Screen Your Expert and Treat Your Case Right by Avoiding Any Big Tricks…

An area which is often overlooked is screening your expert. This is important. Treat it
like you would a major purchase, because it is. 

 
(a) Review and verify Curriculum Vitae. You can devastate an expert if he
lies on his CV. I have done this before with experts who had a long history of testifying.
Surprisingly, even though they had been around for years as experts no one had ever
checked out their background to see if they were legitimate. In one instance I found that
the expert not only wasn’t a professional engineer, but he had never even completed his
degree in engineering! At that time, I used a private investigator to dig up this  information. Today you check such things yourself online.  

(b) Internet search of expert. Do Google, Bing, Google Scholar, Yahoo
searches of your expert using the following format: “ EXPERT NAME” AND “keywords”.  I use key words and phrases such as “ testimony”, “ppt”, “lawsuit”, “pdf”, “
lawsuit”, “deposition”, “You Tube”, “video”, “MIL”, “motion in limine”, “motion to  exclude”, “daubert”, “frye”, “conference presentation”, “author”, “dissertation”, “thesis”,
“capstone”, “expert witness” etc. You can also do a full legal name search using the case
law filter to see if you can find any lawsuits.  

 
(c) Expert databanks. Organizations, attorney associations AAJ, State Trial
Lawyers Association, professional list serves, TrialSmith, Westlaw, Lexus-Nexus, often
provide either searchable databases or bulletin boards where information can be  electronically posted for inquiry and response. Some can be used at no cost, while others
charge a fee or subscription for searches.  

 
(d) Search of reported cases. I would examine both civil and criminal court
dockets, PACER, Westlaw, Lexus-Nexus, electronic court records. Your expert may have
testified or could have been excluded as a witness. Does he have convictions? Does he
have legal or financial problems?  

 
(e) Obtain and check references. Your check should include calls to attorneys listed by your expert as well as attorneys discovered in published cases.  

(f) Verify licensing. Is your expert really licensed or certified? Check– it
should be free. Has he had any disciplinary actions taken against his professional  licensing? How will you handle this at trial? 

(g) Review website and advertising of expert. What does he say? Are
articles attached or linked to the website? Check out his CV and terms of engagement as
an expert.

(h) Review social media of expert. Does the expert have a business or
personal page on YouTube, Facebook, Twitter, LinkedIn, etc. What articles, videos, or
comments has he posted?  

(i) Eyeball test. What kind of appearance does the expert make? Is he goofy
looking? Is he sloppy or slovenly in his appearance? Is he well spoken? Does he make
good eye-contact? Does he fit the part? Does he have charisma or personality? Would
you want him as your teacher? That is what he will be doing for you: teaching the jury
about your case.

(j) Excluded. Has your expert ever been excluded or admitted to testify over the
objection of opposing counsel? He should know this answer and be able to give you
past hearing transcripts, legal briefs and rulings.

You will be surprised by how much exaggeration and unsubstantiated bragging is contained in an expert’s CV.  Find your expert’s problems before you spend your money and risk your case by placing it in the hands of the wrong “expert.”

Setting the Table for Admitting Your Expert’s Testimony.

To serve your expert’s testimony up to a jury you must consider and establish the following:

1. Qualifications. You need to know precisely what you are using your expert for,
and then determine if the expert’s scientific, technical, or other specialized knowledge will help
the trier-of-fact to understand the evidence or to determine a particular fact in issue under Rule
702 of the Federal Rules of Evidence. To do this, you need to look at your expert’s qualifications
in each of the following areas:

 (a) Education

 (b) Background

 (c) Experience

 (d) Publications

 (e) Prior Cases

 (f) Certifications/Professional Memberships

Does each of these areas satisfy the evidentiary requirements under the rules of evidence? Look
for prior cases in your jurisdiction if you think there is a question. For example, a psychologist
or chiropractor may not be able to establish medical causation as this is outside of their area of
expertise. Check your local jurisdiction’s law. You may need a Doctor of Osteopathic Medicine
or a Doctor of Psychiatry instead.  

2. Reliability & Reliance. Others will be discussing in greater depth the issues of
admissibility of experts; however, this is something that needs to be addressed before you
commit your money to any expert. Expert scientific testimony is required to establish and
explain the complex causal relationship between an event and the resulting injury or damage. It is also required for matters requiring special expertise in areas such as medicine, engineering,  accounting, psychology, economics, statistics, forensic sciences (DNA analysis, handwriting analysis, fingerprinting, tool mark examinations, ballistics, entomology, pathology, etc.).

