Tag: experts

EvidenceExpert WitnessExpert Witness TestimonyUncategorized

Safeguarding Your Reputation as an Expert Witness

on January 16, 2024

In 20 years in the legal industry and nearly 14 working with expert witnesses, I’ve never seen such a damaging assault on an expert witness practice as I did at the end of 2023. Something so destructive it has the potential to erase an expert’s practice. It must be discussed as a cautionary tale.

DISCLAIMER: We are not taking a position on the performance or practice of Professor Eli Bartov. We have not read his reports, seen his trial testimony, or reviewed trial transcripts in the case of New York v. Trump. This article is about the impact of judicial statements on your expert witness practice and serve as caution when taking high profile cases. We still want you to take high profile cases.

What Happened?

On December 18, 2023, Reuters wrote an article that may absolutely destroy the expert witness practice of Professor Eli Bartov. Professor Bartov is a professor of accounting at NYU Stern School of Business. He served as an expert witness in the New York civil fraud trial against former President Donald Trump.

Other major news publications (CNBC, Newsweek, NBC News), with search engine domain authority, also wrote articles on and around the same date.

In each of these articles, the publishers quoted presiding Justice Arthur Engoron’s analysis of Professor Bartov’s testimony which stated, “All that his testimony proves is that for a million or so dollars, some experts will say whatever you want them to say.”

That statement, my dear friends and colleagues, can be a career killer for nearly any expert witness. The judge’s statement may not only affect Professor Bartov’s practice, but the rippling effect of its repetition by major publications tarnishes his online reputation. It is just the beginning of the trouble.

Worst Negative Statement by a Judge I’ve Ever Seen:

If you are an expert witness, you never, ever want a judge of any court to comment in such a negative way about your work. Judge Engoron’s statement essentially calls Professor Bartov a “hired gun,” and questions his competency by indicating the analysis is trash.

You cannot control what a judge says or does. Judges may find your methodology lacking or your opinions to be unsupported. A comment on those issues would be unfortunate but it would not destroy your credibility or reputation. Should the comment resurface in a future proceeding, a capable attorney would probably be able to rehabilitate your credibility as an expert witness.

We have long discussed the need to protect your reputation and credibility. Nothing is more important. The job of opposing counsel is to chip away at your credibility. A high-profile case like this is going to put your expertise and opinions under broader and more intense scrutiny. Not just by counsel but by the media.

After a while, some might ignore the comments of this judge. They may say it was a high-profile political case and the judge was biased against the defendant and thereby biased against the defendant’s experts. I’m not here to discuss those items. Leave the politics at the door. We take the outcome as a lesson to be used in your expert witness practice.

Impact of a Minor Negative Statement by a Judge:

Opposing counsel, in future cases, may scour records of previous cases to find your reports, deposition, and trial transcripts, and may read rulings by judges to find ways to discredit your work. It is their job to undermine your expertise for the benefit of their client. Do not take it personally. It is an unfortunate side effect of our adversarial judicial system.

If they find a negative statement by a judge, they may use it against you in trial to impeach your credibility or question your reputation.

It is the job of the lawyer or law firm that retains your services to counter impeachment-attempts and to rehabilitate your credibility. You assist your counsel in countering impeachment attempts by doing objectively good work, using defensible scientific methodologies and taking cases where you know you can provide an objective and dispassionate analysis.

With some effort, a normal run-of-the-mill disparaging or negative comment by a judge is easily outweighed by your other solid work.

Why this is so Damaging Beyond the Courtroom:

As I mentioned above, so many major news organizations reported about this statement by Judge Engoron. When reading the Reuters article and the damaging comment about Professor Bartov’s efforts in the case, I had to dig further to see how this proliferated. More than4 weeks later the problem continues. I’m not sure SEO geniuses can rehabilitate the online reputation.

Here are some searches a lawyer is likely to do in the preliminary stages of due diligence before hiring this expert in the future.

