Category: Expert Witness

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Boy Scouts: New Netflix Film Reveals Horrific Abuse Scandal

on September 5, 2023

Introduction:

On September 6th, 2023, Netflix releases its latest documentary, Scouts Honor. It will depict how Boy Scouts of America (BSA) attempted to conceal a child sexual abuse scandal of immense proportion in American history. BSA has accumulated more than 1 million members since its inception in 1910 (Boy Scouts of America), similarly modeled to its British counterpart named the Boy Scout Association. Its mission to “prepare young people to make ethical and moral choices over their lifetime by instilling in them the values of the Scout Oath and Law,” is the foundation for its seemingly esteemed reputation. Congress chartered BSA in 1916 under Title 36, recognizing it as a “patriotic and national organization” (TIME Magazine). Additionally, the Title permits Congress to investigate the organization, which it never has (Washington Post). It is astonishingly ironic that certain individuals responsible for upholding righteous principles also perpetuated antithetical actions for nearly a century. Further into the blog, insight from Domestic Violence Investigation Expert and current Pack Master, Rachael Frost, Master Inv. (ret.) will be highlighted. Until then, here is a historical timeline of the Boy Scouts of America scandal.

Timeline:

Boy Scouts of America Child Sexual Abuse Misconduct (Abuse in Scouting)

  • 1920: BSA began collecting reports of volunteers accused of child abuse called “Red Files” just ten years after it was founded.
  • 1971: Unbeknownst to most Scouting employees, executives disclosed eradicating thousands of outdated “Perversion Files,” accounts of known child molesters within BSA. Files were eradicated if the abuser was over eighty years old or deceased.
  • 2007: The Boy Scouts of America faced its first lawsuit. Six former Boy Scouts in Oregon sued the organization for child sexual abuse by a previous scoutmaster in the 1980s. The jury consumed thousands of internal reports and saw how severely BSA mishandled sexual misconduct claims. As a result, the organization paid the plaintiffs $19 million in damages.
  • 2012: The Oregon case documents were made public. From the records, investigators discovered that officials implored sexual abusers to relinquish their positions rather than report them to the police, covering for the abusers to the detriment of the Scouts.
  • 2020: The Boy Scouts of America filed for Chapter 11 bankruptcy after many sex abuse claims and listed assets totaling almost $10 billion.
  • March 28th, 2023: BSA settled a class action lawsuit. Reuters states, “The Coalition of Abused Scouts for Justice, a group of 18,000 sexual abuse survivors, said the agreement would bring ‘some justice to tens of thousands of survivors, men and woman, many of whom would have been waiting for decades for this day to arrive.” The youth organization reached a $2.4 billion settlement because of this class action and the decades of sexual abuse claims filed (CNN). Depending on the allowed amount of the claims, individual survivors are expected to receive between $3,500 to $2.7 million in damages per claim. BSA also implemented its Plan of Reorganization consisting of programs dedicated to preventing child abuse, from background checks to prohibiting adult and child one-on-one sessions.
Photo represents the Red and Perversion Files collected by Boy Scouts of America executives.

Expert Q & A Section:

Domestic Violence Investigation Expert, Rachael Frost, Master Inv. (ret.), explains common characteristics among abusers, how to identify grooming behaviors, and potential legal reforms for the future:

*Disclaimer* – This article does not discuss pedophilia. This is a psychiatric diagnosis defined as “over a period of at least 6 months, an equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons, and manifested by fantasies, urges, or behaviors,” (Psychology Today).

Q #1: In your experience, are there common characteristics or behaviors of known or suspected child abusers? If so, what are they?

A #1: Let’s focus primarily on those who commit sexual abuse against children. Regardless of motivation – whether an intense sexual arousal towards children, or specifically young boys, or because of a sexual desire to manipulate, control, and have sex with children due to vulnerability or opportunity, yes, child molesters have very similar tactics.