In evaluating the admissibility of such evidence, the trial court must make some
preliminary determinations when called up by the parties to do so, which are controlled by the rules of evidence. This is the minimum threshold which must be met before the trial court will
allow the jury to consider the evidence. I recommend that you know the law of your jurisdiction and preferences of your trial court:  

(a) Frey Test v. Daubert Analysis. In federal court, the Daubert test is
utilized in evaluating the admissibility of evidence. See Daubert v. Merrell Dow
Pharmaceuticals
, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert
court specified a non-exhaustive list of factors that may be relevant in assessing the
reliability of scientific evidence, including:  

 
1. Whether the theory or technique can be and has been tested?  

 2. Whether the theory has been subjected to peer review and publication?

 3. Whether there is a known or potential error rate? and

 4. Whether the theory has been generally accepted within the relevant field of
study?

Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786; Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003).  Federal case law interpreting the Federal Rules of Evidence is not binding upon thedetermination of state evidentiary law. Regarding Daubert, the concerns driving  coincide with the requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. However, while Daubert may be  instructive and helpful, it is not controlling. State Auto. Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d 411 (Ind. Ct. App. 2012) (Daubert factors may be helpful in determining whether  scientific principles are reliable, but Indiana has not mandated its application).  

 In order for a witness to qualify as an expert:

 1. The subject matter [must be] distinctly related to some scientific field, business
or profession beyond the knowledge of the average lay person; and

 2. The witness [must be] shown to have sufficient skill, knowledge or experience
in that area so that the opinion will aid the trier-of-fact.

Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997). The proponent of expert testimony bears the
burden of establishing the foundation and reliability of the scientific principles and tests upon
which the expert’s testimony is based. McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997). 

Once the admissibility of the expert’s opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and resolution by the trier-of-
fact.” Bennett v. Richmond, 960 N.E.2d 782, 786–87 (Ind. 2012) (quotation omitted).

In determining whether expert testimony is reliable, the trial court acts as a “gatekeeper” to ensure that the expert’s testimony rests on a sufficiently reliable foundation and is relevant to the
issue at hand so that it will assist the trier-of-fact. Wallace v. Meadow Acres Manufactured Hous., Inc., 730 N.E.2d 809, 812 (Ind. Ct. App. 2000), trans. denied. “When faced with a proffer of expert
scientific testimony, the court must make a preliminary assessment of whether the reasoning or  methodology underlying the testimony is scientifically valid and whether that reasoning or  methodology properly can be applied to the facts in issue.” Hannan v. Pest Control Servs., 734  N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied.  

Here in Indiana for example, there is no specific test or set of factors which must be considered in order to satisfy Evidence Rule 702(b), but some relevant considerations include whether the theory or technique can be empirically tested, whether it has been subjected to peer review and publication, and whether it has gained widespread acceptance. Id. at 679–80.  

Ultimately, deciding whether expert testimony is admissible is a matter within the discretion of the trial court. Wallace, 730 N.E.2d at 812. A trial court’s decision to exclude evidence will be
reversed only if that decision is clearly against the logic and effect of the facts and circumstances before the Court, or the reasonable, probable and actual deductions to be drawn from the evidence. Id. There is a presumption that the trial court’s decision is correct, and the burden is on the party challenging the decision to persuade the appellate court that the trial court abused its
discretion. Bennett, 960 N.E.2d at 786.  Stated another way, a trial court’s determination regarding the admissibility of expert  testimony under Rule 702 is discretionary and will be reversed only for abuse of that discretion.
See Bennett , 960 N.E. at 786-787 (held psychologist was qualified to opine that rear-end automobile accident caused motorist to suffer traumatic brain injury); TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010). The Indiana Supreme Court has instructed trial
courts to consider the general principles and general methodology underlying the reliability of an expert’s testimony, leaving the accuracy, consistency, and credibility of the testimony to be  determined by the trier-of-fact after testimony has been subjected to the adversarial process at trial. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2000). By requiring trial  courts to be satisfied that expert opinions will assist the fact-finder and that the underlying  scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony. Id.
In other words, the general principles and general methodologies underlying the expert’s  testimony are to be examined by the trial court, but not every aspect of the expert’s testimony as might occur in federal court under Daubert.  

