Category: Expert Witness

Crisis ManagementExpert WitnessSchool Security

School Violence, Safety and Security – Expert Witness Perspectives

There is no easy way to begin a discussion on school violence, safety and security. As such, I will just delve right in. I have no desire to get into the political fray with regards to gun control or mental health awareness. Further, I do not have a cadre of expert witness writings to choose from on related topics. The result is a blog post where I’ve gained a slightly better understanding of the safety and security issues facing administrators at educational institutions throughout the United States.

Let me start with a little background. When I was a child, my hometown of Stockton, California, was thrust into the national spotlight after a horrendous school shooting commonly referred to as the Cleveland School massacre. This was one of the first mass school shootings to occur in the nation. The perpetrator, Patrick Purdy, took aim at the Cleveland Elementary School playground where he fired over 100 rounds of ammunition, killed five children, and wounded 30 other students and a teacher. Purdy then turned the gun on himself.

Fast forward to the mid and late 90’s, I remember lockdown drills during my high school years. At that time, I seem to recall they were generally related to someone threatening to do harm to students or faculty. During high school, I can recall only one or two instances where we had to actually lockdown the school for any period of time. No incident stands out as particularly frightening or noteworthy. I cannot recall an incident where I ever felt in danger, other than occasional gang-related disputes. Those disputes were generally directed at rival gangs.

If we jump ahead another twenty or so years, we are now dealing with regular incidents of school violence. Not just gun violence, but physical altercations, bullying, stabbings, hostile parents, angry teachers, current students, former students, and more.

With all this in mind, I decided to start reading some articles, by experts and available on Experts.com, to see what might be done to improve the safety and security of school facilities. The following is what I found:

Safety & Security

In reading several articles by member Dr. Edward Dragan, I found that he often restates some similar comments about school liability. It is summed up as such, “Schools, after-school programs, summer camps, Sunday schools, daycares and other agencies that supervise children are responsible for student safety of children in their care.” With this in mind, schools need to have policies, procedures and protocols for protecting the children in their care.

After reading several articles, it does appear difficult for schools and school districts to avoid liability when children are injured due to violence. The schools are put in a difficult position of protecting children while simultaneously trying to avoid liability. In my research, it seems that schools are often found liable even when it appears they did everything in their power to prevent injury. So, what are some of the things they should respond to in order to protect children and also attempt to avoid liability?

Responding to Terroristic Threats

As Dr. Dragan points out in an article on terroristic threats, “The standard of professional care and legal standards for determining what constitutes a credible threat are contradictory and confusing. Until the U.S. Supreme Court defines a common standard, various contradictory lower court opinions will persist.” He goes on to use Pennsylvania law defining a terrorist threat as a “threat to commit violence with the intent to terrorize another person, to cause evacuation of a building, or to cause serious public inconvenience…”

I’m immediately reminded of students discussing calling in a bomb-threat in order to get out of an exam. I don’t know of anyone who ever used the method, though I recall students liking to joke about it in high school and college. In our current environment, it is far less humorous.

Dr. Dragan uses the School District of Philadelphia as a good example of how students and administrators should respond to terrorist threats.

  • Staff members and students shall be made aware of their responsibility for informing the building principal about any knowledge relevant to a possible or actual terroristic threat.
  • The building principal shall immediately call 911 and follow the district’s crisis plan after receiving a report of such a threat.
  • The principal shall react promptly to this information and knowledge, in compliance with state laws, regulations, and procedures established with local law enforcement.

It should go without saying that depriving or disrupting a child’s education in order to protect the student is most definitely worthwhile.

Lockout & Lockdown Drills

Until reading this article by member James Francis, I did not realize there were distinct drills. In my own experience, we only ever practiced a lockdown drill. It turns out there is more than one drill and the terminology may be a little confusing.

According to Mr. Francis, “Lockout recovers all students from outside the building, secures the building perimeter and locks all outside doors. This would be implemented when there is a threat or hazard outside of the building.” The lockdown protocol is different. It requires “locking the classroom door, turning off the lights and placing students out of sight of any corridor windows. Student action during Lockdown is to remain quiet. It does not mandate locking outside doors.”

I had to summarize the difference as such:

  • Lockout = locking perimeter doors.
  • Lockdown = locking classroom doors and remaining out of sight.

