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Expert Witnesses, Are You Properly Insured?

By | Articles

Expert Witnesses face many of the same risks other businesses face, from first party losses such as damage to property, to third party losses from legal liability. While the nature of a business dictates specific insurance needs, most businesses carry a portfolio of insurance that includes property and business interruption, commercial general liability and excess liability, automobile liability and physical damage and workers compensation insurance. Professionals such as doctors, lawyers, accountants, and yes, expert witnesses, face special risks from their performance of “professional services” for third parties, and thus have the need for professionalliability insurance which is often called errors and omissions insurance.

Commercial General Liability versus Professional Liability Insurance

It is important for any insured, in this case an expert witness, to understand the differences between commercial general liability and professional liability insurance (a.k.a. errors and omissions insurance).  Commercial general liability insurance covers claims against the insured arising out of bodily injury, property damage, personal and advertising injury. Examples of claims falling within the scope of this coverage include slips and falls on premises, injury caused by manufactured products and libel or slander. Commercial general liability policies issued to professional service businesses generally contain a specific “professional services exclusion” to eliminate the possibility of having to defend or indemnify an insured for claims arising out of professional services. Professional liability insurance provides coverage for claims arising out of “wrongful acts” which are generally defined as actual or alleged negligent acts, errors or omissions in the performance of professional services for others. The policy is designed to defend the insured against claims and allegations of negligence and to pay on behalf of the insured any damages and/or defense expenses.

Professional Liability Insurance for Expert Witnesses

Doctors, lawyers, engineers and accountants rely upon policies specifically designed for their professions and unique professional liability exposures. Most other professionals fall in the realm of miscellaneous professional liability (MPL) and utilize a professional liability policy that is tailored to a specific profession. An MPL policy has a generic definition of wrongful act and ties the definition of professional Service to the services disclosed in the application for insurance, which forms a part of the policy and in most cases acts as a warranty. An expert witness purchasing a stand-­‐alone (not in conjunction with another professional service) professional liability insurance policy would purchase an MPL policy and disclose in the application the type of expert witnesses services offered, the revenue derived from these services, and the types of litigation to which they pertain. Certain areas of expertise such as securities or M&A work are considered high risk and may require additional underwriting information. Many professionals mistakenly believe that a professional liability policy purchased for their primary professional occupation would provide coverage for expert witness work. This is generally not the case. For example, medical malpractice policies cover claims arising out the practice of, or delivery of medical services, or for a medical incident. Other professional liability policies may limit coverage to claims arising out of the practice of the specific professional skill. Providing expert witness services may not be considered within the scope of coverage. Without a specific endorsement or other affirmative grant of coverage, a separate expert witness professional liability policy would be needed.

Playing the “What If” Game

Before addressing the legal landscape for expert witnesses as it exists today, and in particular, the doctrine of witness immunity, consider a number of “what if’” scenarios, the purpose of which is to raise awareness of the issues, questions and potential pitfalls related to proper and adequate insurance coverage for expert witnesses. What if:

  • You are an individual expert witness and a negligence claim or civil lawsuit is brought against you. Who will pay to defend you and potentially pay for damages?
  • You are insured as a professional under your employer’s professional liability policy. Does the policy cover expert witness work not directly related to the employer’s core services?
  • You are covered for expert witness work under your employer’s policy. Is your engagement contracted through your employer or are you “moonlighting” and therefore not covered?
  • You are covered for expert witness work under your employer’s professional liability policy and your employer has other claims that exhaust the policy’s limit of coverage. Will, or can, your employer indemnify you for your legal costs and expenses?
  • You are a college professor supplementing your income by acting as an expert witness. Will the college or university’s insurance protect you, and if not, who will?
  • You, as an expert witness, rely on hold-­‐harmless or indemnity agreements to protect and indemnify you for the costs and expenses associated with a claim. What happens if there is a dispute with the indemnifying party or that party is unable or unwilling to indemnify you?
  • A disgruntled client sues the law firm for whom you are working and you are named as a co-­‐defendant in the civil lawsui Who pays your defense costs?
  • A disgruntled client sues the law firm with whom you are working and the law firm’s errors and omissions insurer attempts to mitigate its expenses by subrogating against you. Who will pay your defense costs and damages?