The following statement is not to tarnish any fields or people within them with heart and dedication for our youth. There are certain jobs that give perpetrators more access to a child and their family’s trust. They provide chances for them to simultaneously praise and condemn a child’s actions and personality traits to get them to rely more upon the perpetrator’s positive interaction. It allows them to isolate a child without raising extreme suspicion. Overall, they generally choose jobs where they are around children. You do not become an accountant.

Common tactics include:

  • Choosing a Vulnerable Victim: Kids with poorer relationships with family/foster child/looking for sense of belonging/lonely/taking advantage of a friendly connection.
    • It is important to note that being a vulnerable victim is NOT the victim’s fault. None of this is their fault. It is the perpetrator’s fault and manipulation.
  • Providing Special Consideration: “Love Bombing”/special gifts or treatment.
  • Providing Access to Risky Behaviors: Alcohol/drugs/porn/parties/staying up all night/going to places parents would not approve/etc.
  • Personal Time: Extra time together/going to a gym/spending time at the perpetrator’s house.
  • Sharing Secrets
  • Sharing Touch: Gradually getting them used to touch to “accidentally” grazing more intimate places.
  • Projecting Guilt: “If you do not do this for me you do not think I am special, you do not care.”
  • Sexual Contact: Framing intercourse or sexual contact as a learning process and normal.
  • Denials, Promises, & Blame: The perpetrator relies on their good standing in the community. The abuser also blames the victim’s “bad behavior” if any possible disclosure is heard.
  • Power and Control: Promising Withholding [below]/promising to tarnish the person’s reputation if they say anything/using homosexuality as a manipulation tactic.
  • Withholding: Time/gifts/secrets/promises – when the victim pulls away or does not meet control requirements of the perpetrator.
  • Threats

Q #2: Do you think State and Federal legal reform is necessary to mitigate child sexual abuse?

A #2: Yes, reform should be considered in four areas –

  • Regulations for Access and How Adults Interact with Children: The Scouts have required safety courses, fingerprinting, and a safety video advising no single adult should ever be alone with a Scout. However, it must be greater to include a full background check by a trained background investigator…, and specific, defined interaction requirements that are subject to civil or criminal investigation if violated.
    • No adult/set of adult in a room away from other children and adults.
    • Rotating parent involvement.
    • Mandatory awareness training for all parents becoming involved in an organization for what behaviors are unacceptable.
    • Child education regarding what association representatives should and should not do.
  • Education for and Increased Types of Professions Who Are Mandated Reporters of Child Abuse or Neglect: Even those who are mandated reporters too often do not report, often because they either do not know they should report or are dissuaded by executive staff.
  • Increased Annual Education for Children and Safe Spaces for Children to Report Abuse and Neglect: Children should know who they can talk to. They can come to the front office, or talk to a teacher, officer, parent, or mentor they trust. Examples of what predators say to keep children from saying anything, and discussing grooming tactics openly, are all important.
  • Mandated Policies and Procedures to be followed in Child Abuse and Neglect Reports and Investigations and Consequences for Legal Failures: Addressing legal failures that prevent mandated reporters and investigators from letting incidents fall through the cracks is necessary. Including protections for mandated reporters begins with confidentiality and job protection. This should also include specific, supportive direction and significant consequences for the knowing failure to meet these legal requirements.

Additional solutions:

Emphasizing parent education about what grooming looks like can also mitigate child sexual abuse in organizations like the Boy Scouts of America. Parents are advised not to leave their children or a group of children alone with a single adult, no sleepovers, or traveling alone with adults. Finally, they should also pay attention to the amount of time an adult spends with their child and gifts being given to their specific child and not others.

Q #3: Will the Boy Scouts of America’s reorganization reforms successfully reduce abuse, and are there other processes it should institute to prevent abuse?

A #3: This is a start, and additional safety features may be put in place. However, like all programs, it cannot simply be an add-on program. It must become a mantra, a process, a part of what the Scouts are. It must be prevalent in how leaders conduct themselves, messaging from the association, from schools, parents, and participants.

