When it comes to expert witnesses, engineers are an often-invoked name during the course of litigation. But merely knowing that your case can benefit from an engineer does not make preparation any easier. The breadth of the field and the innumerous specialties and subspecialties can make choosing an engineer seem like a daunting task. Below are some tips as to how to choose the right engineer for your particular case and how that expert’s testimony can help reach a successful outcome.
Who is an Engineering Expert Witness?
As a general matter, engineering is the “application of science and math to solve problems.” Engineers can “design, evaluate, develop, test, modify, install, inspect, and maintain a wide variety of products and systems.” The history of engineering is as old as human civilization, with early engineering techniques seen in the building of such monumental structures as the pyramids and Stonehenge. Today’s engineers are responsible for building both the large and the microscopic – everything from bridges and tunnels to computer chips and smartphones. Below are just a few examples of the ever-growing types of engineers that comprise the general field:
Civil engineering is a broad discipline that generally refers to the application of scientific principles to a built environment. Civil engineers are most often involved in the design, construction, maintenance, and inspection of infrastructure, such as railroads, highways, bridges, and tunnels. Civil engineering is an umbrella term that encompasses specific subspecialties such as environmental (the protection of the environment from health dangers and pollution), transportation (the design of transportation systems), geotechnical (the study of earth materials), structural (the design of buildings and large structures), and hydrologic (the flow and storage of water).
Mechanical engineering involves the design and manufacture of machinery and equipment from products ranging from automobiles to medical devices to aircrafts. Mechanical engineering in the field of computer and electronic product manufacturing is a sub-specialty that has particularly experienced growth in recent years, making up approximately 7% of the 277,500 mechanical engineers employed within the United States. Mechanical engineers in the field of electronics manufacturing design computers and other digital devices as well as larger electronics, such as circuit boards, processors, and storage media.
Chemical engineering is a branch of engineering that deals with the production, manufacturing, mixing, compounding, and processing of chemicals, fuel, drugs, food and other products. Chemical engineers work in industries that manufacture products varying from refined petroleum, explosives, and agricultural chemicals to plastics, paints, batteries, food, and consumer personal care products, such as soaps and lotions. Chemical engineers typically have a background in chemistry, mechanical engineering, and fluid dynamics.
Biomedical engineering is a combination of engineering principles with medicine. These engineers develop and design prosthetics, surgical devices, vital sign monitoring systems, implant devices (insulin pumps, pacemakers, artificial organs, etc., therapeutic equipment, imaging technology (such as ultrasounds and X-rays), and physical therapy devices. Experts in biomedical engineering must be knowledgeable about the operational principles of the technology and have an in-depth understanding of physiology.
Who is Qualified to Testify as an Engineering Expert Witness?
Although engineering is an extremely broad field, all types of engineers share a similar educational foundation of mathematics and physics. Engineering is one of the disciplines found in STEM education, a curriculum that focuses on science, technology, engineering, and mathematics. The educational requirements to become an engineer in the United States typically include a Bachelor’s degree in an engineering discipline, followed by a Master’s degree for advancement in some fields. Engineers who work with the public must complete a program accredited by the Accreditation Board for Engineering and Technology and meet their state requirements for licensure.
Testimony Provided by an Engineering Expert Witness
The type of engineering expert one may need is highly dependent upon the specifics of each case. However, oftentimes there is overlap between two or more fields of engineering in one particular case, so more than one expert may be helpful to prove (or defend against) each element of a lawsuit.
For example, all forms of products liability litigation can benefit from one or more engineering experts. As a general matter, most lawsuits claiming a product defect will need an engineer to establish such. In lawsuits involving electronic devices, such as the dozens of lawsuits filed against Apple for slowing down iPhones with old batteries, mechanical engineering experts, particularly those trained in the development of electronic devices, can be used to describe the product’s design and how a slow battery can affect its performance.
In lawsuits alleging a defect in medical devices, biomedical engineering experts can be used to show whether the product met industry standards and if not, whether such deviation caused the alleged injuries. Biomedical engineers can be used to establish the causation of an injury from a technical aspect, and they may also help with establishing damages.
Biomechanics is a sub-specialty of biomedical engineering that focuses on the body’s response to external forces or events. These experts can be particularly useful in cases involving automobile accidents, collisions, and other personal injury claims. Biomechanics experts evaluate factors such as speed and kinetic energy that result in injuries. In a car accident, for example, they can answer questions, such as whether the force of a vehicle was sufficient to cause the injury, and if so, whether any actions by a party contributed to their own injury (such as failing to wear a seatbelt). At the same time, in the case of an automobile accident, there are a number of other engineering experts that can be useful. Mechanical engineers, particularly those trained in automotive design, can inspect and analyze the vehicle to determine whether a defect contributed to the accident. They also have the ability to reconstruct the accident via 3-D models or graphics, since these experts are trained in the design and mechanics of automobiles.
