Experts.com is excited to announce its partnership with the Legal Innovators California, taking place in San Francisco on June 7 and 8, 2023. As a media partner for the event, we are thrilled to support this gathering of the legal industry’s key decision makers and experts in the field of legal innovation and legal technology.
Legal Innovators California is organized by Artificial Lawyer, the premier legal tech publication, and Cosmonauts, a recognized leading conference firm. Following three successful events in the UK from 2019 to 2022, the conference will bring together law firm partners, general counsel, legal ops/legal technology professionals, legal service delivery specialists, legal tech start-ups, and investors in technology for a two-day event.
The conference offers a unique opportunity to network with like-minded legal professionals, learn and share insights, and stay updated on the constantly changing world of legal innovation. The impressive line-up of expert panelists, speakers, and exhibitors from around the world will explore a range of topics, including the reshaping of legal services through technology, how in-house legal teams and legal operations professionals are applying rigor to the delivery of legal services, the legal research revolution, and the huge increase in the value of legal data.
Day 1: Will focus on law firms and Alternative Legal Service Providers (ALSP).
Day 2: Will focus on in-house counsel and legal operations.
Legal Innovators California promises to be an informative and exciting event, where attendees can learn about the latest developments in legal technology, innovation, and the business of law. Whether you’re a seasoned expert or just starting in the field, the conference is the perfect place to connect with industry experts, explore new ideas and learn about the future of the legal profession.
As a media partner for the event, Experts.com is committed to supporting the Legal Innovators California Conference and its mission to promote legal innovation and technology. We invite you to join us for this fantastic opportunity to connect with industry experts and learn about the future of the legal profession. Don’t miss out on Legal Innovators California Conference 2023!
Experts.com Discount Code:
I’ll be at the event and I hope to meet you there! You can get your tickets here: Tickets. Use code: “EXPERTS25” for 25% off of your ticket!
An expert witness’s reputation plays a vital role in their business. Your reputation should be protected at all costs, including turning down some potential cases if they are outside your expertise or when an attorney wants you to opine contrary to your knowledge. By providing high-quality and objective expert services, an expert can build a strong reputation which will improve your business.
Networking is essential to increase any business. Join professional associations and attend conferences. Sure, you should do this in your own field of expertise. More importantly, attend those conferences that are filled with lawyers. Apply to speak at legal conferences or other trade conferences where you’re the only expert talking about your field of expertise. That is how you differentiate yourself and become top of mind for the attendees.
3. Create a Strong Online Presence
A strong online presence is essential. Build a website that showcases your expertise, experience, and credentials. Some paid advertising is also necessary to point to your website. Naturally, we recommend you market your services through Experts.com. Also, make sure to have a presence on social media platforms like LinkedIn. Learn to engage on social media. Engage with lawyers who may need for your expertise.
4. Collaborate with Lawyers and Law Firms
Build relationships with lawyers and law firms. Offer to provide them with educational materials, such as webinars or articles, to help them stay current on developments in your field. A “lunch and learn” could be a good idea. You buy lunch for the firm and give them an hour of your knowledge.
5. Develop Specialized Expertise
I know what you’re thinking. “I already have specialized expertise!” In this case, I’m talking about niching down even further. Find that sub-category of your field that is heavily litigated and refine your knowledge and experience in that sub-category. Develop this niche so you can market it to potential clients. As an example, a mechanical engineer focusing on robotics and mechatronics. Or, an accident reconstructionist who focuses on motorcycle accidents. Continue to refine your niche.
6. Build a Strong Referral Network
Word of mouth referrals are the best source of business for expert witnesses. Build a strong referral network by building relationships with attorneys, paralegals, legal assistants, and other legal professionals.
7. Publish Research / Articles
Publishing research / articles in professional journals and industry publications help to establish you as a thought leader in your field. I know this is concerning to many experts. Lawyers have made experts fearful of publishing content. There are ways to do it more generally so an attorney cannot use the content against you in the future. Also, there are appropriate responses to lawyers who try to impeach your credibility with a previous publication.
8. Offer Educational Services
Offering educational services, such as training seminars or webinars, can help to build your reputation and increase your visibility. All kinds of legal organizations, paralegal associations and bar associations want to offer Continuing Legal Education (CLE) credits to lawyers. You could become one of the providers teaching about your area of expertise.
9. Provide Excellent Customer Service
It should go without saying. Provide excellent customer service to your clients. Be kind on the phone. Be responsive and pleasant in emails.
10. Continuously Communicate with Clients
You may have done a great job with an attorney previously and they’d love to use you again, but years later they forget your name and your contact information. You should be collecting emails and asking existing and previous customers if you can include them on your newsletter. The newsletter does not need to be overly complicated. It can be simple updates on your field of expertise or a pertinent news story. It’s just a quick update that keeps you top of mind with existing and past clients.
If you’re a Californian, the last two weeks of storms has felt like a storm season that will never end!
If you’re a Californian, the last two weeks of storms has felt like a storm season that will never end! In the past, I’ve written about major weather related events such as hurricanes and the resulting property damage, insurance issues, and lawsuits. Most weather-related events and their litigation aftermath always seem to happen somewhere else. On the East Coast. Or, in the Midwest. Rarely do they seem to impact California.
California, my home state. A state known for beautiful views. From sandy beaches to exquisite mountain vistas. The San Francisco Bay Area to Yosemite. It’s a wonderful place.
The people… We’re a spoiled, complaining bunch. Until approximately 12/31/2022, you’d have heard regular complaints about the severe drought plaguing our state. We’re filled with fear and non-stop commentary about how we really “need the water.” This drought has been a part of California-life for my entire lifetime. Same sayings. Same complaints. Mostly the same conservation efforts.
