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In Workers’ Compensation Underwriting Philosophy as Partnership, workers compensation expert witness David L. Stegall, CPCU, ARM, ARe, RPA, writes:

Insurance is a business based on the concept of “Utmost Good Faith” between the parties; this is the opposite of the “Caveat Emptor” (buyer beware) concept. This is particularly true of workers’ compensation where there are two beneficiaries to the agreement, the employer and the employee. Workers’ Compensation is one of the social programs that made our Free Enterprise System strong. In the 1920′s, when most states passed laws regarding workers’ compensation, it was agreed that these laws are beneficial to all parties. Employers could know the cost of labor, thereby allowing them the ability to manage their businesses and price their products with certainty and stability. Workers knew if an accident or illness did occur from their work, they would be able to receive benefits without filing suit against their employer and seeking relief in tort. This system bestows both rights and responsibilities on the parties to the agreement. It was intended to be a no-fault, non-adversarial system and to succeed it requires both parties to act with the utmost good faith.

David Stegall is the Principal Consultant at Risk Consulting & Expert Services.

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In Property & Casualty Insurance Procurement & Litigation (Ten Recurring Themes Every Lawyer Should Know) insurance expert witness David L. Stegall, CPCU, ARM, ARe, RPA, of Risk Consulting & Expert Services writes on ten recurring themes that often lead to litigation. Attorneys either dealing in insurance procurement litigation issues or with clients who purchase insurance may want to consider these ten themes:

Theme 10 of 10 Business Interruption, Income, Extra Expense and other time element coverages are unique to business entities and are seldom purchased correctly. These coverages are extremely important in that they are practically the only insurance coverages that will cover the future earnings of a business. Businesses that fail to purchase the coverage seldom fully recover after a major loss occurs. However, the process of purchasing the coverage is wrought with misunderstanding due to the use of what appears to be accounting terms, but are actually insurance terms. This causes confusion on the part of both insurance professionals and accounting personnel normally asked to complete the application forms. There are very few agents, brokers, or underwriters who can accurately assist in the application process, yet the actual process of buying coverage (not necessarily the correct coverage) is easy and often handled in a very cavalier manner. Very few insurance professionals within the industry have enough experience with business interruption and time-element coverage claims to understand the claims adjusting process. This makes misunderstandings common between buyers and insurance companies, which can lead to litigation.

Lesson #10: Have your client’s accountant work directly with the underwriter on this coverage procurement, if at all possible. The accuracy of the application for this coverage is paramount. Again, ask questions, make sure you understand how the coverage will respond in a loss scenario, follow-up in writing, and document answers.

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Design patent expert witnesses may consult on computer patents, design patents, international patents and licensing. In Apple Loses The European Design Patent Case Against Samsung, Tim Worstall writes for Forbes.com that design patents in the EU are different than in the US. “This is about the look and feel of the device, not the technical manner in which it operates. Almost, but not quite, closer to a copyright or trademark issue than what we usually think of as a patent.”

Worstall is a British-born writer and blogger, who writes about many topics, but particularly about economics.

Read more: http://www.forbes.com/sites/timworstall

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Medical toxicology expert witnesses may consult on adverse drug reactions, drug toxicology, overdoses, poisoning, and forensic toxicology. www.dailyrx.com reports on a study published in the journal Pediatrics this week showing that the rising use of prescription drugs by adults in the U.S. has led to more poisonings among children. Led by Dr. Lindsey C. Burghardt, Division of Emergency Medicine at Boston Children’s Hospital, the study used data from the National Poison Data System as well as National Ambulatory Medicare Care Surveys.

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Sanity expert witnesses may provide testimony regarding insanity pleas, clinical competency, diminished capacity, testamentary capacity, insanity defense, and more. In the news, 18th Judicial District Judge Carlos Armando Samour Jr., Centennial, CO, accepted James Holmes’ plea of not guilty by reason of insanity. Colorado law defines insanity as the inability to distinguish right from wrong caused by a diseased or defective mind. Judge Samour set a date of August 2, 2013, to complete a mental evaluation. Holmes faces more than 160 counts of murder and attempted murder after killing twelve and injuring seventy in a Denver suburb movie theater.