In evaluating the admissibility of evidence under Rule 702, a distinction is sometimes made between expertise that is described as “scientific” as opposed to “technical” in nature. For example, other jurisdictions have analyzed firearms tool mark evidence as something other than
“scientific.” See United States v. Willock, 696 F.Supp.2d 536, 571 (D.Md.2010) (“While … it  may be debatable whether [firearms tool mark identification evidence] is ‘science,’ it clearly is
technical or specialized, and therefore within the scope of [Federal Evidence] Rule 702.”).United States v. Glynn, 578 F.Supp.2d 567, 571 (S.D.N.Y.2008) (recognizing Kumho Tire’s applicability to firearm identification evidence); United States v. Monteiro, 407 F.Supp.2d 351, 372 (D.Mass.2006) (“Based on the factors outlined in Daubert and Kumho Tire, the Court  concludes that the methodology of firearms identification is sufficiently reliable.”); United States v. Green, 405 F.Supp.2d 104, 118 (D.Mass.2005) (observing that firearms identification is “not traditional science” and that Kumho Tire extends the Daubert standard to the case). Firearm identification evidence straddles the line between testimony based on science and experience.  Monteiro, 407 F.Supp.2d at 365.  

Firearms tool mark comparison is similar to other observational comparisons of physical characteristics which have been found to be “on the margins of testimony governed by Rule of Evidence 702(b) as expert scientific testimony.” West v. State, 755 N.E.2d 173, 181 (Ind. 2001)(assessing shoeprint comparison and identification). See also Carter, 766 N.E.2d at 381 (describing bite mark identification as “ ‘simply a matter of comparison of items of physical evidence to determine if they are reciprocal’ ”) (quoting Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977)); McGrew, supra, 682 N.E.2d at 1292 (citing with approval the trial court’s evaluation of hair comparison analysis as “not the traditional scientific evaluation” but
rather “simply a person’s observations under a microscope”).  

In order to successfully get expert testimony into evidence, the following foundational
prerequisites must be satisfied:  

1. The opinion offered must be one that in fact requires expertise to render it,

2. The witness must be qualified as an expert by knowledge, skill, experience,
training, or education to render such an opinion,  

3. The expert testimony must help the trier of fact to understand the evidence or
determine a fact in issue, and  

4. The expert testimony must rest upon reliable scientific principles.

In terms of the expert’s qualifications, you need to cover:

1. His education and training that qualifies him to act as an expert,

2. Certifications and testing that he has undergone in his chosen field of expertise,


3. Work experience relevant to his analysis and opinions, and

4. Competence to perform any tests or analysis used.

In establishing the reliability of the underlying scientific principles, you should look firstfor other court decisions which have accepted the methodology as reliable. If there are none, then you will probably need to turn to your own expert and present the court with established texts, journal articles, or other accepted learned treatises in the area in order to persuade the court of its
reliability.

(b) Expert’s experience in similar cases. As mentioned earlier, your expert
may have been put through his paces in earlier cases dealing with the same or similar
topic. Experts often times retain copies of these pleadings to ensure that counsel in later
cases is able to effectively establish the admissibility of their testimony and the reliability
of their analysis. So, check with your expert regarding his past experience.  

Proper Objections at Your Expert’s Deposition

 
Palais de justice historique de Lyon, France

Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly  prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be  limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:  

Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to  the manner of taking the deposition, or to any other aspect of the  deposition—must be noted on the record, but the examination still  proceeds; the testimony is taken subject to any objection. An  objection must be stated concisely in a nonargumentative and  nonsuggestive manner. A person may instruct a deponent not to  answer only when necessary to preserve a privilege, to enforce a  limitation ordered by the court, or to present a motion under Rule  30(d)(3).  

The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a  question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which  objections must be made or waived:  

(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence,  relevance, or materiality of testimony—is not waived by a failure  to make the objection before or during the deposition, unless the  ground for it might have been corrected at that time. 

(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:  

(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or  other matters that might have been corrected at that time; and  

(ii) it is not timely made during the deposition. [Emphasis Added].

The Rules should be abided by during the course of the deposition.

Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.  

Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):  

1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.  

2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).  

 3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).  

 
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.  

 
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hallsupra.  

 
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)  

 
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.  

 8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
Hall, supra.

 
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere
, 182 F.R.D. 614 (D. Nev. 1998).  

10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.

