Articles Posted in Expert Witness Testimony

Oral argument Tuesday at the 11th U.S. Circuit Court of Appeals centered on a pharmacology expert witness who contends the acne drug Accutane causes inflammatory bowel disease. DailyReportOnline.com writes:

Three trials over an alleged link between the acne drug Accutane and serious gastrointestinal problems have resulted in verdicts of more than $20 million in New Jersey and Florida state courts. Hundreds of other such cases have been filed in New Jersey, and several of those are scheduled for trial this fall. But at oral argument Tuesday at the federal appeals court in Atlanta, it looked like plaintiffs proceeding in federal court may have a much harder time….

Arguing for the drug company defendants, Paul W. Schmidt of Covington & Burling in Washington argued that a key flaw in the expert’s approach was that he homed in on select evidence, making “leaps of faith based on these data points.”

On August 15, attorneys for the Detroit City Council submitted a witness list to Governor Jennifer Granholm for the removal proceedings against Detroit Mayor Kwame Kilpatrick. A supplemental witness list includes Wayne State Law School professor Peter Hammer who will serve as a contracts expert witness. WXYZ.com reports:

Most of the names on the list are attorneys who have been in the media since the text message scandal broke in January. Also on the list is attorney Valdemar Washington, who was the facilitator over the settlement agreement between the city and the Detroit police officers who sued because they say they were fired for working on investigations that may have revealed the alleged affair between Kilpatrick and his former chief of staff Christine Beatty…

The Council has asked Granholm to remove Kilpatrick from office for allegedly using public funds to secretly settle the officers’ lawsuit. The case settled for $8.4 million.

The Texas Forensic Science Commission is investigating negligence and misconduct complaints against forensic labs and has agreed to look into allegations that Cameron Willingham was convicted and sentenced to die on fire officials’ faulty testimony. Willingham was executed four years ago for the 1991 murder of his 1-year-old twins and 2-year-old stepdaughter in a house fire.

A five-member panel of national fire experts, who conducted the analysis, found much of the trials’ expert testimony relied on outdated, invalid investigative criteria and called for improved training of fire investigators and prosecutors who handle such cases. Chron.com also reports:

“These two cases in Texas are just the tip of the iceberg,” Innocence Project co-director Barry Scheck said in an e-mail statement. “Across Texas and around the country, people are convicted of arson based on junk science that has been completely discredited for years.”

Michael Stephen Gorbey, 38, was sentenced Friday to 22 years in prison in the Superior Court of the District of Columbia following his conviction on multiple weapons charges, including possession of explosives and the attempted manufacture or possession of a weapon of mass destruction near the U.S. Capitol in January 2008. The weapons expert witness who examined the homemade bomb in Gorbey’s car found what appeared to be a small hole in the can that could have been used to hold a fuse for the bomb. The expert witness testified that if detonated, the device could have caused death or serious bodily injury to multiple people.

Marketwatch.com reports:

This case marks the first time that the U.S. Attorney’s Office for the District of Columbia charged a person with attempting to manufacture or possess a weapon of mass destruction based upon the local District of Columbia statute that was passed in response to the terrorist attacks of Sept. 11, 2001.

This week a jury found that a forklift manufacturer was not liable for a 1999 tip-over accident in which the operator was thrown from a forklift resulting in catastrophic injuries. The injured party lived seven years as a quadriplegic. Massachusetts U.S. District Court Judge Reginald C. Lindsay presided over the five-week trial in which the jury returned its unanimous verdict. The forklift manufacturer’s engineering expert witness successfully argued that the accident was caused by operator error, not a breach of warranty or any defect present in the forklift.

The defendant faced great exposure because the parties stipulated to more than $2 million in economic damages. The plaintiff also sought damages for pain and suffering, punitive damages under the Massachusetts Wrongful Death Statute and multiple damages under G.L.c. 93A.

For more see Massachusetts Lawyers Weekly.

Properly preparing the medical expert witness is vital to a successful deposition. The expert witness will then be able to perform with little assistance from the attorney in the case. This preparation is particularly important when the deposition is recorded on video. Since a common use for video depositions by opponents is impeachment at trial, counsel should treat the video deposition as if it were taking place in the courtroom.

When the expert’s deposition comes up at trial and objections are made as to the competency of the deponent, counsel does not have the right to instruct the expert witness not to answer questions but may advise the expert not to when appropriate.

Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers includes a chapter by Cook County criminal lawyer Sam Adam entitled Eight Lessons From a Lifetime at 26th Street. Lesson #1:

Look at the trial itself as an entity rather than as a collection of witnesses. Remember that the ultimate purpose of cross-examination is to get those gold nuggets for closing argument. Know every fact about the case – and perhaps especially your opponent’s case – before you plan your cross-examination. This should usually include viewing the scene. A well-prepared lawyer who has a superior knowledge of the facts has an enormous advantage going in.

More to come from Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers

In Anatomy of a Witness List Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward.”

The order in which witnesses are called at trial can make or break a case. The process of preparing a witness list, including careful consideration of who to call, when and why, may forecast a verdict even before counsel step into the courtroom for trial.

It is vital to determine which witnesses will provide maximum impact at different points int a trial. Each (expert) witness must be evaluated as a potential “opener,” “closer,” or “sleeper.” Some witnesses can persuasively establish or refute liability on damages issues. Others are better for introduction of documentary or other exhibits. Sometimes witnesses must be called adversely for essential information or taking the edge off problem areas. Above all, calling any witnesses requires strategic thinking, not simply conjuring up an arbitrary list of persons with potential testimony.

In Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers leading trial lawyers illustrate essential rules including:

*Never ask a question to which you do not know the answer – unless it doesn’t matter, or you have nowhere else to go.

* Always listen to a witness’s answer before asking your next question.

When working with an inexperienced expert witness, they will need to be prepared for deposition the same as a lay witness. For example, the equipment and machinery expert witness working on your case will be conversant in their field but will need to know that:

They are under oath.

They need to understand questions before answering.