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David V. Dilenschneider, Esq., Director, Client Relations (Litigation) LexisNexis on expert witness disclosure:

As I travel the country conducting presentations on how to research experts, one of the topics I address is the need to double-check an expert’s FRCP 26(a)(2)(B) disclosure. If you are not familiar with that rule, it requires (in 26(a)(2)(B)(v)) that an expert disclose to opposing counsel, “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.” The reason why such double-checking is necessary is because some experts do not make full disclosures, hoping to hide damaging prior casework from the opposition.

For those who might doubt that experts sometime deliberately omit from their lists damaging prior casework, check out the recent case of Siegel v. Warner Bros. Entm’t, Inc., 2009 U.S. Dist. LEXIS 66115 (C.D. Cal. July 8, 2009). In that opinion the judge found it “disturbing” that the expert in question had failed to list in his disclosure a recent case in which his testimony had been excluded. The judge rejected the expert’s excuse of “inadvertent mistake” and stated “the Court can only conclude that the failure was a deliberate effort to bury negative information.” Id. at *16-17.

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In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on gross negligence:

Within the context of medical malpractice, the term “gross negligence” refers to conduct so reckless or mistaken as to render itself virtually obvious to a layman without medical training. Examples include a surgeon amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient. Some states will permit a person to establish a cause of action for medical malpractice grounded in GROSS NEGLIGENCE without the need for expert TESTIMONY. A minority of states still permit an action for “res ipsa loquitur” (“the thing speaks for itself”), meaning that such an accident or injury to the patient could not have occurred unless there was negligence by the doctor’s having control over the patient.

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In Successfully Locating A Business, zoning and land use expert witness John J. Wallace writes on a retailer’s biggest challenge:

A site may work within a center — but will it work within a community or region? Any retail business serves a particular “trade area.” This is the zone in which roughly 70 to 80 percent of a store’s customers live. Its boundaries are largely determined by driving time, competition, and demographics. For example, people will drive 20 minutes or more to visit a regional mall. But they expect to travel less than 10 minutes to pick up food, hardware, dry cleaning and other convenience items. If the drive is shorter to a competitor’s store, potential customers will probably go there. As for demographics, upscale stores like to locate in upscale communities, stores that target working people like to be in blue-collar areas, and so on. It’s just that simple, isn’t it?

Unfortunately, understanding a trade area is more complicated. In most centers, the anchor tenant defines the trade area for the smaller stores. Locating near a Sears outlet, for example, gives neighboring stores access to regional shoppers with a particular demographic. Being near a Macy’s offers different possibilities. A Safeway pulls in another crowd, mostly from neighborhood residents, without much regard for demographics.

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In Handoff Communication, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Handoff communication is simply the relay of information from one healthcare provider to another. Every day nurses are responsible for relaying information regarding patient care to physicians, nurses, radiology, laboratory, dietary and many other health care providers.

A breakdown in this communication has been reported by The Joint Commission (accrediting body for hospitals) as the root cause of 65% of adverse events that occur in hospitals. In 2006 The Joint Commission mandated that hospitals improve the effectiveness of handoff communication including a process whereas the healthcare provider had an opportunity to ask questions and have them answered.

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In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:

Until the law on the issue settles there are some practical steps counsel should take to address hybrid witnesses:

(1) Make sure that the witness really is a “hybrid” witness. The fact that the witness happens to be a treating physician, for instance, might not be the end of the analysis. See, e.g., Kirkham v. Societe Air France, 236 F.R.D. 9, 12-13 (D.D.C. 2006) (noting that a treating physician may be “retained or specially employed” under Rule 26 and thus an expert from whom a report is required if, among other things, they base opinions on something other than their own examination of the party such as the medical records of another physician or if they are compensated or expect compensation for their time preparing to testify);

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In Air Rage, aviation expert witness Capt. Bob Norris writes:

The problem appears to be growing, based on limited data from a few airlines; it is obvious that the industry needs a central database of uniform reporting to measure scope and changes in the incidence rate.

