Expert WitnessIntellectual PropertylegaltechSocial Media

Tinder v. Bumble: Swipe Right for Your Next Patent Infringement Expert Witness

Last Friday I was sitting at my desk trying to find the next topic to blog about. Friday was an incredibly slow news day and nothing had piqued my interest. So I reached out to some lawyer-friends in the LegalMinds Mastermind Group for some ideas. I received a lot of feedback with some really great ideas. However, this Tinder v. Bumble lawsuit sounded like the most fun. A special thanks to patent lawyer, Karima Gulick, for the idea.

In fact, I had not even heard about this lawsuit until Karima mentioned it. It seems that Tinder’s parent company, Match Group (think Match.com), has decided to sue Bumble for patent infringement. For those who haven’t heard of Bumble, it is another popular dating app that allows women to make the first move. It seems they are now using very similar features to Tinder. An article in The Verge described the two patents at issue:

“…one called ‘Matching Process System and Method,’ in which users swipe cards and mutually select one another, as well as ‘Display Screen or Portion Thereof With a Graphical User Interface of a Mobile Device,’ which it describes as an ‘ornamental aspect’ of Tinder’s App. The lawsuit also points to similarities between each companies’ apps, and Bumble’s descriptions of ‘swiping’ run afoul of Tinder’s registered trademarks.”

It seems Tinder is accusing Bumble of infringing on the item that really made Tinder famous (i.e. swiping). Swiping did away with all that scrolling, reading, and learning about a potential romantic interest. Who has time for that? Even if you have time, who wants to do it? Instead, Tinder allowed you to make the important dating decision based on looks and looks alone, if you’re that shallow. It does appear there is a short biography portion some might want to read, but only if the potential match fits your physical requirements per their photo.

“Swipe right” and “swipe left” became a part of our nomenclature, often used outside of dating. I’ve heard comics and late show hosts use the terminology. There is no doubt in my mind, those using the terminology associate it with Tinder. Alas, Bumble decided to use the feature as well. Probably because users liked picking their mates via the swipe method.

There are some further accusations as set forth in this article by Recode, “[Tinder] also claims that early Bumble executives Chris Gulczynski and Sarah Mick, who both previously worked at Tinder, stole ‘confidential information related to proposed Tinder features,’ including the idea for a feature that lets users go back if they accidentally skip someone, according to the suit.” This is important, because when you’re swiping for volume (because it’s a numbers game) and get into a zone you might accidentally eliminate someone you find attractive. You need to undo that ASAP.

Finally, there is the issue of Match/Tinder trying to purchase Bumble last year. They offered $450 million, which was turned down, due to the acrimonious relationship between the two companies. Is Tinder using this case to apply some pressure on Bumble, thereby encouraging a sale? Quite possible.

If the case actually moves ahead and a sale is not negotiated, we can expect to see some expert witness participation. What kind of experts? I wish I could encourage you to swipe right to view them. However, you just have to keep reading!

Intellectual Property / Patent Infringement:

Intellectual property is sort of wide ranging term for expert witnesses. A broad range of expertise fits into the category intellectual property, such as patents, patent infringement, trademarks, trade dress, copyrights, licensing, trade secrets, and more.

In the Tinder v. Bumble issue, it appears they are only suing over a couple of patents and The Verge told us what those patents are. Both patents appear to be connected with the user interface, so I anticipate we will see intellectual property experts with software, programming,  and design engineering backgrounds. There is potential need for electronic engineering expert witnesses, but I think that will be less likely as it doesn’t appear hardware is at issue in this case.

Trademarks:

The lawsuit also claims that Bumble’s use of the word “swiping” infringes on Tinder’s registered trademarks. This legal dictionary from Cornell Law School’s Legal Information Institute describes a trademark as follows, “A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.”

The Legal Information Institute also tells us that “Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.”

As I mentioned above, I knew that “swiping” was something associated with Tinder and I know that Tinder is a subscription based dating service. So, according to this layperson, the mark is being used in commerce and I recognize it as distinctive to Tinder. Now that I’ve made this information public, I cannot imagine Bumble wanting me on the jury. Luckily, the case has been filed in the US District Court in Waco, Texas.

Furthermore, a trademark expert witness retained by Bumble, may be able to provide information about “swiping” that indicates it is not distinctive. In fact, the terminology may be quite prevalent in software uses.

A Similar Matter?