Each of these scenarios presents a situation that could result in uninsured, direct costs and a stand-­‐alone professional liability insurance policy would provide the needed protection.

Expert Witness Liability – The Legal Landscape

It should be clear by now that an expert witness engagement can expose a retained expert to legal liability even though they have no stake in the outcome of the litigation. Liability claims may arise from any number of scenarios. For example, a Court may preclude an expert’s opinion on the basis of what it deems to be faulty or unsupported methodology in exercise of its gatekeeping function. See Daubert v Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Similarly, a Court may determine that a given expert lacks the specific qualifications to offer the proffered opinion testimony without which the case becomes significantly weakened or vulnerable to dismissal. Failing to complete a report in a timely fashion, appear or prepare for deposition or trial, even the failure to request retaining counsel to obtain essential information during the discovery process are all allegations giving rise to potential liability. Beyond these circumstances, and allowing for the narrow exception of Court appointed expert witnesses who often enjoy broad privileges of expert witness immunity, experts hired by one side or the other may be forced to defend themselves in a civil lawsuit.

The decision to serve as an expert witness is voluntary and may offer significant financial reward while also aiding the important judicial function of assisting the trier of fact to reach a just determination of a given controversy. Indeed, for that reason, experts providing opinions and testimony on matters outside the realm of a jury or the Court’s ordinary knowledge and experience are generally granted immunity for the statements they make in Court or those contained within their written work product, even if defamatory. W. Prosser, Handbook of the Law of Torts, Sec. 114 (4th edition 1971), The Restatement of Torts Sec. 588 (1981).

However, a review of the law concerning expert witness liability across multiple state jurisdictions is not so reassuring when it involves claims that experts performed their assignments in a negligent manner. There are two circumstances of expert witness retentions that help define the nature and scope of one’s liability for serving as an expert witness. A claim brought against a friendly expert, one hired by the lawyer to support or defend the Client’s case is a first party liability claim. For example, in the case of Pollock v. Panjabi, 47 Conn. Sup. 179 (2000), a Ph.D. and Professor at Yale University, conducted a biomechanical study in support of Mr. Pollack’s personal injury case. The Court rejected the methodological basis of the Professor Panjabi’s findings and precluded its admission at trial, which resulted in Mr. Pollack suing him for breach of contract and professional negligence. Professor Panjabi attempted to have those claims dismissed on the basis of a witness’s testimonial immunity which attaches to statements made by as recognized by the Connecticut Supreme Court in the case of Kelley v Bonney, 221 Conn. 549 (1992). However, The Pollock Court noted that the public policy reasons underlying the privilege did not apply since the essential claim against Mr. Panjabi was that he failed to perform his work in a competent manner in accordance with generally prevailing scientific principles. Delving into leading decisions from other States, the common thread in support of the rejection of this line of defense is that the involved experts chose to voluntarily assist a party to litigation in exchange for financial compensation. That in essence, “they function as paid advisors and as paid advocates” and as such should not be shielded from civil liability. The Court also noted that because the expert witnesses allegedly performed their work outside the courtroom in a professionally incompetent manner, any rule immunizing expert witness communications had no application to the claims being asserted. At least nine other State Courts have similarly held when the issue of witness immunity was raised (see attached chart for case law summary). Therefore, in the absence of countervailing opinions on this precise issue, it would be prudent to assume that for purposes of first party liability, experts whom engage in such work voluntarily, and are not appointed by the Court, are amenable to suit and may be found liable for damages. The next circumstance of expert witness retention, which may give rise to a liability claim, may be referred to as third party lawsuits. This occurs when one of the opposing parties in a lawsuit initiates suit against the expert witness retained by the other side. An example of a 3rd party lawsuit against an expert witness, that had actually been Court appointed, is found in the annals of the Texas Supreme Court jurisprudence, in the case of James v. Brown et al., 637 S.W. 914 (1982). The three involved defendant physicians were participants in a mental health and guardianship proceeding and were subsequently accused of false imprisonment, negligent misdiagnosis and professional malpractice. The physicians attempted to rely on prevailing principles of expert witness immunity under Texas Law. The Court held that while the doctors’ communications to the Court of their diagnoses, regardless of how negligently made, cannot serve as the basis for a defamation action, the diagnoses themselves may be actionable on other grounds. In this instance, the other permissible grounds included a cause of action for medical malpractice for failure of the psychiatrists to exercise that degree of care and skill ordinarily employed under similar circumstances by similar specialists in the field. Notably, Texas law is less supportive of third party expert witness immunity than many other States that do provide at least a qualified immunity as regards third party claims. However, the immunities may not be absolute and do not prevent the initiation of a lawsuit in the first instance.

