Category: Expert Witness Testimony

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Law: Gender Gap in Expert Witness Work

on February 15, 2023

On June 10th, 1963, the Equal Pay Act was enacted to require men and women to receive the same pay for the same work. Over 50 years later, gender equality still dominates workplace conversation. Since the 1960s, this “pay gap” has closed significantly, so it is best to recognize progress. For some industries, however, the pay isn’t even the issue. It’s the gender, or lack thereof. In a multi-million-dollar industry with many participants, it is difficult to ignore the underrepresentation of women in the expert witness industry. 

The Financial Times stated, “Last year in the Who’s Who Legal expert witness directory, just 16 percent of the experts listed were female.” The same article also mentioned a 2020 study by PwC and Queen Mary University. Out of 180 arbitral proceedings awards managed by the International Chamber of Commerce in Paris and New York between 2014-2018, only 11% were given to female expert witnesses. This blog aims to explain why the gap exists, provides tips for those in the legal industry to encourage women to participate in expert witness work, and includes accounts from Liability Insurance Expert and Experts.com Member, Jane M. Downey, ARM, M.Ed.

Three central reasons contribute to the scarcity of female expert witnesses. The first reason is simply that it is a male-dominated industry. For instance, according to Bloomberg ABA/BNA Lawyer’s Manual on Professional Conduct, “an astonishing 80 percent of expert witnesses chosen by attorneys are male.” Considering the field has been male-centric for an extended period, attorneys are more inclined to work and cooperate with male expert witnesses. The second reason stems from the first, which is a lack of availability. The same article states “there are far more male experts to choose from in almost all specialties – with the prominent exception of nursing.”

The third reason involves gender stereotypes and roles which have always existed in our society. The Jury Expert released an article about the ways gender bias affects both male and female expert witnesses. An excerpt from the article states, “Some studies have shown that men may be more influential and persuasive than women, particularly when they occupy traditionally masculine roles.” Prejudice is more likely to surface when women pursue roles that do not correspond to their gender’s expectations (structural engineer, police policy, construction defect), which may occur on a case-by-case basis. That is not to say people should only pursue occupations limited to their gender norms. The prejudice correlates to how an expert may be perceived by juries and judges. “The degree to which the expert’s gender and the type of case agree (what researchers call ‘gender congruence’) may be important in determining whether a male or female expert will be more credible and persuasive,” The Jury Expert.

The above reasons generally explain the lack of female expert witness testimony. Individually, women have different experiences in their expert witness work. The following is an insightful Q&A with Jane M. Downey, ARM, M.Ed, regarding her experience as a female Liability Insurance expert witness:

Q: How did you discover expert witness work?

A: My first case was a referral from the President of the Insurance Society of Philadelphia. I did not like that case because it had a 48-hour Federal turnaround timeline and was very stressful; therefore, I did not pursue the work until a few years later. It was then I was approached on a massive case, and I really enjoyed the work and the team of attorneys that I supported.

Q: What was the deciding factor for you to participate in providing expert witness testimony?

A: I have always loved to write and teach.

Q: Have you faced any difficulty as a female expert witness?

A: I think being female has given me an advantage. I stand out in all the listings.

Q: Why do you think there is a gender gap in the insurance industry? Do you think it might be attributed to a lack of knowledge of expert witness work as an option for financial income or other factors like gender roles?

A: I think there is a gender gap in the insurance industry, but it is much narrower now than in other industries. To be an expert witness, you have to be willing to be confrontational. I know a lot of women who avoid conflict.

Q: How should the legal industry encourage women to consider participating in expert witness work?

A: Training, training, training. I did not realize until recently that my master’s degree in Group Dynamics prepared me for this work and my work as an insurance arbitrator.

There are initiatives in place to inspire women to consider expert witness work as a part-time or full-time job. The previous Financial Times article highlighted a campaign called The Equal Representation for Expert Witnesses. Initiated in 2015, its goal is to help women market themselves to the legal industry. According to the article, “the pledge has 4,129 individuals and 983 organizations in 143 countries as signatories.” With movements such as this, hopefully, we will see more women entering the arena of participants for expert testimony.