Locating the Right Expert… Is It Like Looking for a Needle in a Haystack?

The right expert can educate and enlighten a jury and help prove your case. Below are some suggestions on how to locate an expert.  

(a) Classes of expert witnesses in academia, working professionals, and
full time professional experts. These are the three primary areas from which you are  likely to obtain experts in anticipation of litigation. Each has its advantages and  disadvantages as discussed below.  

(b) Referrals from other attorneys. This is my preferred method. It’s like
buying a used car that someone else has already checked out and driven over rough  terrain. They will often have past depositions or trial testimony you can read. They can  effectively sum up the witness’s strengths and weaknesses so you know what to expect.  

 
(c) Expert witness locating services. Not my favorite, but they can be very  helpful in locating persons with obscure areas of expertise or in litigation local experts  dare not become involved due to peer pressure such as in professional negligence cases. The fees charged by the experts are substantially higher because the service tacks on
substantial hourly surcharges. However, such services typically vet the experts and can
provide you with sample reports or depositions.  

 
(d) Local universities and colleges. This is a great source for top-notch  professors. Local professors are knowledgeable, well read and well versed on the latest
developments in their fields. They are usually skilled at teaching and have experience in
educating and helping others understand difficult and technical topics. Often they have
written in your field of study at issue. The most common drawback is the fact that they
sometimes lack the practical background and work experience. Also, because they have
published, opposing counsel can use your expert’s own material to impeach them and  exploit their beliefs and positions against your client’s claim.  

 
(e) Authors of authoritative textbooks. The principles outlined above are
equally applicable here. Such experts are conservative. They value their position and  reputation as an expert in their field. They can make excellent consultants and assist you
in locating testimonial experts given their knowledge and connections.  

 
(f) Authors of journal articles. The principles outlined above are equally  applicable here. When dealing with more obscure topics they can be very helpful  assuming they have written on the topic at issue. However, they may never have testified
before. Are they quick on their feet? Are they good under pressure? Will they stay  poised? Do they lack practical experience needed to give them credibility? Screening  and preparing such witnesses can be critical if they lack experience testifying in court or
in a deposition.  

(g) Leaders in business or industry. Such persons are natural leaders and
may have personality and charisma which may be lacking in some academic type. They
may be well known locally and respected. They have practical experience that may trump
the theoretical musings of those in academia. These aforementioned weaknesses in some
instances are the business leaders’ strengths. Will they come across more as an advocate
than as an impartial expert? Will they fall into the trap of sparring with opposing counsel
and lose their composure? Are they venerable to attacks because they are not as well
versed or updated in the area or field at issue? Again, screening and preparing such  witnesses can be critical if they lack experience testifying in court or in a deposition.  

 
(h) Skilled witnesses. These are persons already involved in the case. They
should not be overlooked. They have practical experience in your case. They may also
fall within some of the other categories outlined above which further weighs in their  favor. Fate chose them, not you. They thereby avoid the stigma of being considered a “
hired gun.” 

(g) Expert Witness Firms. Such persons are full-time “expert witnesses”
and are hired guns. That being said, if they have a good reputation for being honest  brokers they can be excellent choices. They are battle tested and know how to handle the
pressure of a deposition or testifying at trial. They will be more skilled at dealing with trial tactics and better capable of maintaining their composure even if something goes
awry during their testimony. You want to avoid such experts if they are known as “
whores.” They will have a wealth of prior testimony that can be used against them
which could render them impudent as a credible expert. Screening is critical.

I hope this information helps you locate the best expert witness for your case.

Expert Witness Retainer Agreements – Striking the Right Deal.

Here are points to consider:

1. Cannot be a contingent fee arrangement. This is unethical and would be
disastrous regardless… enough said.

2. Cost of initial consultation. This should be free or nominal, but make sure this
is clear.

3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.

 
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
the unknown.  

6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.  

7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.

8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even  though you may have fronted the expenses and resolved the case very favorably. Keep your  client informed of the cost in advance of incurring it.  

9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the  party who hired the expert.  

10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
26(4)(E):  

Unless manifest injustice would result, the court must require that the party
seeking discovery:  

(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and  (ii) for discovery under (D), also pay the other party a fair portion of the fees and  expenses it reasonably incurred in obtaining the expert’s facts and opinions. 

 If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.  

I hope you strike the right deal.

