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The Law & Litigation Support

From the President
Private Investigation Issues

Federal Rules of Evidence
Expert Witness Issues

Qualified?
Expert Witness Qualification Issues

An Expert's Perspective - The Product Liability Case
Communicating with the Jury

Accident Claims Management
Post-Accident Insurance Claims

The Law and Expert Tips
Working with Experts

Integrated Battlefield of Trucking Litigation

 

 


 

 

 

From The President

by Barry Richard

ATA recently received a letter from the Texas Board of Private Investigators and Private Security Agencies. The letter advised us that we may be in violation of Texas Law concerning private investigation activities under Article 4413(29bb) V.A.C.S., which defines what constitutes an “investigation company”. The letter advised that accident reconstruction activities, under the current interpretation, meet the requirements for an investigation license.

Briefly, sub-paragraphs (A)(iv) and (A)(v) are the most applicable. They define an investigative company as;

(A) any person who engages in the business or accepts employment to obtain or furnish information with
reference to:
(iv) the cause or responsibility for fires, libels, losses, accidents, damages, or injuries to persons or to property;
(v) the securing of evidence to be used before any court, board, officer, or investigating committee;….”

In a nutshell, site surveys, vehicle inspection, securing accident reports and performing expert work in preparation for trial qualify. Yes, if you are a licensed Professional Engineer gathering factual information to support your expert analysis and opinion you do not have to have a PI license.
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The letter from the Board was not a surprise to us, having studied the law and been of the understanding that we were required, in certain instances , to have a licensed individual on scene and actually managing the activities that meet the definition of investigation. In fact, we thought we were in compliance since we had taken steps to add a full-time licensed PI to our staff and arranged with an independent investigator for back-up. With all of our efforts we felt we were ready and decided to take the initiative to settle the matter early on.

Bob Swint and I went to Austin to meet with Jay Kimbrough and Ken Nicholas, the Director and Deputy Director of the Board. We were mentally prepared for a confrontation that never happened. What we found at the Board was a willingness to hear us out, help us understand the current interpretations and work with us to assure we are in compliance with the law. In our case, it is a matter of filling out the application to transfer our PI’s license from himself to the company and assigning him as the Single Manager of our investigative activities.

In actuality, our visit to the Board was the smartest thing we could have done. Mr. Kimbrough provided us with the options available to us under the law and helped us to understand how to organize to be compliant while improving our operating options. We are now looking at more options for compliance and training of our staff than we thought we had before with significantly less effort to get there. I know there are some who are set to do battle over these interpretations and that is their prerogative. We will watch and work to change those aspects of the law that don’t work. But for now, our approach is one of full compliance.

The bottom line is that there are certain activities under Texas law that require a PI license and many accident reconstruction firms and individuals may not be in full compliance. ATA will now have the required company license and be able to permit certain qualifying employees to perform field investigative activities in support of our services.

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Federal Rules Of Evidence

The courts continue to exercise their gatekeeping function in regards to expert testimony. The proposed amendments to the federal rules which directly effect expert witness practices include:

RULE 701. Opinion
Testimony by Lay
Witnesses

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge.

RULE 702. Testimony by
Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 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, provided that (1) the testimony is sufficiently based upon reliable facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

RULE 703. Bases of Opinion
Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. If the facts or data are otherwise inadmissible, they shall not be disclosed to the jury by the proponent of the opinion or inference unless their probative value substantially outweighs their prejudicial effect.

Committee notes on Rule 702 emphasize the broad consideration of the Daubert rulings. The notes cite five additional factors and rulings relevant in determining the reliability of expert testimony.

(1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” See Daubert v. Merrell Dow Pharmaceuticals, Inc.

(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner.

(3) Whether the expert has adequately accounted for obvious alternative explanations. See Clarr v. Burlington N.R.R. and Ambrosini v. Labarraque.

(4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” See Sheehan v. Daily Racing Form, Inc. and Braun v. Lorillard Inc.

(5) Whether the field of expertise claimed by the expert is known to reach reliable results. See Sterling v. Velsicol Chem. Corp.

If you have comments on any of the proposed amendments submit them to the Federal Judiciary website at http://www. uscourts.gov/review.html.

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Qualified?

By Barry Richard, CSP

Frye! Daubert! Robinson! Kumo! Professional Certification! Private Investigator License!