Ultimately, attorneys, male or female, must do their due diligence in selecting the most highly qualified expert for their case, regardless of gender. But if women are absent from the pool of experts there can be no expectation for change. With proper training and industry knowledge, women can find expert witness work to be intellectually challenging, lucrative, and satisfying. A special thank you to Liability Insurance Expert and Expert.com Member Jane M. Downey, ARM, M.Ed for taking the time to contribute to our latest blog post.

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Experts.com Brings Attorneys and Expert Witnesses Together with its AssistedSearch Service

on August 9, 2022

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.

Announcing our AssistedSearch Service:

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.

What’s Included?

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.

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Cancer Verdict Overturned: Trial Court did not follow Daubert Expert Witness Standard

on July 26, 2021

$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:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. 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.

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Expert Witness Liability, According to the U.S. 4th Circuit Court of Appeals

on November 2, 2018

Recently, we have received some questions from expert witnesses regarding potential liability for expert witness testimony. The U.S. 4th Circuit Court of Appeals decided this issue last Friday.

Last week, on October 26th, 2018, the United States, Fourth Circuit Court of Appeals ruled that the federal common law “witness litigation privilege” protects an expert witness for civil claims stemming from their testimony.

The best summary of the decision that I found comes from Pillsbury Winthrop Shaw Pittman LLP’s, Gravel2Gavel Blog. You can find the blog post here.

The matter involved a coal miner who was claiming benefits under the Black Lung Benefits Act. According to the expert witness the evidence did not support the plaintiff’s claim and the claim was denied. Thereafter, a report from the Center for Public Integrity alleged the “Johns Hopkins radiology unit and its expert witnesses were much less likely to find evidence of black lung disease than other doctors.”

The report from the Center for Public Integrity led to a lawsuit against Johns Hopkins and their doctors claiming liability for fraud, tortious interference, misrepresentation and more. The trial court dismissed the claim citing the federal common law “witness litigation privilege.” According to Gravel2Gavel, the appeals court was divided on the issue, but agreed with the trial court decision.

The Fourth Circuit stated “absolute immunity” applies to the expert witness testimony. They went further to state, “‘when a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages.’” This is a really wordy way for the court to say an expert witness cannot later be sued for their testimony.

We also went ahead and summarized the ruling in this video:

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Florida Supreme Court Says ‘No’ to Daubert Expert Witness Standard

on October 17, 2018

Since 2013, Florida has been the center of a battle over admissibility standards for expert witness testimony.

Prior to a move by the legislature in 2013, Florida followed the Frye Standard (i.e. general acceptance test). This test is considered a more lenient in allowing for expert witness testimony.

Normally, this standard is preferred by plaintiff’s counsel and disliked by defense counsel. Much like the “general acceptance test,” my last statement is a generalization.

In 2013, the Florida Legislature passed a law changing the admissibility standard from Frye, to the federal standard commonly referred to as Daubert Standard. Rather than the general acceptance test, the judge as the gatekeeper, would apply a multi-pronged test to analyze the admissibility of expert evidence. Here are the prongs per Cornell Law:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

Most of our members are familiar with the Daubert Standard because it is the standard used by federal courts and more than three-quarters of US states. Naturally, my home state of California still uses Frye because we always want to do things a little differently. Well, according to the Florida Supreme Court ruling this week, Florida likes to do things differently as well.

To summarize, the Florida Supreme Court found the law implementing the Daubert Standard to be an unconstitutional infringement on the court’s authority by the legislature.

The decision was covered by CBS Miami, and the most pertinent part is as follows:

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

It was a 4-3 decision by the Florida Supreme Court and the Chief Justice offered an impassioned dissent. For our members practicing in Florida, the law is clear, the Supreme Court has decided Frye is the appropriate standard for Florida.

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Trump Lawyer Michael Cohen’s Home and Office Searched by Feds: Attorney-Client Privilege?

on April 10, 2018

Yesterday, news broke about the FBI raiding the home and office of longtime Donald Trump attorney, Michael Cohen. All the major news outlets and talking heads are discussing the matter. Naturally, I felt I should join in and add some food for thought from the expert witness perspective. Assuming the case against Michael Cohen goes to trial, there are likely to be a variety of experts called to opine on different issues. At the time of this writing, reports indicate the federal government is investigating Mr. Cohen for both bank fraud and wire fraud.