Should I Hire an Expert? Seeing the Light…

So you think you need to hire an expert? When should you do so? Consider the following:

1. When to Hire. It is usually advantageous to hire an expert as soon as it is clear you will require one. Oftentimes, you will be hired by a client on a moment’s notice to investigate and document the scene of an incident. If you regularly practice in a particular area,
you may already have knowledge of experts you have used in the past who can competently assist you. Valuable evidence can be lost forever if you fail to conduct a prompt investigation.  In order to ensure critical evidence is not lost or spoiled, expert investigators are essential to augment or oversee investigative work conducted by others, especially in the areas of forensics, product liability, computers, motor vehicle collisions, fires or airplane, environmental and/or
industrial disasters.

2. Expert’s Role/Witness or Consultant. From the moment you consider hiring an
expert, you need to ask a litany of questions: Is an expert needed for purposes of investigating the case or evaluating the case’s merits? Could your own expert hurt more than help your case? Could the expert better act as a sounding board, provide contrarian analysis and assist you in developing the facts? Do you need help finding a top-notch expert for your case? Is there information that you cannot risk being revealed due to its inflammatory nature, but nonetheless to get expert input in order to prepare for the worst? If so, then you may be best served by obtaining a consulting expert. Most jurisdictions recognize that consulting experts are subject to a qualified work product privilege claim. If the nature of your case raises a choice of law or forum question, be aware of the relevant case law in all applicable jurisdictions.

3. Necessity or luxury. Not every case requires an expert who is retained in
anticipation of litigation. Skilled witnesses such as treating healthcare providers or governmental investigators and experts may already be involved who can assist you in developing and establishing the issues of liability, causation, or the extent of damages. On the other hand, is an expert required by the law, complexity of the facts, or needed to assist and educate the jury? In cases of professional negligence (malpractice), expert testimony is
almost always required. Without it, you are subjected to a summary judgment motion or worse, a motion for a directed verdict. What was the standard of care? Was it breached? This is an issue
that needs to be addressed early-on before you spend vast sums of time and money litigating a case which lacks merit. Malpractice cases are the most difficult ones to win. Here in Indiana, less than 80% of the malpractice cases tried to a jury result in a plaintiff’s verdict. Early evaluations prevent you from embarking on a bad business venture that will serve neither you  nor the client. 

These are the type of questions which need to be asked and answered early in the litigation. 

Common Knowledge Exception to the Requirement for Expert Testimony in Professional Negligence Cases – Sometimes Its Child’s Play.

Is the information within the common understanding of the jury? 

Rule of Evidence 702 governing expert testimony does not always apply and bar lay testimony on issues which are just plain common sense. In certain instances the answer to whether there was professional negligence is intuitively obvious and needs no explanation by an expert or anyone else. (i.e. missed statute of limitation date, leaving behind a sponge or tools in a patient’s body following surgery). 

In Indiana, medical malpractice cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body.  See for example:

 Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen); 

 Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); 

 Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and  Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). 

Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery.  Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008). 

This same sort of common sense approach is endorsed in other jurisdictions as well.  See the following examples utilizing the common knowledge exception:
 Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953) (applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); 

 Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides was not required); 

 Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails); 

 Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence); 

 Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door); 

 German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); 

 Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); 

 Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001)(case in which the defendant dentist allegedly pulled the wrong tooth); 

 Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); 

 Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell); 

 Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) 

 Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); 

 Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); 

 Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267,683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); 

 Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); 

 Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); 

 Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); 

 Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care); 

 Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App. 1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence). 

It is important to know your state’s law on this point and plan accordingly.  Hopefully, the cases cited above are of use.

Discovery, Privacy, Personal Freedom and Social Media

I don’t see myself as a hero because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity. 

Edward Snowden

There is an assault on our privacy.  We need look no further than headlines involving Russian hacking of our government and political institutions such as story reported by The NY Times today. The assault on our client’s privacy is also underway as part of the civil discovery process.  Attorneys now seek to rummage through a client’s social media accounts and demand usernames and passwords to accomplish this invasion of privacy without any factual basis or good cause.

