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Boston orthopedic surgery expert witness Dr. Brian Awbrey testified Wednesday that a succession of issues would have been avoided if Dubuque podiatrist Dr. Michael Arnz had avoided his use of a circular frame. Daniel Day is seeking monetary damages from The Finley Hospital. “There would have been no infection of the tibia, and we wouldn’t be here today,” Dr. Awbrey said. A former team doctor for the New England Revolution professional soccer team, Awbrey testified as an expert witness for Day’s attorneys. THonline also reports:

Day subsequently developed osteomyelitis, a serious bone infection that required four surgical procedures to remove dead bone. ‘The exposure of these additional risks (from the pins of the circular frame) is what led to his osteomyelitis directly,’ Awbrey said. Awbrey testified it would be unwise to operate on Day’s foot or tibia in the future, because any procedure would run the risk of reawakening any dormant osteomyelitis. However, on cross-examination, Awbrey did admit that a leg amputation could be performed and that this procedure would eliminate the risk of future osteomyelitis.

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Reporter Jennifer McPhee writes that some people say the “CSI effect” raises jurors’ expectations about what kind of forensic evidence they can expect criminalistics expert witnesses to deliver from every crime scene in the real world. “If I only come to court with a single fingerprint or a single piece of DNA, they are either going to think I’m stupid or lazy,” says Richard Devine, team leader at the Ontario Police College’s forensic training unit. In LawTimes.com McPhee also reports:

And even when the science on television is realistic, the scenarios aren’t, Devine later tells Law Times. “The bad guys in this province just drive by and shoot you. There’s nothing special about that. A good forensic investigator should be able to place the shooter. But I don’t want any bias that says a good forensic officer would have done this because that’s what they do on television.” Devine says one impact of these shows is they’ve made real world forensic investigators more professional and careful. Jurors are coming in looking for what they’ve seen on television, and also want to know how the Crown got the evidence and what it means for the trial, he says. Where people used to go to sleep during the forensic stuff, they don’t anymore. They are wide awake and they are listening. And they have a standard and that standard is created by the media,” says Devine.

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on striving for an objective tone on direct and cross examination.

Otherwise strong experts sometimes may fail to present their testimony in a professional manner. On direct examintation, they are friendly and expansive with the attorney, but on cross examination, they clam up or become adversarial. This change in tone (or even body language) can create an impression that the expert is a “hired gun” ranther than an independent and objective authority.

Attorneys should help experts to convey objectivity when they testify. In practice, this means that experts should answer questions – on both direct and cross examination – in a way that conveys that they are helping the fact finder to understand their opinion fully. There is no reason for experts to change their demeanor when responding to direct or cross examination, thereby reminding the court that they were hired by one of the parties and not the other.

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More on Searchsystems.net v. Musselman:

U.S. District Court Judge Maxine Chesney awarded SearchSystems.net $780,000 in damages against convicted Cyber-Pirate Mark Musselman and his website, courtsonline.org. Internet expert witness Carole Levitt stated that “Searchsystems was an original and unique website which defendants copied–both the content and organization–and thus violated Search Systems intellectual property rights.” California News Wire reports Pacific Information Resources, Inc.’s President/CEO Tim Koster, whose Thousand Oaks, California company operates www.searchsystems.net as stating :

‘Hundreds of thousands of consumers have discovered, in purchasing their ‘public records access subscriptions’ from websites such as courtsonline .org, websherlock .com, detectivechoice .com, webinvestigator .org, restrictedonly .com, cisworldwide .com and datahounddetective .com, that eventually their subscription does not ‘work.’ Their access to the full data base is ultimately denied,’ Koster explained. ‘These confused consumers do not realize that they purchased their subscriptions from a website that had no authorization to sell access to Search Systems’ content.’ In response to the flood of e-mails from angry and confused consumers, SearchSystems.net initiated a series of lawsuits against these alleged cyber-pirates….