As of 1/11/2023, our daily complaints have changed dramatically. Now, we’re bemoaning 13 days of snow, rain, hail and wind. I have to be clear here. These storms have now happened for 13 consecutive days. There have been breaks. The severity of the storms, however, have been unlike anything I’ve ever experienced as a lifelong Californian. Our Governor declared a State of Emergency for the entire State. For weather? Yes! For weather.
Please realize I’m making light of our current situation, albeit briefly, because of my perspective as a Californian. In reality, tens of thousands of people have been negatively impacted by flooding, snow, and wind. Dangerous and long-lasting power outages, property damage, and lives lost as a result of never before experienced weather events.
It’s weird to us because in most parts of the state it’s sunny 300 days a year. Is it cold in January and February? Yes, a little, but it’s sunny. Some years, we hardly get rain worth remembering. In fact, I can’t recall a storm since the winter of 2017, when there was a crisis at the Oroville Dam after rain damaged the spillways. Almost 6 full years with no notable weather events (at least in Northern, CA, where I’m located).
The Santa Barbara mountains face flood issues a little more regularly. They had substantial flooding and mudslides in 2018. Five years later, they are dealing with significant floods once again.
If I haven’t been clear, major weather events in California are rare compared to our fellow US States. Phrases like “bomb cyclones” and “atmospheric rivers” are uncommon here. Let alone multiple continuing atmospheric rivers over a 2-2.5 week time frame.
As I do when I have questions about events in which I have no expertise, I reached out to one of our expert witnesses to provide some insight.
Meteorology and Atmospheric Science Expert Witness Timothy Minnich
Timothy R. Minnich MS, QEP, President of Minnich & Scotto, Inc., is a Meteorologist and Atmospheric Scientist with over 40 years experience in the design and management of a wide range of ambient air and meteorological investigations under CERCLA and the Clean Air Act. He is a recognized technical expert on high-profile legal cases, with assignments involving forensic meteorology and reconstruction of inhalation scenarios in relation to community exposure to hazardous air pollutants (HAP).
Mr. Minnich is accomplished in presenting conclusions and opinions derived from analysis of complex technical data in a well-reasoned and easily understood manner. He is a skilled technical writer and proven manager in a highly specialized arena. He is a nationally recognized expert in the application ofoptical remote sensing (ORS) for hazardous waste site remediation. He has designed and managed more than 25 ORS field investigations and air dispersion model validation studies since the promulgation of U.S.EPA (EPA) Method TO-16 for open-path FTIR (Fourier-transform infrared) spectroscopy in 1988.
After about 11 or 12 days of continuous storms, I reached out to Tim with some questions because I was hearing weather-related terms I’d never before heard. Below, you’ll find my questions and Tim’s answers!
Questions & Answers
Nick Rishwain: California is dealing with a series of storms to which we’re not accustomed. As a meteorologist, can you explain for the layperson, the concept of a “bomb cyclone?”
Tim Minnich: A “bomb cyclone” is a term recently coined to identify a storm (non-tropical) which is rapidly deepening. It comes from the term “bombogenesis,” which means a non-tropical storm in which the atmospheric pressure drops at least 24 millibars in 24 hours or less.
Nick Rishwain: According to news reports, we’re also experiencing a number of “atmospheric rivers.” Or, maybe it is one ongoing atmospheric river? Can you explain the concept of “atmospheric river?”
Tim Minnich: An “atmospheric river” is a term that simply refers to a rapidly moving plume of moisture at high altitudes. It is generally associated with a storm which provides heavy rain or snow.
Nick Rishwain: As a Northern, Californian, we’re not used to the weather impacting us since the New Year. What type of litigation / lawsuits are likely to stem from the wind, rain, snow, and flooding we’re experiencing?
Tim Minnich: I would expect the most common form of litigation would likely involve property damage claims caused by flooding, wind damage, and roof collapses associated with extreme snow loading.
Nick Rishwain: What types of meteorological investigations might a forensic meteorologist like yourself be asked to conduct in the aftermath of a storm ravaged California?
Tim Minnich: Working with engineers, such investigations would provide direct evidence – such as official meteorological observations – to support whether or not the actual damage was caused by the extreme weather conditions at the time.
Nick Rishwain: I’m assuming it would be a good idea for counsel, businesses, or insurance companies to contact you in the early aftermath of these storms. How might a meteorologist assist in the immediate aftermath of these storms?
Tim Minnich: By providing an early technical analysis as to the likelihood of success in either filing a claim (plaintiff) or denying a claim (defendant).
Nick Rishwain: I’m also assuming there are going to standard property damage and insurance claims stemming from wind, rain, snow, and flooding. What are some of the hidden dangers/damages resulting from storm damage?
Tim Minnich: Structural damage to buildings represents the most serious situations arising from extreme storms. The immediate danger of building collapse from strong winds or downed trees is obvious, but compromised foundations represents a risk that should be swiftly investigated by a qualified engineer if serious flooding or long periods of saturated soil has occurred.
Nick Rishwain: You have expertise in “exposure to hazardous pollutants.” Are those a danger to Californians as a result of flooding? Or, as a result of some other storm damage?
Tim Minnich: I would say that exposure to hazardous pollutants arising from direct contact with contaminated water would generally not be a problem, unless flood waters have breached industrial areas — specifically containment facilities which house hazardous materials.
More to Come
We’re grateful for Tim’s willingness to participate in this timely blog post. I wish I could tell you this topic is complete, but the existing storm watch says California may not have any reprieve until 1/18/2023. To the best of my understanding, that only means a reprieve from the currently identified storm front. Not sure what to expect for the remainder of the winter and spring. As such, I may be back with another weather-related update before you know it!
In the years since Experts.com launched, we have offered an expert witness location solution which reduces the costs of litigation. Our founder, Nabil Zumout, was deep into the Internet while practicing as law as an attorney in 1999. He was searching for an expert on a case and was using Google before Google was the cool 800-pound Gorilla of search engine advertising that it is today.