All of the above have significantly changed the business of expert witness testimony and qualification. The Supreme Court rulings have changed the face of what “qualification” means for experts who testify in courtrooms on technical issues. Scientific methodology has become an extremely important test to qualify the expert. It is no longer just the credentials of the expert; his schooling, nor his experience. Now, the methodology and the association of the facts gained through a scientific methodical approach to gathering factual information and analyzing it also figures into whether or not a judge will let an expert testify on a given topic, in a given case, on a given day.

The implication of the possibility that a judge can disqualify testimony, not because the expert is not qualified by credentials, but because his testimony is deemed, by that judge, to be irrelevant to the case -- too far a stretch from the facts to his opinions, or some other reason -- is far-reaching. No matter what the reason an expert is disqualified, the effect is still the same. He was disqualified. Not allowed to testify. And, that becomes a permanent part of the record. The reasons, unfortunately, fall away with time and are lost in the background. All that remains is the blemish of being disallowed or disqualified from testimony.

Some say that because of the way the new rules are implemented, that being disqualified will not be totally destructive to an expert’s career in the future. Unfortunately, that is refuted by others -- primarily attorneys. I asked an attorney in a meeting recently, “What would your opinion be, if you were choosing between two experts – one of whom had been once disqualified, and one who had not? Would that affect your opinion or your selection of that expert, even though he might be the more qualified of the two?” The answer was a disquieting, “I probably would look very hard at it, and would put a good deal of weight on the fact that he had been disqualified from testifying.”

The issues of professional certification have been with us for a long time. Professional certification, a proof that you went a step farther than the average to gain the knowledge to pass exams or peer reviews, says that you are qualified to be deemed a professional. Those credentials are important. And, they are becoming more important in separating the qualified experts from those who are considered less than fully qualified to testify in court on technical issues.

Finally, the issuance of a private investigator’s licenses in Texas. Until two years ago, the state’s statutes exempted technical litigation support. Now it is a fact that in order to gather information to be used in courtroom testimony and to testify in court on that information, you have to have either a personal private investigator license, be covered under a company license, or be working under the supervision of a licensed private investigator or attorney if you are not an exempted Professional Engineer (PE).
What does all this mean? It’s not quite as easy to be a testifying expert in litigation cases any longer. The world is changing, and we must change with it. My advice: Keep up with what’s going in the courts and understand what affects experts’ ability to qualify. I find that I can get some of that information, and continue, with two other publications. The Law Review and The Law Reporter. I recommend those as reading to experts, as well as attorneys.
For our experts at ATA, we subscribe to and provide those documents and publications, in the reading library at the main facility. They are being re-catalogued at this time and placed in a location in the library where they will be more accessible. We invite all of our experts-at any time-to come by and peruse these, and read up on the current status. Additionally, I will try, from time to time, to provide some summary and update on topics that I believe is important to experts in order to maintain their qualifications and status in the community.


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An Expert's Perspective- The Product Liability Case

By Victor Holloman

Some products involve interesting technical aspects whose scientific merits intrigue experts. The expert's focus, however, must be on proving the product liability case, not merely solving interesting technical problems. The field analysis of the product's function (malfunction) can lead an expert through an arduous technical maze which may result in a brilliant technical analysis that can be difficult to explain to a jury. As products become more technically sophisticated, accident investigation and reconstruction keeps pace evolving by technology, using advanced technical methods, and relying more on the expert's experience, creativity, and teaching ability. If an expert cannot explain a product failure in 25 words or less, they risk losing the judge and jury, placing the case on thin ice.

Testimony must help jury members and judges better understand the issues and point out flaws in the testimony of the opposing expert. A simple, clear animation accompanied by a well- rehearsed narrative can be very effective as a courtroom exhibit. By talking to the jury like a good teacher talks to students, the expert can win their confidence. Slow, deliberate answers while exuding an aura of confidence will put a jury at ease.

Being consistently polite to the counsel, regardless how much an opposing counsel attempts to incite an expert will enhance the expert's believability. For example, if he or she excuses himself or herself when needing to step down to make use of visual aids, the specialist shows respect for the jury. By showing exhibits to each member of the jury, not just to those at the end of the box; shows that he displays deftness. Best of all, answers should be brief and always in laymen's terms.

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Accident Claims Management

by Kelly Anderson

Many carriers have a policy that when a driver is involved in an accident that the driver calls the insurance company. The only follow-up on the accident is to make sure the insurance company was called.