You could see where one is used for an external threat or hazard and the other is when the threat has entered the school grounds. Mr. Francis explains lockout is not just necessary for a school shooting situation, but imagine a dangerous dog is loose. On a rare occasion we get mountain lions in our area and a lockout might be appropriate where the school is contained in a main building or a couple buildings. At my elementary and high schools, where the buildings were spread out, we would have been required to lockdown in the event of a mountain lion. To be fair, there is less of a “jumping the fence” hazard with most dogs.

Mr. Francis further explains there have been confusion of the lockout v. lockdown terms. Schools and first responders have reacted inappropriately by conducting lockdown drills when a lockout would have been the appropriate response to a neighborhood or community threat.

As I read this article, I couldn’t help but think maybe a change in terminology is more appropriate so administrators, police, and other first responders are on the same page. “Close-out” might be an appropriate replacement for “lockout.”

Emergency Planning

From what I’ve been reading, emergency planning and response are massively complex topics. Even for me to write about it briefly, I’ve had to undertake some pretty serious research.

Our member Bo Mitchell has written extensively on both topics. His experience with companies and campuses is that they need to have an emergency plan for “all-hazards.” It cannot be an active-shooter plan only. As he states in this blog post, “Your plan has to be all hazards. Not just fire, but severe weather, active shooter, roof collapse, assault in your parking lot—any and all foreseeable circumstances—as the lawyers say.” All-hazards planning requires employers (including schools) be prepared for all man-made and nature made crises.

This seems extreme, does it not? How can a school or school district be prepared for all crises? In my mind, it is impossible to be prepared for all crises. One-hundred percent safety and security is unattainable. That should not prevent schools from taking all necessary steps to implement an emergency plan when a crisis occurs. Preparation and anticipation of all contingencies may limit damage or injury sustained during a crisis.

According to this pundit, it is foreseeable that a troubled student would pull the fire alarm, evacuate a school, and shoot at students and teachers during the “fire evacuation” process. This appears to be what happened in Parkland, Florida two weeks ago. After reading post by Bo Mitchell, it appears educational facilities will need to be prepared for this contingency and be able to respond.

For some detailed information on emergency planning, I recommend viewing Bo Mitchell’s 10 Commandments of Workplace Emergency Training.

Emergency Response

Assuming you have done your job in preparation and planning for all potential emergencies, what is your response when a crisis presents itself? As active shooter situations are top of mind, we will continue using this example. On his website, Mr. Mitchell indicates, “No court or government agency will find you—as an employer—at fault for failing to stop crazy. What every court and government agency does expect is that every employer know how to respond to crazy.”

He further explains that the negligence issues employers and schools face after active shooter situation is failure to plan and failure to train. If you have not properly planned and trained for the crisis, you cannot respond appropriately. As Mr. Mitchel points out, “police, fire, and EMT’s are official responders. Your employees are the first responders.” In an educational setting, that makes students first responders as well.

Therefore, schools need to create their all-hazards plans and then train students, faculty, and other staff on implementing the plan in order to mitigate risk and loss of life. Bo Mitchell describes just some of the issues you will face when training to implement an Active Shooter Protocol. I’m certain after you read this list, you will understand why training is so vital:

  • Which of your employees is in command?
  • Where is your emergency team of employees deployed to help control your response?
  • What communications do you provide to talk to your people?
  • Can you account for all your employees and visitors?
  • Where are all your people?
  • Your Lockdown procedures
  • Your Lockout procedures
  • Control of power to your facility for shutoff
  • Site map: detailed
  • Floor maps for all floors for all buildings: detailed
  • Perimeter control
  • Identifying friend from foe among your people
  • Procedures for rapid exit of your people when ordered
  • Reuniting procedures/facility after incident
  • Access to MSDS (Material Safety Data Sheets)
  • Crisis Communications Plan
  • Crisis Media Plan
  • Training
  • Drills
  • Exercises

If a school has not trained according to their plan, how will they be able to carry out their emergency response? My young staff member, Bobby Burns, has indicated to me that his high school only conducted one “lockdown” drill during his 4 year tenure. After writing this blog post, I have to assume that is insufficient training for students and faculty to put an emergency plan into action.

Crime Prevention through Environmental Design

Have you ever heard of this before? I had not until I started working for Experts.com. I had no idea there was an entire area of architecture dedicated to developing safer buildings. In one article, our Member, Dr. Randall Atlas, explains, “The basic crime prevention through environmental design (CPTED) premise is that through the effective use and design and management of the built environment, there can be a reduction in the opportunity and fear of crime, and result in the improvement in the quality of life. If we can build effective spaces using CPTED in the next generation of schools, we will substantially reduce the opportunity and fear of crime in them.”