I encourage you to conduct the following searches, noting that the results may vary by date and location. Here is one search a lawyer is likely to do:

Professor Bartov, NYU Stern School of Business has excellent domain authority and ranks right at the top of a Google search. It is the 3rd organic search result that lets you know the professor testified in a trial involving a former US President. That’s an article of interest for any attorney considering retaining an expert.

There’s nothing horrifically bad in this article. It talks about the amount of fees, but reporters love to write about the amount of expert witness fees. You do see that out of the first seven results, the last 2 results discuss credibility. That becomes a significant issue for any expert.

Let’s try another search. How about “eli bartov expert witness.”

Ouch. We now have several search results discussing credibility.

Most attorneys concerned about hiring an expert witness to assist with a client matter may be now totally unable or unwilling to take a chance on an expert with this sort of easily identifiable negative coverage.

You see, even if the judge was wrong in his statement, the media could have entirely destroyed any chance for this expert to be hired in a future matter because an attorney cannot take the chance of hiring this person and having their credibility called into question.

Finally, let’s assume another simple search. What if counsel searches “eli bartov trump.” This is the worst result.

Okay, well let’s try Bing and see if the results are any different. We try “eli bartov” again.

You get the drift. Second result discusses credibility. It’s very damaging.

In Conclusion:

Any lawyer considering retaining your services is going to be nearly impossible if they find this kind of coverage because opposing counsel is going to have a field day with these stories.

Might you be able to rehabilitate this reputation? Maybe. Will counsel be willing to take on that fight when they’re trying to win a matter on behalf of their client? Unlikely. Remember, you’re in business and you must sell your reputation.

I do not want to dissuade you from taking high-profile matters. They can be great for your practice. They can also be awful for your practice.

If you’re on a high-profile case, it is that much more important to do objectively good work, using defensible scientific methodologies and taking cases within your expertise where you know you can provide an objective and dispassionate analysis. Remember that your analysis will be under more microscopes than normal.

Expert WitnessUncategorizedWeather

Meteorology and Atmospheric Science Expert Witness Informs on 2023 California Storms

on January 12, 2023

If you’re a Californian, the last two weeks of storms has felt like a storm season that will never end!

If you’re a Californian, the last two weeks of storms has felt like a storm season that will never end! In the past, I’ve written about major weather related events such as hurricanes and the resulting property damage, insurance issues, and lawsuits. Most weather-related events and their litigation aftermath always seem to happen somewhere else. On the East Coast. Or, in the Midwest. Rarely do they seem to impact California.

California, my home state. A state known for beautiful views. From sandy beaches to exquisite mountain vistas. The San Francisco Bay Area to Yosemite. It’s a wonderful place.

The people… We’re a spoiled, complaining bunch. Until approximately 12/31/2022, you’d have heard regular complaints about the severe drought plaguing our state. We’re filled with fear and non-stop commentary about how we really “need the water.” This drought has been a part of California-life for my entire lifetime. Same sayings. Same complaints. Mostly the same conservation efforts.

As of 1/11/2023, our daily complaints have changed dramatically. Now, we’re bemoaning 13 days of snow, rain, hail and wind. I have to be clear here. These storms have now happened for 13 consecutive days. There have been breaks. The severity of the storms, however, have been unlike anything I’ve ever experienced as a lifelong Californian. Our Governor declared a State of Emergency for the entire State. For weather? Yes! For weather.

Please realize I’m making light of our current situation, albeit briefly, because of my perspective as a Californian. In reality, tens of thousands of people have been negatively impacted by flooding, snow, and wind. Dangerous and long-lasting power outages, property damage, and lives lost as a result of never before experienced weather events.

It’s weird to us because in most parts of the state it’s sunny 300 days a year. Is it cold in January and February? Yes, a little, but it’s sunny. Some years, we hardly get rain worth remembering. In fact, I can’t recall a storm since the winter of 2017, when there was a crisis at the Oroville Dam after rain damaged the spillways. Almost 6 full years with no notable weather events (at least in Northern, CA, where I’m located).

The Santa Barbara mountains face flood issues a little more regularly. They had substantial flooding and mudslides in 2018. Five years later, they are dealing with significant floods once again.