At that time, Nabil determined there was no need for him to reach out to an expert witness broker to locate expertise. Information was democratized and at his fingertips. He could search for experts himself. The benefit of self-searching is his client didn’t have to pay an additional 25-50% markup on each hour billed by the expert witness. There was also no need to pay a finder’s fee for those brokers who required such.
For years we encouraged lawyers to search our site and contact experts directly. In fact, we still encourage this effort. In most situations, you can locate and communicate with the appropriate candidates for all your needs. Based on our data, we estimate about 99% of our users search the site, locate an expert, and retain them without having to contact Experts.com.
Our mission was being accomplished. For those willing to use the Internet, they could find what they needed by conducting a simple search on Experts.com. However, over the years we’ve discovered there is another group of lawyers who do not want to conduct the search themselves.
Whether they are too busy or still uncomfortable with a basic Boolean search, we do not want to lose them as customers and we do not want our experts to lose the prospective business.
To continue our mission of reducing the cost of litigation, we did not want to participate in billable hour markup or brokering of the engagements between lawyers and experts.
We determined the best way to achieve this while also efficiently connecting attorneys and experts, was to offer a flat-fee location service. For those who have read this far, our flat-fee service is $995.00.
Simply reach out to us by clicking Assisted Search Request. Provide us with a brief description of the case and the type of expert you need.
We’ll follow up with a brief questionnaire for a clearer understanding of the nuances of the case, opposing counsel, and timeline.
After our communications with you, our team will begin the search, interviewing potential candidates to determine qualifications and ability to assist.
At the conclusion of our communications with available candidates, we will send you a report of our most qualified group of candidates with a brief description of the exchange. The referral is processed at this time.
Additionally, we create an account for you on Experts.com and include a link to each qualified expert. Each of your requests is tracked separately in this account. You can even communicate with the candidates through our cloud-based tracking system.
Our flat fee is $995 for a minimum of 6 hours of location services at an hourly rate of $165. If we are unsuccessful in providing qualified candidates, the fee is waived.
At no point do we add a premium to the expert’s hourly fees.
Free Database Search:
Don’t want to use our AssistedSearch service? You always have the option of searching Experts.com and communicating directly with the experts. The contact information of those actively marketing their services on our site is always available.
Ultimately, the goal at Experts.com is to make the process efficient and affordable for all parties. If you have any questions about Experts.com or our newly minted AssistedSearch service, feel free to reach out to us here.
It appears we’re poised to see some changes to Federal Rule of Evidence section 702 for the first time since the 2000 amendments.
In an excellent article published by Butler Weihmuller Katz Craig LLP, attorney Scott Hefner provided an excellent history of FRE 702 and a summary of the proposed amendments which if adopted by the Supreme Court, will go into effect in 2023.
Mr. Hefner provided an outstanding summary of the Daubert Standard and its codification and I encourage you to read his article for further depth. I just wanted to provide the existing rule and the proposed changes for your review, so that you and your expert witness practice can be prepared for the possible changes to FRE 702.
Existing Rule 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and methods; and
d. the expert has reliably applied the principles and methods to the facts of the case.
Proposed Rule 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:
a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and methods; and
d. expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
For your convenience, I’ve bolded the changes in the proposed rule. In my reading, the only real substantive change is “the proponent has demonstrated by a preponderance of the evidence…” This is the standard that has always applied, but the advisory committee decided they needed to clarify the standard. Mr. Hefner’s article notes that the committee included the standard to “dispel the notion that expert testimony is presumed to be admissible.” In the years I’ve been working in the expert witness field, I’ve never known this to be presumed. In fact, since law school (i.e. as long as I can remember), the rule has always been that the court serves as the gatekeeper for allowing expert testimony.
Now, I would love feedback from readers on the other “substantive” change to section 702(d). When I look at the existing subsection and the proposed changes, it is difficult to identify how this will actually change anything in practice.
In fact, it seems Mr. Hefner and I are in full agreement on this subsection change. He even mentions, “The practical implications of the amendments remain up for debate.” To take it a step further, he quotes the Federal Magistrate Judges Association as viewing the proposal as not making changes at all but rather “largely clarifying existing practice.”
What do you think?
Do you think this proposal will have any substantive or practical effects? Let us know what you think in the comments or drop us an email at email@example.com.
How did the Astroworld Festival go from lively and jubilant to mass casualty event? We reached out to a security expert witness to help us understand security issues for concerts and other major events.
Last week, I began preparing to write this post involving nine individuals who attended the Astroworld Festival and lost their lives in the crush of a surging wave of festival-goers. It is not an easy topic to write about, as I want to be cognizant of the loss of life and resulting trauma experienced by family and friends. Sadly, this morning, we learned of a tenth death related to the disaster. CNNreports that a 9 year old boy, who suffered injuries at the festival, passed away in the hospital yesterday.
In writing about a tragedy of this magnitude, I have to clarify that I only do so with publicly available information that has been reported in the news. The facts may change as more information becomes available. To that end, those to whom I conduct a question and answer style blog post are also limited to publicly reported information.
Astroworld Festival Background:
According to Wikipedia, the Astroworld Festival “is an annual music festival run by American rapper Travis Scott, held in Houston, Texas, at NRG Park, near the former site of Six Flags AstroWorld. The festival was first held in November 2018.”
The festival this year was held on Friday, November 5th, 2021, at NRG Park in Houston, Texas. It has been alleged that approximately 50,000 people attended the event on November 5th, though there may have been more as the venue, NRG Park, is said to be able to house up to 200,000 attendees according to Vulture, who has done a really good job of explaining how the event unfolded.
There were indications the crowd was going to be problematic from early in the day. One ABC reporter, Mycah Hatfield, said that there was a stampede of people who burst through the gates and trampled the VIP entrance at 2:00pm.
Once Travis Scott took the stage, as Vulture describes, “all hell broke loose.” One attendee was quoted saying, “All of what is to be 50,000 people ran to the front, compressing everyone together with the little air available.” This is what I understand to be a crowd surge.
