Expert Witness Blog

Trucking industry expert witnesses may write reports and testify on federal motor carrier safety regulations, truck maintenance, trucking computer systems, and related issues. The Federal Motor Carrier Safety Administration is proposing that all interstate trucks and buses be equipped with electronic onboard recorders to track driver hours. The rule would apply to all carriers now required to maintain Records of Duty Status (aka logbooks), which amounts to some 500,000 commercial carriers. The rule would not apply to short-haul interstate carriers that use timecards to document hours of service.

The agency at the same time is proposing to relieve interstate carriers from certain supporting documents requirements for hours of service compliance. Motor carriers will be given three years from the effective date of the final rule to comply with these requirements. The proposal can be found at http://www.ofr.gov/OFRUpload/OFRData/2011-02093_PI.pdf. The agency will be accepting comments as soon as the proposal is published in the Federal Register.

Read more: truckinginfo.com.

Engineered composites expert witnesses may write reports on linear polymers, engineered composites, monomers, and related topics. On Friday, January 28, 2011 Composites Manufacturing Magazine announced the NIBS creation of an advanced materials database.

The National Institute of Building Sciences is overseeing the establishment of an Advanced Materials Database. Coordinated by the Advanced and High Performance Materials Council (AMC), it encourages the understanding and use of high-performance and advanced materials for construction. The database will provide detailed statistics and information, allow engineers, architects and scientists to readily compare different materials, provide a forum of communication between member organizations and prevent the duplication of effort. Beginning January 2011 the Database will accept submis­sions of new materials drawn from the Department of Homeland Security Infra­structure Protection and Disaster Management Division as well as contributing institutions.

Read more: compositesmanufacturingblog.com.

Trucking expert witnesses may opine on federal motor carrier safety regulations, truck maintenance, trucking drug and alcohol regulations, qualifications of truck drivers, and more. In the news Monday, a U.S. District Court judge ruled that the Minnesota State Patrol’s use of CVSA Level III inspections to determine fatigue violates truckers’ Fourth Amendment rights.

Calling the decision “a major victory,” Paul Cullen Sr., of The Cullen Law Firm representing the Owner-Operator Independent Drivers Association, told Land Line Magazine that Minnesota’s fatigue tests are beyond the scope of CVSA’s Level III inspections, and before such a test could be conducted, officers must have “reasonable articulable suspicion.”

In other words, the driver must exhibit or have shown clear signs that he or she was obviously fatigued. Minnesota have been using a check list of sorts that officers at roadside could consult to see if the certain activities, the driver’s physical appearance or condition, or even the condition or appearance of the truck or cab interior might indicate a driver was tired of fighting fatigue.

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Today, more than at any other time, many cases are settled, won or lost based on the testimony of the expert witness. The real difference between an expert who will help make or break your case is the depth and range of the expert’s experience within the industry involved in the litigation.

I am often asked in an initial interview “How many times have you testified at trial?” I have been involved in many cases. I am proud to say, however, that very few have gone to trial, but instead have been settled in my client’s favor, commonly after submitting my expert report, supplementary expert report or rebuttal reports. The point is that the right expert is not necessarily the one who has gone to court the most. No expert can turn a case without warrant into a success, but the right expert can highlight the strong parts of your case with enough credibility to produce a beneficial outcome.

Pesticides expert witnesses may write reports and testify on pesticide contamination, insecticides, and pesticide products such as Sulfuryl Fluoride. The EPA has recently proposed rules regarding this pesticide.

The U.S. Environmental Protection Agency has re-evaluated the current science on fluoride and is taking steps to begin a phased-down withdrawal of the pesticide sulfuryl fluoride, a pesticide that breaks down into fluoride and is commonly used in food storage and processing facilities. Sulfuryl fluoride is currently registered for the control of insect pests in stored grains, dried fruits, tree nuts, coffee and cocoa beans, and for use in food handling and processing facilities. Although sulfuryl fluoride residues in food contribute only a very small portion of total exposure to fluoride, when combined with other fluoride exposure pathways, including drinking water and toothpaste, EPA has concluded that the tolerance (legal residue limits on food) no longer meets the safety standard under the Federal Food, Drug, and Cosmetic Act (FFDCA) and the tolerances for sulfuryl fluoride should be withdrawn.

