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In a U.S. District Court filing on Wednesday NASCAR claims that suspended owner/driver Jeremy Mayfield has once again failed an Aegis Sciences Corp. issued drug test for methamphetamines. Since being indefinitely suspended from the sport on May 9, 2009, Mayfield and NASCAR have had a very public battle to determine who is telling the truth. Mayfield sued NASCAR claiming their testing policy was flawed and then NASCAR provided affidavits discrediting Mayfield’s drug testing expert witness. When Judge Graham Mullen granted an injunction on July 1, Mayfield was allowed to return to the sport under the condition that NASCAR had right to drug test him any time they wish. The sanctioning body took Mayfield up on that offer on July 6 and now NASCAR is claiming the test came back positive for levels methamphetamines consistent with that of habitual users who, “develop a tolerance, consume high doses of methamphetamine, and are subsequently detected through random testing without displaying obvious signs of their drug use.”

Taking advantage of the opportunity to test Mayfield before, during or after any race, an Aegis representative contacted Mayfield on July 6 at 1:00 p.m. asking him to report to a testing facility within two hours. Mayfield failed to show up at the facility, claiming he got lost. According to the filing, the facility was within a five mile radius of Mayfield’s home, and when he failed to show NASCAR sent an Aegis representative to his home to collect the sample. The observed sample was taken at his home at 8:15 p.m. that evening.

Excerpted from HardcoreRaceFans.com.

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A U.S. Senate Special Committee on Aging agreed that doctors must partake in continuing medical education throughout their careers but how to fund that education and whether it should be sponsored by pharmaceutical and device companies is at issue. Medical expert witnesses expressed a wide variety of opinions at the hearing entitled “Medical Research and Education: Higher Learning or Higher Earning?”

Some who testified advocated that industry should play no role in helping doctors continue to develop their skills. Pharmaceutical involvement in continuing medical education, or CME, is estimated to have grown more than 300 percent between 1998 and 2007 to over $1 billion, covering about half of CME services, according to Lewis Morris, chief counsel to the Inspector General of the U.S. Department of Health and Human Services. Some vigorously asserted that such funds substantially influence the curriculum. Others advocated for more stringent rules dictating a “firewall” between pharmaceutical and device companies and CME services. One witness said that industry involvement in medicine — like funding CME — has actually spurred medical advances over the past 50 years.

Excerpted from InsideHigherEd.com.

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Jurors in El Paso, TX, acquitted Guillermo Nieto of murder in the 1999 death of his new bride, Sheila Westphal. He had met her a year before on the Internet and was accused of burying her body in his yard. The DNA expert witness could not confirm that a bone found at Nieto’s home was Westphal’s. The expert could only say the bone belonged to a female and someone related to Westphal’s daughter and her brother, Sam Barbagallo. The expert also testified that most people have common DNA thresholds and that he believed the DNA taken from the bone was not read correctly.

An expert report showed that the DNA from the bone also matched DNA of someone missing from Hurricane Katrina, which thrashed Louisiana and Mississippi in 2005.

Excerpted from ElPasoTimes.com.

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In Positive Trend for Defendants in Product Liability, Nick Rees of PublicNuisanceWire.com writes:

Defendants in product liability cases have seen laws and statutes change and morph as the Supreme Court and other venues have interpreted laws and created precedents. Jim Beck, of counsel at Dechert LLP in the mass torts and product liability group in Philadelphia, has seen those changes firsthand for the last 25 years and witnessed how each change has affected defendants’ rights at trial. Co-author of the Drug and Device Law blog, Beck spoke to Public Nuisance Wire about how those changes came about, what impact they’ve had on defendants, and how he’d like to see the laws continue to evolve.

PNW: How have class actions changed in the last twenty-five years?

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Bridgeport, CT, attorney Richard Meehan Jr. describes testifying as an expert witness “no easy thing to endure.”