Conclusion

Expert witnesses provide a valuable service to our legal system and offer analysis and testimony that aids legal counsel in representation of client interests. However, expert witnesses have a responsibility to provide objective, thorough, experienced and fact-­‐based analysis and testimony, and to meet contractual obligations.  A duty of care is created with any expert witness engagement, and any failure to meet a reasonable standard of care that results in damages to the attorney or client could result in a negligence claim or civil law suit against an expert witness. Professional liability insurance is specifically designed to protect expert witnesses from negligence claims and should be a key component of any expert witness’s insurance and risk management program.

About the Authors:

Hal Smullen is president of Smullen & Associates, LLC, a boutique insurance brokerage and risk management consulting firm. He has served as a consultant on insurance related litigation, as a risk management consultant and as an insurance broker. Jeremy Levin and Micah Hardy are legal interns currently attending the University of Connecticut. The opinions expressed in this article are the authors’ and do not constitute, nor should be relied upon as legal or insurance advice.   Legal counsel or an insurance professional should be consulted to evaluate your specific insurance, legal and risk management needs. This article may not be copied or reproduced without the express written authorization of the authors.

Expert Witness Exchange Press Release – June 2017

By | In the Press

The Expert Witness Exchange, LLC, a technology company developing an online platform that connects attorneys with independent subject matter experts, will exhibit at the National Association of Certified Valuators and Analysts® (NACVA®) and the Consultants’ Training Institute® (CTI®) Annual Consultants’ Conference being held in Chicago, June 2017.

The Expert Witness Exchange is transforming expert witness search by creating a marketplace that will be the ultimate way for lawyers to find and retain expert witnesses. The marketplace will allow lawyers to identify criteria and conduct their own search on an easy to navigate platform.

NACVA and the CTI’s Annual Consultants’ Conference will draw more than 600 professionals from the fields of business valuation, financial litigation, forensic accounting, and risk management to Chicago from June 7–10. The attendees and all NACVA members can create a profile on the Expert Witness Exchange marketplace to showcase their experience and put them in front of lawyers looking to retain expert witnesses.

Experts can upload details of their careers right to the Expert Witness Exchange platform,” said Expert Witness Exchange CEO Melinda S. Sungenis. “Our goal is to make it easy for experts to be found by lawyers and easy for lawyers to find experts.”

The Expert Witness Exchange is also launching the Expert Witness Validation Badge.™ Experts who  apply for the badge will have their credentials reviewed by a panel of experts. Experts that receive the badge will have been determined to be valid participants in the judicial process.

“Lawyers will know that experts with the Validation Badge have precisely the experience and expertise that is reflected in their resume,” Sungenis said. “We believe it will distinguish experts from their colleagues and help simplify searches for lawyers.”

NACVA Conference attendees who upload or confirm their profile during the event will be eligible to win two tickets to the June 8 Chicago Cubs game courtesy of the Expert Witness Exchange. The Expert Witness Exchange will exhibit at Booth 3.

