Tag: expert witnesses

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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.

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

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

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

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

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

What types of expert witnesses can you expect to see?

Forensic Accountants:

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

Money Laundering / Anti-Money Laundering Experts:

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

Computer/ Digital Forensics:

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

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

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Expert Witnesses Embrace Digital Media Platforms – Interview with Attorney Mitch Jackson

On October 14, 2015, Experts.com interviewed Expert Witness and 2013 California Lawyer of the Year, Mitch Jackson, on the benefits of Expert Witnesses embracing digital media to promote their services. To watch the interview, click the link below.

Mitch Jackson was admitted to the California Bar in 1986 and immediately opened up his own practice representing victims of personal injury and wrongful death. In 2009, Mr. Jackson was named Orange County “Trial Lawyer of the Year,” by the Orange County Trial Lawyers Association. In 2013, he received the California Lawyer Attorneys of the Year (CLAY) Award for litigation. According to California Lawyer Magazine, the CLAY Award recognizes attorneys who have changed the law, substantially influenced public policy or the profession, or achieved a remarkable victory for a client or for the public and have made a profound impact on the law. Mr. Jackson is also an expert witness in legal malpractice matters.

Mr. Jackson is an active social media influencer with a strong presence on Twitter, Facebook, Periscope, Blab, Instagram, among others. In addition to his legal practice, Mitch Jackson maintains several websites promoting: livestreaming, communication, Rotary service, and, most importantly, “Being Human.” To learn more about Mitch Jackson, his practice, and his social influence, visit the following sites:

http://jacksonandwilson.com/
http://streaminglawyer.com
http://human.social/

Experts.com was established to allow professionals a platform to showcase their areas of Expertise. Since 1994, we have been providing millions of users worldwide with access to specialized knowledge. We believe our members should have control over monetizing their specialized knowledge and expertise. In this day in age of high technology, there is no need for a broker or middle man to mark up fees or market your expertise. Put your best foot forward with Experts.com.

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Expert Witness Credibility Can Make or Break a Case

In the forefront of legal news today is the Glossip v. Gross death penalty challenge / lethal injection case before the Supreme Court. Set for oral argument today, the Justices must determine if Oklahoma’s use of the common surgical sedative midazolam fails to make prisoners unconscious during lethal injections, violating the Eighth Amendment’s protection against “cruel and unusual punishment.”

According to ProPublica, the case took a turn when Oklahoma’s pivotal witness, Dr. Roswell Lee Evans, testified in trial that inmates “would not sense the pain” of an execution after receiving a high dose of midazolam. That, in and of itself, is not enough to turn heads but legal and medical professionals took note when Dr. Evans, a board certified psychiatric pharmacist and the dean of the Harrison School of Pharmacy at Auburn University in Alabama, testified that he has never used midazolam on a patient, nor has he ever personally induced anesthesia.

To make matters worse, 150 pages of his 300 page expert report were printouts from the consumer website Drugs.com, whose disclaimer reads, “not intended for medical advice, diagnosis or treatment.” Furthermore, pundits were grumbling at the fact that Dr. Evans had not published a paper related to his pharmacology research since 1996.

Last month, a brief was filed by 16 independent professors of pharmacology disputing Dr. Evans’ claim. The professors, according to Probublica, contended that, “It is widely recognized in the scientific and medical community that midazolam alone cannot be used to maintain adequate anesthesia…”

Caution SignCaution all Expert Witnesses! Credibility is Everything.

Once general competency is satisfied, an Expert Witness’ knowledge of the subject matter affects the weight and credibility of his testimony. Since a general rule of evidence is that a witness may only testify to what they have personally observed or encountered through their five senses, this “Sunday Pundit” is concerned for the good doctor. His lack of experience with the midazolam, his unreliable sources, and his lack of peer support do not bode well for him or the state of Oklahoma.

Ponder the The Daubert standard  for evaluating the reliability and relevance for “good science” and make your own judgment:
1) whether the scientific theory can be (and has been) tested;
2) whether the scientific theory has been subjected to peer review and publication;
3) the known or potential rate of error of the scientific technique; and
4) whether the theory has received “general acceptance” in the scientific community.

We are interested in your comments. Please feel free to share.

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The Tech Industry and Litigious NPEs

Patent InfringementIt comes as no surprise that the tech industry is the most litigated of 2012-2013. With companies such as Apple, Samsung, Verizon, LG, and Google vying for major shares of the market, competition can get fierce. For over a year, Samsung and Apple have been slugging it out over the copy and design of the iPhone’s software features. These, however, are operating companies with products and services to sell, both of which are vulnerable to fundamentally important legal counter-assertion defenses. Intellectual property litigation gets even more complicated and egregious when it is engendered by entities with no competitive products and services. The same defenses do not apply to to these entities. Even with new and pending patent reform laws in place, high tech litigation is overwhelming our court system and affecting the bottom lines of many high tech companies in industries such as electronics, communications, semiconductors, and software.