Here is what we have learned since yesterday. According to NBC News:

“On Monday, the FBI raided the law office of Michael Cohen, President Donald Trump’s personal lawyer. They were seeking information about a $130,000 payment the attorney says he personally made to adult film star Stormy Daniels days before the 2016 election, sources told NBC News.

The search warrants were sought and executed by FBI agents and federal prosecutors in New York in coordination with special counsel Robert Mueller’s team after an initial referral from Mueller’s office.”

We have further discovered that Special Counsel Robert Mueller would have to consult with Deputy Attorney General Rod Rosenstein if his investigation discovered evidence unrelated to Russian interference in the US election. If such information was discovered, Rosenstein would then have to decide to expand the scope of Mueller’s investigation or refer the new investigation to another US Attorney’s office. It appears the Cohen investigation was referred to the US Attorney’s office for the Southern District of New York.

In essence, search and seizure of a lawyers office, where that lawyer maintains protected attorney-client communications, had to go near the top of the Justice Department. Thereafter, a warrant had to be approved by a federal judge, before the FBI could conduct the raid and seize these protected communications (among other evidence).

What about attorney-client privilege?

We should start with a simple definition of the attorney-client privilege. Here is a definition from Nolo.com: “The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to.”

Finding the violation of attorney-client privilege a little disconcerting (note, I am not addressing the possible crime-fraud exception to the rule), I reached out to one of our legal and judicial ethics experts for comment. Experts.com member, Mark Harrison, Esq., is an Arizona-based civil and appellate litigator at the firm of Osborn Maledon, PA. He has extensive experience litigating and testifying in cases involving legal malpractice, legal ethics, and judicial ethics.

My request of Mr. Harrison was as follows, “Do you see any issues arising from this seizure related to fiduciary duties, attorney-client privilege, judicial ethics, or other items?”

Mr. Harrison provided me with a rather thorough explanation based on available information. Details about the subpoena or the documents seeking the subpoena have not been reported at this time. I have included several pertinent comments from Mr. Harrison, below:

“As I am sure you are aware, in order to get a subpoena issued in this situation the US Attorney had to satisfy a magistrate judge or a federal district judge that there was good cause for the issuance of the subpoena.

The potentially dicey ethics aspect involved in a situation of this kind is the risk that confidential client information – other than the information clearly covered by the subpoena – is inadvertently or unintentionally taken by the FBI officers executing the subpoena.”

According to news reports, none of us know whether Mr. Cohen has clients other than President Trump. If he does have other clients, Mr. Harrison explained, “the FBI officers executing the subpoena must exercise great care not to compromise the confidentiality afforded the information of other clients in Mr. Cohen’s files or to compromise the confidentiality of information relating to Mr. Trump that is beyond the scope of the subpoena.”

My personal experience in law firms and my professional responsibility education in law school left me with the belief that the attorney-client relationship was sacred. There was good reason for this as it encouraged clients to be open and honest with counsel so counsel could zealously represent their interests. As such, I am hoping the FBI does exercise great care in the review of these files. However, in reviewing documents, the FBI has to view the documents to know whether or not they are “beyond the scope of the subpoena.”

I had one follow up question for Mark Harrison. I asked if he thought a judge would ask an expert on legal ethics to oversee the review of attorney-client files to make sure the federal agents didn’t go beyond the scope of the subpoena? In asking this question, I also realized that the judge is likely to fill that role. However, I was interested to see if additional oversight might be necessary in this case.

Mr. Harrison said “I would be surprised if the judge or magistrate appoints an expert for that purpose unless Cohen’s lawyer seeks that oversight.”

So, based on information available to us at this point, the attorney-client privilege has or will be breached by the federal agents in their review of documents maintained by Mr. Cohen.

It’ll be interesting to see how this case develops and what other expert witnesses may be involved in a future criminal prosecution.