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SearchSystems.net, a highly regarded site for researching public records, obtained a judgment of $780,000 in San Francisco U.S. District Court this week against convicted Cyber-Pirate Mark Musselman and his website, courtsonline.org. Internet expert witness Carole Levitt stated that “Searchsystems was an original and unique website which defendants copied–both the content and organization–and thus violated Search Systems intellectual property rights.” California News Wire reports:

Musselman was sentenced earlier this year to 12 years in prison and over $4.6 million in criminal fines and penalties on a 47 count cyber-fraud conviction in Montgomery County, Ohio Common Pleas Court. Subsequently, he was declared liable under a ten count complaint for Internet consumer fraud by the Miami County, Ohio Common Pleas Court, under a similar set of facts as those presented to the Federal District Court in San Francisco, which entered this week’s Judgment and Permanent Injunction.

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In How They Can Squeeze More Miles From the Gallon, December 05, 2007, Marianne Lavelle writes on how car manufacturers can make more fuel-efficient cars. In her article, Lavelle tells us about the 244-page decision handed down in September by Vermont Federal Judge William K. Sessions regarding California’s effort to force carmakers to limit their greenhouse gas emissions. Lavelle writes:

The short version is that the judge agreed with California’s (fuels) expert witness, who estimated that the initial increased vehicle cost for consumers would be about $1,500. Not only would this be offset by about $5,000 in fuel savings over the car’s lifetime, if fuel is $3 per gallon, but the judge said it is likely the premium would be only temporary. “The automobile industry has historically been very effective at improving the quality of necessary technology while decreasing its cost,” he said. Sessions said the estimate by the automakers’ expert witness, that more fuel efficiency would cost consumers $5,000 per car, was inflated because he had not considered these already available technologies.

For more please see Beyond the Barrel.

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In 2004 Clinton San Francisco and his wife, Jessie, sued Wendy’s over what they said was a bad hamburger bought in Charleston. In 2006 Kanawha Circuit Judge Paul Zakaib said the doctor who treated Clinton and a food expert witness were not qualified to serve as experts in the case under state trial rules but the State Supreme Court justices handed down a recent decision saying that a jury can hear the expert witness testimony and decide whether or not it’s credible.

The Charleston Daily Mail also reports:

Chief Justice Robin Davis said in a separately written opinion that she hoped the state’s lower courts would take heed of the San Francisco decision.

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The Georgia Supreme Court decided last week in favor of tighter expert witness rules. Their 5-2 decision on the SB 3 provision (O.C.G.A. ยง 24-9-67.1(c)), is a rare defense victory in the state. Atlanta defense lawyer R. Page Powell Jr. says the state Supreme Court’s ruling is “a very fair, very reasonable threshold requirement for expert competency.” The ruling says that medical malpractice expert witnesses must have “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.” The Daily Report also writes:

The court hasn’t decided an unrelated state Supreme Court appeal, Mason v. Home Depot, S07A1486, challenging another part of the law establishing a more general rule that tightens standards for admission of expert testimony in all civil cases. That rule is sometimes known as the Daubert rule for the 1993 U.S. Supreme Court case to which federal rule makers responded in crafting a similar, but not identical, rule of evidence.

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on ensuring that testimony is based on science.

Contrary to what many believe, expert testimony in litigation is not always based on rigorous quantitative analysis of the data involved in a case. Too often, we hve seen experts provide analysis that does not scientifically demonstrate the validity of their claims.

For example, we were recently contacted by a lawyer seeking an industry expert who could opine on the impact that a particular song on a CD had in influencing sales of that CD. We stressed that the question should be addressed in a scientifically rigourous way, and therefore the client decided to retain an economist. The plaintiff side retained an industry expert who formulated an opinion based solely on her experience, not on science. Her testimony was stricken on a Daubert challenge and consequently the plaintiff could not present damages testimony at trial.

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WebWire writes that computer forensic expert witnesses:

…deal with some of the most grave and serious of criminal cases that involve digital evidence. However it may be surprising to hear that currently there is no regulatory body to ensure the quality of their work, their security, and the expert’s individual’s background.

It is a different case for those forensic companies who work for prosecuting bodies such as police forces and law enforcement agencies, as they are normally independently regulated by the instructing body and undergo rigorous vetting. Forensic companies working solely for the defence however, have the same access to the same evidence involved in these cases, yet nobody is actively monitoring their activities. In theory a one man band with a computer and the appropriate software could take on criminal defence cases which range from fraud, terrorism and drugs offences, to indecent images of children and grooming charges.

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