Schools should be accessible to students, faculty, and other employees, while also being safe and secure environments in which students can learn. Dr. Atlas has written several articles on CPTED and there is a plethora of additional information on the Internet.

CPTED takes a wide variety of characteristics into account, including: site or campus design; building design (interior and exterior); visibility from classrooms; surveillance systems and other equipment; vehicular and pedestrian observation (line of sight); landscaping; walkways (interior and exterior circulation paths); signage; handicap accessibility; and much more.

A properly built CPTED school should make a school or university a safer learning environment. This does not mean creating a prison atmosphere. It simply requires a design that minimizes and impedes security threats while being accessible to students and faculty. CPTED combines safety, security, and design to make a hospitable educational facility.

Conclusion:

This post only includes a handful of issues related to school safety and security. I have not yet touched on emergency communication systems and training with police, fire, and EMTs. Nor did I cover issues of “Run, Hide and Fight” protocol for dealing with active shooter situations.

This is meant to be a summary of school safety and security matters based on publications from our expert witnesses. What I have discovered is that making schools safe is a major undertaking and nothing I have read demonstrates 100% safety is achievable.

Nevertheless, we should continue to learn and work to make our schools an inviting and safe environment for future generations.

Expert WitnessLawyerslegaltechSocial Media

Technology and Awareness: How to bridge the access to justice gap?

Our final blog post of 2017 highlighted an upcoming event I’m really enthusiastic about. I’ll be moderating a panel at the ABA-GPSolo/GLSA 2018 Joint Spring Meeting (April 25-28, 2018) in New Orleans. This is the GLSA’s (Group Legal Services Association) annual educational conference.

Why am I so excited? Well, it will be held during Jazz Fest in New Orleans! Why wouldn’t I be excited?!

In all sincerity, I’m thrilled to be sharing the panel with some awesome lawyers. Our group has worked diligently to create a valuable presentation for our audience.

Five individuals, with little prior knowledge of each other, have come together through solid teamwork to create a coherent presentation underlining the obstacles facing client access to justice and some steps to improve access.

What started as “legal technology and the access to justice” has morphed into a topic of technology and awareness building to bridge the access to justice gap.

I can’t wait to meet my teammates and the readers of this blog post in person! Allow me to introduce you to the team:

Sarah Kieny:

Sarah is a shareholder in the Riggs, Abney, Neal, Turpen, Orbison & Lewis law firm and has been with the firm since 1997.  Sarah received her J.D. from Creighton University Law School in 1994, and a BA in Religious Studies in 1991 from Regis College in Denver, Colorado.  Sarah is the firms’ LegalShield Supervising Attorney where she manages LegalShield front line 20+ attorneys and staff in day-to-day operations. She has also spearheaded the firms’ involvement in raising community awareness about the availability of legal services. Sarah has coordinated a quarterly “Law Day” program with Denver’s nonprofit organization, Warren Village, for the specific purpose of offering legal access to single parents who are transitioning to self-support through education, training, and commitment.

Wayne Hassay:

Wayne is the managing partner of Maguire Schneider Hassay, LLP. He joined the firm in 1998, and became a partner in 2004. He has been with the firm almost 20 years, practicing in the areas of personal injury, probate, and collection, plus he lectures regularly on the non-traditional delivery of legal services. His firm services the legal needs of over 36,000 Ohioans as part of legal service plan, LegalShield.

Wayne and I are sort of kindred spirits, although we approach legal technology and access to justice a bit differently, since I don’t practice. In a Law Practice Today article from last year, Wayne stated “Client-facing tech is the norm in so many professions. Can you imagine working with a bank that does not have client-facing technology? No. Yet law lags far behind.” Let’s work to correct this, Wayne!

Kerry Lavelle:

Kerry began his own practice, Lavelle Legal Services, in 1989, focusing primarily on matters of tax law. Today the firm, now known as Lavelle Law, Ltd., has grown to include 22 attorneys with practice groups in tax, business law, commercial real estate, estate planning, criminal law, home health care, small business, gaming law, bankruptcy, corporate formation, family law, litigation, grocery law, employment law, residential real estate, securities, and LGBT law. He is the author of The Business Guide to Law: Creating and Operating a Successful Law Firm, published by the Division. In 2016, Kerry was designated a Top 100 Attorney in Illinois by Super Lawyers. In 2015, his firm was one of 13 law firms nationally to receive the Beacon of Justice Award for pro bono service from the National Legal Aid & Defender Association (NLADA).