Does this open Michael Cohen to professional malpractice?

Some questions I have for future blog posts are as follows: Does the breach of attorney-client privilege by the FBI, expose Mr. Cohen to malpractice liability? Does the attorney have a duty to conduct himself in a way that would have precluded the FBI or anyone else from seizing all of his files? Does an attorney have a professional responsibility to avoid suspicion that may potentially place confidential client information at risk of being breached? Or, does the issuance of a search warrant protect the attorney from civil liability?

 

 

 

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Voodoo Cases Trigger Memories of Child Witchcraft Expert Witness Request

on February 12, 2018

In an article posted today in the Associated Press on Yahoo News brought back memories of one of the most unusual expert witness requests ever received. In the article from Yahoo News, Voodoo followers fear a backlash after two separate crimes against children were committed in the last two months. Due to similarities in the crimes, authorities have identified Voodoo rituals as a motivating factor in the injuries sustained by the child victims.

The two cases happened in Massachusetts. The first crime occurred in East Bridgewater, MA, when two sisters were arrested for restraining and burning a 5-year-old girl in an attempt to rid her of a demon. The child suffered permanent disfigurement. The violence against the child was described as a “Voodoo ritual.” Nearly a week later in Brockton, MA, a mother was arrested for stabbing two of her children in what the mother described as “Voodoo stuff.”

Two separate crimes, within close proximity, and both mentioning or characterizing rituals as related to Voodoo, have upset followers of local community members who practice Haitian Vodou, as they fear the crimes will result in a backlash against their culture and religion. The article explains “practitioners of Haitian Vodou, which adherents spell differently to distinguish it from other variants, say the religion does not sanction violence and fear the crimes will spark a backlash against their community.”

Reading this article sparked a memory of one of the most interesting cases presented to me during my time with Experts.com. It was not the most high-profile expert witness request I had ever received, but it was one of my first international expert requests.

The Child Witchcraft Expert Witness Request

Criminal defense counsel out of UK had contacted me via email. He was looking for several expert witnesses. His first two requests were common enough: forensic psychiatrist and child psychologist. It was the third request, for a Child Witchcraft expert, that forced me to do some in-depth research and search beyond our database to located the appropriate expert witness. First of all, I had no idea to what the attorney was referring. This was the first time in my life I had ever heard of the “Child Witch Phenomenon” or “Child Witchcraft.” As such, the research on the subject was basically to educate myself on the topic before I started contacting expert witness candidates.

While researching, I discovered… In several countries in Africa (Nigeria, Congo and others), there is a severe cultural and religious fear of witches as they are the crux of evil. According to this 2010 article from CNN, “Pastors in southeast Nigeria claim illness and poverty are caused by witches who bring terrible misfortune to those around them. And those denounced as witches must be cleansed through deliverance or cast out.”

Often, children are the ones accused of being witches. In order to cleanse the child, they are beaten, tortured, and sometimes buried alive. Some children have been stabbed to death in an attempt to free them from the witch’s grasp.

Religious leaders in some African countries have taken advantage of this belief in Child Witchcraft. They will offer to expel or exorcise the witch for a price. A pretty good way to make a living if you are dealing with a poor and uneducated populace. Rather than being made aware of mental health disorders that could be impacting a child’s behavior, these pastors have made a living preying on a family’s fear.

How did the case make it to the UK?

The UK has a large immigrant population. Those emigrating from areas in Africa where the Child Witch Phenomenon is rampant, now find themselves in a new country with new laws and a different appreciation of mental health disorders and treatment.

At the time we processed the referral for a Child Witchcraft expert witness, I recall there having been 10-12 UK-based criminal trials involving Child Witchcraft allegations. A child appears uncontrollable, possibly dealing with early onset mental illness, and the parents seek the counsel of religious leaders. Those leaders recommend exorcism. Exorcism involves violence, the child is severely harmed, the police get involved, and criminal complaints are filed. The prosecution begins.

Is this now happening in Massachusetts? Instead of the Child Witch Phenomenon, is the State dealing with a similar Voodoo-based phenomena?