Melinda Sungenis Black

Industry Leader Named CEO of Expert Witness Exchange

By | Announcements

Melinda Sungenis Brings Three Decades Of Experience To Role

The Expert Witness Exchange, LLC, a technology company developing an expert witness discovery and recommendation platform that connects attorneys with independent subject matter experts, announced today that Melinda S. Sungenis has been named chief executive officer.

Sungenis has more than 30 years of experience in the expert witness referral industry. Most recently, she was the chief executive officer and president of The TASA Group, Inc. of Blue Bell, PA. She joined TASA, an expert witness provider, in 1984 and held a variety of positions before becoming CEO in 2010. Under her leadership, TASA introduced new products to assist the legal industry while maintaining a reputation for personal service.

Sungenis will now lead The Expert Witness Exchange as it dramatically changes the way attorneys search for and retain expert witnesses. The company leverages legal technology, data, expert witness analytics ™ and the legal community to supply attorneys with the best selection of vetted experts through its software platform. Experts listed with the exchange are subject to a vetting process, which greatly reduces risks for both expert witnesses and attorneys who hire them.

“Mindy has the vision and the experience necessary to help us transform legal expert search,” said Paul Levin, a practicing trial attorney and Expert Witness Exchange Director of Product and Services Development.

The Expert Witness Exchange platform is functional and undergoing further development by technology experts based in London and San Francisco. Pre-beta versions will be showed selectively at Legaltech, the leading industry technology show, this week in New York. Demonstrations are available by contacting Expert Witness Exchange at info@expertwitnessexchange.com.

“Our platform will give attorneys the power to research and retain the best experts out there,” Sungenis said. “We will always be there to assist with a custom search but a smart platform and recommendation engine that puts the power in the hands of the legal community is overdue.”

The Expert Witness Exchange platform will benefit attorneys and experts, Levin said.

“Attorneys and experts will quickly realize Expert Witness Exchange is not a traditional expert witness brokerage or directory model,” he said. “Instead, an attorney will be able to set parameters with greater precision, transparency and control of the search and retention process than ever before.”

The Expert Witness Exchange is the only expert witness referral service offering The Expert Witness Validation Badge ™, a credential that establishes to a high degree of certainty that an expert is a valid participant in the judicial process.

“Expert witnesses who have the credentials, the background and the expertise to back up their claims should embrace the Validation Badge because the vetting process will reinforce their credibility to attorneys, juries and their peers,” said Mike Clark, a former FBI Special Agent, expert witness, and member of The Expert Witness Validation Committee.

The Expert Witness Validation Badge ™ was created in 2015 by The Expert Witness Exchange. Expert witnesses can apply for the badge by uploading their current curriculum vitae to the Expert Witness Exchange website (www.expertwitnessexchange.com). An advisory validation committee comprised of distinguished members from both the legal and expert witness communities have recommended the criteria and procedures that apply which have been adopted by the Exchange.

Attorneys can visit www.expertwitnessexchange.com, register for free and request a discussion to learn how their practices can benefit. Experts can also register on the website and learn how the Exchange could lead to more business without advertising fees.

Expert Witness Exchange featured in the Connecticut Law Tribune

By | In the Press

New Conn. Business Will Certify Expert Witnesses for Trial Lawyers
Christian Nolan, The Connecticut Law Tribune

Sometimes, a lawyer’s worst nightmare is hiring an expert witness who turns out to be not much of an expert.

One trial lawyer recalled an intellectual property verdict of around $10 million that got overturned when it was discovered their key expert witness didn’t really have the credentials they had touted. That revelation later led to legal malpractice claims by the plaintiffs lawyer’s clients.

To avoid these sorts of embarrassing situations, a group of investors from Connecticut’s legal and expert witness community has established a new for-profit business that vet potential experts. “Nobody likes to win a case because the other experts kind of crumbled,” said Paul Levin, a Hartford trial attorney who is one of the founders of company. “It’s just kind of a cheap way to win. This helps all the members of the bar.”