Q #4: In my lifetime, I’ve seen massive organizational abuse and coverups in both the Catholic Church and now the Boy Scouts. Are there other organizations where similarly massive scandals are currently under investigation?

A #4: There are a few reasons why abuse in Scouting was prevalent for so long. While these could be argued as good things, it combined religion, youth mentorship, and regulated behaviors (uniforms, respect, pride, honor) with a leader responsible for teaching children lifelong and beneficial skills embodying the roles of God and righteousness. Parents and other community members saw these gregarious and friendly leaders as pinnacles of the community. They were held to a high standard, supposedly met the standard, and were above reproach. Still, underneath all that friendliness is a complicated, harmful monster. The difficult part is spotting the wolf among the overwhelming group of great pack and troop leaders.

I became a Pack Master because I believe in the mission of providing children a safe space to learn and create community. I wanted to establish an environment where I knew that kids were celebrated for who they were without judgment and mitigate misplaced patriarchy. Fostering the recognition of every culture, race, religion/non-religion, sexual orientation, and gender identification is important. Respect, community, and positive behaviors can develop without fear of Eric Cartman’s (South Park) “You will respect my authori-tay” mentality.

Specifically regarding organizational coverups, they occur in any system or association. Organizations need executive staff members who recognize the true issues of an ongoing problem are 1) wrong; and 2) have to be addressed effectively and transparently. The messages and processes for this leadership must be clear throughout the entire organization and community. Any entity has to inquire about its “Business Culture” during its strategic planning and must meet in all they do. It is crucial for organizations, especially those that serve children, to lead ethically. Lastly, ethics do not rest on a checklist, as true solutions are holistic and complete with redundancies and iteration.

Expert Parting Words:

Emphatically, no one should be above the law and of decency. Evidence-based investigation is vital. We cannot allow for anything otherwise or else we are just giving into cancel culture. There is often extreme corroborative evidence in these cases, especially when law enforcement can quickly get to them.

Wooden blocks spelling moral and ethical, the two qualities needed for leaders in the Boy Scouts of America and all other organizations.

Conclusion:

According to Rolling Stone Magazine and Brian Knappenberger (director of the upcoming Netflix documentary), “There are over 82,000 and counting survivors of sexual abuse in Scouting.” From the Scouts Honor trailer alone, the courage and fearlessness of the interviewees involved are highly commendable. Tomorrow’s release will provide a more detailed depiction of the severity of BSA’s abominable actions and the suffering it induced. From the current circulation of news, the Boy Scouts of America has undergone a three-year financial reconfiguration process. It also enacted a Plan of Reorganization, where a series of protection policies were implemented to ensure children’s safety. Examples include required youth protection training for employees and volunteers, criminal background checks for staff and leaders, and the ban on one-on-one interactions between adults and scouts. Hopefully, the youth organization and historic institution will clean up its act and keep its promises to survivors by breaking its cycle of criminal behavior.

A special thank you to our Domestic Violence Investigation expert and Pack Master, Rachael Frost, Master Inv. (ret.), for taking the time to provide her contributions.

If you know anyone in need of support, visit the RAINN website or call the National Center for Missing & Exploited Children’s telephone hotline 800.THE.LOST (843-5678).

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10 Things to Improve Your Expert Witness Business

on April 12, 2023

  1. Build a Strong Reputation

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.

2. Networking

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’d like to learn more about the Business of Expert Witnessing, join Dan Sandman, Esq. and I, on 4/27/2023. Sign up here: https://xprts.us/ExpertBiz.

This blog post created with the assistance of ChatGPT.

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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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Meteorology and Atmospheric Science Expert Witness Informs on 2023 California Storms

on January 12, 2023

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 of optical 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!

