Tag: litigation

Accident Investigation & ReconstructionAccident SafetyExpert Witness

Tesla and Uber Self-Driving Systems Result in Fatal Crashes

In the last few weeks we have read several news reports about self-driving car accidents. Tesla and Uber, two companies leading innovation in driverless automobiles, have recently experienced fatal collisions which have hampered their autonomous testing. These are not the first instances of fatal crashes using the self-piloting systems. However, the collisions happened in such a close time frame, the public had to take notice.

On March 18, an Uber autonomous vehicle (AV) was involved in a fatal crash with a pedestrian. A Phoenix Business Journal article describes video of incident as follows:

“The video shows the victim Elaine Herzberg walking her bike in the middle of the road. It does not show the actual collision “due to the graphic nature of the impact,” said Det. Liliana Duran in an email. The video also shows an interior view of the driver looking down at something off and on, possibly a phone or computer screen, before looking up in surprise right before the car hits the woman.”

Due to the graphic nature of the video, we have decided not to share it here. There appears to be some elements of distracted driving involved in this crash. Human error seems to have combined with a failure by the autonomous (self-piloting) system, to identify the pedestrian and brake or take evasive action to avoid the collision.

About 5 days after the Uber crash, Tesla experienced a similar incident while their autopilot system was engaged. Engadget reported on this accident explaining:

“The driver of a Model X has died after his electric SUV collided with a median barrier on Highway 101 in Mountain View and was subsequently struck by two other vehicles. The incident destroyed the front half of the vehicle and sparked a fire that involved the battery, leading to Tesla sending an employee to investigate. Witnesses reported seeing a fireball during the crash.”

In a follow-up article today, Engadget has gone on to state that the NTSB is unhappy that Tesla shared information about the accident. Tesla CEO, Elon Musk, went ahead and blogged that autopilot was engaged but that the driver had removed his hands from the steering wheel for the six seconds prior to impact. The NTSB says Tesla has been cooperative in all previous accident investigations, but evidently they did not want this information made public. Also, it seems the deceased driver, had some concerns about the autopilot system according to his family.

The family claims “he had brought concerns to a Tesla dealership that his Model X had previously swerved toward the same median where the accident happened.”

What gets investigated when autopilot fails?

Readers may think that some elaborate investigation needs to take place since we are dealing with driverless automobiles. The truth is, this boils down to an automotive / vehicular accident reconstruction issue.

Certainly there is advanced programming involved and the crash data retrieval (CDR) may require new methods or new technologies to access information, but the data must be recovered nonetheless.

The NTSB even states, “At this time the NTSB needs the assistance of Tesla to decode the data the vehicle recorded.” They probably require help in accessing the data from Tesla’s proprietary system, but it is still a matter of CDR. If Elon Musk knows that the driver removed his hands from the wheel for six seconds prior to impact, he must have learned of this through the data retrieval process used by Tesla.

The same is true in the Uber crash. They already have dash-cam footage that shows the vehicle did not slow before striking the pedestrian. In that instance, an accident recontstructionist, automotive engineer, or automotive software engineer will have to analyze the self-driving sensors, data, and response of the software, to determine why the car failed to respond while on autopilot.

Both of these accidents require failure analysis. What seems new to us as a society, is that these crashes involved a failure of software, rather than brakes, tires, steering columns, or seat belt failures (failures that have become common and often result in a recall to fix a feature).

The technology and collection methods may change. However, the theories of liability and the investigation remain pretty constant. We have two automobile crashes resulting in death. They require a thorough accident reconstruction investigation to determine the cause of the accidents. Once determined, matters of negligence, product liability, and fault still apply.

 

AccountingComputer ForensicsExpert WitnessExpert Witness TestimonyForensic Accounting

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.

Expert WitnessIntellectual PropertyLitigationPatent Infringement

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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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.

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Experts.com Launches New Website Platform


Experts.com is proud to announce the launch of its new website platform, with a sophisticated and modern new look and functionality. The changes are specifically intended to increase usability and brand awareness for the benefit of Experts.com Members.

The new website allows Members to market their expertise across multiple platforms, e.g., Expert Witness, Expert Consultant, Expert Answers, Expert Services, Expert Forum and Expert Blog. Members can now customize their Profiles to targeted markets through photos, video testimonials, publications such as articles and books and any other pertinent pages, documents or links of interest. The new site launched August 4, 2011 with the first two platforms for Expert Witnesses and Expert Consultants.

An attorney himself, Experts.com’s President and CEO, Nabil E. Zumout, Esq., strongly believes that the Expert Witness and Expert Consultant search process must be Efficient, Effective and Economical, especially in this troubled economy. “Our Members are at the top of their respective fields. Their expertise may vary in complexity and their services are often equally diverse. The new platform allows each Member to tailor his or her Profile to the intended audience, highlighting the particular expertise or service of interest to that audience and without compromising his or her marketing message.”