To read all of Mr. Nolan’s story please click here.

Expert Witness Exchange featured in the Hartford Business Journal

By | In the Press

Former FBI agent sets up expert witness designation

Until now, there has never been a process that looks at all the essential factors required to validate the background of an expert witness. A retired FBI agent is hoping to change that through the establishment of the Hartford-based Expert Witness Validation Badge.

“I’ve seen numerous expert witnesses take the stand who gave outstanding testimony, and also some real hacks who did not belong on the witness stand,” said Mike Clark in his statement, who during his 23-year career with the FBI was involved in numerous trials, including the prosecution of former Gov. John Rowland.

Clark is one of seven people who, throughout the past year, has come up with the new criteria for a vetting process tailored specifically to expert witnesses. Since his retirement from the FBI, Clark himself has worked as an expert witness as a white-collar crime and public corruption expert.
To read the full story from The Hartford Business Journal click here.

Database Offers Due Diligence, Background Checks, Vetting for Expert Witnesses

By | Announcements

FOR IMMEDIATE RELEASE:

New standard and vetting process for Expert Witnesses now available online

Hartford, CT: For more than two decades, former FBI Special Agent Mike Clark worked on a number of high profile public corruption cases in Connecticut, including the prosecution of former Governor John Rowland, three big city mayors and a former State Treasurer.

“I’ve seen numerous expert witnesses take the stand who gave outstanding testimony, and also some real hacks who did not belong on the witness stand,” said Clark, who during his 23-year career with the FBI was involved in numerous trials.

Clark is one of several people who, throughout the past year, have come up with the new criteria for a vetting process tailored specifically to expert witnesses. Mark Dubois, former Connecticut Bar Association President and Chief Disciplinary Counsel for the State of Connecticut, is also a committee member.

“Just yesterday, I was reading a transcript of a lawyer’s deposition and his ‘expert’ forgot to tell him his medical license was revoked prior to trial,” Dubois said. “The result was, as expected, not optimal.”

Dubois said The Expert Witness Validation Badge™ will allow lawyers to quickly check expert witnesses’ credentials and will impact businesses and individuals involved in most any type of legal proceedings involving expert witnesses.

“This is the first of its kinds enterprise that uses big data resources and legal technology to bring due diligence for the expert witnesses industry,” Dubois said. “It no doubt, sets a higher bar without requiring a government mandate. We did it ourselves.”

Expert witnesses who apply for The Expert Witness Validation Badge ™ will have, among other things, their credentials verified, as well as their criminal backgrounds checked.

“Where the rubber meets the road is on the witness stand,” Clark went on to say. “That’s why I decided to be part of The Expert Witness Validation Committee. The amount of foundation work that has gone into this process if very impressive, complete, and honest. I would not stake my reputation on something that I did not believe in.”

The Expert Witness Validation Committee works as an advisory board to The Expert Witness Exchange, LLC which will issue the Validation Badge once the criteria for approval are met. Expert Witnesses can apply for their credential online by going to www.expertwitnessexchange.com.
“The Validation Badge fills a void in the expert witness industry, which should not have to function on caveat emptor,” said Robert Felsenthal, president of The Expert Witness Exchange. “It has proven unrealistic to rely upon retaining counsel to undertake due diligence, requiring the utilization of personal resources. The Validation Badge will substantially minimize credentialing and background verification risks at no added cost or work to litigants and/or legal counsel.”

Felsenthal, a passionate leader of content based community building platforms in the publishing and marketing industries, said The Expert Witness Validation Badge™ will change the industry standard, saving lawyers, witnesses, and clients both time and money. “Our validation gives expert witnesses the edge they need,” Felsenthal said. “By going through the vetting process, lawyers will know that their expert witnesses are everything they claim to be.”