The types of engineers that can be employed on a legal matter are as varied as the cases themselves. The goal is to retain someone who is qualified and credentialed in the specific area at issue. In light of the ways different disciplines of engineering intersect, it may be beneficial to explore the various types of engineering subspecialties and research how they relate to your case.
There are times when a court case demands the input of one or more experts. However, this does not necessarily mean each party must have their own expert. Consider, for example, a divorce case where a parenting expert is needed. Alternatively, a partnership dispute may require the valuation and division of a business at issue, in which case, an expert may be needed to determine the value of a property at a given time in the past. In each of these examples, a joint expert may be able to answer the relevant question just as well as competing experts.
There are benefits to jointly retained experts, however, to reap these benefits, the parties must put in the work.
Why Consider Jointly Retaining an Expert?
There are many reasons parties may consider retaining an expert jointly, rather than each side retaining their own expert. Benefits include:
Reducing costs, as the parties share a single expert, rather than spending money on two experts to address the same issue
Expediting resolution, as the need to wait for each expert to respond to the other side’s findings is eliminated
Increasing efficiency, as the expert is identified and used by the parties who have a joint timeline
Avoiding duplication of efforts, as only one expert reviews the relevant underlying data, financial trends, etc.
Reducing presumption of expert bias by both the fact finder and the parties
Increasing likelihood of out of court resolution, as the expert clearly lays out their neutral findings for each party to evaluate
Focusing the issues, thus avoiding dueling experts relying on differing theories
Minimizing the disruptions that can occur based on interviews with the relevant parties, site visits, and addressing requests for information
Increasing trust between the parties – while not always an issue or a goal, when the parties must continue to work together, such as divorcing parents of minor children, relying on the expertise of a joint expert can positively impact subsequent interactions
However, jointly retaining experts is a practice that should be approached with caution. The attorney client privilege which may attach to a consulting expert does not exist in a situation where a joint expert is used.
What Jointly Retaining an Expert Entails
Jointly retaining an expert isn’t as simple as two lawyers agreeing to employ a single expert. Jointly retaining an expert requires a considerable amount of thought, discussion, and planning. Without properly laying the ground rules, lawyers may end up spending a great deal of money with little or nothing to show for it. Below are a few of the considerations lawyers should give time and attention to when determining whether and how to jointly retain an expert on a relevant issue.
Obtain Client Buy-In
Without clients agreeing to a shared expert, the lawyers should not pursue this course of action. Before proceeding with a single jointly retained expert, a discussion with the client is a must. However, if a lawyer is seeking client buy in, a discussion of the advantages of a jointly retained expert can provide the client with the details necessary to allow the client to make an informed decision.
Setting the Ground Rules
When the parties decide to jointly engage an expert, planning ahead is essential. The parties should jointly draft an engagement letter that clearly details any stipulated facts. Further, the letter should outline the precise issues of contention. Finally, the letter should define the scope of the engagement and the expectations regarding reporting of the findings.
Selecting an Expert
Once the parties agree to expectations for the joint expert, they must select an expert. The approach to selecting an expert can vary, however, lawyers should consider:
Creating a pool of agreed upon experts with an agreement that the expert used will be selected by a third party, such as the judge or arbitrator
Having one side create a pool of experts and the other select the expert
Having each side create a list of experts and come to a mutual agreement based on informed discussions
Regardless of the approach used, the parties must find some way to select a common expert. The process should allow for “buy in” from both sides. This is more likely to lead to both party’s satisfaction with the expert’s ultimate conclusions.
Defining the Process
The parties should proactively define the processes expected of both the expert and the parties. Issues which should be addressed include:
How the expert will clarify issues such as the scope of the work, the procedures used to evaluate the issues, the method or methods of reporting findings, and what the expert should do if a situation not anticipated by the parties presents itself
How the expert will communicate with both counsel, as well as procedures for avoiding ex parte communications
Desired reporting techniques including the issuance of preliminary reports, allowing for a question period, permitting both sides to comment on the findings, and detailing other expectations of counsel for both sides
Provisions for the participation of the litigants themselves, by and through their attorneys
The parties should create a detailed list of how direct, cross examination, and rebuttal testimony will be addressed should the matter continue to trial or arbitration
Expert witness compensation
What to do in case of concerns about methodology, deviation from the agreed upon approach, dispute about the professional standards used, etc.
Relying on a Jointly Retained Expert
When the parties have done their due diligence in selecting a qualified expert, and have carefully defined the question for the expert to answer, the results of jointly retaining an expert can be extremely beneficial. However, in order for the parties to benefit, the lawyers must do the hard work up front, ensuring all parties are on the same page and all eventualities have been accounted for, even those that cannot be predicted.