The software matter I equate to this lawsuit would be the “Stories” issue between Snapchat and Instagram. Snapchat was the first social media platform to use the Stories feature, allowing users to post a continuing series of video clips or photos in order to create an ongoing story. Instagram copied it, nearly outright, and even admitted that they took the idea from Snapchat. To my knowledge, this has not resulted in litigation. However, the use of software-based features seem nearly identical and I wouldn’t be surprised to see a patent infringement and trademark dispute between Facebook (Instagram’s parent company) and Snapchat.

Requests:

As I am not practicing in this field, I think it would be great to get some feedback from a some lawyers who regularly deal with patents and trademarks.

I have asked Karima Gulick of Gulick Law and Joey Vitale of Indie Law to provide some real insight, rather than lay punditry, in the matter of Tinder v. Bumble.

UPDATE:

Intellectual property and patent attorney, Karima Gulick, has provided her insight about this case on her blog. Here is her blog post: Tinder v. Bumble: Patent dispute in app dating paradise.

Copyright and trademark attorney, Joey Vitale, has provided his insight about this case on his blog. Here is his blog post: Be careful if you “swipe”: trademark battles in Tinder v. Bumble.

 

 

Accident Investigation & ReconstructionCranesEngineeringExpert WitnessForensic Accident Investigation

Let the Finger Pointing Begin: Who is Responsible for the FIU Bridge Collapse?

[DISCLAIMER: In this post, we are going to name probable defendants based on available information. We are not determining liability or placing blame.]

One attribute of legal education is viewing an event and knowing, without a doubt, litigation will ensue; it is a blessing and a curse! I had this experience yesterday as I watched the horrific news unfold about the Florida International University bridge collapse. Issue spotting and parties were being identified within minutes after I received notice a bridge had failed in Florida.

For many catastrophic injury and wrongful death attorneys, this is a dream case. This sounds bad, I know, but hear me out. The result of this disaster is appalling and fault is abundant. None of that fault can be attributed to the victims. They were going about their day – sitting in their cars, stopped at a red light, probably admiring the new bridge – when the bridge collapsed on top of their vehicles. The victims did nothing wrong. They have no-fault (contributory, comparative, or otherwise) and, for certain, someone else is to blame.

The list of defendants will be ample. I’ve listed some of the probable defendants below. Don’t worry, these companies and institutions will be doing their own finger pointing. Whether we see it reported in the news or not, the blame game has already begun. To limit their liability, these defendants will point to others as responsible for this catastrophe, and the others will point back and point to others.

What we know:

In the City of Sweetwater, Florida, a pedestrian overpass at Florida International University (FIU) collapsed onto a notoriously busy road below. The Miami-Dade fire department confirmed six people are dead as a result. According to this article from Yahoo News, “at least eight vehicles were trapped in the wreckage of the 950-ton bridge.” Evidently, the bridge was constructed on the side of the road and was installed last Saturday.

“To keep the inevitable disruption of traffic associated with bridge construction to a minimum, the 174-foot portion of the bridge was built adjacent to Southwest 8th Street using a method called Accelerated Bridge Construction (ABC). It was driven into its perpendicular position across the road by a rig in only six hours on Saturday, according to a statement released by the university.

The $14.2 million bridge was designed to withstand a Category 5 hurricane, the most dangerous measure by the National Hurricane Center, and built to last 100 years, the university said.”

We can safely say the bridge did not live up to the purpose of its design. It didn’t have an opportunity to be hurricane tested because it was unable to remain standing for a whole week.

Possible Defendants: Anyone Involved in the Design, Construction, Inspection, and Erection of the Bridge

Where do I start? There are so many possibilities. Here is the list I’ve developed so far:

  • Munilla Construction Management (built and installed the bridge)
  • FIGG Engineering Group (bridge design, engineering and construction services)
  • Barnhart Crane and Rigging (moved the bridge into place)
  • BDI (structural testing and monitoring services)
  • City of Sweetwater
  • Miami-Dade County
  • Florida International University
  • Florida Department of Transportation
  • Materials Manufacturers (concrete, steel, etc.)

There will probably be other subcontractors and unknown parties who will be added to this list. The city, county, and state probably conducted inspections at different times during the design and construction of the bridge, so failures may be attributed to the municipalities as well.