On the administrative side, Mr. Zumout states that, “the new platform allows for the consolidated management and tracking of Profiles, Articles, Books, etc., that are linked to each Profile. Finally, upgrading the infrastructure to the latest .NET platform will allow us to add more features, including Member Profile Pages with Unique, SEO friendly URLs. Again, we are simply better facilitating the means of communication between our Experts and those seeking their services.”

Please visit Experts.com to view our new look and functionality! Email support@experts.com with any questions or comments.

ConsultantsExpert WitnessIntellectual PropertyLitigationPatent Infringement

PATENT INFRINGEMENT – CEASE AND DESIST!

Patent infringement litigation has been on the rise since the mid 1990s due mainly to the increase in computer-age technology.  Most patent infringement cases involve one company charging another company with selling or using its product for their own economic advantage.  Many times, the Defendant in a patent litigation case has no idea he is infringing on another’s intellectual property, but ignorance is never a defense in the law.  The Defendant will still have to cease benefiting from the patented item and pay the allotted damages to the Plaintiff.   If  the infringement is proven to be willful, damages in such a case can be increased up to three times the actual amount of damage.

Tetra Images / Getty Image

Patent law is governed by Federal Law and the rules are set out by the United States Patent and Trademark Office, 35 U.S.C. 271 Infringement of patent. – Patent Laws.  To find that a patent has indeed been infringed upon, several items must be found. In an article entitled, “Understanding Patent Infringement Legal Opinions”, David V. Radack sets out the following:

  1. A copy of the allegedly infringed patent.
  2. The file wrapper or file history of the patent which includes a copy of the patent application as filed, communication from the patent examiner in charge of the application, and communication from the applicant to the patent examiner.
  3. A copy of the prior art references cited during the prosecution of the patent application.
  4. The allegedly infringing product or device itself. Preferably, a commercially sold device is best.

Once this information is analyzed, many times with the help of Patent Infringement Expert Witnesses and Consultants, an opinion summary is provided.  It is this opinion which sets forth how the parties will proceed, how  the Defendant should respond to a cease and desist order, if changes can be made to Defendant’s product which will eliminate the violation, or to negate a charge of intentional infringement.

Considering the litigation gridlock currently in the Federal Court system, it may be worth it to seek the knowledge of  a Patent Expert or Consultant concurrent with the development of a new device or product. If not then, retaining a Consultant prior to marketing the product could save an enormous amount of time and money.

Please click the link for a list of knowledgeable Intellectual Property, Patent Infringement and Trademark Expert Witnesses and Consultants.

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PHARMACEUTICAL PRODUCT LIABILITY

With the onslaught of legal drugs on the market, pharmaceutical product liability cases have become mainstream in the court system.  It boggles the mind how many possible harmful side effects there are for one medication alone.  Just listen to any commercial for depression medicine – and you’d better listen carefully.  They have to speak quickly to get them all in.

If a pharmaceutical company lists all possible harmful effects, does that relieve them from liability?  Do a certain number of people have to die or have a stroke in order for the drug to be pulled from the market?  Conversely, did the patient do something to exacerbate the problem?  Take too much of the medicine?  Not enough?  Is the pharmacy liable for miscalculating the dosage?

This is when Pharmaceutical, Pharmacology and Toxicology Experts and Consultants come into play.  The variables are so complex and many that a case cannot be thoroughly adjudicated without the scientific and practical experience that these particular Experts hold.  They use their skills to review medical and pharmacy records, evaluate drug delivery standards of care, toxicity, adverse drug events and even FDA regulations.  These Experts and Consultants are retained to determine the period of time a drug was used and a patient’s average compliance or adherence to taking a drug, among so many other things.

The bottom line is that Pharmaceutical, Pharmacology and Toxicology Experts and Consultants are essential to resolving complex medical issues involving pharmaceuticals and drugs.  That they play a major role in helping to regulate the industry, compensate the injured and defend the innocent cannot be denied.

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CREDIT DAMAGE EXPERT WITNESSES – COMPENSABLE DAMAGES

It used to be that credit damage was not a compensable injury.  The victims of identity theft or fraud could not recover financially for any damage that was not a tangible good or service.  Thanks to the relatively new procedure of Credit Damage Measurement (CDM) and the expertise of many Credit Damage Experts, getting compensated for intangible losses is now possible.

