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In Clinical Standards in Medicine medical expert witness Barry E. Gustin, MD, MPH, FAAEM, writes:

Medical negligence litigators seek to establish which clinical standards are pertinent to their case, define what these clinical standards are, and then set out to demonstrate how the clinical standards were not followed.

Historically, from the physicians’ point of view, the issue of “clinical standards” has evoked much apprehension and concern. Physicians claim, and with some fervor, that creating specific standards of care can not be done because each patient is unique, the variables are often myriad and complex, and the deductive reasoning and creative process which leads to a successful diagnosis and treatment would be hindered. They further argue that clinical standards will ultimately increase physicians’ liability exposure and thus will do more harm than good.

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In Challenges in Recovering Deleted Email, electronic discovery expert witness Steve Burgess writes:

Both computer forensics experts and data recovery technicians seek to recover deleted data. Data recovery is primarily interested in bringing back files, while computer forensics tends to dig deeper, looking not just for deleted documents, but also for metadata (data about data – such as file attributes, descriptions, dates, and other information) and meaningful snippets of unrecoverable files. One area of particular interest is email.

When most documents are written to a computer’s hard disk, each newly created document has its own directory entry (what the user sees as a listing in a folder). If a file has been deleted, but has not been overwritten by another document, the recovery process is a relatively trivial part of e-discovery or of data recovery. But when the data of interest is from deleted email, the discovery process is likely to differ significantly from that of data recovery. Individual emails are stored differently than individual files. Different types of email programs store data differently on the user’s hard disk and require different schemes for finding useful information. As a result, the deletion of emails and recovering of deleted emails differs not only from that for other types of documents, but also between different types of email programs.

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In Truck/Tractor-trailer brakes and accident reconstruction,
equipment and machinery expert witness Robert R. Reed writes on ABS anti-lock brakes:

The importance of checking proper operation of the ABS system is that some fleets do not have in house maintenance that can diagnose and repair systems and over the road trucking companies tend to not take trucks/trailers out of service for repair for ABS light that stays on. Bulbs or fuses sometimes disappear from the dash warning light and system. Some veteran drivers remember the late 1970’s and don’t care for ABS because they think they have more skill in braking than ABS. This is not true as the new ABS systems have proven there reliability. Trucks/trailers with ABS problems will revert back to regular braking if any faults exist and the wheel or axle with a problem can skid. This can change or explain a stray skid mark that shows up at a scene. Other problems can develop with ABS with maintenance or lack thereof ABS wheel sensors, wiring, or exciter tone rings can be damaged and cause faults. Some fleets will avoid the costs as the truck still has regular brakes. Most normal stops by trucks/trailers do not involve ABS functions as ABS only releases the brake when skids/lock-up situations are detected but emergency/panic stops involving crash situations need the ABS functions to stop sooner or maneuver. If you encounter the unusual check for proper ABS functions.

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In Assessing the Truth: How Forensic Psychiatrists and Psychologists Evaluate Litigants, Dr. Mark Levy, a Distinguished Life Fellow of the American Psychiatric Association and forensic psychiatry expert witness writes:

Psychological and Neuropsychological testing provides an objective means of sorting out how much embellishment or minimization of symptoms may exist. From a psychological perspective, there is always a concern in personal injury litigation and criminal litigation as to the extent one may be exaggerating their symptoms. In divorce and custody proceedings, the opposite may be true. Whenever brain injury is at issue, there may be motivational issues that are difficult to for the plaintiff to overcome and for the examiner to assess…

A competent psychologist has to try to sort these issues out. How much is the underlying personality structure affecting the symptom presentation? How much (or little) of a brain injury has really occurred?

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In Truck/Tractor-trailer brakes and accident reconstruction,
equipment and machinery expert witness Robert R. Reed writes on ABS anti-lock brakes:

Compatibility is also an issue as older trucks pull newer trailers and newer trucks pull older trailers. This creates different issues for reconstruction. Load conditions, total weight, weather, environment, road and tire conditions, brake system maintenance, adjustment, capacity and capabilities must also be considered. These issues can produce conflicting data, cloud issues and render unfair judgments on the drivers/vehicles involved. Remember that since March 1999 trucks and buses with hydraulic brakes are ABS equipped and trucks with air brakes have ABS after March 1997 and air brake trailers have ABS after March 1, 1998. These are manufacture dates of the vehicles. Analyze all data carefully, identify systems properly to understand actions of the vehicles involved in the crash.

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In Evidence – Handle With Care, fire expert witness and Principal of PyroCop Inc., Robert Rowe writes: Although the

Defendant had since inspected evidence removed from the fire scene, the Defendant was unable to inspect the scene it its original position and urged three possible sanctions applicable to this situation: dismissal, exclusion of Plaintiff’s experts, and an adverse jury instruction. The court granted the Defendant’s Spoliation Motion and the matter was dismissed with prejudice.