Where Experts Come In:

What we have in this case is a bridge collapse. Failure analysis is the technical phrase used to determine why the bridge collapsed. The NTSB is sending their own investigative team to determine the cause for the failure. In litigation, both Plaintiff and Defense will retain a variety of experts to conduct their own analysis. Experts for all parties will have many questions to address. Here are some of the issues that come to mind immediately…

Were there defects in the construction of the bridge? If construction defects are identified, they may indicate a breach in the standard of care used by Munilla Construction Management during building of the overpass.

What about the design of the walkway? Did FIGG Engineering follow appropriate standards in designing the structure? Design and structural engineers will have to evaluate errors in the specifications which may have left the platform in a weakened and unsafe state.  This will also play a role for BDI who monitored the installation and later posted this picture, on Twitter:

 

bridge-collapse.PNG

 

Was the platform moved and installed according to crane and rigging policies and standards? Had there been a failure to secure the pieces of the bridge when moving it into place? Had the installation process added stress to components unnecessarily? This will all have to be analyzed to see if Barnhart Crane and Rigging had breached their standards of care during installation. Again, this will play a role for BDI, as they believed the move was a “job well done.”

By images and videos available in the news, we can see significant concrete slabs on top of the damaged vehicles. It will have to be analyzed and determined if the materials themselves had failed. Was the concrete, steel, or other material defective? Was it built to specifications? If not, what is the acceptable industry-standard deviation? If so, a product liability lawsuit against the materials manufacturers may also be appropriate.

All of these items will come back to the municipalities involved. Why did they retain the above-named companies? Was there a history of safety concerns with any of the firms? Were they overlooked? Did the municipalities fail to properly inspect the construction efforts? The Miami Herald covers some items about Munilla Construction Management and FIGG Engineering (and their respective work histories) in this article.

Traffic and pedestrian safety standards also come to mind as issues that may be addressed in upcoming litigation. Was there an alternative traffic route that could have been used until construction was completed? Were traffic safety procedures followed for the installation of an overpass?

There are many questions to be answered. For the victims, those answers will not ease the pain of losing loved ones. But the one guarantee we have is that one or more parties are responsible and those parties will be busy pointing the finger at each other and at others.

Business ValuationExpert WitnessLitigationSecurities

SEC Charges Theranos CEO with Massive Fraud – Securities Expert Witnesses

Once considered “The Next Steve Jobs” or the “female Steve Jobs,” Elizabeth Holmes has fallen from grace and landed directly in the cross-hairs of the Securities and Exchange Commission (SEC). Today, the SEC filed a civil complaint against Elizabeth Holmes and her company Theranos, Inc. There was a separate action filed against the Chief Operating Officer, Ramesh “Sunny” Balwani.

The complaint alleges, in part:

“Holmes, Balwani, and Theranos raised more than $700 million from late 2013 to 2015 while deceiving investors by making it appear as if Theranos had successfully developed a commercially-ready portable blood analyzer that could perform a full range of laboratory tests from a small sample of blood. They deceived investors by, among other things, making false and misleading statements to the media, hosting misleading technology demonstrations, and overstating the extent of Theranos’ relationships with commercial partners and government entities, to whom they had also made misrepresentations.”

Oh the good old torts of negligent and intentional fraud and misrepresentation. Takes me right back to the first year of law school, when Nickelback was a hot new band, rather than the sad punchline of Internet memes. I digress.

The complaint goes on to allege that based on representations, investors believed Theranos had developed a proprietary medical device able to conduct comprehensive diagnostic tests from a small amount of blood taken from the patients’ finger. They also made representations that they would collect and transport these samples in order to complete the tests on their proprietary analyzer. All of this would be done more efficiently and economically than traditional blood testing labs.

According to the complaint, Theranos was only able to perform about 12 of the 200 tests they claimed they were capable of performing.

Let’s stop here and give a simple warning: If you are soliciting money from investors, make it very clear what you are able to achieve. Differentiate this from what you hope to achieve in the future. Do not mix the two. Otherwise you get into a bad area called misrepresentation, or in this case, securities fraud.

A wide variety of expert witnesses:

In complex civil litigation such as this, there is room for a wide variety of different experts. I can only imagine the SEC and Theranos are both using consulting experts at this time in preparation for a long drawn out litigation. The complaint has only been filed today, so expert disclosures are a way off. Here are a few types of expert witnesses or consulting experts I expect to see in this matter.