• It is a multifaceted problem, requiring cooperative efforts from many different directions–e.g., airlines, law enforcement, prosecutors and judges, not to mention public awareness. Tough prosecution and sentencing can be an effective deterrent.

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In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on substandard care, treatment or surgery:

The standard of care which is owed to people as a patients is that which represents that level of skill, expertise, and care possessed and practiced by physicians found in the same or similar community as the relevant one, and under similar circumstances. However, the advent of “national board” exams for new doctors and “board certifications” for doctor-specialists has resulted in a more uniform and standard practice of medicine not dependent upon geographic locality.

All licensed physicians should possess a basic level of skill and expertise in diagnosing and treating general or recurring types of illnesses and injuries. Thus, a general practitioner who has administered substandard cardio-pulmonary resuscitation (CPR) to a heart attack victim (who subsequently dies as a result of the substandard care) cannot defend that he or she was not a “cardio-pulmonary specialist.” A general practitioner from virtually any other area in the United States could most likely testify as to the level of care and expertise that is to be expected under the circumstances. Conversely, a board-certified cardiopulmonary specialist could not testify that the general practitioner should have done everything that the specialist might have done with his advanced skill and training. Nor, under the locality rule, could an oncology specialist in private practice in Smalltown, U. S. A., be held to the same standard of care as an oncology specialist in a large urban university teaching hospital that has state-of-the-art equipment and facilities.

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In Successfully Locating A Business, zoning and land use expert witness John J. Wallace writes on a retailer’s biggest challenge:

As customers move through a center, whether on foot or by car, the repeated exposure to signage provides a form of advertising. A concentrated shopping area can generate a sense of activity and critical retail mass that initially attracts people, then keeps them coming back.

Consider that it is almost impossible for small stores to operate successfully from second floors, half-floors, subfloors or any other spot out of the retail line of sight, and without frontage to the flow of shoppers. Second floors only work when the anchor tenants have entrances on that level to generate shopper traffic. Otherwise, upper levels generally provide very poor retail locations. Some center owners solve the problem by turning second story retail space into offices or professional personal service establishments. Others have encouraged ground floor tenants to expand upward and include another story, while retaining a ground floor entrance.

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In Use of a Legal Nurse Nurse Consultant in Client Interviews, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Nurses learn communication and interviewing strategies as part of their basic interpersonal and assessment skills in the first semester of training. It is a basic skill that nurses use on each patient admission (or visit to the physician in his office); on each day the patient is in the hospital and even at the beginning of each nursing shift on each hospitalized patient. We are skilled in active listening and the subsequent collection of critical data.

The rapport established between the plaintiff and the attorney and/or staff at the initial interview may have far reaching consequences in terms of the accuracy and completeness of information obtained. Plaintiffs need to believe that the attorney and staff are advocates, working on their behalf, in order to maintain a trusting and amenable relationship. During the initial interview the legal nurse consultant can:

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Poultry production in the Illinois River watershed multiplied over the past half-century, a scientist testified Thursday in Oklahoma’s pollution lawsuit against the Arkansas poultry industry. Companies went from producing about 12 million birds in 1950 to about 152 million in 2002, said J. Berton Fisher, one of Oklahoma’s expert witnesses.

Oklahoma is suing 11 poultry producers, including Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cargill Turkey Production LLC, George’s Inc., George’s Farms Inc., Peterson Farms Inc. and Simmons Foods Inc., accusing them of polluting the one million-acre watershed with bird waste. Pollution expert witness Fisher also testified about how the watershed’s hills, thin soils and rocky, porous terrain allowed contaminants to seep into streams and groundwater. For decades, farmers have used chicken litter as a cheap fertilizer to grow other crops. Oklahoma argues runoff from those fields contains bacteria that threatens the health of people who fish and raft in the watershed each year.

Excerpted from www.newstin.com.