I agreed to testify at the request of a young lawyer who I had trained some years back. The experience was enlightening. I realized how difficult it is when you, as a witness, want to testify but are dependent on the questions put to you. The prosecutor repeatedly objected to the phrasing of the questions. As the witness, I could not offer my take on whether the form of the question was or was not proper, nor suggest to my fledgling friend how to rephrase to avoid objections.

It was difficult to sit silently watching this part of the legal drama unfold. Most of the objections were whether lengthy hypothetical questions contained appropriate references to the evidence. I agreed with some limitations by the judge, but not all.

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In Analysis and Testing In Accident Reconstruction, accident reconstruction expert witnesses at Technology Associates explain the nature of engineering analysis:

Thus, in the absence of reliable injury-data based on relevant accident records, the subject danger can be evaluated only by analysis and not by testing. Similar reasoning can be applied to many different cases, in spite of differences in detail.

Engineering analysis is not always as easy as in the above case. As an extreme example, consider the structural design of a skyscraper, which requires involved and sophisticated calculations (whether done by computer or otherwise). Here again testing is impractical, and prior experience is of little value unless gained from similar structures, which have been in use over an extended period of time. Thus, again the role of analysis is predominant.

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The danger of falling arises when the unsuspecting climber shifts his center of gravity, causing the ladder’s elevated rear leg, to impact the ground. This is likely to occur when the user lifts one foot while stepping from one level to the next or shifts his weight while working. When this happens, large and rapid forces and the user’s overcompensating reflexes can cause him to lose his balance and fall….

Based on our research, Type II racking can easily lead to the…three-legged condition, even when a stepladder meets the present ANSI (Type-I) racking standard. Based on dynamic testing, a vertical rear leg lift of as little as 1 inch is sufficient to cause a ladder user to fall upon unanticipated crossover. This scenario is consistent with many accident investigations and offers a likely explanation for stepladder fall accidents when there is no obvious cause. We have found that the minimum leg lift-off required to cause a ladder user to fall upon crossover is less than 1 inch and also depends greatly on the agility of the ladder climber.

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Seat belt and airbag expert witnesses at Technology Associates describe “whiplash”:

Testing has shown that the maximum loading to a rear-ended car was amplified about two and a half times when it reached the heads of the occupants. The testing also revealed that this occurred about a fourth of a second after impact.

The momentum and loading to cars which are involved in a rear-end impact (of low enough impact velocity so that there is no permanent deformation of the bumpers) can be fairly accurately modeled as a mass-spring system. This enables determination of the loading effects on the cars and heads of the occupants, by input of known quantities (masses of the cars, bumper stiffness, relative velocity between the cars at time of impact).

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The ABA Commission on Mental and Physical Disability Law and the ABA Criminal Justice Section announces a new publication Criminal Mental Health and Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Criminal Justice Professionals. The new criminal mental health/disability law book is the most comprehensive to date and the first book to examine in detail the legal relationships that link criminal justice, mental health, and disability discrimination law.

Chapters include:

A legal history of mental health and disability in the criminal justice system

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Robert Rigg, associate professor and director of the Criminal Defense Program at Drake University Law School in Des Moines, says that “Jurors don’t like the insanity defense.” In fact, only a few cases in the state have succeeded with an insanity or diminished-capacity defense, according to Rigg, who has worked on a dozen or so over the past 31 years. Defense attorneys and law professors agree that the insanity defense is difficult and jurors are skeptical. It comes down to a “battle of the experts.” The forensic psychology expert witness for the defense testifies that the accused has a mental disease, the state counters with an expert who finds the person sane and the jury has to decide which diagnosis is credible.

University of Iowa law professor David Baldus says that not every kind or degree of mental disease or disorder will excuse a criminal act. Iowa code is specific – a person must suffer from a “diseased or deranged condition of the mind” that renders the person either incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right and wrong.

This is what Mark Becker, 24, accused of shooting Iowa football coach Ed Thomas to death, faces in his first-degree murder trial set for September. He filed this week his intent to claim insanity and/or diminished responsibility as a defense. Becker’s is the latest in a recent string of insanity defenses.

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