The U.S. Supreme Court decided not to review a federal appeals court ruling that two expert witnesses were properly excluded from a case against Abbott Laboratories.
The case involved the medication Depakote, which the plaintiff argued was the cause of the severe birth defects her son was born with in 2005. Depakote is manufactured by Abbott Laboratories and is used to treat seizure disorders and acute bipolar mania.
Rule 702: The Line Between Fact Witnesses And Expert Witnesses
At trial, the district court applied Federal Rule of Evidence 702 to the testimony of the child’s doctor, who was submitted as a non-expert fact witness. Pursuant to its analyses, the district court decided that the child’s doctor must be admitted as an expert witness in order to testify about whether or not Depakote caused the child’s birth defects. The court also found that the child’s doctor did not qualify as an expert witness under the Daubert standard.
During trial, the plaintiff chose to submit the child’s doctor as a non-expert fact witness, arguing that the doctor’s opinions were based on her direct treatment of the child. Normally, fact witnesses are not subject to the scrutiny of Rule 702.
However, the district court found, and the Second Circuit affirmed, that because the link between Depakote use and particular birth defects “is presumed not to be within common knowledge and experience,” any witness that testifies as to their opinion about that link would need to be an expert witness, not a fact witness. Therefore, Rule 702’s standard would apply.
The Daubert Standard: Which Witnesses Qualify As Experts
The district court next turned its scrutiny to the question of whether the child’s doctor could qualify as an expert witness under the Daubert standard. It also examined whether a second doctor, a teratologist and toxicologist who was submitted as an expert witness, could qualify under Daubert.
The district court decided that neither of these two witnesses could testify as to causation. The plaintiff appealed this decision, arguing that the district court had abused its discretion.
Once again, however, the Second Circuit Court of Appeals agreed with the district court. The Second Circuit held that the district court had a “gatekeeping role” to play in determining whether a witness was qualified to testify as an expert on particular points relevant to the case.
Here, the district court found that neither of the two doctors could testify as an expert witness because they had failed to lay a foundation for their causation testimony by performing an adequate differential diagnosis. The court noted in particular that neither of the doctors had ruled out the possibility that the child’s birth defects were the result of genetic anomalies rather than exposure to Depakote. It was also noted that while genetic testing had been offered to the plaintiff at least five times, only one of those offers resulted in actual genetic testing.
The Second Circuit wrote in its opinion, “Based in part on the absence of additional genetic testing, the District Court determined that Dr. Lewis could not reliably eliminate the possibility that [the child’s] injuries were caused by genetic defects. We agree with the District Court.” The district court also declined to allow the second expert to testify because that expert “did not conduct an independent differential diagnosis on [the child], but relied upon the same medical records” as the child’s treating physician.
Summary Judgment and SCOTUS Denial
The district court found that, without the two expert witnesses, the plaintiff had failed to prove that Depakote was the cause of her child’s injuries. As a result, the district court entered summary judgment in favor of Abbott Laboratories. The Second Circuit affirmed that decision.
The plaintiff filed a petition for a writ of certiorari with the US Supreme Court on September 7, 2018. In it, the plaintiff argued that the Second Circuit had created “a new rule creating a significant split” in how federal courts interpret and apply Rule 702. Specifically, the petition argued that “the Second Circuit found these experts’ opinions inadmissible in that the defendant pointed to genetics as a cause, and, despite the experts providing an explanation as to why genetics was ruled out, the court required additional genetic testing to eliminate the possibility of a genetic cause.”
This, the petition argued, was not the way in which Rule 702 and Daubert have traditionally been interpreted. Rather, it claimed that experts’ causation opinions have been, and should only be, deemed inadmissible “when the expert does not provide an explanation as to why that alternative cause was ruled out.” Since the plaintiff’s doctor has provided such an explanation, the petition argued, the district court was wrong to exclude the causation testimony and the Second Circuit was wrong to affirm that decision.
A cert petition requires a “yes” vote from four of the nine Justices in order to be granted. On January 7, 2019, however, the Supreme Court denied the petition for certiorari, with Justice Alito not participating in the decision.
The release of Netflix’s first interactive movie, Black Mirror: Bandersnatch, has been met with more drama than anticipated. The movie, which has multiple endings and offers viewers the chance to make choices that set them on alternative plot paths, has now become the subject of a $25 million trademark infringement lawsuit.
Chooseco, a Vermont-based children’s book publisher that exclusively publishes a series of interactive “game books” entitled Choose Your Own Adventure, filed suit against Netflix in the District Court of Vermont for using its trademarked phrase, “Choose Your Own Adventure” and narrative structure as the conceptual basis for Bandersnatch.
Chooseco’s claims against Netflix are twofold. First, the publisher alleges that Netflix “willfully and intentionally [capitalized] on viewers’ nostalgia for the original book series” and benefited from association with the iconic Chooseco brand, despite not having permission to do so. The publisher also alleges that the disturbing content in Bandersnatch and discussion of the movie on social media have diluted Chooseco’s brand and tarnished its products.