Tony Clayton:

Tony is the managing partner of Clayton, Fruge & Ward. He graduated from Southern University’s Law Center in 1991 and was admitted to the Louisiana State Bar that same year. While establishing his private practice, Tony has had the privilege of also being involved in other areas of the legal profession, including District Court Judge for the Louisiana Supreme Court and Special Prosecutor for East Baton Rouge Parish.

Moderator / Panelist, Nick Rishwain:

I am the Vice President of Client Relations & Business Development for Experts.com, an online marketing platform for expert witnesses and consultants. In my free time, I am quite active in social media. In 2015, I founded and co-host a live video vlog, LegalTechLIVE, which advocates for and highlights the advancements in the legal technology sector. Additionally, I co-host SocialChatter, a live, weekly, social media news show.

Expert WitnessLitigationPublic Transportation

Potential litigation after Carnival cruise descends into chaos as travelers and security brawl

Imagine a lovely 10-day cruise through the South Pacific. You and your family have boarded the Carnival Legend, sat through the mandatory lifeboat drill, found your cabin, and prepared to enjoy a week-and-a-half on the open ocean. Eating, drinking, dancing, and having a grand old-time.

Let’s take it a little further. Imagine a family of twenty-three (23) individuals has joined you on your voyage. They are probably on the ship for the same reasons you are: rest and relaxation. Alas, that was not the case!

Over the last weekend, news broke that a violent brawl had occurred on the Carnival Legend on or around February 15, 2018. This brawl appears to have been the culmination of many days of unrest on the cruise ship. The Washington Post reports, “A Carnival cruise devolved into near-anarchy during its 10 days in the South Pacific, with some passengers locking themselves inside their cabins, others kicked off the ship and security guards brawling with vacationers in a bare-knuckles melee.”

After cell phone footage surfaced of the fight, Carnival has stated they would investigate the event in full. However, they are already blaming a large family for instigating unrest. Some passengers have claimed the violence and disobedience had escalated for days before security had intervened. When security did intervene, as evidenced by the cell phone footage, they appear to battle it out with the passengers. Punching and kicking passengers into submission and working to stop other passengers from filming the quarrel.

Will a lawsuit arise from the brawl?

In my experience, lawsuits arise from just about every kind of event. So, I expect to hear about some possible legal action related to a fight between vacationers and security, which resulted in worldwide news coverage. Call it an educated guess that legal action may take place after this incident.

For what reason might someone bring legal action? In this case, there are a wide variety of issues. Let’s concentrate on security participating in the brawl. My assumption is someone will sue on the issues of negligence and premises liability. There appear to be plenty of options for a negligence cause of action (negligent security, negligent hiring, negligent training, negligent supervision, and more).

Brawl at the Nightclub

On dozens of occasions we have located expert witnesses after a fight erupted at a bar or nightclub. These are very common lawsuits. A patron is harmed in a scuffle and later brings suit against the bar/restaurant/nightclub operator. Oftentimes, these establishments employ separate security guard contractors and a suit is brought against that company as well. Since there is cell phone footage of the brawl, I expect Carnival to face litigation surrounding the fight. Visual evidence is more compelling than witness statements as long as the video can be authenticated.

Furthermore, it appears the Carnival employees, including security, are unprepared to detain unruly passengers. Their attempts to control the fight leads to a violent struggle between passengers, staff and security. I am quite certain the use of punches and kicks to bring a passenger into submission will be considered an unnecessary use of force.

In the video, I do not see an effort by Carnival staff and security to detain and secure the disruptive passengers. Quite the contrary, they appear to engage them in fisticuffs. Such behavior by crew members is likely to fall below the standard of care for cruise ship personnel and security.

In fact, Carnival’s own Safety and Security statement on their website claims, in pertinent part:

  • All Carnival officers and crew undergo comprehensive regular safety and emergency training that meets or exceeds all regulatory requirements.
  • Our crew members undergo specific training to handle emergency situations and help our guests. Crew roles, responsibilities and duties are clearly defined and assigned to handle any emergency on board.

Looking at the above statement in conjunction with the available video, and this pundit believes the crew members are likely to require extensive training on handling ill-tempered passengers. Punching and kicking the passengers, even if well-deserved per other passenger statements, probably does not meet Carnival’s safety and security standards.