The crowd surge, compression of individuals, and trampling, all appear to have led to the result of dozens injured and now ten people deceased. As this is going to result in significant litigation, with some lawsuits already filed, I decided to get some insights on how a concert could go awry by reach out to one of our law enforcement and security experts with experience and knowledge in major event security.
Law Enforcement, Security & Premises Liability Expert Witness:
Joseph “Paul” Manley, WVTS, CCIS, Principal at Risk Mitigation Technologies, LLC, is Board Certified Workplace Violence & Threat Specialist (WVTS), a Certified Crisis Intervention Specialist (CCIS), and a Board Certified Homeland Protection Professional (CHPP).
Prior to forming Risk Mitigation Technologies, LLC, Mr. Manley served a distinguished career in law enforcement and public safety. He has over 30 years of experience in Security Management and Law Enforcement and Security consulting, including physical security, security operations, regulatory compliance, and security training. He is currently a retired Lieutenant and Executive Officer for a Massachusetts Police Department. You can learn more about his practice at: riskmitigationtechnologiesllc.com.
I asked some questions and Paul Manley provided some excellent and thorough answers to these questions. Please see our conversation below.
Nick Rishwain: We understand, from reporting, that the Astroworld investigation is highly active. How does law enforcement investigate a mass casualty event? Can you tell us a little about the processes involved in such an investigation?
Paul Manley: In an initial response to a mass casualty incident (MCI) where no criminal involvement is present, the Fire Department will have the initial Incident Command responsibility. The local fire departments are very proficient in the handling of Mass Casualty Incidents. Most fire departments hold continuous MCI drills and have extensive equipment and supplies to manage mass casualties.
There are four specific things that Law Enforcement can do to assist the fire department in their management of an MCI. These jobs in the MCI Protocol for Law Enforcement are:
The initial critical decisions for the first responding law enforcement personnel at an MCI will be is this a criminal event? And are suspects still on scene?
Regardless of your first impressions of how the MCI was caused, officers should immediately begin a basic preliminary investigation during the first few minutes of the law-enforcement response.
Also, a law enforcement officer will immediately go to the Fire Command Post and accept law enforcement command duties in the Unified Command structure until relieved. This will ensure that the law enforcement Incident Commander is completely up to speed on the event if we later find out a criminal act has occurred.
The reality is mass casualty events pose unique challenges to law enforcement agencies such as securing the scene, investigating the crime, working with the media on a local and or national level, helping the victims and their families, responding to elected officials, securing critical infrastructure, and providing support to both their officers and to community members as they address the aftermath of a tragic event.
Nick Rishwain: On the security side, there appears to be an issue of the crowd surging towards the stage and trampling attendees. Is this a common concern for security at an event where there are tens of thousands of people?
Paul Manley: Crowd surges are common at large events, such as concerts or festivals. However, deadly crowd surges are not common.
Nick Rishwain: How does major event security prepare for and prevent crowd surges?
Paul Manley: Event security starts with a comprehensive threat assessment, analyzing the overall threat environments associated with the event, such as its host(s), the venue/environment, known or expected attendees, sponsors, historical events and political agendas.
Crowd surges are preventable, even at large events. It is about planning, managing, and separating the crowd, so it does not become too packed. That is what should have happened at Astroworld.
Crowd separation is crucial in preventing surges and crowd crush. Use barriers to create a channel that funnels fans smoothly into your check-in point. Place visible staff members at the start of your lines to yell directions to the crowd and ask them to have their tickets and identification ready. Venues must be organized in such a way as to prevent too many people from converging in one place. The bigger the crowd, the more likely it is that something can go wrong. Your staff needs to be comfortable with managing large groups and exerting authority when needed.
There must be enough security officers to manage the event. If it could be as simple as applying a city ordinance, state law or a defined security standard out of the ASIS Protection of Assets Manual, or even a retail crowd safety guideline from OSHA, this question would hardly be as popular of an issue. Presently there are no security standards defining the ratio of patrons to security staff. In most cases, while always blending security and safety, we should not exceed the crowd manager responsibility as per The National Fire Protection Association (NFPA 101), but should we assign 1-to-10 or 1-to-100? As with most security functions, an appropriate risk assessment is the most valid solution. The big-ticket items to consider are Crowd Control & Critical Coverage.
From news reports, we understand there were 1,283 security officers for a crowd of 50,000 people at the 2021 Astroworld Festival. They were overwhelmed at entrances earlier in the day according to the Vulture article you shared, and they were overwhelmed again when Travis Scott took the stage at around 9 p.m. The combination of overcrowding, lack of crowd separation, and not enough security officers (allegedly) had deadly consequences.
Also, crowd observers should be positioned around the perimeter of the crowd, high enough that they can spot surges or crush points. When a problem is identified, the observer alerts the performer. The performer should then pause the show until the situation is under control. The power and influence of a performer at a large venue cannot be ignored. They can help security and emergency personnel do their jobs by bringing awareness to the problem.
From a mitigation point of view, to lower the consequences of a crowd surge/rush, venue design measures could be implemented, such as the removal of obstacle and bottlenecks in crowd’s movements, which could give rise to slips, trips, and falls and, in the worst case, trampling or crowd collapses in an event space. Signage should be well visible, specifying emergency exits and general wayfinding within the event location. Also, event staff and law enforcement personnel should be highly visible to ensure they can be easily seen when giving instructions in crowed areas. Enhanced security and crowd management training should ensure staff is aware of directing spectators safely during an evacuation. (“Patron Management – Event Safety and Security Risk Update …”)
Nick Rishwain: According to this article from Vulture, it is claimed that a “mass-casualty incident” was initiated but it took 40 minutes to cancel the concert. How do security and law enforcement decide to cancel an event? Then what is the process?
