Articles Posted in Researching Experts

From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts

Where do these rules come from and why are they important? Many years ago, there truly was a disparity between the levels of medical care rendered in rural areas versus urban areas. Full-service hospitals were always located in large cities. Physicians and clinics in rural areas had limited facilities, and house calls were common. Standards of medical practice were different for each circumstance. The basic idea was that it would not be proper to hold a rural physician to the same standard as an urban physician. Medical organizations were concerned that if a rural practitioner were held to a higher standard in an environment that could not support those higher standards, physicians would avoid practicing medicine in rural areas. Also, in those days, there was no uniformity in training and there were no standardized board exams. For certain, urban physicians had better training and support than rural physicians.

In Assessing the Truth: How Forensic Psychiatrists and Psychologists Evaluate Litigants, Dr. Mark Levy, a Distinguished Life Fellow of the American Psychiatric Association and forensic psychiatry expert witness writes:

With regard to causation, the forensic expert must always be on guard to not fall into the trap described so artfully more than 200 years ago by a great physician and man of letters, Samuel Johnson: “It is … physicians, I am afraid, beyond all other men, [who] mistake subsequence for consequence.” In other words, just because B follows A does not mean that A caused B.

In addition to reviewing medical (and sometimes military, employment and academic) records as well as legal documents such as the complaint and deposition transcripts, the forensic psychiatric evaluator examines the plaintiff himself, usually for several hours, inquiring about his personal, developmental, social, family, marital, medical, drug, educational, employment, academic and legal histories. This interview takes a long time because it takes a long time to hear someone’s life story; there are no shortcuts to extracting this kind of essential narrative.

Professional engineering expert witnesses may opine on ISO 9000. Here is a summary of ISO9000 from the ISO9000 Council.

What is ISO 9001 Certification?

ISO 9001 certification is also known as ISO 9001 registration, ISO 9000 certification (if one is less precise), ISO 9000 registration, ISO 9001:2008 certification (if one specifically refers to the latest version of the ISO 9001 standard), or ISO 9001:2008 registration. All of these refer to an independent certification body attesting that your company’s ISO 9001 quality management system meets all requirements of the ISO 9001 2008 standard. Typically, the certification company sends one or more auditors to perform an initial audit of the quality management system. If no significant gaps to the ISO 9001 requirements are discovered, a certificate is issued. The certificate is typically valid for three years provided that period audits (usually every 6 – 12 months) continue to show compliance.

In Assessing the Truth: How Forensic Psychiatrists and Psychologists Evaluate Litigants, Dr. Mark Levy, a Distinguished Life Fellow of the American Psychiatric Association and ADA expert witness writes:

The gold bullion standard of evidence based opinion for forensic psychiatric and psychological experts is the ballistics expert who can say with reasonable “ballistic certainty” that a particular shell was fired from a particular gun…or it wasn’t. Of course, arriving at such a definite conclusion is more difficult in the behavioral sciences. However, with careful assessment of all available evidence, doing so is not only possible – it is probable.

The evidence that a forensic psychiatrist sifts through consists of medical, psychiatric and psychological records from periods of time both prior to, during and after the period of time when the incident or circumstance that was alleged to have emotionally and/or neurocognitively damaged the plaintiff occurred. These records can be both difficult to obtain and extensive – but once obtained and reviewed they are usually highly revelatory. Sometimes it is also helpful to obtain childhood medical records, even when evaluating adult plaintiffs. These records may help answer the question of whether this particular plaintiff is a person, who as a result of earlier emotional trauma, was particularly fragile when the event in dispute purportedly caused him or her to be damaged; or in contrast, whether the plaintiff is a highly resilient individual? Alternatively, the plaintiff may have a chronic mental condition (like the neurological disorder, Multiple Sclerosis) with its own waxing and waning natural course that is relatively independent of external events. If so, it is likely that such a condition would have produced emotional symptoms following the disputed events, whether or not the incident was actually damaging or had even occurred?

In General Issues For Attorneys In HVAC Cases, HVAC expert witness Russell M. Keeler writes on the important strengths to look for in an HVAC expert:

Years of HVAC design experience ( but not 5 years 5 times). Design experience should include varied project types, unless a specific project type is in question (i.e. Schools, hospitals, prisons, etc.) Even then, if the issue is generic, such as piping or water chillers, experience in the specific project type is not required.

Has the expert spent time performing troubleshooting work, or just new design? Troubleshooting exposes the expert to the “whys” of malfunctions, while those working only on new projects tend to repeat the same mistakes due to a lack of feedback.