If I haven’t been clear, major weather events in California are rare compared to our fellow US States. Phrases like “bomb cyclones” and “atmospheric rivers” are uncommon here. Let alone multiple continuing atmospheric rivers over a 2-2.5 week time frame.

As I do when I have questions about events in which I have no expertise, I reached out to one of our expert witnesses to provide some insight.

Meteorology and Atmospheric Science Expert Witness Timothy Minnich

Timothy R. Minnich MS, QEP, President of Minnich & Scotto, Inc., is a Meteorologist and Atmospheric Scientist with over 40 years experience in the design and management of a wide range of ambient air and meteorological investigations under CERCLA and the Clean Air Act. He is a recognized technical expert on high-profile legal cases, with assignments involving forensic meteorology and reconstruction of inhalation scenarios in relation to community exposure to hazardous air pollutants (HAP). 

Mr. Minnich is accomplished in presenting conclusions and opinions derived from analysis of complex technical data in a well-reasoned and easily understood manner. He is a skilled technical writer and proven manager in a highly specialized arena. He is a nationally recognized expert in the application of optical remote sensing (ORS) for hazardous waste site remediation. He has designed and managed more than 25 ORS field investigations and air dispersion model validation studies since the promulgation of U.S.EPA (EPA) Method TO-16 for open-path FTIR (Fourier-transform infrared) spectroscopy in 1988. 

After about 11 or 12 days of continuous storms, I reached out to Tim with some questions because I was hearing weather-related terms I’d never before heard. Below, you’ll find my questions and Tim’s answers!

Questions & Answers

Nick Rishwain: California is dealing with a series of storms to which we’re not accustomed. As a meteorologist, can you explain for the layperson, the concept of a “bomb cyclone?”

Tim Minnich: A “bomb cyclone” is a term recently coined to identify a storm (non-tropical) which is rapidly deepening. It comes from the term “bombogenesis,” which means a non-tropical storm in which the atmospheric pressure drops at least 24 millibars in 24 hours or less.

Nick Rishwain: According to news reports, we’re also experiencing a number of “atmospheric rivers.” Or, maybe it is one ongoing atmospheric river? Can you explain the concept of “atmospheric river?”

Tim Minnich: An “atmospheric river” is a term that simply refers to a rapidly moving plume of moisture at high altitudes. It is generally associated with a storm which provides heavy rain or snow.

Nick Rishwain: As a Northern, Californian, we’re not used to the weather impacting us since the New Year. What type of litigation / lawsuits are likely to stem from the wind, rain, snow, and flooding we’re experiencing?

Tim Minnich: I would expect the most common form of litigation would likely involve property damage claims caused by flooding, wind damage, and roof collapses associated with extreme snow loading.

Nick Rishwain: What types of meteorological investigations might a forensic meteorologist like yourself be asked to conduct in the aftermath of a storm ravaged California?

Tim Minnich: Working with engineers, such investigations would provide direct evidence – such as official meteorological observations – to support whether or not the actual damage was caused by the extreme weather conditions at the time.

Nick Rishwain: I’m assuming it would be a good idea for counsel, businesses, or insurance companies to contact you in the early aftermath of these storms. How might a meteorologist assist in the immediate aftermath of these storms?

Tim Minnich: By providing an early technical analysis as to the likelihood of success in either filing a claim (plaintiff) or denying a claim (defendant).

Nick Rishwain: I’m also assuming there are going to standard property damage and insurance claims stemming from wind, rain, snow, and flooding. What are some of the hidden dangers/damages resulting from storm damage?

Tim Minnich: Structural damage to buildings represents the most serious situations arising from extreme storms. The immediate danger of building collapse from strong winds or downed trees is obvious, but compromised foundations represents a risk that should be swiftly investigated by a qualified engineer if serious flooding or long periods of saturated soil has occurred.

Nick Rishwain: You have expertise in “exposure to hazardous pollutants.” Are those a danger to Californians as a result of flooding? Or, as a result of some other storm damage?

Tim Minnich: I would say that exposure to hazardous pollutants arising from direct contact with contaminated water would generally not be a problem, unless flood waters have breached industrial areas — specifically containment facilities which house hazardous materials.