Family Evacuated in Australia

It seems the disorderly family of 23 was escorted off the ship Australia. Police boarded the ship to remove the large family. According to the Washington Post, nobody was immediately charged with a crime.

Am I alone in hoping the family is not identified as United States citizens?

Expert WitnessExpert Witness TestimonyPsychology

Voodoo Cases Trigger Memories of Child Witchcraft Expert Witness Request

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!

 

ConsultantsExpert WitnessLitigation

The Super Bowl Arrives as We Await the SCOTUS Decision on Sports Gambling in Christie v. NCAA

Super Bowl Sunday is upon us! In just five days, we’ll be sitting down with friends and family to watch the Eagles and Patriots duke it out to determine NFL supremacy in 2018. I’ll be filling up on smoked brisket, barbecue beans, and a variety of other chips and dips (likely including mass quantities of guacamole). Sunday is also a time of unrepentant gambling. A day of vice if you will. It’s great fun!

This year is no different from years past, except we in the legal community are expecting a ruling from the Supreme Court on the Christie v. NCAA, a case that could open the flood gates for legalized sports betting throughout the United States.

Let’s be honest, many citizens are already participating in sports gambling. Whether it be the office pool, fantasy football, prop bets during the game, or bets with your local bookmaker (not recommended), gambling is a massive part of this annual event.

The Las Vegas hotels and casinos are busy with enormous bets. A story from Boston.com last week highlighted some six and seven-figure bets being placed at the South Point sports book and The Mirage Hotel & Casino. One person placed a bet for $2 million, which is just a tad more than I’m willing to bet this year. Bookies expect total legal betting on the Super Bowl to break last years’ record $138.5 million.

So let’s take a look at how all of this began approximately 7 years ago.

PASPA and Christie v. NCAA:

Gambling is big business and other states want in – New Jersey included! In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibited state-sanctioned sports gambling with a few exceptions. According to this post from The Legal Intelligencer, “The act includes exceptions for state-sponsored gambling in Nevada and sports lotteries in Delaware and Oregon.” The act was enacted with the support of all four professional sports associations and the NCAA. The intent of the law was to preserve the integrity of athletic events.

Starting in 2011, then New Jersey Governor Chris Christie’s administration took measures to challenge PASPA, leading to a multi-year court battle to have PASPA declared unconstitutional for violating the anti-commandeering doctrine of the 10th Amendment.  It should be noted that New Jersey has lost the case(s) every step of the way (trial and appeals), yet the Supreme Court granted certiorari and heard oral arguments in December of last year.

As laid out by The Legal Intelligencer, “New Jersey argues that, by requiring it to enact state laws to prohibit sports betting, PASPA is commandeering the state’s law enforcement system. The state claims that PASPA violates its sovereignty.”

SCOTUS Ruling Expected by June 2018:

As oral arguments have already been heard, we can expect the decision to be released no later than June of this year. What will happen? I’m no professional SCOTUS commentator, so I dare not hazard a guess at the potential outcome. However, Professor I. Nelson Rose of the Gambling and the Law Blog, predicts “a fairly large majority of the Supreme Court will rule that states cannot be told that they have to continue to make a product or service illegal.” Professor Rose is a law professor at Whittier and has served as an expert witness in civil and criminal trials on the topic of legalized gambling.

If Professor Nelson is correct, next years’ Super Bowl could be a whirlwind of new state-sanctioned sports gambling. Will this also open the doors for eSports and fantasy gambling sites like FanDuel and DraftKings? I guess we’ll have to wait to see how the Supreme Court rules.

How will you be spending Super Bowl Sunday?

Expert WitnessLitigationPharmaceuticalUncategorized

Kentucky AG files lawsuit against opioid distributor McKesson

As I mentioned in our blog post on November 6, 2017, we would be covering the US “opioid crisis” as the lawsuits against manufacturers and distributors heated up. Today, we found out Kentucky Attorney General, Andy Beshear, filed a complaint against McKesson Corp. According to this story by Reuters, Mr. Beshear “accused drug distributor McKesson Corp of helping fuel the opioid epidemic by failing to halt shipments of suspiciously large or frequent orders by pharmacies of prescription painkillers.”

Mr. Beshear’s office filed suit in Kentucky state court. The complaint further alleges McKesson filled suspicious orders and shipped tremendous quantities of prescription opioid pharmaceuticals to Kentucky pharmacies, without reporting them to authorities or preventing the shipments. According to the AG’s own press release, “Federal and state law requires pharmaceutical distributors to monitor and report to law enforcement when it ships large or suspicious supplies of opioids to a state or region.