How do we as a society, address these types of issues before the child is endangered and the parents are on trial? Is it a matter of educating parents, community, and religious leaders about mental illness? Do we need to improve awareness of treatment? Your comments are welcome!

 

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Opioid Crisis – An increase in addiction medicine and pain management expert witnesses.

on November 6, 2017

In the nearly 8 years that I’ve been with Experts.com, I have noticed a massive increase in the number of addiction medicine and pain management expert witnesses marketing their services with our company. Between 2010, when I joined Experts.com, and today, the increase has been nearly five-fold.

Is this increase a surprise? Based on what we’re seeing in the news, the answer is no. The United States is experiencing an opioid epidemic. According to CNN’s Opioid Crisis Fast Facts, “more than two million of Americans have become dependent on or abused prescription pain pills and street drugs.” CNN further explains, “during 2015, there were 52,404 overdose deaths in the United States, including 33,091 (63.1%) that involved an opioid. That’s an average of 91 opioid overdose deaths each day.”

Just last week, I spoke to one expert witness who experienced an opioid-related death in his family.  The same day, hours apart, another expert began promoting his pain management and addiction medicine services on our site. This epidemic is impacting millions of families throughout our country. As a result of this epidemic, and much of the overdoses stemming from prescription medication, we are beginning to see significant litigation in the area of opioid-based pharmaceuticals.

Our Opioid Litigation Experiences:

Experts.com has processed more than a handful of expert witness referrals related to opioids. The cases have ranged from prescription abuse in family law settings to overdose issues resulting in wrongful death actions. Probably the most interesting opioid-related matter was as follows: general counsel for a mining company in a small town discovered the townspeople were using methadone at a rate approximately 5 times higher than the national average. Many citizens of the town were also employees of the mining company. They grew concerned about the potential liabilities of employees operating heavy equipment while ingesting powerful pain killers. The company decided to do some testing which triggered some privacy concerns and potential litigation. We have delivered toxicologists, addiction medicine specialists, and pain management professionals in dozens of different opioid-related cases.

Recent Litigation:

In the last few years, we have seen stories of both civil and criminal litigation related to the opioid epidemic, even before it was claimed to be a crisis. Here are a few of the cases you may want to follow:

Civil Litigation:

There have been many lawsuits against Purdue Pharma (maker of OxyContin) since the early 2000’s. As one article explains, more and more state and local governments are launching lawsuits against the manufacturers and distributors of heavy-duty pain medications. The frequency of these lawsuits is almost weekly.  In addition to Purdue Pharma, Cardinal Health, Teva Pharmaceuticals, Janssen, and others are targeted.

In July of this year, one of the lawyers, Michael Moore, who targeted tobacco companies in the 1990’s, began urging state lawsuits against the drug makers. By August, an Oregon County sued pharmaceutical companies for $250 million for allegedly persuading physicians to over prescribe opioids. As of September, Attorneys General in 37 states were urging insurance companies to do more to curb the opioid epidemic.

What can we deduce from the high-profile coverage of civil suits against the makers of pain killers? In my assessment, the worst is yet to come for the drug makers. This does not mean the drug makers are defenseless against the lawsuits. After all, there are others in the supply chain to be blamed: doctors, pharmacies, and the patients themselves. Over the long-term, the pain medication lawsuits are likely to be very costly for manufacturers and distributors.

Criminal Litigation:

For the sake of brevity, I’m going to ask you to assume that there is significant drug related crime and we’re going to skip the standard (possession and distribution) opioid cases. Where I have noticed a substantial increase, both in the news and in requests for expert witnesses, is in criminal prosecutions of prescribing physicians and pharmacists.

As CNN described, “doctors are increasingly being held accountable — some even facing murder charges — when their patients overdose on opioid painkillers they prescribed.” The article further explains that the DEA took action against 88 doctors in 2011 and 479 doctors in 2016. One of the doctors described has been convicted of murder. I see at least one new story a week where a doctor, or pharmacist, is being held responsible for the excessive amounts of pain killers prescribed.

The numbers described in the article above, combined with a more aware public, lead me to believe we’ll see even larger numbers of DEA actions against doctors when the 2017 statistics are available.