Paul Manley: If a crowd is in distress, then there should be a procedure in place to immediately stop that event, at least temporarily. You should have a knowledgeable team of experts who know exactly what they are doing and can identify a crowd in distress. These stop teams are well trained, are in direct communication with the performer’s representative, lighting designer and the sound engineer who understand their role and responsibility in the event of an incident.
Nick Rishwain: We know there is an ongoing criminal investigation and lawsuits have been filed. On the civil side, is this a premises liability matter at its core?
Paul Manley: Sadly, yes, tragedies like this one do not just happen; They are preventable; they are often caused by negligence and poor planning.
Again, it has been alleged that rapper Travis Scott & Astroworld organizers ignored red flags. We also understand this is not the first time tragedy has struck an Astroworld event, nor is it the first time that Travis Scott has been involved in a performance or event that ended in violence.
From what we’ve read, this concert continued as people screamed for help. It appears some patrons even begged camera operators and security guards to stop the music to no avail. As reported, the police proclaimed a mass casualty event at 9:38 p.m. local time, just over 30 minutes after Scott started his set, but the performance did not stop until 10:15 p.m., nearly 40 minutes later. The situation appears to have gotten worse by the lack of preparation by the concert organizers. For example, allegedly there were a limited number of water stations, staggering overcrowding issues in the general admission areas, as well as the understaffed and under-resourced medical team.
If the reporting is accurate, these red flags and others that materialized earlier in the day as people stormed the security gates at the beginning of the festival, should have been enough of a warning sign that the venue either needed to improve their security coverage and response or have been canceled. However, these concerns, just like the pleas to stop the show as people were dying, appear to have been ignored.
With all of this said, I reserve the right to change my answers and analysis as more information about the tragedy is released. Also, I should say that I have not analyzed the police reports or any factual analysis on the ground which could also alter my analysis.
We thank Paul Manley for his analysis based on the publicly available information related to the Astroworld Festival. We may venture back into this matter at a later date as more of the facts are solidified and because there are such a large number of parties involved, we may require analysis from additional areas of expertise.
$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.
In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.
As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.
For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:
whether the theory or technique in question can be and has been tested;
whether it has been subjected to peer review and publication;
its known or potential error rate;
the existence and maintenance of standards controlling its operation;
whether it has attracted widespread acceptance within a relevant scientific community.
There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.
In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.
This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.
The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.
According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”
As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.
It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.
News media and tabloids have been focused on the high-profile divorce. We were interested in how divorce impacts a family foundation.
Last week, the tech and media worlds were abuzz with news of the Bill & Melinda Gates divorce. After 27 years of marriage, one of the richest couples in the world decided to call it quits. This was a shock to many outsiders looking in. Their long-term marriage, despite all the trappings of wealth and influence, seemed like it would stand the test of time. The New York Times, in this article, described the two parties as having “reshaped philanthropy and public health,” with the fortune acquired by the couple as a result of Mr. Gates being a co-founder, and past CEO, of Microsoft.
Certainly, when I think of philanthropy, I think of the Bill & Melinda Gates Foundation. A well-funded operation run by the couple, in a fight against global health crises. Last year, when COVID-19 invaded every aspect of our lives, Bill Gates was seen on TV and in articles providing guidance on dealing with the pandemic. Through his work at the foundation he had gained significant insight and had been warning of pandemic threats for many years. Bill played such an instrumental role in the process that many people now associate the foundation with public health.
On the home page of the Bill & Melinda Gates Foundation, the first thing a visitor sees is the following text: “We are a nonprofit fighting poverty, disease, and inequity around the world.” Much of their philanthropic work takes place in the form of grants. In 2019 alone, the Gates Foundation provided more than $2.7 billion in grants according to their own reporting. The foundation has made grants in the following areas: gender equality, global development, global health and more.
Now that the Gates’ are calling it quits, how will that impact the operations of this massive nonprofit?
Nonprofit attorney and consultant insights
Having little or no experience with nonprofits (more specifically a family foundation) myself, except for my annual contributions, I reached out to one of our consultants, Jess Birken, Esq. Ms. Birken is the owner of the Birken Law Office, located in Minneapolis, Minnesota. She is a lawyer who helps nonprofits solve problems so they can focus on what really matters… their mission. Her practice specializes in nonprofit organizations. Before becoming a private practice attorney, Ms. Birken spent four years inside a national nonprofit organization, Pheasants Forever. In that role she managed about $50M in state and federal government grants and worked on hundreds of conservation real estate deals.
In essence, Ms. Birken had the expertise I was seeking. She could answer the questions I had about nonprofit operations in the face of familial separation. For purposes of attribution, I had developed some of my questions from this article by Vox. Ms. Birken used thisNew York Times article for some of the information about the organizations.
Below, you’ll find my questions and Ms. Birken’s answers:
Nick Rishwain: This matter involves a family foundation. How is a family foundation different from other types of nonprofits?
Jess Birken: Generally, a “family foundation” is completely or mostly funded by one family. The term family foundation isn’t a legal term though, it’s just a way to describe a private foundation with that characteristic. Private foundations in general are different from the nonprofits most people think about when they hear the term “nonprofit.” Most people hear nonprofit, and they are picturing a public charity (like your local church or pet rescue).
Both public charities and private foundations get tax-exempt status and are labeled as 501(c)(3) organizations by the IRS. Both types are established for a charitable purpose and have a mission. Both types can use the word “Foundation” in their title. It can all be a little confusing. The major difference between a private foundation, like The Bill and Melinda Gates Foundation, and a public charity, like the Make-A-Wish Foundation, is where they get their financial support. Public charities raise money from the general public, but a private foundation usually has one source of funding, typically an individual, family, or corporation.