Expert witness can apply online for the Validation Badge by uploading their current curriculum vitae. (CV) The online application will include fields meeting the following criteria deemed necessary by the Expert Witness Validation Committee in the verification of expert credentials and background information including:

  1. Professional Licensure and Disciplinary History
  2. Professional Certifications
  3. Education History and/or Degrees Received
  4. Malpractice History Related to Expert Witness Work
  5. Professional Work and Teaching Positions
  6. Criminal history
  7. Civil Penalties or Finding that Involve Misconduct

Clark said the guidelines were designed to take the guesswork out of the process for attorneys retaining expert witness, guesswork that very well may result in unfavorable outcomes as a result of an attorney’s oversight, such as an expert’s lapsed license or other clerical missteps.

“Expert witnesses who have the credentials, the background, and the expertise to back up their claims should embrace this concept, because the vetting process, the process that is in place, will reinforce your credibility both to your peers, clients, and the jury,” Clark said. “This will save an attorney’s clients a lot of time and money in vetting you as well. This will give you instant credibility.”

  • For the complete criteria and procedure of The Expert Witness Validation Badge got to our website at Expert Witness Exchange.com
  • Fees are $295 for validation badge, $60 for annual re-validation. · The Expert Witness Exchangewill maintain a validated expert registry containing the names of each recipient of an Expert Witness Validation Badge in format consistent with best practices, along with general limitations and criteria utilized in the validation process.
  • The names of all expert witnesses who have been issued a Validation Badge will be published quarterly in The Expert Witness Chronicle.
  • For a complete list of The Expert Witness Validation Committee and The Expert Witness Exchange leadership please visit our website.

For more information regarding The Expert Witness Validation Committee, The Expert Witness Validation Badge, or to set up interviews with Committee members/and or The Expert Witness Exchange leadership, please contact Shelly Sindland at ssindland@expertwitnessexchange.com

It’s Time To Vet, Validate and Credential Expert Witnesses

By | Articles

By Mike Clark

During my 23-year career with the FBI as a special agent, I have been involved with numerous trials.   I’ve seen expert witnesses who have come in and done a tremendous job for their clients, and advanced their clients’ cases in front to the jury. I’ve also seen the opposite effect, where an expert witness really just sold his services to the highest bidder and it blew up in the client’s face. This, no doubt, had a detrimental impact on the case.

That’s why I decided to be part of a new process, which will take the guesswork out of the game.

For the past several months, I have been working with a team of experts on The Expert Witness Validation Committee, which works as an advisory board to The Expert Witness Exchange, LLC. Our goal was simple: to figure out the best and most comprehensive way to validate expert witnesses before they are retained by counsel.

We have done just that by creating a new vetting process and standard for credentialing expert witnesses, called The Expert WitnessValidation Badge ™.

This is the first of its kinds enterprise that uses big data resources and legal technology to bring due diligence for the expert witness industry.

Expert witnesses who apply online for The Expert Witness Validation Badge ™ will have, among other things, their credentials verified, as well as their criminal backgrounds checked. Only when an expert witness meets our criteria, will he or she be given the badge. Those who are denied will be given the opportunity to appeal the decision.

The Expert Witness Validation Badge ™ sets a higher bar without requiring a government mandate.

The bottom-line is this: we did this ourselves.

Who exactly are the WE?

WE, as I mentioned, work as an advisory board to The Expert Witness Exchange, LLC and represent a wide variety of experts and voices in the judicial field. WE wanted to make sure everyone had a seat at the table when it came to creating this new standard for vetting and credentialing expert witnesses.

I have to say, I worked with some of the best in the field including Mark Dubois, who is a former Connecticut Bar Association president and who also served as Connecticut’s first Chief Disciplinary Counsel from 2003 until 2011. Dr. Paul Powers is also a committee member who served as a Fellow of the American Board of Chiropractic Neurology. He is also a trailblazer, when it comes to data driven technology, by establishing compliance and monitoring standards acceptable in more than forty state licensing authorities for course content and skills development of chiropractic physicians along with other allied healthcare professionals. Other members include: John Lentini, one of the most distinguished fire scientists in the nations; Michael Kaplan whose expertise includes forensic accounting; Cynthia Grimley an expert witness in labor relations issues and Myles Levin, founder and CEO of the nationally recognized Daubert Tracker. Read more about our advisory board click here.