There’s a wide array of state and local governments pursuing lawsuits against pharmaceutical companies, including McKesson, for deceptive marketing and failures to report suspicious activity which are resulting in opioid addiction and deaths within their cities and towns.

Let’s take a look at causes of action and potential experts:

Based on the complaint, we see that the Kentucky AG is attacking McKesson on some interesting causes of action, including: Consumer Protection Act Violation; Public Nuisance; Negligence per se; Negligence; Unjust Enrichment; Fraud by Omission; and Medicaid Fraud. Mr. Beshear is seeking punitive damages for the State of Kentucky. The complaint further provides the Kentucky Consumer Protection Act protects citizens from “predatory or inappropriate acts by sellers of goods.” The Act states “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

With this information it appears deceptive marketing practices will be an issue in this lawsuit. Both Kentucky and McKesson are likely to employ marketing expert witnesses to address which practices may or may not be false and misleading.

Within this cause of action, Mr. Beshear further alleges violations of the Kentucky Controlled Substances Act. This Act creates a “broad duty on the part of wholesalers to monitor, detect, investigate, refuse to fill, and report suspicious orders of prescription opioids.”

One can only imagine there will be an argument over what constitutes a “suspicious order of prescription opioids.” As such, we expect both parties will be retaining pharmaceutical and pharmacy industry experts. The parties are likely to argue about the existence of indicators used to alert a distributor when a suspect order is placed. I anticipate the parties will be looking to pharmaceutical supply chain or logistics expert witnesses to provide background about notification and indicator systems for identifying suspicious orders.

What relief is the Kentucky AG seeking?

By reviewing the complaint and articles mentioned above, Kentucky is arguing McKesson’s activity has resulted in overdoses which put a drain on emergency services and hospitals. I’m certain Mr. Beshear will argue the costs of medical services have increased significantly as the state has had to deal with opioid overdose.

I further envision an argument will be made about the increase in law enforcement and first responder costs associated with fighting the illegal sales of heroin and other opiates stemming from addiction.

The complaint makes it pretty clear Mr. Beshear is seeking punitive damages on behalf of Kentucky. That being said, both parties are going to employ damages experts. This may involve the use of economists and forensic accountants to determine the amount of financial damage inflicted on Kentucky by McKesson’s actions.

Final Thoughts:

As I’m sitting here in California, I do not understand the true ramifications of the opioid crisis on the State of Kentucky. I am interested to see what individual civil litigation options may be available to the citizens of Kentucky. As such, I invite my friend Daryl Dixon of Daryl T. Dixon Law, in Paducah, Kentucky, to provide us with his thoughts on this subject on his own blog! Ball is in your court, Daryl. Let’s see what the Wildcats have for me…

UPDATED 02/07/2018:

Here is the response from Daryl T. Dixon – Examining the Opioid Crisis: What are my options?

 

Expert WitnessPsychologyUncategorized

NFL investigating Panthers for possible breach of concussion protocol

According to this article on Yahoo, the NFL and the NFL Players Association have opened an investigation into whether the Carolina Panthers violated the concussion protocol for quarterback Cam Newton on Sunday.

This armchair pundit can tell you in watching the replay, Mr. Newton took a pretty solid hit to the head. Thereafter, in walking towards the sideline he fell to his knees. According to Yahoo, Cam Newton only missed one play. You may have wondered, as I did, what is the NFL’s concussion protocol. For that I turned to SBNation.com where they lay out the protocol as follows:

  1. When a potential concussion is identified the player shall be removed immediately from the field.
  2. The NFL team physician and the unaffiliated neurotrauma consultant (UNC) will:
    • Review the video of the play
    • Perform a focused neurological examination
  3. Madden Rule: If there is suspicion of a concussion, the player will be escorted to the locker room for a full assessment
  4. If the player is diagnosed with a concussion, there is NO same-day return to play
  5. If the player passes the exam, he will be monitored for systems throughout the game.

As we witnessed on Sunday, Cam Newton was only ushered to the blue medical tent and then back to the bench. We have to assume the team physician and the unaffiliated neurotrauma consultant did their due diligence to protect him from further harm. Mr. Newton claimed after the game there was a problem with his eye rather than a head injury. I’m of the mind that the human eye is a part of the head and further examination may be necessary. Then again, I am only playing a doctor in this piece.