Another key distinction is that private foundations also often differ in their activities. They typically don’t run programs directly – like, say, a soup kitchen serving people experiencing homelessness. Instead, private foundations often make grants to other organizations. A private foundation might make grants to many homeless shelters running many soup kitchens. Other differences between the two include the fact that the board of a private foundation is not required to be diverse (often the board is made up of only family members, etc.); that they are required to make charitable distributions throughout the tax year; and that they must pay a nominal excise tax on their net investment income.
Nick Rishwain: We know divorce can have impacts on businesses and real property, in respect to division of assets. Are nonprofits incorporated in a similar way which would cause a division?
Jess Birken: Generally, no single person owns a nonprofit. Nonprofits do not have shareholders or issue stock and private individuals can’t benefit from them. So, they aren’t an asset that can be split up in a divorce.
Nick Rishwain: In the Vox article, the foundation said, “that the philanthropy did not anticipate changes to its work.” What changes might a divorce cause to a nonprofit?
Jess Birken: Theoretically none. Even a family foundation has a board of directors. These directors have fiduciary duties to carry out the mission and take actions in the best interest of the nonprofit – regardless of any individual board members’ personal life situation.
In the case of a family foundation, however, where the primary funder is the family, then it could be the case that the donations to the foundation that are directly from the family will decrease temporarily (or long term) as the assets of the donor family are apportioned through a divorce proceeding. Whether this happens may be revealed through the upcoming IRS Form 990 filings that show revenue and contributions by donor as part of Schedule B in the years ahead. So, a temporary reduction in activity or some kind of holding pattern (versus expansion) could happen. In the case of the Bill and Melinda Gates Foundation, the foundation has net assets forming an endowment of about $50 billion. So, any flux in family contributions is likely to be a minor hiccup for this foundation.
Nick Rishwain: Are nonprofit organizations, such as the Bill & Melinda Gates foundation usually funded year-to-year?
Jess Birken: For accounting purposes the nonprofit accounts for contributions it receives during its accounting year. How frequently donations are made by a family will depend on the family and their philanthropic vision and tax planning needs. I’m not an estate planning expert but it’s probably fair to say that in general donations to family foundations are likely to be calculated annually based on each year’s tax planning situation.
Nick Rishwain: In the above article, Vox indicates the Bill & Melinda Gates divorce might impact their nonprofit foundation. Could a private divorce impact the work or funding of such a large nonprofit organization?
Jess Birken: From the perspective that both parties to the divorce are on the board of directors, that’s certainly possible. As I mentioned before, the assets of the family will be getting a shakeup through the divorce. It’s possible that either Bill or Melinda – once they have completely separate households – will make their own contributions based on their own philanthropic interests.
In this instance, however, it seems their public commitment to the core foundation work is aligned and, in my opinion, probably true. The foundation itself has an endowment of $50 billion to work with – the divorce won’t affect that core fund. So, the interpersonal aspects are more important in this case. Warren Buffet was recently added to the board of directors as a Trustee and is also a contributor. This will likely have a stabilizing effect and may have even been planned for that reason – I’m speculating but it makes sense.
As far as interpersonal problems between the couple causing issues around pushing for one charitable interest over another, this has already been addressed. Each member of the couple already has a fully formed enterprise where they can pursue their individual agendas and those have been in place for some time. Bill Gates has Gates Ventures a company first formed after he stepped down from full time work at Microsoft in 2008. His enterprise focuses on clean energy, climate change, education, and health. Melinda French Gates formed her Pivotal Ventures company in 2015 which works on gender equality and social progress. So, each has an outlet for pursuing their individual goals which likely insulates the foundation’s work even more.
Well there you have it! My questions were answered. If you have more questions about nonprofits and charitable organizations, reach out to Jess Birken at here website: birkenlaw.com. For more information, you may also want to check out her podcast: charitytherapy.show.
Mental health professionals are being targeted by a failure to appear scam. The first scam we’ve seen targeting expert witnesses.
This is the first blog post I’ve written that falls directly into the “public service announcement” category. Yesterday morning, I saw an article by the Washington Post where the author describes a telephone-based scam, where perpetrators pretend to be police officers.
The story grabbed my attention because the suspects have a little deeper knowledge about prospective victims. They know enough to know you are likely to act as an expert witness.
The caller, impersonating a police officer, claims the victim failed to appear at a court hearing in which they were subpoenaed to testify as an expert witness. The criminal claims to be an officer and provides the real name of an an officer employed at the local law enforcement agency, which can be confirmed online. The victim is told they have a civil option to pay a fine and avoid jail time.
As recounted in the Washington Post article, “The problem, the alleged detective stressed, was that because of the coronavirus, people couldn’t come into police headquarters to settle such matters. He said she needed to purchase “MoneyPak” electronic cash transfer cards — at one point transferring the call to his purported supervisor, who also had assumed the name of a real Montgomery officer.”
You need to start asking questions at this time! Have them send you some documentation in the mail. Have them personally serve you the paperwork. Do not get frightened by someone claiming to be an authority figure over the phone. That’s their goal! Get you nervous and acting irrationally.
The option to pay a fine should immediately get your attention. Not to mention this silliness of paying with “electronic cash transfer cards.” There is no reason you shouldn’t be able to pay a fine with a check or credit card.
If you are accused of missing are accused of missing a court hearing. You should know that police officers, detectives, investigators, are not usually those responsible for collecting fines. Generally that’s a different department.
Scam Has Been Taking Place for a While:
Although this fake police officer scam targeting mental health professionals, took place in Maryland. However, in preparing to write this post, I did a little research and found that the Los Angeles Police Department (LAPD) had also warned about this type of a scam back in 2019. Here is their press release on the subject. The LAPD specifically mentioned therapists and psychologists as more likely to be targeted:
“It should be noted that many of the victims are current/former employees in the mental health industry. In each of these incidents, the caller claimed that the victim missed an appearance as an expert witness in a court case. Therapists and psychologists should particularly beware of the scam. You can get help determining the authenticity of a call by contacting your local police station.”
