services, and write detailed contracts that sufficiently outline expectations for expert testimony and conditions that could result in partial or incomplete payment. Legal professionals should always be careful when choosing an expert witness, but need to be particularly wary of potential disputes that could result in litigation when contracting with a professional expert testimony provider.

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