Other Legal Issues:

As you can tell, I focused on the two areas that I’ve noticed the largest increase in visible litigation. We have processed many other expert witness referrals associated with opioid issues. Many overdose cases are resulting in medical malpractice actions as well as actions brought by medical boards for ethical violations by doctors.  We often see the requests for expert witnesses relating to emergency medicine physicians, toxicologists, pharmacy and pharmacology experts, and more.

Opioid litigation may very well be the “tobacco” litigation of our time.  As such, we are confident that we’ll have more to write about and discuss in the future.

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Paul Manafort Indicted: What expert witnesses can we expect to see from defense and prosecution?

on October 30, 2017

Robert Mueller’s investigation into Russian interference in the US Presidential Election has resulted in the indictment of Paul Manafort and one of his business associates, Rick Gates. It has been reported that a third individual, George Papadopolous, has pleaded guilty for making false statements to the FBI.

None of this is particularly surprising. On Friday we learned the first indictments would be handed down as early as today, and that is exactly what happened. As of this writing, Paul Manafort has turned himself into the FBI’s Washington Field Office.

ABC News reported the list of charges against Mr. Manafort and Mr. Gates. The 12 counts include: “conspiracy against the United States, conspiracy to launder money, serving as an unregistered agent of a foreign principal, false and misleading Foreign Agents Registration Act statements, false statements, and seven counts of failure to file reports of foreign bank and financial accounts.”

We are not writing to take any political side and it should be noted that an indictment does not mean the defendants are guilty of the charges. In fact, they are innocent until proven guilty. Rather, we wanted to discuss the expertise which may come into play in this matter.

What types of expert witnesses can you expect to see?

Forensic Accountants:

Based on the counts enumerated above, it appears the FBI has followed the money. As such, we expect the forthcoming prosecution will hinge on financial transactions and accounting related issues. As stated above, Manafort and Gates were charged with seven counts of failure to file reports of foreign bank and financial accounts in addition to conspiracy to launder money. If money is flowing in and out of multiple bank accounts forensic accountants are going to be needed to analyze the transactions and explain those transactions to the trier of fact.

Money Laundering / Anti-Money Laundering Experts:

Are you surprised to hear this type of expertise exists? Money laundering experts may have a background in forensic accounting, financial fraud, banking, and banking compliance. Again, there was a charge of failure to file reports of foreign bank and financial accounts. Failure to report these accounts might be a compliance issue. The prosecution could argue such a failure was purposeful and intended to evade reporting. Whereas, the defense may contend failure to report was accidental or negligent. We expect to see both sides presenting expert evidence on financial transactions and reporting.

Computer/ Digital Forensics:

Nothing in the counts of the indictment specify a digital forensics expert will be necessary. We are assuming that many of the financial transactions were done electronically and therefore attributing the transactions to the defendants may require electronic discovery and other digital forensic investigation / analysis.

This list should not be viewed as exhaustive. Looking at the counts in the indictment, it appears the upcoming case will be heavily litigated on financial matters. Going forward, we will look for news items related to forensic accounting and inform our readers as we know more.

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Suzanna Ryan – Forensic DNA Expert Interview

on January 25, 2016

In this one hour interview offered by Experts.com and moderated by Nick Rishwain, Forensic DNA Expert, Suzanna Ryan, expounds upon her experience and expertise.  Through targeted questions and answers, viewers get a better understanding of what services a Forensic DNA Expert Witness can offer to attorneys. Ms. Ryan also explains the circumstances under which she is retained as a consultant, unrelated to litigation.

Suzanna Ryan, MS, D-ABC, is a former forensic DNA analyst and forensic DNA Technical leader with 15 years of experience in the field of Forensic Serology and DNA Analysis. She has had the opportunity to work for both public and private DNA laboratories and has testified numerous time for both the prosecution and the defense.

Ms. Ryan has been accepted as an expert witness in forensic serology and DNA analysis over 60 times in her career in state superior courts, state supreme court, federal court, and military court, and has been deposed as an expert witness in both criminal and civil trials over 20 times.

View Suzanna Ryan’s Profiles on Experts.com

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