See http://www.epa.gov/pesticides/sulfuryl-fluoride/evaluations.html and Federal Register Volume 76, Number 12 January 19, 2011.

Liability policies expert witnesses may testify regarding insurance loss claims, insurance policy coverage, liability policies, and related topics. In The Insurer’s Duty to Defend: A Quick Analysis, attorney Thomas H. Veitch, partner with the law firm of Langley & Banack, Inc. in San Antonio, writes:

The application of the “duty to defend” in liability policies has been a cause of controversy for many, many years. Consequently, there is now an abundance of case law dealing with a variety of issues involving the duty to defend. The case law provides some general guidelines for dealing with these issues. While the precise rules of law may vary from jurisdiction to jurisdiction, the guidelines are much the same. The following are some general rules applied by Texas courts and other jurisdictions following the “Eight Corners Analysis” regarding a duty to defend.

The insurer’s duty to defend is a contractual duty determined by the provisions of the insurance policy.

In Optimizing Your Use of Banking and Financial Institution Experts, banking expert witness Michael F. Richards writes:

Early Involvement In The Case There are a number of reasons why it is important to get an expert involved early in the case. As indicated above, there are numerous regulations, policies, and procedures that are required in banking. It happens far too often that I receive a call and the attorney says, “I have to designate an expert by a certain date” which is only a couple of weeks away or less. As we get into the discussion and I start asking about discovery and specific documents, we find that discovery did not cover all of the documents needed to evaluate the case and the deadline has passed to request the additional information. This is most prevalent when I represent clients against banks. I can understand the attorneys reasoning for waiting as long as possible to retain an expert, hoping the case will settle and save the cost of an expert, but if the case doesn’t settle, is it worth it? A good expert can tell you exactly where to look and what to ask for. Early involvement can help attorneys considerably in formulation of a complaint, discovery, counterclaim, or response to interrogatories. In cases I have been involved in, attorneys have amended their complaint to address items that were found, that otherwise would have gone unnoticed.

In Preparing and Presenting Expert Testimony, traffic engineer and accident reconstruction expert witness Lawrence Levine writes:

An old and established rule of thumb for attorneys is that the best prepared attorney wins and a good attorney never asks a question for which he does not already know the answer. It can be devastating to the expert’s reputation and to the lawyer’s case, should a topic be undiscovered prior to submission of expert opinions. It can also be devastating to a case for the expert to have a pre-formulated opinion; in other words, for the expert to start at the end (with his opinion), and then work backwards to uncover “how the accident must have happened.” This is faulty thinking. It is crucial to always approach a case with an open mind. Start with all the facts, including depositions and witness statements; see the site and allow the case to build itself naturally.

Normally expert opinions are required to be submitted and exchanged at least 30 days before trial, although this may vary. The submission is either in the form of an affidavit signed by the lawyer, an affidavit of opinions signed by the expert, or an Expert Witness Response signed by the lawyer. Never allow an attorney to prepare and submit an Expert Witness Response without a thorough review. It used to be the case that expert affidavits were the norm and the expert had to sign off on what was being said or prepare it themselves. This is no longer the case. Attorneys have been known to prepare Expert Witness Responses for cases in which they do not even have an expert – hoping to settle the case. Be on guard that this does not happen and report it, if it occurs, to the local Bar Association. On the whole, attorneys are very honest and, as officers of the court, do not engage in unsavory behavior such as this.

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

What an expert does not know can and likely will hurt your case. It is widely accepted knowledge that a good lawyer never asks a question to which they don’t already know the answer; so it is with an expert. By withholding facts or materials that you think are not relevant or may not enhance your case, you run the risk of allowing your expert to be ambushed, surprised and/or embarrassed. Expert witness testimony is invaluable and can be summed up in one word — credibility. You are better served by providing the expert everything.

The experienced and ethical expert is not interested in running up unnecessary bills to the client. They are concerned about having all the information, being kept informed about developments, and having access to the attorney or attorneys on the case. An open line of communication builds confidence for both the expert and the client and enables your expert to reach out to you with new ideas, discoveries and materials that provide for the best possible performance at depositions and trial. New technologies such as online meetings improve collaboration and reduce cost for travel.