Corporate Governance:

Expert witnesses on corporate governance are highly likely to play a role in this case. Officers of a corporation are fiduciaries of the corporation. Holmes owed a duty of care to the company and to her investors. She is accused of misrepresentation which, if proven, would certainly violate the standard of care owed to shareholders and the company. I expect there will be significant dispute by the parties to prove she either did or did not violate her fiduciary duties.

Securities & Finance:

Several different types of experts who practice in the area of securities fraud may come into play. We are likely to see experienced Wall Street experts with a history in equity trading, proprietary trading, investment research, securities valuation, financial forecasting, venture capital and investment banking.

Some experts will probably have backgrounds in IPO’s, private equity financing, securities financing, and stock options financing.

In this area, I feel as though I can go on ad infinitum. That’s not true and it is probable one or two candidates will have the requisite expertise, described in this section, to address the finance and fraud related matters.

Economics:

Although the SEC is primarily suing for injunctive relief, they do mention the potential for civil monetary penalties. I would expect there will be some need for an economist (by both parties) to establish the value of Theranos and shares owned by Holmes and Balwani.

As I do not practice securities litigation and this is not a law review article, it is possible the civil penalties are predetermined by the Securities Act and there is no need to value the penalties other than by the trier of fact.

UPDATE:

Within hours of writing this blog post, I discovered that Elizabeth Holmes has settled with the SEC. According to Reuters, she will be stripped of her majority control of the company and will have to return millions of shares to Theranos. She will also pay a $500,000 fine and be barred from being an officer or director of a public company for 10 years. As of this update, Mr. Balwani has not settled with the SEC.

 

 

Expert WitnessMedicalToxicology

Freed Russian Spy Likely Poisoned: What experts might be used in this investigation?

Yesterday, news broke that a former Russian spy, Sergei Skripal, and his daughter, Yulia, were found unresponsive on a park bench in Salisbury, England. News reports revealed Mr. Skripal and his daughter were suffering from exposure to an “unknown substance.”

According to an article in the Daily Mail today, “Two police officers who were among the first to come into contact with Mr Skripal and his daughter on Sunday were also admitted to hospital after suffering itchy eyes, rashes and wheezing on Sunday. Up to 10 other people suffered symptoms including vomiting.” One member of emergency services remains in the hospital as of this writing. Mr. Skripal and his daughter are both in critical condition. The substance remains unknown.

Of course, this instance immediately reminded me of the 2006 poisoning of former Russian spy Alexander Litvinenko. Mr. Litvinenko’s tea was laced with a radioactive material known as polonium-210, causing sudden illness and hospitalization. He died approximately three weeks later. UK inquests have determined the Russian Federation was responsible for Litvinenko’s assassination.

From reading a bit about both of these matters, I begin to understand that Russia does not take kindly to turncoats. They are also very brazen in their efforts to eliminate enemies of the state.

Reading about the potential poisoning of Mr. Skripal got me thinking about the types of experts that would be used in the investigation and possible criminal or civil actions related to this assault.

HAZMAT & Emergency Services:

Images from multiple news stories show a HAZMAT response to decontaminate the area from exposure to the “unknown substance.” I am unfamiliar with different levels of hazardous material responses, but I imagine HAZMAT experts will be required to help investigators determine the type of substance based on their response. It appears the immediate area around the bench, first-responders, and a restaurant in Salisbury are all being decontaminated.

There is no evidence of a large-scale quarantine nor is an entire block cordoned off. So, it appears HAZMAT believes the chance for further exposure to the community is limited. Such a response likely eliminates the threat of certain chemical or biological contaminants which could result in greater danger to the community.

Nuclear, Chemical, and Biological:

The post from the Daily Mail tells us, “Tests on the substance involved are being carried out at the defence research centre at Porton Down.”

There must have been evidence of the substance available at the scene allowing for samples to be taken for testing. Based on the previous assassination of a former Russian spy using radioactive materials, one can conclude nuclear scientists will be vigorously investigating the substance for radioactivity.

Since Scotland Yard’s counter-terror investigators are involved, it is reasonable to assume chemists and biologists will also be conducting tests on the substance.

A Toxicology Investigation:

I know most of us in the legal community think of forensic toxicologists being needed to detect drugs in a person’s system. Usually we see the use of toxicologists in a DUI, employment, or toxic tort related matter.