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Insurance: All CA GEICO Stores Shut Down

on September 21, 2022

During the first week of August, GEICO officially announced its shutdown of all California locations (Sacramento Bee). When the Sacramento Bee article was written, GEICO’s website listed some of the operating San Diego and Bay Area offices, but a week later, California was removed from the list of states to search for a local office. Not only are 2.18 million Californian GEICO customers affected, but hundreds of employees are left jobless. Why would the largest auto insurance company implement a mass in-person exodus from the most populated state in the country? This question and more are answered in this month’s topical post, with insight from Liability Insurance Expert and Experts.com Member, Ms. Jane Marie Downey, M.Ed, ARM.

GEICO is a private insurance company headquartered in Chevy Chase, Maryland. Since 1936, it has passed 17 million policies in force (active insurance policies) and has insured over 28 million vehicles (last checked in 2019) [GEICO]. GEICO has offered in-person services to consumers in every state until recently with the shutdown of locations in California. Former California Insurance Commissioner Dave Jones stated, “The benefits of having a physical location in California with actual offices and physical agents is that it’s easier for the Department of Insurance to make sure those individuals have a license and meet California’s very stringent standards – consumer protection standards for the sales of insurance,” (ABC10). From a customer perspective, visiting GEICO in person helps alleviate any miscommunication with agents and ensures they receive the correct coverage or assistance they need. Unfortunately, this is no longer an option for Golden State residents.

Corporations like Tesla and Oracle removing themselves from California has become a norm in recent years. In their new locations, they can now more cost-effectively serve their consumers. The following insight from Ms. Jane Marie Downey, M.Ed, ARM, and various news articles, explains GEICO’s California departure. According to Ms. Downey, “The cost of doing business in CA is high.” She also mentioned that the steep increase in personal injury and automobile liability insurance, “nuclear verdicts,” have made it difficult for insurance companies to price accurately. Verdicts can reach as high as $30 million or more. To add, “GEICO is owned by Warren Buffett’s Berkshire Hathaway, which reported a 53-percent drop in earnings for the first quarter of 2022. It reported earning $47 million in insurance underwriting in the first quarter of this year, compared to $764 million in the same quarter in 2021,” (The Epoch Times).

California’s state regulations seem to be the root of GEICO and other corporations’ removal from California or migration to another state. Steve Young, a lawyer for Independent Insurance Agents & Brokers of California, said, “There’s a very complicated insurance rating law that is in effect here that makes it very difficult for insurers to have confidence that they can get the rate that they need from an actuarial perspective to ride these risks going forward,” (ABC10). The article reported the agents were under a gag order, but one of them said GEICO had to lower costs on its own due to rate increase rejections by the Department of Insurance. Although it eradicated brick-and-mortar services to California customers, GEICO provides presently insured consumers with online options through its website and app. This might frustrate technologically unsavvy customers knowing in-person consulting is unavailable.

Customers are not the only party affected by this swift decision. Hundreds of owners and employees of all 38 GEICO offices in California experienced a massive layoff. These offices are independently owned, and the Sacramento Bee reported agents spent between $100,000 and $250,000 to open them. “Locally owned branch offices were told of the company’s decision in a two-minute zoom call,” (The Epoch Times). The same article explained one owner’s situation: he packed up his office after being open for a year and sought legal representation for the quick shutdown. There have not been any new articles on personal anecdotes or GEICO generally since the beginning of August. If further information is released, the blog will be updated.

Thank you to Ms. Jane Marie Downey, M.Ed, ARM, for contributing to this month’s blog post.

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Trademarks: The Fight for “Dunder Mifflin” Rights

on August 16, 2022

NBCUniversal, LLC has made headlines once again, but this time, it is not to announce a new show or streaming service. On July 1st, 2022, the media conglomerate filed a lawsuit against Jay Kennette Media Group for trademark infringement of the fictional paper company, “Dunder Mifflin,” from the hit U.S. adaptation of The Office (DEADLINE). The suit was filed in the U.S. District Court for the Central District of California. As the lawsuit is in its inception details are limited. In this month’s blog post, readers can expect to find background information leading up to the filed lawsuit, explanations about trademarks and their significance, and insight from Trademark, Copyright, and Apparel Experts.com Member, Mr. Antonio R. Sarabia II.