Fishing expeditions are not allowed. Here is the objection I use:

Objection, this request is overly broad and unduly burdensome. See Ind. T.R. 26(B)(1). Further, this request is non-specific and calls for a general fishing expedition which is prohibited under Indiana law in violation of the reasonable particularity requirement of Ind. T.R. 34(B). See Canfield v. Sandock, 563 N.E.2d 526 at 529-531(Ind. 1991). The simple fact that a claimant has had social communications is not necessarily probative of the issues in this case.  See Rozell v Ross-Holst,2006 WL 163143 (S.D.N.Y. Jan. 20, 2006).  There is no general right to have access to an entire Facebook account and such a request is no different than requesting the right to search through a party’s entire house, office, or wherever making the request a “fishing expedition”.  See also, McCann v. Harleysville Ins. Co. of New York , 78 A.D.2d 1524 (N.Y. A.D. 2010)(Defendant “failed to establish a factual predicate and essentially sought permission to conduct a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence which is not allowed); Tompkins v. Detroit Metro. Airport, No. 10-10413, (E.D. Mich. Jan. 18, 2012)(Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view and engage in the proverbial fishing expedition, in the hope of finding something on a Facebook account.).

Social media may be discoverable “specifically “, but certainly should not be invaded “generally”. Privacy matters to us all and must be honored even in this day of pervasive electronic communications and connections.

Leaders, Loners and the Art of Jury Selection.

Often times you cannot eliminate troublesome jurors.  This can be a real problem since developing challenges for cause against an unfavorable juror can be difficult and at times impossible. In such cases, you want to use your peremptory challenges against such persons if they will affect the outcome of your case.

In federal capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges. In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.

 Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”). In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges. In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges. In all state civil cases, each side has 3 peremptory challenges. When several defendants are tried together, they must join their challenges. Indiana Jury Rule 18.
 As to alternate jurors, one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated. Id.     

So how does one make the best use of their peremtory challenges?  Well if you cannot get rid of the juror for cause, then you have to figure out which jurors to focus on for purposes of exercising your peremptory challenges.  I suggest that you focus on persons who are either loners or leaders.  The bulk of people who make up juries are essentually followers.  They will tend to go with the flow.

Ultimately persons who are natural leaders will exercise the greatest influence over the juror’s deliberations.  It’s important to identify persons who either have leadership qualities or background traits which will lead other jurors to look to them for guidance. If a person has had prior jury service, then other jurors will naturally look to them for guidance as to what is happening in the court room and how to handle their deliberations. Likewise, persons who have assumed the role of leadership in either their profession or in outside organization will have the greatest likelihood of assuming a leadership role on the jury. Person who meet this criteria deserve special attention and need to be thoroughly questioned to make sure that they will not be a problem for your case.

Persons who are potential “loners” also need to be thoroughly questioned since they  could hold up deliberations or force an undesirable compromise. Loners have a tendency to stand their ground and be unwilling to compromise or conform to the wishes of the larger group.  I have had more than one jury where I have learned after the fact that a lone juror was a hold out for a particular verdict. Their staunch and unyielding position results in either a compromise verdict or a hung jury. When trying to identify a loner, you need to identify whether or not the person choses voluntarily to be a loner or is forced by circumstances to be a loner.   Those who voluntarily decide to be a loner, act as a nonconformist and set themselves apart from the rest of society, can be a potential problem. Such persons are used to standing alone and may hold out for a particular verdict even though their opinion is unpopular and outnumbered by others.

Ultimately, you want to use your peremtory challenges on persons who will likely effect the outcome of your jury’s deliberations in an adverse fashion. So first look for the “leaders” and “loners” in your next jury panel.

When silence is golden… The tacit admission.


Indiana Rule of Evidence 801(A) provides:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person, and the person must have an opportunity to respond. 16 INPRAC § 7.9d Criminal Procedure–Pretrial. A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person and the person must have an opportunity to respond. 12 Ind. Law Encyc., Evidence, §§ 135, 136; House v. State, 535 N.E.2d 103 (Ind. 1989)(held silence or equivocal response to assertion made by another, which would ordinarily be expected to be denied, is tacit admission, and the assertion and the words or conduct are admissible if reaction is not clear denial.), citing with approval to, Moredock v. State (1982), Ind., 441 N.E.2d 1372, 1374; Wickliffe v. State (1981), Ind., 424 N.E.2d 1007, 1009; Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133, 138–139. The chance to turn a person’s silence into a weapon should not be missed. It could be silence in the face of strong accusations made during the course of the meeting or even a judicial hearing. The key is to recognize situations which present themselves during the course of your investigation. The implied assertions for silence may be made during the course of custodial interrogation, during the course of a guilty plea or even during a sentencing hearing. Such instances may be pure gold for your case. So be alert.

 

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