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In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:

· There has been cooperation among the parties and their counsel during the litigation process. This is key. No doubt a case has a greater potential for settlement when the parties are “firm but fair” with one another. They cooperate without compromising their clients’ rights or position. They exchange what they know is discoverable and they diplomatically but firmly protect what is not. They prepare their client for participation in the litigation process. For example, I try not to intervene at my client’s deposition. He or she is prepared to tell the story, and tell it truthfully. I don’t need to make inappropriate speaking objections or interfere with my opponent’s questioning unless counsel is violating the rules, being rude, harassing my client, or asking questions about irrelevant or privileged matters. Then, rather than arguing on the record and creating useless transcripts, I state my position and deal with this bad behavior appropriately as the rules permit. But, if we are conducting the case within and in accordance with the rules, the prospective of a cooperative discussion about resolution is highly likely.

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In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

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Tobacco control expert witness Dr. Michael Siegel has served as an expert witness in several major tobacco litigation cases. The associate chairman and a professor in the Department of Community Health Sciences at Boston University writes on the electronic cigarette issue:

Connecticut Attorney General Richard Blumenthal recently announced plans to seek a ban on the sale of electronic cigarettes in the state. This ill-advised decision follows a federal Food and Drug Administration report that put a scare into electronic cigarette users across the country, telling them that these battery-powered devices – which deliver nicotine without burning tobacco like conventional cigarettes – are dangerous because they contain carcinogens…

However, the FDA failed to mention in its press conference that the levels of tobacco-specific nitrosamines (the carcinogens) detected in electronic cigarettes were extremely low, below the level allowed in nicotine replacement products, such as nicotine patches, inhalers and gum. The agency is not threatening to take nicotine patches or gum off the market, although they too contain detectable levels of carcinogens…

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In the recent case of Freed v. Geisinger Medical Center, the Pennsylvania Supreme Court held that a nurse was qualified to testify as a medical malpractice expert witness. The ruling overturned a prior decision by the Court of Common Pleas, which had disallowed the testimony, stating that a nurse is not qualified to give a medical diagnosis. In this medical malpractice case, allegations of substandard care were leveled against the nursing staff at a rehabilitation hospital where the plaintiff, Rodger Freed, was being given rehabilitative treatment for a spinal cord injury that left him a paraplegic.

The state Supreme Court stated that to qualify as an expert witness in a given field, a person needs only to “possess greater expertise than is within the ordinary range of training, knowledge, intelligence, or experience.” This ruling means that in cases where nursing care standards are breached, and that breach causes an injury, a nurse can testify to the causes of that injury.

Excerpted from 24-7pressrelease.com.

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In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

Timing and Duration

Too frequently, attorneys seek expert consultation after substantially completing discovery–almost as an afterthought, as though attorney or client decide that a credible objective opinion might add weight to their arguments. Invariably, this results in the urgent need call: “We’ll overnight the discovery, but we need your feedback by next Friday latest.” It’s not unusual for the expert to accept the challenge, only to hear nothing more for months.

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In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

Anyone who has been involved in the dispute-resolution mechanism knows it can be a laborious and often mysterious process. Somewhat over simplified, here is a good way to remove some of the labor and mystery, and describe how mediation fits into the system: Mediation allows the parties involved in the dispute to sidestep the litigation process, while also getting results. Because of the mediator’s neutrality, the settlement resolution is more likely to be perceived as just. It is a voluntary, non-binding forum in which the parties agree to conduct negotiations using a neutral intermediary who guides the parties through the legal process. The mediator has no decision-making authority. Rather, it is the mediator’s duty to work with the parties to agree on the terms for conflict resolution. Only if they want to do the parties settle.

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:

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In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

The potential exposure to punitive or exemplary damages is the greatest danger to an insurer defending an extra-contractual claim. For example, courts have allowed the recovery of punitive damages when the insurer’s breach is accompanied by an independent tort or where a serious wrong of a tortious nature has been committed and the public interest would be served by the deterrent effect of punitive damages.

GENERAL PRINCIPLES Insurance bad faith cases fall primarily into two categories: first-party and third-party cases. First-party cases evolve from coverage in which the insurance company is obligated to indemnify or reimburse its insured directly. Third-party cases involve underlying claims which trigger an insurer’s obligations to protect an insured against lawsuits by others. It involves the basic obligations of the insurer to defend and indemnify the insured, and to settle such cases when a reasonable opportunity to do so is presented. The right to coverage is triggered by strangers to the insurance relationship who bring a suit against the insured. It draws on traditional tort concepts of fault, proximate cause and duty. “In liability insurance, by ensuring personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum of risks.”

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In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes on standards:

For grounds maintenance equipment, the ANSI B71 series is of primary interest. The most important standards in this series are ANSI B71.1, dealing with consumer turf care equipment, and ANSI B71.4, dealing with commercial turf care equipment. These are very comprehensive standards covering blade guarding, thrown objects, rollover/stability, burn hazards, etc. ANSI B71.1 incorporates the CPSC lawnmower standard. Other standards in the ANSI B71 series cover rotary tillers, snow throwers, log splitters, and shredder/grinders. Other ANSI standards cover equipment such as chainsaws.

At times it will be necessary to refer to standards from other organizations such as The American Society of Mechanical Engineers (ASME). Also, some industry groups provide safety training information and use recommendations (not standards) that can be useful in cases involving agricultural and grounds maintenance equipment. These organizations include The Association of Equipment Manufacturers (AEM), The Farm Equipment Manufacturers Association (FEMA), and The Outdoor Power Equipment Institute (OPEI). Other organizations that provide safety information on agricultural and grounds maintenance equipment are The National Safety Council (NSC), The National Institute for Occupational Safety and Health (NIOSH), and the National Institute for Farm Safety (NIFS).

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A handwriting expert told Manhattan Supreme Court jurors on Tuesday that Brooke Astor “very probably” penned her signature on a will update – one prosecutors charge was forged. “I believe this is an authentic signature,” Alan Robillard, a former FBI documents examiner expert, told the jury weighing evidence against Astor’s son, Anthony Marshall, 85, and lawyer Francis Morrissey, 66. Marshall and Morrissey are being tried on charges of fraud and grand larceny for swindling Astor out of $60 million in a series of will updates in 2004, four years after she was diagnosed with Alzheimer’s disease.

Robillard was the first defense witness called in the case. The expert’s testimony contradicted that of Gus Lesnevich, a forensic document examiner called by prosecutors. He said he had “absolutely no doubt” the signature was not Astor’s.

Excerpted from nydailynews.com.

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In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness:

In my view, attorneys should retain experts not merely to ratify their arguments, but for all the experience based information we can contribute. For instance, experts can support discovery by suggesting witnesses to interview and questions to ask. Most civil cases in my area of expertise–the hospitality industry–turn on the duty of reasonable care in the circumstances. Especially in cases lacking forensic, medical, or scientific aspects, my expert testimony may be pivotal.

Accordingly, I feel obliged to research every source that may help me formulate supportable opinions on each assertion in the complaint. My input should identify what the attorney’s client has done right, and also what the client might have done differently. Ultimately, counsel is preparing for deposition and trial, where the opposition will certainly explore potential vulnerabilities in my opinions.

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