From 2005-2013, the American version of The Office, starring Steve Carell, Jenna Fischer, and John Krasinski, chronicled the peculiarities and typical workday of office employees at Dunder Mifflin paper company. To say the show was successful is a gross understatement. According to The Washington Post, The Office received 42 Emmy nominations and won a total of 5 nominations during its nine seasons. It recently surpassed another successful NBC sitcom, Friends, for the most streamed show on Netflix in 2020. Given its impact on the public and pop culture, it was sensible for NBCUniversal to keep The Office in-house with the release of its subsidiary, Peacock TV, that same year. The network also attempted to register the trademark for the faux company name for merchandising and sales purposes, but because the Jay Kennette Media Group beat them to the punch in 2016, The U.S. Patent and Trademark Office denied NBCUniversal’s application.

Other than the situation on which this lawsuit is based, the Jay Kennette Media Group is known to register trademarks that belong to other companies and has thus garnered the reputation of an alleged “trademark squatter.” Mr. Sarabia defines a “trademark squatter” as “someone who takes the trademark of another and registers it before the owner does, usually with the intent to sell it back to the rightful owner.” Whether the media group planned to sell the Dunder Mifflin trademark back to NBCUniversal is unknown, but given the recent lawsuit filing, the outcome of who receives the fictional company’s trademark will now be decided by the judge. According to DEADLINE, “The lawsuit aims to end Jay Kennette Media’s use of the Dunder Mifflin name and destroy any remaining branded merchandise. The plaintiffs – NBCUniversal Media LLC, Universal Television LLC, and Universal Studios Licensing – also seek unspecified damages and any profits already derived from sales of the merchandise.” With the background information of this lawsuit in mind, let’s delve into how trademarks are licensed and their importance with further knowledge from Mr. Sarabia.

Q: What are the steps to registering a trademark?

Mr. Sarabia: First, file the application with the U.S. Patent and Trademark Office, then respond to any request for changes from them. In some cases, the U.S. Patent and Trademark Office will reject the application for conflict with a prior application or registration. Assuming that does not happen, next the application is published for opposition. When an application is published for opposition, anyone who believes the application conflicts with their right may oppose the application. That rarely happens. If there is no opposition, the application proceeds, and the U.S. Patent and Trademark Office issues a Notice of Allowance. If proof of use has already been filed, the application will proceed to registration. If proof of use has not been filed, the applicant has time to file that, but it must be done before the mark is registered.

Q: What is the benefit of registering a trademark?

Mr. Sarabia: A registered trademark has nationwide protection and improved damages in case a lawsuit is necessary.

Q: The Jay Kennentte Media Group has become known for being an alleged “trademark squatter.” How prevalent are “trademark squatters?”

Mr. Sarabia: Very common, though less likely in the U.S. than in other countries.

Q: How can businesses prevent being negatively impacted by “trademark squatters”?

Mr. Sarabia: Make sure that their marks are registered in each country in which they sell products or offer services and in those countries in which products are manufactured.

Q: NBCUniversal submitted their trademark application for the fictional paper company, Dunder Mifflin, several years after The Office ended. Is it normal for businesses to delay registering trademarks for products or names?

Mr. Sarabia: It is common, particularly in a situation in which the company is fictional. In other situations, there may be delays because the company may not consider how important trademarks are to its business, a mistake.

A special thank you to Trademark, Copyright, and Apparel Experts.com Member, Mr. Sarabia for graciously taking the time to participate in this month’s blog topic. This post will be updated once a settlement has been determined.

Expert WitnessExpert Witness TestimonyLawyers

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.