Before Nikola and the Trevor Milton scandal, there was a prominent blood-testing startup called Theranos. Its founder, Elizabeth Holmes, currently faces a criminal fraud trial.
If you’ve been tuning into business news recently, the latest scandal with Nikola, a electric-powered truck manufacturer, and its founder, Trevor Milton, is no surprise to you.
For those who have not been following along, a quick summary is as follows: Nikola (NKLA) recently became a publicly traded company alleging they had hydrogen fuel cell (battery) technology that would revolutionize the trucking business. The stock did well after IPO. Nikola then did a multi-billion dollar deal with General Motors. The stock went higher. A few days after the GM deal, a short-seller released a report that accused them of a being an intricately constructed fraud. The founder, Trevor Milton, contested the accusations on social media and asked for time so he could rebut all of the allegations. Within a couple of days he went silent, was removed as executive chairman, and deactivated his social media accounts. It has been widely reported that both the SEC and DOJ are conducting investigations related to his actions and claims as founder and executive chairman.
I share that story because some news agencies have suggested Trevor Milton’s story is similar to that of Theranos founder and CEO, Elizabeth Holmes. Ms. Holmes is now facing a criminal fraud trial and she is the focus of our our post today. Stay tuned next week for some further discussion on the issues surrounding Nikola.
Elizabeth Holmes founded a privately held biotechnology company called Theranos. The company intended to revolutionize blood tests, with just a drop of blood. No more needles and vials, just a small drop of blood, and the tests results would be available rapidly. Ultimately, they failed to deliver tangible results and led consumers to believe false promises. After receiving more than $700 million in private investment, the company began falling apart.
In Spring 2018, Holmes was charged with fraud by the SEC, as reported by Bloomberg. This being a civil action, Holmes settled it without admitting any of the allegations. The settlement required her to relinquish her shares to the company and abstain from being an officer or director of a public company for a period of 10 years. There was also a fine, according to Barron’s. To the best of my recollection, Ms. Holme’s settled with the SEC on the same day she was charged.
In the Summer of 2018, the US Attorney’s office filed charges against Holmes’ for conspiracy and wire fraud, as reported by CNN. This criminal indictment is the inspiration for this blog post.
For more than 2 years, we’ve followed the developments in the criminal prosecution of Elizabeth Holmes, wondering if it would lead us to an interesting analysis from an expert witness perspective. In September of 2020, I found this article from the New York Daily News. It seems Ms. Holmes is preparing for the use of a “mental disease or defect” defense.
More specifically, the article from the New York Daily News, indicated the judge had assigned a neuropsychologist and psychiatrist to conduct a two-day, 14 hour evaluation of Ms. Holmes. Additionally, this evaluation is to be recorded. Now, I had never heard of psychological evaluation being this long and I worked in the mental health field for years before joining Experts.com.
To the best of my knowledge, I had not heard about the “mental disease or defect” defense since law school. I remembered it as a mitigating factor to a crime. Something we learned about when we learned about defenses and factors related to defenses.
So, I did what I usually do with these blog posts, and reached out to the experts. This time, I thought it would be good to get insights from a federal public defender and a psychiatrist.
First, let’s see get a view of the legal opinion…
Analysis from Federal Defense Attorney, Diego Alcalá-Laboy:
Diego Alcalá-Laboy is a criminal defense attorney with his own practice Defensoria Legal, LLC, in Puerto Rico, where he represents federal criminal defendants and advises startups. He is also an adjunct professor at the Inter-American University, School of Law and teaches the Federal Evidence and Federal Criminal Procedure courses at the University of Puerto Rico Law School’s Federal Bar Review.
Nick Rishwain: Why would one use a defense of “mental disease” and what impact might it have on the case?
Diego Alcala: A prosecutor must prove that a defendant intended to commit an act (mens rea), and that he committed the act (actus rea). And most crimes require that the defendant acted intelligently, knowingly, or willfully, and on some occasions recklessly or negligently. The type of “mens rea” a crime requires is defined by Congress and the interpretations given by the courts. On some occasions, an offense may not even require a mens rea, such as with strict liability offenses.
Crimes may have different elements, and a prosecutor may have to prove that the defendant had the required mens rea to commit each element of the offense. If the prosecutor cannot prove this, the defendant may be found not guilty.
Congress also recognized that a defendant may show that because of a medical defect he was unable to appreciate the nature and quality of his or her acts because of a severe mental disease or defect. After the John Hinkley trial, Congress amended its statutes and eliminated the affirmative defense of diminished capacity but allowed a defendant the possibility to attack an element of an offense because of a mental condition.
This is a lot harder than it sounds. The Courts are the gatekeepers of the any scientific testimony intended to be presented at trial. Therefore, whenever a defense of mental defect is offered by a defendant, the Court must ensure that the evidence offered is grounded in sufficient scientific support. This scientific evidence then must be scientifically sound and must also show that the medical condition negates mens rea of an element of the offense. So, a defense of mental defect, if grounded on scientific basis, and shows that it negates an element of the charged crime, will clear the defendant from a particular case.
NR: Have you ever seen a “mental disease” defense used in a criminal fraud matter?
DA: I have never seen a mental disease defense presented before. But I did find some cases where the defense tried to introduce this type of evidence but was ruled inadmissible because it did not satisfy the Court that the proffered evidence: a) was based on sound scientific principles, or b) even if it was based on sound principles, it failed to negate mens rea for the element(s) of the offense. In fraud cases, a defendant is accused of committing some type of false representation. It follows that the evidence of mental disease must show that if his/her medical condition can be logically connected to a subjective belief that his/her assertions were not false, baseless, or reckless vis-a-vis the truth. I have not found a fraud case in which the defense has been able to overcome this burden.
NR: If it is established that Elizabeth Holmes is suffering from “mental disease,” can she still be held criminally liable for her actions?