We’ve all heard the stories where cases can fall apart because an expert witness forgot to disclose something about his past or simply made a clerical mistake. The Expert Witness Validation Badge™ allows lawyers to quickly check expert witnesses’ credentials to make sure they are, who they say they are.

This will no doubt have a far-reaching impact on all businesses and individuals who work with expert witnesses.

I would not put my name on something that I didn’t believe in. This process is effective, efficient, and honest. The Expert Witness Validation Badge ™ will undoubtedly serve as a game changer for the industry.

If you have more questions about the Expert Witness Exchange Validation Badge click here to read our Q&A.

For media requests, please contact Communications Director Shelly Sindland at ssindland@expertwitnessexchange.com or 860-992-9045

Expert Witness Chronicle

Expert Witness Chronicle Vol. 3 | Issue 1

By | Chronicle

The Expert Witness Validation Badge™

An Initiative Whose Time Has Come

There is no disputing the influence that expert witnesses have on litigation outcomes—this much we know for sure. Their expertise is often relied upon by the court in rendering decisions, weighing the opinions, methodology, and, indeed, the credibility of the competing expert witnesses involved for each party to the legal dispute. Considering what is at stake, it therefore behooves litigators to be exquisitely careful and circumspect in their expert witness retentions and due diligence practices. Perhaps, due to the competitive nature of expert witness work, human nature, or the lack of a universal, standardized credentialing body to track the credentials, background, or relevant employment experience of those who elect to participate in the judicial process as expert witnesses, there exists a reoccurrence of instances where some have been caught misrepresenting their license sure, academic credentials, certifications, and work history. In some instances, the circumstances are far more benign, yet still cause difficulties and considerable angst.

Expert Witness Chronicle

Expert Witness Chronicle Vol. 2 | Issue 2

By | Chronicle

No Expert? No Trial.

Daubert gets closer to becoming the summary judgment standard with another case hinging solely on expert testimony as the 7th Circuit vacates summary judgment and exclusion of Premises Liability Expert Witness testimony.

In an unfortunate case of negligence and premises liability arising out of an on-campus rape committed against one of the resident students of the Carthage College, the 7th Circuit vacated the summary judgment granted to the college based upon the exclusion of expert testimony by the district court.

The decision of the District Court to grant summary judgment to the Defendants was primarily based on the exclusion of the premises liability expert witness testimony and the consequent lack of evidence the Plaintiff had, to prove that a genuine issue existed to take the case to trial. On appeal, the admissibility of the expert testimony formed the sole reason for vacation of the summary judgment and the remand of the case.

Expert Witness Chronicle Vol. 2 | Issue 1

By | Chronicle

Motion to Exclude Granted

How to Avoid It and What to Do When It Happens

A Daubert motion is like Zeus’ thunderbolt – one of the most effective and devastating weapons in the armory of an attorney which can be used against an expert witness. When the Court pronounces, “Motion to exclude expert testimony is granted”, the pain is no less than being struck by lightning. “Did the Court just put an end to my career as an expert witness”, it’s natural to have this question clog your mind! Can I appeal my exclusion? Can I get a chance to rectify my position? It wasn’t even my fault – can I sue the attorney for failing to protect my testimony properly? These are the questions that can trouble any expert witness following exclusion. You can hope for an appellate court to overrule the exclusion, but if that doesn’t happen or till the time it happens, you need to prepare an answer as to why your testimony was excluded in a previous case and why you should not be disqualified /excluded in the next case for the same reason. If you can prepare a convincing answer to this question, you have nothing to worry about for all practical purposes!