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The Federal Trade Commission has reached a settlement resolving the antitrust suit charging Cephalon, Inc. with illegally blocking generic competition to its sleep disorder drug Provigil. Teva Pharmaceutical Industries, Ltd. will make a total of $1.2B available to compensate purchasers, including drug wholesalers, pharmacies, and insurers, who overpaid because of Cephalon’s illegal conduct. The FTC’s pharmaceutical expert witness had previously estimated that the amount could be anywhere between $3.5B and $5.6B.

As part of the settlement, Teva also has agreed to a prohibition on the type of anticompetitive patent settlements that Cephalon used to artificially inflate the price of Provigil. Teva is the largest generic drug manufacturer in the world, and this prohibition applies to all of its U.S. operations.

The May 28th FTC.com press release states:

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In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I’ve read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest.

1. Selection Process Start your search early. I’m always amazed when I receive frantic phone calls from attorneys saying they must designate an expert that day or the next day. Allow time to find an expert, to connect, (considering the usual telephone tag delays), to chat, and to get a feeling for the chemistry between you, and to briefly discuss your case. Ask the potential expert’s experience in the course of his career with matters germane to your case, and ask whether he has ever testified on anything similar. Get his general feelings about your case while keeping in mind that he now has only a thumbnail sketch of the issues involved. Tell him up front your time constraints, if and when a written report is required, and the dates of trial and probable deposition. Make sure he has the time to devote to your case. You don’t want him “squeezing you in” between other pressing cases. Discuss fees and retainers. Ask him to fax you his most recent CV and a list of prior testimony, along with the names and firms of attorneys who have retained him. Check him out. If he’s smart, he’ll probably be looking you up in Martindale-Hubbell within minutes of getting off the phone. If not time- and expense-prohibitive, arrange a meeting either at your office or his. If he is going to come to you, make it clear that you will pay for his time and expenses. There may be experts who are willing to give up a day or more to meet with you for free, but they are not going to be the ones whose time is very valuable and thus probably not the ones you want. I’ve had attorneys who expected me to crisscross the country for an interview with no more compensation than an airline seat. I politely but firmly terminated those inquiries. The first hour of this expert’s time is usually free. After that the meter runs, as it does with lawyers.

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In Keeping Internet Searches to Yourself, internet guru, attorney and law librarian

Carole Levitt writes:

For those who are more and more concerned with privacy when researching on the Internet, here’s one of my ABA TECHSHOW tips: Consider using DuckDuckGo.com. It enhances users’ privacy by not storing your search history, IP addresses or user agents, and not passing along your search words to the site you visit when you click on a link in the results list. But, what if you love using all of Google’s advanced search features/instructions (or Bing’s or Yahoo’s)? Well, you can still use them and protect your privacy if you precede your search with what DuckDuckGo calls a “bang,” which is an exclamation point and the first letter of the search engine where you want DuckDuckGo to submit your search. For example, to submit your search to Google and limit your results only to PDFs that have the name “carole levitt” as a phrase, your search would look like this:

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In How To Select A Medical Expert Witness: Mission-Critical Steps for Success, medical malpractice expert witness Dr. Burton Bentley writes:

The expert witness is the foundation of any medical malpractice case. From analyzing the elements of negligence to testifying at deposition and trial, your strategic success depends upon competent medical insight. Given the pivotal role played by medical expert witnesses, it is surprising how often the search for an expert is left to chance. Choose incorrectly and you’ve made a common and costly mistake that may prove fatal to your case. Secure the right expert, however, and you’ll build a solid strategy and partnership from the outset. Rather than leaving the decision to chance, the following steps will immediately improve your chance of success:

Assure Board Certification

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A Northern District of Illinois jury ruled in favor of defendants ExxonMobil and Owens-Illinois and against plaintiff Charles Krik. The retired pipefitter claimed his lung cancer was caused by exposure to asbestos from the 1970 to the 1990s while working in refineries in Illinois and Indiana where asbestos was present. However, the jury ruled that the plaintiff’s asbestos expert witnesses, Dr. Arthur Frank, Dr. Arnold Brody and Frank Parker, needed to offer more specific testimony pertaining to Krik’s potential exposure to asbestos, rather than the effects of asbestos exposure in general. They also found that his cigarette smoking was the “sole proximate cause” of his lung cancer.

In CHARLES KRIK v. CRANE CO.; EXXONMOBIL OIL CORPORATION; OWENS-ILLINOIS,INC.; and THE MARLEY WYLAIN COMPANY, Case No. 10-cv-7435 Judge John Z. Lee writes:

Krik nevertheless asserts that because the precise exposure to asbestos cannot be calculated, even de minimis exposure satisfies the substantial contributing factor test. The Court disagrees. As the MDL court explained in its opinion denying Crane’s summary judgment motion, under maritime law, “[a] mere ‘minimal exposure’ to a defendant’s product is insufficient to establish causation.