AutomotiveEngineeringExpert Witness

Car Recalls: Insight on Causes and Procedures

on May 19, 2022

All man-made products are subject to trial and error during the development process. In some cases, problems occur once a good has been manufactured, shipped, and sold to customers. Recently, two major automotive companies, Ferrari and Volkswagen, recalled thousands of their sports models worldwide. This month’s blog post will explain why the recalls occurred with insight from Experts.com member and Forensic Engineering expert witness Tarek Omar, Ph.D.

Ferrari, the Italian luxury sports car manufacturer, announced its recall of 2,222 cars in China, which will start on May 30th, 2022. According to China’s market regulator, the defect lies in the automotive’s braking system (CNBC). Ferrari confirmed the cause of the said defect, which is the improper venting of the brake reservoir fluid cap. “The safety and wellbeing of our clients is our priority. We operate according to stringent safety and security guidelines to ensure the right systems and procedures are in place at all times,” stated Ferrari. The retracted cars include the 458 Italia, 458 Speciale, 458 Speciale A, 458 Spider, 488 GTB, 488 Spider series models, and cars imported between March 2010 to March 2019.

In the United States and Canada, Volkswagen has recalled 246,000 Atlas and Atlas Cross Sport SUVs (CNBC). The reported issue stems from wiring issues that affect the cars’ airbags, brakes, and windows. The National Highway Traffic Safety Administration stated the wiring issue could lead to the airbags functioning “later than designed,” which leaves consumers susceptible to harm. Volkswagen notified owners and dealers through mail on May 10th, 2022, of the following vehicles subject to the recall: 2019 – 2023 Volkswagen Atlas and 2020-2023 Volkswagen Atlas Cross Sport. Given the provided information, Experts.com member and Forensic Engineering expert, Dr. Omar, has shared his insight on the topic.

Question: Two major car companies, Ferrari and Volkswagen, have recently recalled some of their models. How often do automotive recalls occur?

Dr. Omar: Automotive recalls are very common. There could be up to 50 million cars with a new recalled issue in any given year. Some vehicles may have multiple recalls occurring at different times. A telling statistic is the recall rate which signifies the number of recalled vehicles per 1,000 sold. A study by iSeeCars.com that tracked recalls from January 1985 to September 2016 showed that for the 427,971,556 cars sold during this period, 527,406,263 were recalled yielding a recall rate of 1,115 per 1,000 cars sold. Porsche ranked 1st with 531 per 1,000 and Volkswagen 18th with 1,805. By law, safety defects in vehicles up to 15 years old must be included in recalls.

Question: What is the most common cause of automotive recalls?

Dr. Omar: With the technological advancements in vehicles today, sensors and software are prone to faults and will probably lead the list of common recalls. Traditional safety systems such as airbags, seatbelt tensioners, and ABS braking, as well as modern driver-assist systems such as lane departure, blind spot, forward collision, and rear cross-traffic warnings, rely heavily on properly functioning sensors, computers, and software. Traditional mechanical and electrical issues will of course continue to appear in faulty wiring, fuel lines, brake lines, throttle pedals, and engines, to name a few.

Question: Are recalls usually tied to something that may cause injury? Or are there other reasons for an automotive recall?

Dr. Omar: Recalls could be initiated for any reason, but the most prevalent are safety-related. Whether initiated by the automaker or by the government regulators, the recall is aimed at correcting a defect due to vehicle design, manufacturing, or supply chain issues. Safety recalls are generally for defects that could lead to injury or death. Non-safety recalls might be due to emissions issues, such as the Volkswagen Dieselgate scandal in 2015, and are initiated by the Environmental Protection Agency (EPA). A defect in a vehicle is not always repaired through a recall. Manufacturers often issue Technical Service Bulletins, and the dealers or repair shops will typically repair the defect during routine maintenance visits. However, for safety and environmental defects, a recall must be issued.

Question:  Is there a regulatory process to follow to institute a recall?

