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In Positive Trend for Defendants in Product Liability, Nick Rees of PublicNuisanceWire.com interviews Jim Beck, of counsel at Dechert LLP in the mass torts and product liability group.

PNW: How has the use of expert witnesses evolved?

BECK: Daubert v. Merrrell Dow Pharmaceuticals, Inc. really brought a revolution in expert witnesses. It’s created a willingness of courts to act as gatekeepers and view expert witnesses critically. Basically, the other side can cross examine expert witnesses at trial. It used to be a hands-off attitude by the court, but now they have to evaluate the reliability of the testimony as well as several other factors. It doesn’t matter what standard that you apply, the simple act of applying that standard, given how poor a lot of these expert opinions are, has had a very beneficial effect.

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In Physicians giving expert testimony are regulated by law, professional associations, B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD write:

In civil actions involving alleged negligence on the part of a professional, such as a claim of medical malpractice, expert testimony serves to educate the court and jury on the relevant standard of care to which the professional must be held. Evidence law allows a wide berth for expert witnesses. A person sworn as an expert during a trial can testify based on personal experience and insight; on observation and examination of other evidence submitted at trial; or even on out-of-court observations and knowledge of statements made by others in the profession. Ordinarily, such testimony would be inadmissible as hearsay.

The legal profession has long recognized the limitations of expert testimony. The Supreme Court of the United States clarified the parameters needed to qualify expert witnesses testifying in federal courts in Daubert v. Merrell Dow Pharmaceuticals, a 1993 case in which each side produced expert testimony contradicting the other. Since that case and its progeny, federal judges have had discretion to exclude expert testimony that falls short of standards for reliability, scientific methodology, empirical testing and peer review.

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A Boston federal jury on Friday ordered Joel Tenenbaum to pay a total of $675,000-$22,500 per song-to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Excerpted from ArsTechnica.

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No one can pinpoint why Diane Schuler, 36, drove the wrong way on a familiar suburban New York parkway for nearly 2 miles before slamming head-on into another vehicle, killing herself and seven others. A medical examiner is digging deeper for answers after ruling that Schuler didn’t have a heart attack or stroke behind the wheel, and plans further testing to determine whether she had signs of an advanced diabetic condition.

After forensic pathologists ruled out a stroke, aneurysm or heart attack, Dr. Kunjlata Ashar, deputy medical examiner for Westchester County, said she would test Schuler’s eye fluid for evidence of heightened blood sugar levels, a possible sign of ketoacidosis. Noted pathology expert witness Dr. Michael Baden, however, doubted that possibility for Schuler. “People just don’t have a hypoglycemic crisis out of the blue,” said Baden.

Excerpted from TownHall.com.

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An accident reconstruction expert witness and an engineering expert witness testified Thursday for the defense in Laurence Thompson’s homicide trial in Bucks County, PA. Thompson was drinking before he allegedly drove drunk and caused the death of his passenger, Mary Anne Locicero. But the defense expert witnesses say she could have been behind the wheel. They said the violent sideways motion of the car spinning and striking the guardrails would have been enough to propel the 180-pound woman across Thompson’s lap and out the passenger side window.

Prosecutors say Thompson, 48, of Bensalem was drunk and speeding when he crashed Locicero’s car. Prosecution experts said that evidence in the car, as well as Locicero’s injuries, proves she was in the passenger seat. Thompson claims he’s been wrongly accused of driving drunk and killing his passenger.

Excerpted from PhillyBurbs.com.

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In a U.S. District Court filing on Wednesday NASCAR claims that suspended owner/driver Jeremy Mayfield has once again failed an Aegis Sciences Corp. issued drug test for methamphetamines. Since being indefinitely suspended from the sport on May 9, 2009, Mayfield and NASCAR have had a very public battle to determine who is telling the truth. Mayfield sued NASCAR claiming their testing policy was flawed and then NASCAR provided affidavits discrediting Mayfield’s drug testing expert witness. When Judge Graham Mullen granted an injunction on July 1, Mayfield was allowed to return to the sport under the condition that NASCAR had right to drug test him any time they wish. The sanctioning body took Mayfield up on that offer on July 6 and now NASCAR is claiming the test came back positive for levels methamphetamines consistent with that of habitual users who, “develop a tolerance, consume high doses of methamphetamine, and are subsequently detected through random testing without displaying obvious signs of their drug use.”