The most notable combatants in the IT litigation arena are the Non-Practicing Entities (NPEs), derogatorily known as “patent trolls.” These companies base their revenue stream solely on collecting, licensing, and enforcing patents, litigating whenever there is a threat to their patent’s market share, whether real or dubious. Although under criticism from some, James Bessen and Michael Meurer from Boston University released a highly publicized study estimating that the direct cost of NPE patent assertions is “substantial, totaling about $29 billion in accrued costs in 2011.” Although this includes patent infringement awards in all industries, high tech makes up fifty percent of NPE suits filed.

Litigation brought on by NPEs, both costly and time consuming, is difficult to defend. According to PatentFreedom, a company dedicated to assessing and addressing specific NPE risks, since NPEs “do not sell products or services (other than the licensing of their patents), NPEs typically do not infringe on the patent rights contained in others’ patent portfolios. As a result, they are essentially invulnerable to the threat of counter-assertion, which is otherwise one of the most important defensive – and stabilizing – measures in patent disputes.”

The America Invents Act (AIA) passed in September of 2011, which was meant to limit the number of defendants an NPE can join in a suit, has not curbed the amount of patent infringement litigation occurring today. The major tenet of AIA is a shift from “first to invent” to “first to file.” As such, NPEs can no longer gather all possible defendants in an effort to maximize awards. With good intentions, Congress set out to decrease the “deep pocket” syndrome, thereby reducing the number of suits filed. Although the AIA changes the economics of litigation, it has not, in the past few years, decreased the number of cases filed by NPEs. In fact, PatentFreedom estimates that, NPE  litigation against operating companies has increased by 170 from 2012 to 2013, and this is only the halfway mark. In 2012, the number of cases filed against operating companies was 4,229. So far this year, that number has increased to 4,400.

In March of 2013, the Shield Act was passed to curb the amount of egregious lawsuits brought on by NPEs. In effect, it makes NPEs responsible for the litigation costs of failed suits. However, the Shield Act requires defendants to take the suit all the way to final judgement. Since much time and resources are required to litigate these suits, most settle well before judgement. This leaves the door wide open for opportunistic NPEs.
Considering they have the right to sue, do NPEs, by their nature, have an unfair advantage over the operating companies they are suing. Considering the state of affairs today, should Congress do more to level the playing field? Only time will tell how this battle plays out.

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Press Release – The Benefits of Distribution

Press Releases are an excellent way to promote Expert Witness and Consulting Services. Aside from publishing press releases to a variety of print, broadcast, and online media, they can also be sent to current and prospective clients. The benefits of issuing a press release are many:

  • Perception Is Key – The idea that an Expert’s services are deserving of media coverage plants the seed that he is successful. In other words, if the New York Times  is taking space to publish a press release announcing an Expert’s or Consultant’s new book , then he must be worthy of consideration for an engagement. A press release, in essence, is mass confirmation of your achievements.
  • Third Party Endorsements – A press release issued on an Expert’s or a Consultant’s behalf by a third party is much more effective than one issued on their own behalf. Most Experts and Consultants are uncomfortable touting their own successes. By letting a third party advocate on their behalf, it takes the negative effect of self-promotion out of the equation.
  • Opportunity to Inform – A Press Release is issued mainly for a specific reason, whether for the publication of a new book, a business milestone, or a litigation success. It does not, however, have to be limited to that success. If written properly, press releases can include a short biography on the Expert or Consultant, communicating their areas of expertise and offering website links for more information on their services.
  • Maintain a Presence –  “Out of sight, out of mind.” It is important for professionals to let their current and prospective clients know that they are consistently relevant in their field of expertise. By issuing a press release, they keep their clients informed of their achievements and remain fresh in their minds for future jobs.

For more information on how Experts.com can help market your services and promote your achievements through a Press Release, please contact us at press@experts.com.

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Watermarking Your Curriculum Vitae

As disconcerting as it may be, unscrupulous activity does exist in the legal industry. As a leader in the Expert Witness and Consultant field, Experts.com believes in not only promoting our members’ services, but in protecting them as well. As such, we encourage our Experts and Consultants to Watermark their Curriculum Vitae.Watermark CV

Marking the CV with such statements as “UNOFFICIAL,”  “NOT YET RETAINED,”  “DO NOT SUBMIT,” or “UNAUTHORIZED,”  prevents unconscionable practitioners  from downloading  a CV and submitting it as their “Retained” expert witness, or implying such, without the knowledge and consent of the expert.  The watermark makes it clear to other parties what the status of the relationship is between the attorney and the expert.

The benefit of watermarking a CV is twofold. One, it allows an Expert to promote his services and qualifications and still feel secure that they will not be presented without his express consent and, two, it allows the Expert an opportunity to offer the most current version of his CV. Since the attorney must contact the Expert for an “Un-Watermarked” version, the Expert can then update the CV and bring to the attorney’s attention any new work experience or litigation successes.

For more information, or to become an Experts.com Expert Witness or Consultant, please contact us at support@experts.com.