More to Come

We’re grateful for Tim’s willingness to participate in this timely blog post. I wish I could tell you this topic is complete, but the existing storm watch says California may not have any reprieve until 1/18/2023. To the best of my understanding, that only means a reprieve from the currently identified storm front. Not sure what to expect for the remainder of the winter and spring. As such, I may be back with another weather-related update before you know it!

EvidenceExpert Witness

Proposed Changes to FRE 702 Daubert Standard – Expert Witness Testimony

on March 31, 2022

It appears we’re poised to see some changes to Federal Rule of Evidence section 702 for the first time since the 2000 amendments.

In an excellent article published by Butler Weihmuller Katz Craig LLP, attorney Scott Hefner provided an excellent history of FRE 702 and a summary of the proposed amendments which if adopted by the Supreme Court, will go into effect in 2023.

Mr. Hefner provided an outstanding summary of the Daubert Standard and its codification and I encourage you to read his article for further depth. I just wanted to provide the existing rule and the proposed changes for your review, so that you and your expert witness practice can be prepared for the possible changes to FRE 702.

Existing Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. the expert has reliably applied the principles and methods to the facts of the case.

Proposed Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

For your convenience, I’ve bolded the changes in the proposed rule. In my reading, the only real substantive change is “the proponent has demonstrated by a preponderance of the evidence…” This is the standard that has always applied, but the advisory committee decided they needed to clarify the standard. Mr. Hefner’s article notes that the committee included the standard to “dispel the notion that expert testimony is presumed to be admissible.” In the years I’ve been working in the expert witness field, I’ve never known this to be presumed. In fact, since law school (i.e. as long as I can remember), the rule has always been that the court serves as the gatekeeper for allowing expert testimony.

Now, I would love feedback from readers on the other “substantive” change to section 702(d). When I look at the existing subsection and the proposed changes, it is difficult to identify how this will actually change anything in practice.

In fact, it seems Mr. Hefner and I are in full agreement on this subsection change. He even mentions, “The practical implications of the amendments remain up for debate.” To take it a step further, he quotes the Federal Magistrate Judges Association as viewing the proposal as not making changes at all but rather “largely clarifying existing practice.”

What do you think?

Do you think this proposal will have any substantive or practical effects? Let us know what you think in the comments or drop us an email at support@experts.com.

EvidenceExpert WitnessExpert Witness Testimony

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

on July 26, 2021

$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.

In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.

As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.

For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:

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

There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.

In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.

This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.

The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.

According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”

As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.

It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.

Expert WitnessUncategorized

Fake Police Officer Scam Targeting Expert Witnesses

on October 30, 2020

Mental health professionals are being targeted by a failure to appear scam. The first scam we’ve seen targeting expert witnesses.

This is the first blog post I’ve written that falls directly into the “public service announcement” category. Yesterday morning, I saw an article by the Washington Post where the author describes a telephone-based scam, where perpetrators pretend to be police officers.

The story grabbed my attention because the suspects have a little deeper knowledge about prospective victims. They know enough to know you are likely to act as an expert witness.

The caller, impersonating a police officer, claims the victim failed to appear at a court hearing in which they were subpoenaed to testify as an expert witness. The criminal claims to be an officer and provides the real name of an an officer employed at the local law enforcement agency, which can be confirmed online. The victim is told they have a civil option to pay a fine and avoid jail time.

As recounted in the Washington Post article, “The problem, the alleged detective stressed, was that because of the coronavirus, people couldn’t come into police headquarters to settle such matters. He said she needed to purchase “MoneyPak” electronic cash transfer cards — at one point transferring the call to his purported supervisor, who also had assumed the name of a real Montgomery officer.”

You need to start asking questions at this time! Have them send you some documentation in the mail. Have them personally serve you the paperwork. Do not get frightened by someone claiming to be an authority figure over the phone. That’s their goal! Get you nervous and acting irrationally.

The option to pay a fine should immediately get your attention. Not to mention this silliness of paying with “electronic cash transfer cards.” There is no reason you shouldn’t be able to pay a fine with a check or credit card.