We don’t normally think of the need for toxicologists in an assassination or attempted assassination. However, if we remove the international intrigue from the equation, we are simply left with murder or attempted murder. Therefore, investigators will need to know the impact of the substance on Mr. Skripal and his daughter.

The Daily Mail noted, ” Emergency services initially believed Mr. Skripal and his daughter had taken fentanyl, a synthetic opioid that is up to 100 times more potent than heroin that has caused thousands of deaths among drug addicts worldwide.”

A toxicological investigation of the Skripal’s will be necessary to help determine the substance used to either drug or poison them.

Conclusion:

It is too early to conclude anything. Until we know more about the substance, we cannot identify the most appropriate experts to assist in the investigation. As the substance appears to be unknown as of today, we can only suspect UK authorities will employ all of the above during their investigation.

Should this incident turn into a murder investigation, we are likely to see several of the above experts testifying as expert witnesses.

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!

 

Accident Investigation & ReconstructionAccident SafetyIndustrial Accident

Car Accident Experts: Quentin Tarantino Questions How the Uma Thurman Accident Happened

Over the weekend we heard from another victim of Harvey Weinstein. This time, actress Uma Thurman discussed her assault at the hands of Hollywood’s most well-known predator in a piece for the New York Times. In this opinion piece by Maureen Dowd, Uma Thurman recounts a physical attack by Weinstein that occurred when she was a young actress (an attack Weinstein denies).

Also discussed in the article was a car accident on the set of Kill Bill. An accident Thurman believes resulted in long-term neck and knee damage. The interesting aspect of this car accident is that it was recorded by a camera mounted on the Karmann Ghia driven by Thurman (video available in the Times article).

In an article published last night by Deadline, director Quentin Tarantino explains that he provided the 15-year-old footage to Ms. Thurman in the hopes that “if I get this footage to her and she puts it out there in the world, that a crash expert can look at it and determine exactly what happened on that road.”

In the article on Deadline, Tarantino provides us with some more information about contributing factors in the crash. Here are some of the items that an accident reconstructionist would have to take into account when viewing the video.

  • Uma Thurman was driving the automobile somewhere between 35 and 45 MPH
  • There was an S-curve in the road that appears to be a fork in the road
  • The road had more sand and less dirt than Tarantino anticipated
  • Tarantino drove the road in one direction to test safety
  • Thurman drove the road in the opposite direction with no prior test in that direction
  • There was a mounted camera on the back of the automobile making the back-end heavier
  • Tarantino says the automobile was hydroplaning on the sand
  • The car goes into a spin in the sand and slides into the tree

Unfortunately for Thurman, she believes that the automobile may not be around for inspection by an auto accident expert. In the Deadline article, Tarantino explains his conversation with Thurman after the Times article was released last weekend and recounts their conversation as follows: “After the car incident. She feels it’s very possible the car was destroyed, at Harvey Weinstein’s insistence, and at Bennett Walsh and Lawrence Bender’s execution.” Putting aside the conspiratorial ideas and potential destruction of evidence, the remaining information to be analyzed is the video and witness statements.

What else can we determine from the video?

What else might help to determine the cause of the accident? In the video we actually get to see the impact to Ms. Thurman’s body at the time the automobile hits the tree. The movement and impact on the body could help explain the cause of the accident.

Not only will a “crash expert” be needed to analyze the video and witness statements as suggested by Tarantino, but it is likely a biomechanics expert would be required to help determine the injury to Thurman’s body. The combination of expertise from an accident reconstructionist and biomechanics expert will provide Ms. Thurman with a full accounting of the cause of this crash and resulting injury.

By her own account in the Times article, Ms. Thurman describes, “The steering wheel was at my belly and my legs were jammed under me… I came back from the hospital in a neck brace with my knees damaged and a large massive egg on my head and a concussion.” In the video you can see the relatively tall Thurman’s legs shoved under the steering wheel of the Karmann Ghia. There is also a protrusion (which appears to be her Kill Bill sword) at about shoulder level (while sitting). This protrusion impacts with the right side of her head when the front left side of the car collides with the tree. One can only imagine this item (which probably should have been secured or removed) was responsible for the concussion.

There are a host of other issues present in an accident like this. Certainly matters of workplace safety come to mind. However, Mr. Tarantino only seemed interested in determining the cause of the accident. In which case, we recommend the involvement of an automobile accident reconstructionist and a biomechanics expert as described above.

I invite any of our Experts.com members to review the video and write an article analyzing the accident!

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?