Dr. Omar: Yes, there is. The National Highway Safety Administration (NHTSA) is tasked and funded by Congress to oversee vehicle safety and enforce the United States Code for Motor Vehicle Safety [Title 49, Chapter 301]. While NHTSA has the authority to issue recalls, most are actually initiated by automakers. The EPA has a similar regulatory framework for emissions-related recalls.

Question:  What is the average time frame for suppliers and manufacturers to repair the faults for defective cars?

Dr. Omar:  It is difficult to pinpoint an average time. Once a recall is issued the owners are notified by mail that a defect has been identified. It will explain the nature of the defect and provide instructions for getting the defect repaired either by the authorized service center or by software download. The notice will also explain whether the vehicle can be driven prior to the repair or if are any instructions in terms of parking the vehicle (in case of fire due to fuel leaks, battery charging, etc.). Some recall notices may not indicate the proposed solution, and it might take the automaker months to determine how it will repair the defect. Given that notices may not reach the current owners of a recalled vehicle, it may take years for an owner to realize that there is a recall and to get it performed. Owners should frequently check the NHTSA website for ongoing recalls. It should be noted that while repairing the issue is the most common remedy, other options include replacing a defective part, offering a refund, or even repurchasing the vehicle.

Question: In the Ferrari article, CNBC stated that the luxury sports car brand recalled vehicles from March 2010 to March 2019. Why do you think Ferrari waited so long to issue the recall?

Dr. Omar: Ferrari is a low-volume manufacturer, which might affect the process. In general, automakers rely on service centers’ repair records to identify and address potential defects. Typical car models are sold in large volumes, on the order of 100,000 per year, and often substantially more. Some parts are used across models, and that number could be as many as a million or multi-million cars. In the case of Ferrari, the total production is less than 10,000 cars per year and coupled with the fact that they are typically not driven a lot of miles a year, means that the problem reporting will take time. It is very likely that Ferrari did not become fully aware of the issue for several years after the 2010 cars began to sell, and initially offered free repairs under the vehicle warranty. Typically, once the defect is identified the company will analyze manufacturing records to determine how many of the affected parts are in production, was there a specific batch from the supplier, or any other analytics that help bound the issue. By law, the automaker must report the problem and issue a recall immediately once a safety problem is identified, even if they are still investigating the problem and solution.

Question:  How difficult is it to determine a faulty product once manufacturing and sales begin?

Dr. Omar: There are several ways that a fault is identified. First and foremost, through reported problems either from crash data or maintenance service reports. Customer reporting is another factor, and if not addressed by the manufacturer, NHTSA’s Office of Defects Investigations will open an investigation into the matter. Consumer advocacy groups and media often play a role as well in applying pressure on the manufacturer to address the issue.

Question: Both cars recalled sports models. Are sports cars more complex design-wise than other types of vehicles?

Dr. Omar: Not particularly. Sports cars tend to have higher performance components such as engines, transmissions, brake systems, and suspensions, which, unlike regular vehicles, are sometimes pushed to their limit. Given the number of ongoing defect recalls, sports cars make up a small percentage.

China Eastern Airline Aircraft
Accident Investigation & ReconstructionAviationExpert Witness

Aviation: Expert Insight On Flight MU5735 Nosedive

on April 21, 2022

On March 21st, 2022, a Boeing 737 from China Eastern Airlines seating 132 passengers and crew members nosedived into the mountains of China’s Guangxi region. Lamentably, there were no survivors. CNN reported Flight MU5735 was a normal flight that departed from Kunming en route to Guangzhou in South China. The anomaly that has various aviation experts, as well as public agencies perplexed, is the plane’s nosedive position and the rate at which it situated itself into the nosedive. The accident is currently being investigated by China Eastern Airlines, the Civil Aviation Administration of China (CAAC), Boeing, CFM (engine manufacturer), and the U.S. Federal Aviation Administration. Experts.com Member and Aviation Expert, Captain Kit Darby, offers insight into this bizarre and unfortunate aircraft accident.