Taking advantage of the opportunity to test Mayfield before, during or after any race, an Aegis representative contacted Mayfield on July 6 at 1:00 p.m. asking him to report to a testing facility within two hours. Mayfield failed to show up at the facility, claiming he got lost. According to the filing, the facility was within a five mile radius of Mayfield’s home, and when he failed to show NASCAR sent an Aegis representative to his home to collect the sample. The observed sample was taken at his home at 8:15 p.m. that evening.

Excerpted from HardcoreRaceFans.com.

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A U.S. Senate Special Committee on Aging agreed that doctors must partake in continuing medical education throughout their careers but how to fund that education and whether it should be sponsored by pharmaceutical and device companies is at issue. Medical expert witnesses expressed a wide variety of opinions at the hearing entitled “Medical Research and Education: Higher Learning or Higher Earning?”

Some who testified advocated that industry should play no role in helping doctors continue to develop their skills. Pharmaceutical involvement in continuing medical education, or CME, is estimated to have grown more than 300 percent between 1998 and 2007 to over $1 billion, covering about half of CME services, according to Lewis Morris, chief counsel to the Inspector General of the U.S. Department of Health and Human Services. Some vigorously asserted that such funds substantially influence the curriculum. Others advocated for more stringent rules dictating a “firewall” between pharmaceutical and device companies and CME services. One witness said that industry involvement in medicine — like funding CME — has actually spurred medical advances over the past 50 years.

Excerpted from InsideHigherEd.com.

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Jurors in El Paso, TX, acquitted Guillermo Nieto of murder in the 1999 death of his new bride, Sheila Westphal. He had met her a year before on the Internet and was accused of burying her body in his yard. The DNA expert witness could not confirm that a bone found at Nieto’s home was Westphal’s. The expert could only say the bone belonged to a female and someone related to Westphal’s daughter and her brother, Sam Barbagallo. The expert also testified that most people have common DNA thresholds and that he believed the DNA taken from the bone was not read correctly.

An expert report showed that the DNA from the bone also matched DNA of someone missing from Hurricane Katrina, which thrashed Louisiana and Mississippi in 2005.

Excerpted from ElPasoTimes.com.

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In Positive Trend for Defendants in Product Liability, Nick Rees of PublicNuisanceWire.com writes:

Defendants in product liability cases have seen laws and statutes change and morph as the Supreme Court and other venues have interpreted laws and created precedents. Jim Beck, of counsel at Dechert LLP in the mass torts and product liability group in Philadelphia, has seen those changes firsthand for the last 25 years and witnessed how each change has affected defendants’ rights at trial. Co-author of the Drug and Device Law blog, Beck spoke to Public Nuisance Wire about how those changes came about, what impact they’ve had on defendants, and how he’d like to see the laws continue to evolve.

PNW: How have class actions changed in the last twenty-five years?

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Bridgeport, CT, attorney Richard Meehan Jr. describes testifying as an expert witness “no easy thing to endure.”

I agreed to testify at the request of a young lawyer who I had trained some years back. The experience was enlightening. I realized how difficult it is when you, as a witness, want to testify but are dependent on the questions put to you. The prosecutor repeatedly objected to the phrasing of the questions. As the witness, I could not offer my take on whether the form of the question was or was not proper, nor suggest to my fledgling friend how to rephrase to avoid objections.

It was difficult to sit silently watching this part of the legal drama unfold. Most of the objections were whether lengthy hypothetical questions contained appropriate references to the evidence. I agreed with some limitations by the judge, but not all.

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