What can one do as a fire expert to prevent “spoliation” from occurring? The first priority of every fire expert is to conduct their investigation so as to minimize the loss or destruction of evidence and minimize allegations of spoliation. Prior to touching or moving anything, make sure the evidence is carefully photographed and documented. If the evidence must be moved, as is sometimes required to complete an investigation or to protect the evidence from further damage or theft, it is vital that the evidence is properly packaged, labeled and stored in a secure and controlled location.

Fire experts should always consult with their client regarding the handling of evidence discovered at a fire scene. Additional guidance regarding notification can be found in ASTM (American Standards for Testing and Materials) E 860.

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In When and How to Object During Deposition, Art of Advocacy blogger Paul Mark Sandler writes that in civil litigation, “objection-free depositions are unheard of.” Attorneys often make unnecessary objections or fail to make them properly when dealing with parties in the case and the opposing expert witness. Sandler says attorneys sometimes waive objections by failing to raise them in a deposition and offers some helpful guidelines for knowing when and how to object.

4. Grounds

How should an objection be made? To be effective, an objection cannot be vague or unclear. Although Maryland Rule 2-415(g) states that the grounds for an objection “need not be given unless requested by a party,” this language presents a trap. If counsel objects to a deposition question that can be immediately cured, the lawyer must state the grounds to avoid waiving it. The objecting attorney must give enough detail to “provide the questioner with the opportunity to obviate the mistake while the deposition is taking place.” (See Davis, 117 Md. App. at 403-04.) This protocol affords the party taking the deposition the chance to re-word the question and cure any problems in it.

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In Evidence – Handle With Care, fire expert witness and Principal of PyroCop Inc., Robert Rowe writes that:

In a subrogation action filed by a prominent insurance company (plaintiff) for damages it paid to its insured’s as the result of a fire that occurred in the laundry room of the insured’s residence, Plaintiff claimed the fire was caused by an exhaust fan manufactured by Defendant.

The fire expert retained by the insurance company to conduct the initial investigation returned to the scene with a forensic electrical expert to analyze the electrical appliances, components, and wiring at the residence. Once the inspection was complete, the Plaintiff advised the home owner that they could begin repairs to the fire scene.

The Plaintiff then referred the insurance claim to its subrogation unit with the intent to pursue recovery against the Defendant and faxed the Defendant a letter a notifying the Defendent of the fire and Plaintiff’s belief that the Defendant’s fan was a cause of loss and offered the Defendant an opportunity to inspect the fire scene prior to repairs. By that point, however, repairs had already begun and the fire scene had not been preserved.

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In When and How to Object During Deposition, Art of Advocacy blogger Paul Mark Sandler writes that in civil litigation, “objection-free depositions are unheard of.” Attorneys often make unnecessary objections or fail to make them properly when dealing with parties in the case and the opposing expert witness. Sandler says attorneys sometimes waive objections by failing to raise them in a deposition and offers some helpful guidelines for knowing when and how to object.

3. Privilege
If the deposing attorney asks a question that invades a witness’s privilege, such as the attorney-client privilege, the opposing attorney may instruct the witness not to answer. Maryland Discovery Guideline 6 states that where an attorney asserts a claim of privilege at a deposition, the attorney “shall identify during the deposition the nature of the privilege (including work product) which is being claimed” and shall provide certain information about the allegedly privileged communication, including the date and general subject matter of the communication.

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In Preventable Medical Errors, medical expert witness Perry Hookman, M.D., writes that cancer outpatient medication errors may be more common than previously thought. As an example Dentzer states that:

During congressional hearings in 2004 that unleashed a torrent of this type of coverage, a safety officer for the Food and Drug Administration (FDA), David Graham, singled out five drugs on the market whose safety should be “seriously looked at. Some newspaper reports the next day featured graphic spreads on the “Five Most Dangerous Drugs” – the acne drug isotretinoin, the weight-loss drug sibutramine, the cyclooxygenase-2 inhibitor valdecoxib, the lipid-lowering drug rosuvastatin, and the asthma drug salmeterol. Four years later, all but one of these drugs (valdecoxib) are still on the market, although black-box warnings were strengthened or added for most and a new safety-oriented distribution system was created for isotretinoin.

Few news reports at the time noted that Graham’s list was just that – his own personal list of worrisome drugs, not the FDA’s or anyone else’s. Web sites such as Public Citizen’s WorstPills.org feature literally hundreds of concerns about dozens of drugs. But, we all know that almost no drug on the market is without risk.