It is important to provide pertinent information regarding the accident before proceeding with Mr. Darby’s contribution. Airplanes usually begin to gradually descend toward their destination at 29,000 ft. Passengers are supposed to experience minimal turbulence at the stage of the flight, however, the same could not be said for Flight MU5735. According to SFGATE, “the plane’s dive appeared to have halted for about 10 seconds and it climbed briefly, adding an unusual twist to the scenario.” However, the Flightradar24 data track, which derives its information from radio transmissions, reported the plane plunged nearly 26,000 feet within a minute and 35 seconds. In general, it is difficult to place a plane into a nosedive position. Given that Flight MU5735 passed all pre-flight checks, the reality of the aircraft nosediving should not have happened. A second black box – a device that records the condition and performance of planes in midair – was found near the crash site on March 27th, 2022 (ABC7 Chicago). However, due to the mountain region’s muddy terrain, the black box was damaged with possible repair remaining questionable. Luckily, the cockpit voice recorder was located two days later and is currently being analyzed in Beijing with the help of the U.S. National Transportation Safety Board (NTSB) [Reuters]. Providing insight on the matter is Capt. Kit Darby, Aviation Expert, and Experts.com Member:

Question: How often do plane crashes occur?

Capt. Darby: Very rare. Driving a car is much more dangerous than flying in a commercial aircraft.

(Photo 1)

(Photo 2)

This was a scheduled air carrier. This is the safest group of operators by far with only .132 accidents per 100,000 flight hours.

(Photo 3)

The aircraft was at a point in the flight where it would normally start a descent for landing. It appears to have started down normally just before it began its dive.

 Question: What is the most common cause of plane incidents?

 Capt. Darby:                                              (Photo 4)

Question: According to SFGATE, it is difficult for planes to position into a nosedive, which is why this particular crash is odd. Considering the aircraft passed pre-flight checks, what would the plane have to undergo to be situated into a nosedive?

Capt. Darby: Aircrafts are what is called “dynamically stable.” If they are displaced from their normal flying state, they tend to return to their original conditions. If you nose down an aircraft, it speeds up, and the increased speed makes the plane’s nose return to its original level of condition. You would have to push the aircraft’s nose down and then hold it down to sustain a dive as speed increases.

Alternatively, something could break that forces the nose down and hold it there, but I have never seen this happen in my 24,000 hours in the aircraft and 7,000 hours teaching in simulators. Possible, but unlikely. Additionally, the hold could force the aircraft’s nose down and hold it there.

Question: ABC7 News Chicago reported the second black box from the China Eastern Boeing 737 was found. How vital are black boxes for flight investigations?

Capt. Darby: They are key. One records what the aircraft does and the other records the communications between the pilots and the air traffic controllers. Just a note that the “black boxes” are actually bright orange to help locate them in a crash. The flight recorder records 1,000 plus of the aircraft parameters. Speed, heading, altitude, flight controls, gear, flaps, time – almost everything. The plane also has voice recorders that record the radio and intercom communications.

(Photo 5)

Question: How much of the investigation is conducted by locating debris on the ground vs. reviewing the black box recording?

Capt. Darby: In a high-speed crash like this, there is very little that can be learned from the crash site due to the amount of damage done from the high sped aircraft hitting the ground at a steep angle. In this case, the crash was so extreme that the black boxes may be damaged beyond repair and therefore not a useful tool.

As of April 11th, 2022, the investigation is still ongoing. However, rumors regarding the cause of Flight MU5735’s nosedive have been circulating. Online gossip’s latest conjecture is the co-pilot might be culpable for the crash (Global Times). Since official conclusions are yet to be discovered and announced, questionable rumors are to be taken with a grain of salt. This post will be updated once the Civil Aviation Administration of China (CAAC) releases a statement.

EvidenceExpert Witness

Proposed Changes to FRE 702 Daubert Standard – Expert Witness Testimony

on March 31, 2022

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 support@experts.com.

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