Why am I concerned about this protocol and the possible failure to adhere to it? In the last 8 years I have seen the reports and talked to the expert witnesses who testify about traumatic brain injury and chronic traumatic encephalopathy (CTE). The real doctors take it very seriously. The damage from CTE is immense and life altering.

I can tell you from my personal experience, the number of doctors specializing in TBI and CTE has at least doubled (probably tripled) in my time at Experts.com. They come in a wide range of medical specialties:

My concern is the medical professionals do what is right for Cam Newton, even if he is only interested in getting back to the game.

With all this said, I want to invite a couple of my friends, both lawyers and former college football players, to respond on this topic in their own time and on their own blogs.

So, to Bernard Nomberg of Nomberg Law Firm and Morris Lilienthal of Martinson & Beason, what say you? Did the Panthers fail to follow protocol? Does the protocol need to change?

UPDATE: January 12, 2018

We asked for input from the lawyers mentioned above. We have received both of their responses in blog posts!

From Morris Lilienthal – Protecting Players: Following Concussion Protocol is a Must.

From Bernard Nomberg – Big Hit on Cam Newton Calls into Question NFL Concussion Protocol.

 

EngineeringExpert WitnessInsuranceUncategorized

California Wildfires: Personal Analysis of Expert Information

Approximately two months after the horrific fires in Northern California (Santa Rosa, Napa, etc.,) we are witnessing catastrophic wildfires tearing through the Southern California landscape. Unlike the fires in October, I have not noticed any smoke or ash in the air this week. However, I am keeping a close eye on the fire activity in the Los Angeles area and have maintained communication with friends who are being impacted by the devastation.

Watching the news and reading the articles on this matter led me to read some articles, by fire experts, on our website. I wanted to pull together some information that might prove useful for those suffering immense loss and even displacement. Here is what I learned from Experts.com members:

Collect the Evidence – Document, Document, Document:

Once the fires are extinguished, you are going to be dealing with your insurance company. Your home, office, vehicles, and other property do not need to be engulfed in flames to suffer damage. Being in the region of a fire can cause costly soot damage to both real and personal property.

For example, let’s assume your home suffered some soot damage as a result of wildfires in your region. When your insurance adjuster comes to review the damage to your property, they are going to want to know if it was a common source of residential soot or the result of regional wildfires. Here are some common causes of residential soot as described in an article by Member EFI Global.

  • Smoking
  • Candles
  • Fire Places
  • Cooking
  • Heater malfunctions
  • Wildfires nearby
  • Interior fires (cooking, appliance etc.)

The article goes on to state, “localized soot over stoves, fire places, heater vents, and used candles is explainable to those sources and is generally not a covered loss.” This is why I believe it is important to document!

If you are noticing soot damage to your home as a result of the wildfires, you should begin taking your own photos and video to properly document areas of damage you have found since the fires began. You do not want your insurance adjuster to arrive, do their own investigation, note the areas above, and claim these are the result of the soot damage in your home. Make sure you have your own documentation of these areas and other areas damaged by soot.

The documentation should take place inside and outside the home. I have seen several pictures of fire retardant found on neighborhood streets, vehicles, and homes. If the fire retardant hit your property, make sure to document the exterior of the home for fire, smoke, and other damage related to extinguishing the fire.

If you can locate pictures from before the fire. Do it! Get some before and after photos assembled to help present the damage you see to your home.

Review Policy & Contact Insurance Provider:

Granted, most articles online will probably tell you to do this first. I am assuming you’re doing this at about the same time you are collecting your own evidence to provide to the adjuster.

Upon reporting the damage to your insurance company, you should inquire as to who may be able to assist with fire restoration in your region. Remember, if flames actually reached your home and water was used to extinguish the flames, you have to be cognizant of the potential for mold. This is why you want to find someone competent with fire restoration protocols. Your insurance should be able to guide you to finding the right provider.

Separate the Good from the Bad:

It is possible portions of your home remain undamaged. If this is the case, you’ll want to separate items that are damaged from those that are undamaged.

By separating the items you prevent further harm to the undamaged portions of your home. The separate section of damaged property will actually serve as your inventory for your insurance provider. It will help you to establish what was lost and what should be covered.