In General Issues For Attorneys In HVAC Cases, HVAC expert witness Russell M. Keeler writes on guidelines that have emerged in his industry:

Over the past 50 years, heating and cooling design has progressed from a craftsman/apprentice trade to a pursuit solidly grounded in scientific principles. The authoritative body for this fund of knowledge is the American Society of Heating, Refrigerating and Air Conditioning Engineers, Inc. (ASHRAE).

ASHRAE funds extensive research into thermodynamics, heat transfer, the mechanics of building heat gain and loss and refrigeration. As processes become understood, the findings are published in the ASHRAE Handbook, a four volume compendium that is updated with new findings, one volume per year. ASHRAE also publishes standards for safety and testing of equipment. ASHRAE is the defining authority for heating, cooling and refrigeration.

In The Role of a Forensic Psychiatrist in Legal Proceedings forensic psychiatry expert witness and Harvard Medical School Associate Clinical Professor Harold J. Bursztajn, M.D., writes on the kinds of determinations forensic psychiatrists make in criminal cases.

Although few defendants win a verdict of “not guilty by reason of insanity” (NGRI) in court, a larger number receive a stipulated NGRI on the basis of a forensic psychiatric evaluation. In an even wider range of cases, a defendant’s mental state can make a major difference as to whether a jury finds the necessary premeditation, or malice aforethought, to warrant conviction for (say) first-degree murder, as opposed to a lesser charge. The same considerations may be brought to bear in sentencing recommendations as well.

The forensic psychiatric consultation can also be a vital aid to determining whether a client is perjuring himself, or is competent to confess. For example, a schizophrenic man spent nine years in prison in Florida for a double murder to which he had made a false, coerced confession which an expert forensic psychiatric consultation could have revealed to be invalid. Last year my testimony helped win acquittal for a psychotically depressed man who had confessed to embezzling city funds that he had never taken.

In The Role of a Forensic Psychiatrist in Legal Proceedings forensic psychiatry expert witness and Harvard Medical School Associate Clinical Professor Harold J. Bursztajn, M.D., writes on the kinds of determinations forensic psychiatrists make in civil proceedings.

Forensic psychiatrists are involved in a range of particularized competency determinations, including the competence to make wills, dispose of property, or refuse medical treatment. In custody disputes they may be called upon to assess how autonomous and authentic the expressed wishes of a child of a certain age can be. They evaluate and testify in cases of alleged emotional harm and Post-Traumatic Stress Disorder (PTSD). Here it is necessary to reach a deep understanding of the person’s life history, so as to identify prior experiences that may have created a special vulnerability to trauma (as opposed to prior impaired functioning), as well as to distinguish genuine trauma from faking, malingering, exaggerating, or misattributing.

Forensic psychiatrists are involved in worksite issues such as workers’ compensation, supervisory negligence, disability discrimination, and sexual harassment. On the environmental front, they are helping to define the limits of product liability and stress caused by fear of illness. They also are trained in the use of the psychological autopsy to determine cause of death.

Geographic Information Systems (GIS) has become an important tool for hydrology and groundwater expert witnesses. An especially useful application of GIS concerns water quality in groundwater. In the case of groundwater contamination and the need for subsequent containment and cleanup of the contaminant, an existing framework of the groundwater system would be valuable in planning remediation measures.

An example concerning the use of GIS addresses a common problem associated with groundwater pumping and land subsidence or intrusion in coastal areas. Areas that have been overpumped of groundwater can subside, and when near the sea, this may invite flooding. Also, overpumping of groundwater in coastal regions may bring a different problem, such as the case in California where salt-water intrusion has compromised the aquifer. Generally, a salt water interface inland of the coast extends below the land surface dependent on the distance from the coast. Overpumping can bring the salt water interface to a higher position and contaminate an aquifer.

Hydrology and groundwater expert witnesses can tell you that about ¼ of the water used for personal, commercial/industrial, and irrigation uses in the U.S. comes from groundwater. With increasing demands placed on surface water resources, it is likely the demand for groundwater will increase.

In some places, this resource has already been severely tapped, and even mismanaged. An example is the surface water decline in the Republican River watershed of Nebraska and Kansas where over-pumping of groundwater for irrigation in Nebraska has depleted surface water available for downstream flow and use in Kansas resulting in a lawsuit. The State of Kansas filed a complaint to the U.S. Supreme Court that claimed the State of Nebraska had violated the Republican River Compact by allowing the unimpeded development of thousands of wells in hydraulic connection with the Republican River and its tributaries. Kansas further alleged that Nebraska was using more water than its allocation.