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In The New Frontier of Negative Rates and Banking, business expert witness Douglas E. Johnston writes:

How Are Other Financial Institutions Responding to Ultra Low and Negative Rates?

Eurofi, a European-based think tank chaired by former IMF Director Jacques de Larosiere which carries the support of ECB President Mario Draghi, has the stated goal of ‘fostering growth in a highly indebted EU environment.’ In remarks prepared for the April 23-25 Eurofi High-Level Seminar and delivered on behalf of the Basel-based Bank for International Settlements (often known as the central banks’ central bank), 20-year BIS veteran and Deputy General Manager Herve Hannoun recently addressed the growing phenomenon of negative interest rates among a ‘Who’s Who’ of central bankers, international banks, insurance companies, financial market makers, rating agencies and regulators. Eurofi’s many activities have included the pursuit of a possible new Capital Markets Union (CMU) under the recent leadership of Lord Hill of London. Among its initiatives, Eurofi is addressing the technological and regulatory framework for new growth-oriented lending and capital market mechanisms across Europe. Given the recent emergence of crowd-funding, P2P (Peer-to-Peer) financial activities, and promising new technology and delivery platforms, one possibility before Eurofi is to reconsider the traditional role of how commercial banks have functioned as intermediaries between depositors and business borrowers. With negative rates, the linkage between expanded business lending activity, increased monetary velocity and broad economic growth now appears clearly to be a higher priority for European central banks and regulators.

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Automobile air bag safety expert witnesses may consult and testify on automobile airbags, air bag deployment, and other automobile safety systems. In the news, BMW, Ford and Mitsubishi have provided lists of vehicles that are affected by the recent expansion of the Takata air bag recalls. While the vehicle identification numbers included in these recalls are not available on the National Highway Safety Administration’s VIN lookup tool or the manufacturer’s website as of yet, the NHTSA is continuing to provide updates.

NHTSA.com provides this information:

Consumer Information on Takata National Air Bag Recalls

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What areas may insurance expert witnesses consult on? They may write reports and testify on the insurance industry, commercial insurance, insurance carriers, insurance policies, and more. In Experts – They May Know What To Do and How To Do It – But Do They Know How To Deliver? , Houston attorney Nyanza Moore writes:

In a time where expert reports are more the norm than the exception, it’s important to remember that a great expert report is only as good as the expert delivering it. Delivery here is being used in the sense of delivering a timely, well written report and verbally delivering a succinct explanation of the methodology used to reach the conclusions at a deposition.

Of course, every expert isn’t expected to be Johnny Cochran – with the flow of speech that leaves the trier of fact mesmerized. It is well known that public speaking ranks high on the top ten fears most people have. Preparing an expert for a deposition should be used getting them comfortable speaking about the methodologies so they avoid giving rambling answers that draw a Daubert motion to exclude the opinion. For the engineers, meteorologists, public adjusters, CPAs, and economists helping policyholders prove their claims, here is a refresher on what the attorneys, judges and juries are looking for when they read and hear your opinions:

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On June 4, 2015, the Forensic Expert Witness Association (FEWA) will present the webinar Lawyers and Experts: Beware of Daubert, Robinson, and Kuhmo in 2015.

The presentation will be an in-depth review of motions to strike. Topics that will be covered include the following:

Motion to strike actual filing Expert’s affidavit in response to motion to strike Examples of over 25 actual motions to strike and subsequent rulings 2015 update on Daubert, Robinson and Kuhmo

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In Nursing Standard of Care Guidelines: Why a blank or incomplete medical record suggests conduct that falls below the standard of care, attorney Kristin Miller answers the question “Why does a blank or incomplete medical record indicate a likelihood of nursing conduct that falls below the standard of care?”

“Nurses are required to routinely conduct assessments and reassessments, and they are required to document all of their findings in the patient’s medical record. A blank or sparsely filled in medical record at a time when the patient is receiving intensive care is a strong indicator of below standard conduct by the nursing staff.” Says Gayle Nash with Nash Legal Nurse Consulting, and a Chief Nursing Officer with twenty-seven years of executive nursing leadership experience.

A myriad of patient care considerations go into each patient assessment and reassessment. Nash preaches that a skilled nurse performing their work pursuant to standard of care will practice due diligence in their charting practices thoroughly performing as well as documenting each assessment and reassessment. The medical record, after all, is the patient care fingerprint indicating both the patient’s health status as well as how the nurses are performing and completing their patient rounds. A sparsely complete medical record should be investigated as a possible indicator of below standard nursing conduct.

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