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

I’ve been handling bad faith insurance cases for almost my entire career. Initially the majority of cases encompassed the “duty to settle-excess liability cases” wherein the insurer became responsible for the entire amount of a judgment against its insured because the insurer acted imprudently or unreasonable by failing to accept a demand from a plaintiff for the policy limits or less. The basis for this liability was the implied covenant of good faith and fair dealing which exists in all contracts, but which has a special meaning in insurance policies. This covenant of good faith serves as the foundation for the expansion of insurers’ legal responsibility into the realm of tort liability stemming from its “bad-faith” conduct. If the insurer breaches the covenant of good faith by wrongfully handling an insurance claim under the applicable standard, a tort is committed.

In the early 70’s, the California Supreme Court applied these concepts to first party insurance relationships, i.e. where the insurer has promised to pay an insured for a covered loss. This type of coverage is found in all types of insurance relationships: commercial and personal property insurance, medical pay insurance, life, health and medical insurance, and other “direct reimbursement” insurance situations.

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Two local aviation companies who lost a lawsuit claiming they sold a lemon airplane are taking their former attorney to court. Tim McCandless Inc. and Swieter Aircraft Services allege that attorney Gene Yagla smelled of alcohol during their trial in 2006. Also named in the lawsuit is Yagla’s firm, Riley, Shea & Bevel. Attorney and legal malpractice expert William Graham, who is now representing McCandless and Swieter, said Tuesday that Yagla failed to put vital expert witnesses on the stand during the trial and failed to cross examine the plaintiff’s witnesses adequately. Graham says Yagla missed a deadline to notify the court and the opposition of his expert witness, and the trial went on without that testimony.

Yagla’s attorney, Patrick Roby, said the two aviation companies got sued because they were involved in the sale of a bum airplane to a customer and then blamed their lawyer when they lost. The suit involves the sale of a Cessna that had been built in the United States and then sold in Germany.

Excerpted from WFCCourier.com

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

The American Society of Agricultural and Biological Engineers (ASABE) is the primary standards organization for farm and grounds maintenance equipment, although The Society of Automotive Engineers (SAE) issues most tractor standards. Most of the ASABE standards will be labeled “ASAE” rather than “ASABE” since standards developed before the name change (inclusion of “and Biological”) still carry the ASAE label. Some are jointly listed as American National Standards Institute (ANSI) standards. There are three primary safety standards covering three primary sub-areas:

ANSI/ASAE S318.17 JUN2009 Safety for Agricultural Field Equipment ANSI/ASAE S354.5 JAN2006 Safety for Farmstead Equipment ASAE S440.3 MAR2005 Safety for Powered Lawn and Garden Equipment

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Elizabeth G. Rudolph, lawyer, nurse and legal nurse consultant, is the founder of Memphis-based Jurex Center for Legal Nurse Consulting. Rudolf writes on nurses as expert witnesses:

“What’s nice is this is an opportunity for nurses to expand their careers,” Rudolph said. “That’s the new part for nurses. They have this beautiful wealth of nursing knowledge, and this is an opportunity for nurses to expand their knowledge beyond the hospitals and clinics and review medical records and/or testify in cases.” Rudolph said she started Jurex because she recognized the demand for more nurse legal experts and the need to establish more training programs. “There are thousands of court cases filed every day in every jurisdiction,” she said.

The nursing expertise needed for particular cases can vary. “I’ve been an attorney 20 years and have certainly litigated lots of cases,” Rudolph said. “It depends on the type of case and the witness, the expert witness, so it’s not always shear number of years that matters. “It can be sometimes the clinical experience. Sometimes it is the persuasiveness of the expert witness. Sometimes it is the knowledge base. It is the findings of the expert witness. There are many components that go into why I would, for example, as an attorney want one PLNC or another.”

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Insurance expert witnesses may testify regarding insurance policies which Justia.com describes here:

Although insurance may cover many different risks, an insurance company may not indemnify an individual or business for committing an an intentional tort. Parties to insurance contracts are required to deal in good faith, according the legal doctrine uberrima fides (as opposed to caveat emptor, where the buyer assumes the risk). The duty of good faith requires that the insured reveal all material information relevant to risk assessment. The insurance company has several good-faith obligations, including a duty to promptly pay or deny a claim, to try to find reasons to cover a claim, and to treat the financial interests of the insured as if they were its own.

In most contract cases, the failure of a party to fulfill its contractual obligations may give rise to a breach of contract suit. The aggrieved party may sue for damages to recoup what it was owed under the contract. The law treats insurance contracts stricter. If an insurance company acts in “bad faith” (by acting with malice, fraud or oppression), in some states, the aggrieved insured may recover not only what it is entitled to under the policy, but also interest, attorney fees, court costs, and damages for emotional distress caused by the bad-faith act. Additionally, some states allow the injured policyholder to recover punitive damages if the insurance company acted egregiously.

