There are many reasons why expert witnesses are increasingly being excluded from testifying. Attorney Joshua E. Garner, special counsel at the U.S. Department of Justice writing for SEAK, Inc. explains with the following article: HOW AND WHY EXPERT WITNESSES GET EXCLUDED Joshua E. Gardner EXECUTIVE SUMMARY In federal court, experts tend to get excluded for… read more

Can opposing counsel require an expert witness to produce his 1099s as part of a discovery request? In Estate of Jackson v. Billingslea, the United States District Court for the Eastern District of Michigan ordered an accident reconstruction expert to produce 1099’s for himself and his business. Jackson involved deaths resulting from a speed police… read more

Root cause analysis is frequently employed by litigants and expert witnesses to help them determine the root causes of accidents, IT failures, medical malpractice, etc. An excellent article “The Purpose, Process, and Protection of a Post-Accident Root Cause Analysis” appeared in the July 2019 issue of In the Defense. The authors, as the title suggests,… read more

How important is scientific literature in a Daubert challenge? In Wendt v. Bowerman, No. 343612 (Mich. Ct. App. June 11, 2019), the Michigan Court of Appeals upheld the trial court’s decision to exclude the testimony of an expert whose opinions were unsupported by scientific literature, a decision which led to summary judgment in favor of… read more

The U.S. District Court in Massachusetts in the case of Carrozza v. CVS Pharmacy Inc. (July 8, 2019) dealt with a lawsuit against a pharmacy by a plaintiff who suffered an allergic reaction to Levaquin, an antibiotic he was prescribed. The pharmacy dispensed the drug despite a “hardstop” warning in their system indicating that the… read more

In U.S. v. Ruvalcaba-Garcia (5/10/2019), the U.S. Court of Appeals (9th Circuit) considered a defendant’s appeal from a conviction for illegal entry into the U.S. The defendant argued that the trial judge erred by failing to make any findings on the reliability of the government fingerprint experts. The Court of Appeals agreed, stating: Here, the… read more

When expert witnesses offer novel theories on causation, they are at substantial risk of having their testimony excluded. For example, in Robinson Bowersock v. Davol Inc., No. 17-2068 (7th Cir. Jan. 22, 2019), a hernia mesh personal injury case in which the decedent died one year after her hernia repair, the Court of Appeal upheld… read more

The U.S. District Court (S.D. West Virginia) recently dealt with the issue of whether an expert’s flat fee for depositions is reasonable. The expert witness fee schedule provided for $385/hour but set flat fees of $3,000 for depositions lasting up to 4 hours and $5,000 for depositions lasting more than 4 hours and up to… read more

The Montana WC court in Hagberg v. Ace American Insurance Company wcc no. 2018-4206 (4/15/2019) dealt with a claimant who injured his back at work lifting a 200-250 lb. burner on 5/18/20016. In a battle of the experts, the report of the IME physician Schabacker was discounted due to his lack of specifics about the… read more

By Homer R. Peterson II, P.E., CSP Introduction Many construction contracts that are executed today include terms that allow termination of a company either for cause or for the convenience of the terminating entity. As owners and general contractors become increasingly concerned about construction safety, terminations for cause for alleged shortcomings in general contractors’ and… read more