In an article titled, “Credit Damage: Getting Compensated for Your Loss,” Credit Damage Expert, Georg Finder writes that, “ The impact of a bad credit rating is much more significant than most people think. Consider what poorly rated consumers face when they want to lease or buy vehicles, obtain credit cards, buy or lease or refinance their residence. In most cases, it’s an easy decision for the creditor: the credit application is simply turned down or the borrower is charged a much higher down payment – maybe thousands of dollars more with monthly payments that are typically several hundred dollars more.”

Tom Key, a civil litigator practicing in Tustin, CA is also mentioned in Finder’s article.  He explains that the CDM can help by measuring the actual out-of-pocket dollars reasonably expected from loss of creditworthiness, which includes higher down payments, higher points and costs on loans, higher interest rates, higher monthly payments, or outright denial of credit.  In addition, Keys says that the CDM method also calculates the rates, costs and other terms applicable to the resulting credit rating by lenders and projects the results over the relevant number of years for the types of loans the client is likely to seek.

For those who have suffered from identity theft or fraud that has left them with little or no credit, all is not lost.  With the help of a good Credit Damage Expert, civil litigator and the CDM procedure, recovery is not only possible, but likely.

Read Experts.com Member, Georg Finder’s, complete article.

Demonstrative EvidenceExpert WitnessLitigationTestimony

EXPERT WITNESSES – RULES FOR VISUAL AIDS IN THE COURTROOM

Medical Illustration

Photo Courtesy of Coulter Medical Imaging

Visual Aids and Demonstrative Evidence are an excellent way for Experts to explain complex medical, financial and technical issues to juries.  Listening to Finance Experts expand upon how damages were calculated in real estate litigation or to Medical Experts explain a botched surgery is often not enough.  For hard to follow testimony, visual displays or demonstrative evidence, such as charts, drawings, graphs, and models can be essential to capturing and maintaining a jury’s attention.

In their book entitled, “Expert Testimony,” Steven Lubet and Elizabeth I. Boals suggest that there are Six General Rules for using visual aids in the courtroom.

  1. Keep It Simple – too much information can overload the jury.
  2. Only use information essential to the case and easily demonstrated.
  3. Obtain professional assistance in drawing and developing visual displays.
  4. Work in conjunction with the attorney – the visual aids may be subject to legal or procedural rules that govern their use.
  5. Be sensitive to the judge and his/her acceptance of digital technology displays – confer with counsel.
  6. Be sensitive to the impact of graphics – an enlarged photo of a bloody bullet trajectory may be too disturbing for a jury.  A drawing may get the point across and also be less offensive.

As technology progresses, litigation is becoming increasingly more complicated for juries to understand. Using demonstrative evidence and visual aids and following these general rules can mark the difference between a case won and a case lost.

Expert WitnessTestimony

Expert Witness Experience – How Much Is Enough?

Federal Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”  How much experience is enough has arisen  as a very controversial issue for Expert Witnesses.  Do more experienced experts give more accurate opinions? Are they more competent to testify?

According to Stanley L. Brodsky, in his book titled, The Expert Expert Witness, “…studies have shown that it is not the amount of experience that is central to doing a good assessment, but rather, it is how skilled the assessor is and how well he or she chooses and uses measures of the issues at hand.”  He goes on to say that if the issue of experience is brought up in a deposition, the argument can be made that many people have worked for years in a certain field yet remain marginal at their jobs.  Others can work for a just a short time and be extremely proficient.

Most people remember the scene in My Cousin Vinny where the out of work hairdresser/ girlfriend, Marisa Tomei, qualifies as an Expert Witness because her grandfather, father and brothers were mechanics and she grew up in  a garage doing tune-ups, engine re-builds, transmissions, brake-relining, etc. Now in theory and movies, this is all well and good and Rule 702 may be satisfied, but the courts have set more stringent limitations on Expert Witness qualifications.

Without going into an in-depth analysis, the Daubert Rule (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) and it’s progeny established five criteria in determining the validity of an Expert Witness:

1. Has the Expert’s technique been tested?
2. Has it been subjected to peer review and publication?
3. What is its known or potential error rate?
4. Are standards controlling the technique in place and maintained?
5. Is it generally accepted in the relevant scientific community?

This generally relates to the scientific community, but if the testimony given by an Expert Witness does not meet these standards, the Expert may be excluded from the case.  Take, for instance, an Expert who believes he is the most knowledgeable in the field of UFOs and who is called upon to testify that UFO emissions caused an increased rate of cancer in a community.  Unless it is generally accepted that flying saucers exist and that they cause cancer, the Expert’s testimony may be considered “junk science” and the Expert would be disqualified from the case.

Again, it is not the number of years that qualify one as an Expert.  Those new to Expert Witnessing should not be intimidated if they lack experience.  However, they must satisfy the rules governing the admissibility of Expert Witness testimony and have an acute understanding of the issues on which they are to opine.