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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 regarding setting parameters:

When attorneys call, experts must determine from a brief description if the case falls within our span of competence and is ethically feasible. Frequently, attorneys ask us to make a preliminary assessment. That’s not readily doable–or prudent. Attorneys may ask, “Do you think I have a cause of action, here?” Well, perhaps; but no expert should offer an opinion at this stage, nor should we hear any confidential information. For me, the best starting point in determining the merit of a case is reading the petition or complaint (if it has been filed) and, if available, the answer to it. But some attorneys seem reluctant to forward the complaint, let alone pay an expert to review it, who then might pass on the case.

Some advance work can lower this hurdle. Before calling potential experts, attorneys should check their credentials and references to verify that they are both competent in their fields and, above all, have a reputation for integrity. Then, if an attorney wants an expert’s early reading as to the case’s strengths and weaknesses, he or she should be willing to pay a reasonable fee for this. If the expert’s screening suggests a weak case, the attorney cuts losses; if the expert feels he or she can espouse a supportive opinion, the attorney can confidently retain the expert. Either way, the nominal investment is justified.

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In Litigation screening panels on trial: Are they working?, Amy Lynn Sorrel, of AMNews writes:

A well-designed pretrial screening panel does a very effective job of not only getting claims settled faster, but a higher percentage of the system cost goes to the injured patient, and that’s an important piece of this. What you don’t want to do is create another bureaucratic step that doesn’t do anything but create another hoop you have to jump through and another cost you have to pay,” said Robert J. Walling, a partner with Pinnacle Actuarial Resources Inc.

The actuarial and consulting firm conducted a 2008 study of the issue for the American Medical Association, which views the panels as a promising alternative for states that cannot achieve more effective, traditional liability reforms such as noneconomic damage caps. The analysis found that states with screening panels generally had better overall medical liability insurance rates — 20% below the national average — and lower claims costs than states without such laws. States with stronger panel laws also showed a higher percentage of cases that closed without any payout and quicker settlement times.

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

It is easier to find current standards than obsolete versions. An agricultural engineering expert may have to do some digging to find the correct version of a standard. Furthermore, obtaining copies of obsolete standards is sometimes difficult since some professional engineering societies do not provide/sell obsolete versions of standards. These older versions, as well as current versions, are usually available from IHS Global (http://www.global.ihs.com). An attorney or expert will often have a choice of buying a hard copy of a standard or opting for electronic delivery. It is necessary to pay for most standards (from any source), and the cost per page can be fairly steep.

Government Standards

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Psychiatry expert witness Dr. James Missett took the stand Wednesday in the final day of testimony in Marshall Doud’s murder trial. Doud, 43, is accused of smothering his wife, Morgana, on Sept. 4, 2007, but has testified that he has no recollection of killing her. The couple’s three teenage children found their mother’s dead body on her bed a few hours after Doud left their Mentel Avenue home and drove into the Santa Cruz Mountains. He has testified that he lost about two hours of memory during the early morning hours, which was when Morgana, 42, died.

Dr. Missett, the only expert to testify during the seven-day trial, was called as a witness for the District Attorney’s Office to share his opinion on consciousness and memory lapses. Defense attorney Art Dudley asked Missett if there were levels of consciousness, and the doctor said consciousness is “graded” and that it’s possible to be awake and still unconscious. The doctor said outside factors, including stroke, a blow to the head or being under the influence of drugs or alcohol – could impair someone’s ability to recollect their actions. Doud was using a therapeutic dose of anti-depressants at the time of his wife’s death, but Missett said that amount of the drug should not affect memory retention.

Excerpted from MercuryNews.com.

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Elizabeth G. Rudolph, lawyer, nurse and legal nurse consultant, is the founder of Memphis-based Jurex Center for Legal Nurse Consulting. Rudolf writes on nurses as expert witnesses:

Expert witnesses for legal issues involving medical matters aren’t always doctors because nurses often have more firsthand knowledge about a disputed practice or protocol….”Over the last several years, nurses have been testifying either for or against nurses, and physicians testify either for or against physicians,” she said. “In the past, physicians had been able to testify for or against nurses, and in some jurisdictions they still do. But now judges have wanted nurses for and against nurses, and physicians for and against physicians.”

Once a nurse completes training from an experienced trial lawyer and acquires the required number of hours, he or she can apply for certification from the American Society of Legal Nurse Consultants. This organization does not offer a teaching program but does provide certification…

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