Take Care of Each Other:

Do not forget, fires are life altering events. We have experienced some catastrophic wildfires in California this year. The losses are felt throughout many neighborhoods. In preparing for this post, I found this article from the Napa Valley Register. It shares the story of a man who has lost a house in Santa Rosa, only to find out that his original home (turned rental) was destroyed in the Ventura fire this week.

If you can, reach out and help your neighbor. Help someone in your community. If you are insulated from the wildfires, maybe just write a blog post providing some information for those you know who have been impacted by the devastation.

Computer ForensicsComputer SecurityComputersConsultantsExpert Witness

Google Antitrust Investigations: FTC, EU, state attorneys general… More to come?

The ABA Journal reported this week that Google was subpoenaed by the Missouri attorney general (Josh Hawley) for antitrust and consumer protection violations. Google has been placed on notice and the investigation is ongoing. Earlier this year, the Mississippi attorney general sued Google for similar violations and the European Union fined the company $2.7 billion for consumer protection violations. Are you seeing a pattern? Antitrust litigation against Google seems to be full speed ahead.

According to the article, the Federal Trade Commission (FTC) completed an investigation against Google in 2013. The FTC concluded, “We have not found sufficient evidence that Google manipulates its search algorithms to unfairly disadvantage vertical websites that compete with Google-owned vertical properties.” Evidently, Mr. Hawley does not agree with the FTC finding so he decided to investigate on his own.

When investigating and prosecuting cases involving sophisticated technology and antitrust issues, attorneys depend on experts to perform complex investigations and unravel complex issues. Who will the attorneys general and defense counsel turn to in support of these involved matters? Let’s take a look at the issues:

Antitrust / Consumer Protection:

To understand more about the laws governing antitrust issues in the US please visit the FTC for a brief summary.

Essentially, United States antitrust law is a collection of federal and state laws regulating the conduct and organization of businesses, generally to promote fair competition for the benefit of consumers.  As the FTC page indicates, there are three main laws covering antitrust behavior: the Sherman Act 1890, the Clayton Act 1914 and the Federal Trade Commission Act 1914. For more than 100 years, “The antitrust laws have had the same basic objective: to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.” The laws also basically prevent collusion or cartel-like practices and monopolies.

The Missouri attorney general has said, “There is strong reason to believe that Google has not been acting with the best interest of Missourians in mind.” It appears the Mr. Hawley believes Google is doing things which are not promoting, and possibly impeding, fair competition. Further, their algorithms may be directing users to Google-owned properties rather than websites offering services which compete with those Google-owned properties. As Google is the 800 pound gorilla when it comes to Internet searching, any tactics directing users to their own goods or services could be considered a restraint of trade.

In order to prove Google manipulates algorithms for their own benefit, the Missouri attorney general is probably going to have to employ some expert consultants who may later testify as expert witnesses. Google’s defense counsel will probably have to do the same. I assume Google will have many of the pre-litigation consultants in-house.

During the investigation, Mr. Hawley will likely need to consult with antitrust and antitrust economics experts to determine if actions by Google are negatively impacting consumers or restraining trade. Furthermore, he may need to employ consultants to conduct market research to have statistical evidence of the impact on consumers.

Algorithms:

Most of us (is this too presumptive?) have some sort of rough idea about search algorithms and what they accomplish. We understand it to be a mathematical equation used to search data and deliver a result based on the search terms we utilized.

After reading my last paragraph, I have to say there are probably far more accurate and simplistic descriptions of an algorithm. I may not have properly described how they work. That’s because I’m not a computer scientist. Luckily, neither the prosecution nor defense will be calling Nick Rishwain as an expert witness in Missouri v. Google.

The legal representatives from both sides are going to need assistance in understanding search algorithms and how algorithms might be manipulated by Google. They are going to need to know this quite early in the case in order to request and deliver the proper documentation during the investigation and discovery stages should Missouri file a lawsuit.

Both sides will likely need the assistance of information and Internet technology consultants. More specifically, I can see the need for information science & architecture experts as well as search engine optimization experts.

As the ABA Journal article made abundantly clear: Google has faced many legal actions related to antitrust and it appears even more legal actions lie ahead. It should be noted that Google is not alone in this area. There appears to be increased chatter about antitrust actions against Amazon as well. If the US Department of Justice and the Federal Trade Commission avoid taking action, we may see more attorneys general choosing to investigate and possibly prosecute the corporate giants for dominating the market.

For more information, check out the Experts.com Antitrust Articles section.

Expert WitnessExpert Witness TestimonyLawyersLitigationMedical

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

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.