I recommend that carriers take a proactive approach to claims handling. The call from the driver should go to the company’s safety department rather than to the insurance company. After hours, the call should go to the on-call personnel. They can utilize a checklist to determine if the safety department, insurance company, or ATA’s Quick Response Team needs to be involved.

I am a firm believer in sending an insurance adjuster to every accident involving another person’s property. An insurance adjuster can pay for themselves by controlling the cost of claims. Furthermore, they can obtain signed releases from the other party. I recently worked with a carrier that received a $150,000.00 workers compensation claim on an accident they thought was closed. However, there were no signed releases or any conversations that took place with the driver of “Vehicle 2”.

Your insurance company will welcome your proactive participation in the claims handling process. They will allow you to make the decision of whether to send an adjuster or not. Next you need to set up claims files and manage them with the insurance company’s claim adjuster. You should set follow-up dates and keep notes as to what was done and what is going to be done. You will find that you have fewer open claims and the costs associated with them will decrease.

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The Law and Expert Tips

DAUBERT, AGAIN

The debate over Daubert continues with multiple interpretations and usages being cited by experts and lawyers.

Recent rulings by the 11th Circuit promote use of the reliability criteria if the expert claims to have arrived at his opinion scientifically. At issue is the delineation between scientifically based and experience based testimony.

According to the 11th Circuit rulings, the credence and subsequent impact of purported “scientific testimony” necessitates an increased gatekeeping function from the courts. Experienced based testimony is considered not as influential and therefore not held to the stringent Daubert standards.

THE BASICS

We often advise our clients on what to look for in selecting an expert. Although the information is fairly basic, it still seems worth sharing. The following is an adapted portion of an article on the use of experts written by Bob Swint for the American Trial Lawyers Association.

.....Clients need to make their expectations clear. Do not assume the expert knows what you want to prove or demonstrate. Take time to explore the theories of the case and define how the expert can support these theories. During this process, the attorney will begin to get a feel for the knowledge the expert possesses and his or her ability to articulate it.

Discuss other cases with the expert that are similar to this one that he has worked. Ask him or her to point out the pitfalls he or she encountered. What weaknesses does the case present? What strengths? As a rule, this will be the only time the expert will be offering his thoughts for free. Make use of this opportunity.

Qualifications to look for:

1. Honesty
2. Good character and reputation
3. Quick intelligence
4. Courage- will not retreat
5. Appealing personality and appearance
6. Good manners and tact
7. The ability to answer briefly and not volunteer information
8. Does not extend himself beyond his qualifications
9. The ability to say, “I don’t know.”

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Integrated Battlefield of Trucking Litigation

Advanced electronic technology through the use of onboard computers, high speed data busses and satellite communication systems are changing the world of vehicle accident reconstruction. It is becoming much like the integrated battlefield operation of the military. High speed, high quality information transfer may be used in decision making at all levels.

Any passenger vehicle with an SDM has onboard event recorders that record key information about vehicle operations/activities during an accident. The general public currently has access to General Motors and Ford. Toyota is soon to follow.

Most trucks have onboard data recorders that identify what operations occurred during the vehicles last hard braking. PeopleNet provides the service of organizing and recording the onboard data in a useful way as well as transmitting the operational data in real time.

Truck driver safety technology providers such as Vorrad and Iteris are implementing trucks with technologies that can establish the position of up to 20 vehicles around the truck.

Efforts are being made to require trucks to have an OBDR (onboard data recorder) to track the driver’s hours of service.

General Motors OnStar system provides vehicle onboard diagnostics. In the event of a collision resulting in air bag deployment, OnStar will transmit information on events such as location and accident severity to real-time responders.

Big brother is watching. There is a significant amount of information being collected on the events of an accident. As computer technology improves and expands into increased data collection, the organization/integration of this information will surely occur.

The use of this information is having an increased roll in the reconstruction of accidents. Many questions will be raised as to how this information should be used, who has the rights to the information, and how the information can be used to improve vehicle driver training.
ATA has presented this technology story to numerous national organizations (TLC, Liberty Mutual, NAPFTDS) in the form of an interactive DVD. This DVD is available free of charge upon request. To receive a copy call Anita White, Marketing Coordinator, at 281-480-9847 or e-mail at whiteam@ataassociates.com.

 

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