Read more: http://www.denverpost.com/

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Accident reconstruction expert witnesses may consult regarding collision analysis, crash worthiness, traffic accident reconstruction, and injury reconstruction issues. This week Chrysler Group refused to recall 2.7 million Jeeps that federal safety officials say are dangerous. The Jeep maker disagrees with the National Highway Traffic Safety Administration’s analysis that rear mounted gas tanks in 1993-2004 Jeep Grand Cherokees and the 2002-2007 Jeep Liberty models may cause a vehicle fire in a rear end collision.

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DNA expert witnesses may give opinions regarding serology, DNA testing, forensic DNA, DNA fingerprinting, and related matters. This week, the US Supreme Court ruled that police may take DNA samples from people arrested in connection with serious crimes. Justice Anthony Kennedy wrote: “A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.”

Slip opinion Maryland v. King: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

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In Workers’ Compensation Underwriting Philosophy as Partnership, workers compensation expert witness David L. Stegall, CPCU, ARM, ARe, RPA, writes:

An underwriting philosophy is the logical analysis of the principles and processes underlying the conduct, thought and knowledge used in selecting and assuming the risk of another party.

Philosophy attempts to draw unity from diversity. It attempts to deduce conclusions (leading to unity) based on overall observations, both direct and indirect (diversity). The unity we are attempting to achieve is profitable business. The diversity is all of the risks, which we, as a company, have the capacity and authority to assume. Selection is the key. Underwriting is a process of selection.

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In Samsung accuses Apple’s expert witnesses of being ‘iSheep’ in patent trial, information communications technology writer Zach Epstein, Executive Editor at BGR, reports that Samsung has described Apple’s patents expert witnesses as having a “slavish adoration” to the company.

Read more: http://bgr.com/2012/05/22/apple-samsung-patent-trial-isheep-witnesses/

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In Preparing an Expert Witness for Direct Examination: Time for a Pep Talk, medical expert witness Burton Bentley II, M.D., FAAEM, ELITE MEDICAL EXPERTS, LLC, writes:

From the perspective of the expert witness, direct examination is not a particularly enjoyable process. The adversarial environment, intensity of focus, and technical nature of the data all combine to add stress to an already demanding situation. Experts themselves also may have some degree of self-doubt, a subliminal fear of being placed under scrutiny magnified by the inherent human tendency to avoid criticizing others. In the absence of a focused mind, even the staunchest expert may melt under the spotlight of skillful direct examination. Consequently, an astute litigator must understand the perspective of the expert and then reinforce the skills that will lead to the expert’s success. Toward this end, a basic pep talk is a good place to begin.

Start with the essentials. Explain that direct examination is a dialogue between the expert and opposing counsel. When the examination occurs at deposition, it may take place at a law firm, an office, or another neutral location. When it occurs at trial, the expert will be in front of a judge and jury. Many experts view deposition as a dress rehearsal for trial, a mistaken perspective that downplays the significance of rigorous preparation and attention. The key is to understand that deposition is simply an extension of the courtroom and that testimony will be under oath and used in court. Consequently, instruct the expert to prepare for deposition and trial with equal intensity. Remind the expert that their behavior, mannerisms, physical appearance, and attire may directly or indirectly influence their perception as a credible expert. Since you are experienced in the techniques necessary to prevail at trial, build teamwork by asking the expert to listen carefully to your suggestions. Similarly, remind the physician that you respect his or her own critical strengths: the skill of speaking to people in stressful situations and the intelligence of being a learned expert. It is the combination of the litigator’s experience and the physician’s abilities that will increase the probability of success in any given case.

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