Articles Posted in Expert Witness Testimony

Two local aviation companies who lost a lawsuit claiming they sold a lemon airplane are taking their former attorney to court. Tim McCandless Inc. and Swieter Aircraft Services allege that attorney Gene Yagla smelled of alcohol during their trial in 2006. Also named in the lawsuit is Yagla’s firm, Riley, Shea & Bevel. Attorney and legal malpractice expert William Graham, who is now representing McCandless and Swieter, said Tuesday that Yagla failed to put vital expert witnesses on the stand during the trial and failed to cross examine the plaintiff’s witnesses adequately. Graham says Yagla missed a deadline to notify the court and the opposition of his expert witness, and the trial went on without that testimony.

Yagla’s attorney, Patrick Roby, said the two aviation companies got sued because they were involved in the sale of a bum airplane to a customer and then blamed their lawyer when they lost. The suit involves the sale of a Cessna that had been built in the United States and then sold in Germany.

Excerpted from WFCCourier.com

Insurance expert witnesses may testify regarding insurance policies which Justia.com describes here:

Although insurance may cover many different risks, an insurance company may not indemnify an individual or business for committing an an intentional tort. Parties to insurance contracts are required to deal in good faith, according the legal doctrine uberrima fides (as opposed to caveat emptor, where the buyer assumes the risk). The duty of good faith requires that the insured reveal all material information relevant to risk assessment. The insurance company has several good-faith obligations, including a duty to promptly pay or deny a claim, to try to find reasons to cover a claim, and to treat the financial interests of the insured as if they were its own.

In most contract cases, the failure of a party to fulfill its contractual obligations may give rise to a breach of contract suit. The aggrieved party may sue for damages to recoup what it was owed under the contract. The law treats insurance contracts stricter. If an insurance company acts in “bad faith” (by acting with malice, fraud or oppression), in some states, the aggrieved insured may recover not only what it is entitled to under the policy, but also interest, attorney fees, court costs, and damages for emotional distress caused by the bad-faith act. Additionally, some states allow the injured policyholder to recover punitive damages if the insurance company acted egregiously.

Psychiatry expert witness Dr. James Missett took the stand Wednesday in the final day of testimony in Marshall Doud’s murder trial. Doud, 43, is accused of smothering his wife, Morgana, on Sept. 4, 2007, but has testified that he has no recollection of killing her. The couple’s three teenage children found their mother’s dead body on her bed a few hours after Doud left their Mentel Avenue home and drove into the Santa Cruz Mountains. He has testified that he lost about two hours of memory during the early morning hours, which was when Morgana, 42, died.

Dr. Missett, the only expert to testify during the seven-day trial, was called as a witness for the District Attorney’s Office to share his opinion on consciousness and memory lapses. Defense attorney Art Dudley asked Missett if there were levels of consciousness, and the doctor said consciousness is “graded” and that it’s possible to be awake and still unconscious. The doctor said outside factors, including stroke, a blow to the head or being under the influence of drugs or alcohol – could impair someone’s ability to recollect their actions. Doud was using a therapeutic dose of anti-depressants at the time of his wife’s death, but Missett said that amount of the drug should not affect memory retention.

Excerpted from MercuryNews.com.

The Texas Alcoholic Beverage Commission acknowledges that numerous agency policies were violated during the June 28 inspection of the Rainbow Lounge, Fort Worth, TX, and that disciplinary actions are pending against the agents involved. “There were so many violations that one could readily assert that they had no business walking through the door,” said State Rep. Lon Burnam D-Fort Worth, who met with TABC’s executive director on Wednesday to discuss the report. The 32-page document, which was the result of an internal affair investigation by the TABC, outlines what happened during the controversial inspection at the gay bar, which led to six public intoxication arrests and left one bar patron, Chad Gibson, seriously injured.

A separate investigation and report will address the agents’ alleged use of force. Because that report will include statements by TABC employees, Fort Worth police officers, eye witnesses and police procedures expert witnesses, it will take longer to complete, agency officials said.

Excerpted from StarTelegram.com.

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.

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.

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.

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.

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.

Robert Rigg, associate professor and director of the Criminal Defense Program at Drake University Law School in Des Moines, says that “Jurors don’t like the insanity defense.” In fact, only a few cases in the state have succeeded with an insanity or diminished-capacity defense, according to Rigg, who has worked on a dozen or so over the past 31 years. Defense attorneys and law professors agree that the insanity defense is difficult and jurors are skeptical. It comes down to a “battle of the experts.” The forensic psychology expert witness for the defense testifies that the accused has a mental disease, the state counters with an expert who finds the person sane and the jury has to decide which diagnosis is credible.

University of Iowa law professor David Baldus says that not every kind or degree of mental disease or disorder will excuse a criminal act. Iowa code is specific – a person must suffer from a “diseased or deranged condition of the mind” that renders the person either incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right and wrong.

This is what Mark Becker, 24, accused of shooting Iowa football coach Ed Thomas to death, faces in his first-degree murder trial set for September. He filed this week his intent to claim insanity and/or diminished responsibility as a defense. Becker’s is the latest in a recent string of insanity defenses.