If you are accused of missing are accused of missing a court hearing. You should know that police officers, detectives, investigators, are not usually those responsible for collecting fines. Generally that’s a different department.

Scam Has Been Taking Place for a While:

Although this fake police officer scam targeting mental health professionals, took place in Maryland. However, in preparing to write this post, I did a little research and found that the Los Angeles Police Department (LAPD) had also warned about this type of a scam back in 2019. Here is their press release on the subject. The LAPD specifically mentioned therapists and psychologists as more likely to be targeted:

“It should be noted that many of the victims are current/former employees in the mental health industry. In each of these incidents, the caller claimed that the victim missed an appearance as an expert witness in a court case. Therapists and psychologists should particularly beware of the scam. You can get help determining the authenticity of a call by contacting your local police station.”

AccountingComputer ForensicsExpert WitnessExpert Witness TestimonyForensic Accounting

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

on October 30, 2017

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

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

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

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

What types of expert witnesses can you expect to see?

Forensic Accountants:

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

Money Laundering / Anti-Money Laundering Experts:

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

Computer/ Digital Forensics:

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

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

Expert WitnessSearch Engine OptimizationSEO

Expert Witness Marketing – The Importance of Publications

on April 2, 2015

Marketing in the Expert Witness arena should not be a stagnant process. In such a competitive market, there must be more than a simple description of services. When relevant information is provided to potential clients, the chances of being retained are much higher.

The goal in any marketing strategy is exposure to the widest number of viewers. For Expert Witnesses and Consultants, publications are an extremely effective tool to help cast a wide net. Member Articles and Case Scenarios posted on Experts.com receive phenomenal exposure on search engines like Google, Yahoo, and Bing.

Informative topics with Search Engine Optimized titles can garner excellent exposure simply because there is a need for such knowledge. For instance, Member Peter Wade, who worked with the United States Postal Service for over 30 years, many of those in administrative and supervisory positions, posted an article entitled, “Certified Mail Versus Certificate of Mailing: What’s the Difference?” This article has been viewed 18,013 times to date (See View Charts). Based on the numbers, there is a definite need for the dissemination of this knowledge

Experts.com Article View Source Chart

Experts.com Article View Source Chart

Experts.com Article Frequency Chart

Experts.com Article Frequency Chart

Case Studies and Case Scenarios are also an excellent alternative to writing something academic and time consuming. Case Studies allow attorneys to read fact patterns that may be similar to cases on which they are working. It also provides a sample of analytical and report writing abilities. Party names and other identifying information can be altered for confidentiality purposes. The format is a simple checklist with which attorneys are familiar:

  • Explain the facts of the case (the represented parties; how the case arose; allegations, etc.)
  • Explain the technical issues of the case
  • Give an analysis / opinion
  • Explain how the case concluded

For those involved in promoting their Expert Witness or Consulting services, publications serve as the “squeaky wheel.” The more squeak, the more oil. The numbers reflect that professional interaction with the targeted market and business community can favorably affect the amount of exposure received and, more importantly, the bottom line.

ConsultantsExpert WitnessIndustrial DesignLitigationPatent Infringement

Precision is Key to Patent Indefiniteness Challenge

on February 18, 2015

Prior to June of 2014, the standard for patent review made it nearly impossible to invalidate a patent claim for “indefiniteness” or ambiguity. The  U.S. Supreme Court drastically changed that standard in Nautilus, Inc. v. Biosig Instruments, Inc.

Nautilus brought the case before the Supreme Court based on the notion that “the patent system is best served when patent claims are precise, definite, and certain. Ambiguous and indefinite patents stifle competition and encourage unnecessary litigation.” The Supreme Court agreed saying that the ambiguity the lower court used to evaluate the patent would “leave courts and the patent bar at sea without a reliable compass.” In its unanimous decision, the Supreme Court asked the court of appeals to reevaluate whether Nautilus infringed on Biosig’s patent design based on stricter standards.