DA: If a defendant presents a successful mental disease defense, the federal law states that she will be found not guilty. But a finding of not guilty does not necessarily mean that she is free to leave. A determination of not guilty by reason of mental defect will then place a defendant in a “suitable facility” and may be release only after showing that she is no longer a threat.
NR: Does a “mental disease” defense have much success in federal criminal trials?
DA: As mentioned, I have not found a successful case, and primarily the difficulty lies in the very narrow type of cases that may meet the discussed admissibility standard. Even if she can get this evidence into trial, it is still up to the jury to accept this defense.
Now that we have some idea of the application of the law for fraud in federal criminal cases, we need to review the science as outlined by Mr. Alcalá.
Analysis from Forensic Psychiatrist and Expert Witness Dr. Sanjay Adhia:
Dr. Sanjay Adhia is triple-Board-Certified in Forensic Psychiatry, Brain Injury Medicine, and Psychiatry. Dr. Adhia serves as a Psychiatrist and Brain Injury Medicine specialist at TIRR Hermann Memorial, a Rehabilitation and Research hospital treating those with brain and spinal cord injuries and psychiatric elements of their injury and recovery. In private forensic practice he conducts Independent Medical Examinations (IMEs), and renders his opinions by report and testimony. Dr. Adhia serves on the faculty of McGovern Medical School at UTHealth. You can visit his website at: forensicpsychiatrynow.com.
Nick Rishwain: According to the psychiatric community, what constitutes “mental disease” and “mental defect?”
Sanjay Adhia, MD: These are more legal terms rather than actual formal psychiatric definitions.
According to Merriam-Webster, the legal definition of “mental disease” is “an abnormal mental condition that interferes with mental or emotional processes and internal behavioral control and that is not manifest only in repeated criminal or antisocial conduct”.
Examples would include Schizophrenia, Schizoaffective Disorder and Bipolar Disorder which are considered Severe Mental Illness (SMI). These conditions may lead to psychiatric hospitalization. The conditions maybe associated with and loss of touch with reality and a lack of volitional control.
“Mental defect,” on the other hand, is defined by Merriam-Webster as a “an abnormal mental condition (as mental retardation) that may be of a more fixed nature than a mental disease”. “Fixed” disorders would include Intellectual Developmental Disorder (IDD; formerly known as mental retardation), Autism and Brain Injury. According to this definition, Antisocial Personality Disorder (ASPD) would be excluded. ASPD is marked by a tendency to lie, break laws, and act impulsively. It shares some features with psychopathy or sociopathy. A number of states do not permit the use of ASPD in the insanity defense. Allowing ASPD would have unintended repercussions. For example, it could potentially permit a defendant like Ted Bundy or Jeffrey Dahmer to avoid prison.
NR: In the court order, it limits the evaluation of Ms. Holmes to a 14 hour, 2-day, psychiatric examination. Is this out of the ordinary in a criminal matter?
SA: There is a wide range of exam times in criminal cases. It would depend on a variety of factors including the type of case, the jurisdiction, the funding available and the severity of the charge. Assessment time in a misdemeanor will not be identical to a capital case. Ms. Holmes’ case is not a capital case, but it helps to understand differences in how long the examination might take. The exam time in a Competency to Stand Trial for a misdemeanor trespassing case would likely be under two hours. I have seen some examiners spend 30 minutes for the interview in such cases. The other extreme would be Capital cases which could go over 8 hours or several days; this is especially true if neurocognitive testing is required, which can take an entire day.
Again, in a capital case the threshold and the stakes are very high—especially in death penalty cases that often go to the appeals court.
In misdemeanor cases, you may have a single mental health expert and the findings may be accepted without the need for an opposing expert. In Capital cases, the defense itself may retain several mental health and other medical experts (i.e. Fetal Alcohol Syndrome experts). In the Holmes case, the 14 hours is to be shared between a forensic neuropsychologist and a forensic psychiatrist.
As it is a high-profile case, it is possible that the court may allow additional funds or there maybe a willingness of the expert to work within a budget.
It is my experience that the examination in insanity cases take more time than other types of cases as you have to elicit a detailed account of the crime from the defendant and then determine the mental state at a time in the past and consider malingering (lying for secondary gain—like a lesser sentence). I suspect in the Holmes case, it is likely the charges are not limited to one circumscribed incident so it could take additional time. It is worth noting that time spent reviewing records and preparing a report could exceed twenty hours or more.
NR: What information might you need to establish or rebut an insanity defense?
SA: In addition to interviewing the defendant, it would be helpful to review medical records, legal records along with police records and videos. I often will interview collateral informants as well. In Ms. Holmes’s case there maybe, media accounts, if admissible, as well as financial records and corporate documents. Of course, an expert would review the other expert witness reports. Records in a violent crime could include an autopsy, or blood splatter expert reports, for example. In the Holmes case, there may be a forensic accounting or fraud expert report. Other sources of data could include polygraph testing, school records and employment records.
NR: In the Holmes case, the defense has retained a trauma expert. Is it common to successfully assert an insanity defense in cases of PTSD?
SA: Insanity defenses are more commonly associated with other diagnoses that are considered to be more severe forms of mental illness such as schizophrenia, bipolar disorder and IDD because they have a different impact on decision-making and regulating behavior. Although many individuals with PTSD do suffer with severe symptoms, they are generally able to maintain awareness of the nature of their acts and appreciate the wrongfulness of such acts. In jurisdictions that allow for the volitional prong, individuals with PTSD are generally considered to be able to behave lawfully. Of course, there are cases where PTSD is successfully asserted as an insanity defense. In cases where the defense attorney realizes the PTSD does not lend itself for an insanity defense, they may successfully utilize it for sentence mitigation.
United States v. Bennett,29 F. Supp. 2d 236 (E.D.Pa. 1997), aff’d 161 F.3d 171, 183 (3d Cir.1998), cert. denied, 528 U.S. 819, 120 S. Ct. 61, 145 L. Ed. 2d 53 (1999)