Although the Nautilus case involved a utility patent, it is suggested by Industrial Design expert, Robert John Anders, that this standard would most likely apply to design patent drawings as well. In a recent article, Mr. Anders posits that the use of break lines or brackets with “indeterminant” measurements could also lead to ambiguity, making design drawings vulnerable to patent infringement challenges.

Image

Read the full article here: Design Patent Drawing Conventions: Break Lines That May Be Fatal

Robert John Anders is a member of the Industrial Designers Society of America and the Human Factors and Ergonomic Society with more than 40 years of professional experience. Mr. Anders has been retained as an Industrial Design Expert for over 17 years.

ConsultantsExpert WitnessMedical

Sports Neurology Expert Witnesses and Concussions

on May 13, 2014

Concussions have been front and center in the news for the last few years. According to the Mayo Clinic, a concussion is “a traumatic brain injury that alters the way the brain functions. Effects are usually temporary but can include headaches and problems with concentration, memory, balance and coordination. ” Technological advances in Sports Neurology have doctors concerned that such a broad definition does the public a great and very harmful disservice.

photo courtesy of premierelife.ca

Photo Courtesy of Premierelife.ca

In his article, “Plain Talk On Concussions,” Sports Neurologist, Dr. Vernon Williams, explains that the public’s understanding of concussions has been oversimplified for many years.  There are many factors to take into consideration when evaluating a patient. They can include previous brain injury, age, and even gender. Dr. Williams explains that,

“You can’t see a concussion on x-ray, CAT scan, or most MRI’s. But the lack of abnormality on those tests does not mean the brain hasn’t been injured. The injury occurs on a cellular level. When special methods are used, there is evidence of change in how the brain is working that last for days to weeks (evidence of persistent brain dysfunction) even when the injured athlete feels that they are back to 100% and the physical examination is normal.”

Players who engage in high contact sports like football  have a high risk for concussion. The problem has become so pervasive that parents and players have pressured the  NFL and the NCAA to tighten safety standards.  Innovations in helmet safety have come too late for many players. When NFL Hall of Famer, Mike Webster, was diagnosed with a progressive degenerative disease of the brain known as CTE, fellow retirees took note. Before his death, Webster suffered from amnesia, dementia, depression, and chronic pain, all symptoms of CTE.

Since then, approximately 5,000 retired players have filed suit against the NFL alleging the entity hid the dangers of concussions. Among the plaintiffs in these lawsuits are Art Monk, Tony Dorsett, Jim McMahon, Jamal Anderson, and Ray Easterling. Considering how high profile these cases have become, it is no wonder that brain injury has become a growing concern in Sports Medicine litigation.

Concussion litigation in the NFL, sports clubs, and even in school yards across the country have garnered so much attention that George Washington University’s law school has developed a course devoted solely to the legal implications of traumatic brain injuries.  Michael Kaplen, who teaches the course, is a plaintiffs’ lawyer who has worked on cases involving traumatic brain injuries for more than two decades. Kaplen believes the NFL became responsible for the safety of its players when it began studying the cause and effect of concussions over twenty years ago. (See article in The NewYorkTimes.com).

Public safety is the common thread for sports neurologists like Dr. Vernon Williams and litigators like Michael Kaplen.  With advances in medical technology, doctors have learned that the basic warning signs of a concussion which have prevailed for so many years are no longer sufficient. In light of this progress, making the NFL and other organizations accountable for the well-being of its players may be the catalyst to improved neurological health not only for athletes, but for everyone who has suffered traumatic brain injury.

______________________________________________________________________________

*Vernon B. Williams, MD specializes in Sports Concussions, Sports Neurology, and Pain Medicine. Dr. Williams is the Founding Director, Center for Sports Neurology and Pain Medicine at the Kerlan-Jobe Orthopedic Clinic in Los Angeles, CA. His clients include the Los Angeles Lakers, Los Angeles Dodgers, Los Angeles Kings, Los Angeles Sparks, among many others.  Dr. Williams’ Profiles on Experts.com.

 

 

 

 

Expert WitnessIntellectual PropertyLitigationPatent Infringement

The Tech Industry and Litigious NPEs

on September 4, 2013

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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