According to the complaint, Netflix actively began pursuing a license to use Chooseco’s “Choose Your Own Adventure” trademark in 2016. In spite of several years of negotiations, however, the parties did not reach a licensing agreement. Chooseco instead opted to enter into an open contract with Twentieth Century Fox to develop an interactive film series based on the Choose Your Own Adventure books.
Chooseco claims that despite this, Netflix used the “Choose Your Own Adventure” trademark without permission in another TV program prior to the release of Bandersnatch. Chooseco allegedly sent Netflix a cease and desist letter in response to this infringement. This TV program was not named in the suit.
In December of 2018, Netflix released Bandersnatch, which follows a similar narrative style to the Choose Your Own Adventure books and makes reference to a choose-your-own-adventure-style book. Many critics noted the similarities between the interactive movie.
How The Experts Can Weigh In
As of now, it is unclear whether this suit will be settled out of court between the parties involved or go to trial. As with any trademark infringement case, experts in copyright law, trademark infringement, intellectual property, and entertainment law may all prove helpful in demonstrating whether or not Chooseco allowed Netflix to use its trademark and whether Netflix honored that agreement.
Should this case require litigation, Chooseco will also have to prove that the brand’s “goodwill and positive associations” have been negatively impacted through their association with Bandersnatch. Experts in social media communications could discuss the movie’s response across social media platforms and analyze the general attitude towards the Choose Your Own Adventure series in different demographic audiences. Experts in economic damages may also prove useful in determining the impact this infringement has caused on Chooseco’s book sales.
California utility company Pacific Gas and Electric (PG&E) could face criminal charges if it is found to have caused any of the state’s recent wildfires, according to California State Attorney General Xavier Becerra.
In a brief filed in the U.S. District Court for the Northern District of California, the state attorney general’s office noted that if PG&E is found to have caused any of the recent wildfires and to have acted with malice in the operation and maintenance of its equipment, the company could face criminal charges that may even include murder.
PG&E could also face lesser charges depending on how it acted prior to the start of the wildfires. For instance, the company may face charges of involuntary manslaughter if it failed to clear vegetation around power lines and plants, or other felony charges for acting recklessly. The attorney general’s brief stated that prosecutors would need to investigate further in order to determine PG&E’s “mental intent” surrounding the fires and the resulting deaths.
PG&E has already acknowledged that its equipment may have been the source of the Camp Fire. Originating on November 8, 2018 in the Sierra Nevada foothills, the Camp Fire destroyed 240 square miles of land, nearly 14,000 homes, and most of the city of Paradise. It also claimed at least 88 lives, making the Camp Fire California’s deadliest wildfire to date.
The utility company made this acknowledgement after Judge William Alsup of the District of Northern California ordered PG&E to respond to a series of questions about the fires, including questions about the utility’s power line safety practices.
PG&E had reported an outage near the time and place the fire began. The company also reported a second transmission line malfunction near the same time, which may have started a second fire.
Judge Alsup is currently overseeing a separate case against PG&E in district court, in which 8 people died and dozens were injured after a natural gas pipeline exploded south of San Francisco in 2010.
The judge asked for answers regarding the Camp Fire as part of an attempt to determine whether PG&E has violated the part of that sentence that required the company not to engage in any additional crimes. If PG&E acted intentionally or recklessly with regards to one or more wildfires, the court may find that the company committed another crime in violation of the sentencing requirements from the pipeline case.
The California Department of Forestry and Fire Protection (Cal Fire) assigned responsibility to PG&E for 8 different wildfires in 2017. The fires caused 44 deaths and over $3 billion in insured property losses, according to Cal Fire.
With an estimated total of $30 billion damages from wildfires over the last two years, PG&E has announced that intends to file for bankruptcy as early as January 29, 2019. This announcement has led to an almost 50% drop in PG&E shares and may lead to calls for electricity services to be taken over by local governments in some areas.
Potential Experts and Their Role in the PG&E Case
At the heart of the criminal liability arguments against PG&E are questions of intent: What did the company know about the consequences of certain actions? How did it act in the face of that knowledge?
If PG&E is found to have understood that particular actions – such as failing to maintain certain power equipment or failing to clear dead brush around power lines or stations – could lead to death, but chose to pursue those actions, the company is more likely to face serious felony charges. For instance, allowing dangerous conditions to continue with either the intent to cause death or with no regard for whether or not deaths resulted could expose PG&E to charges of murder.
By contrast, if PG&E is found to have behaved in a reckless manner in the face of wildfire risks, or to simply have failed to take reasonable care to prevent fires, the company may face lesser criminal charges, such as involuntary manslaughter.
To make their respective arguments as to PG&E’s knowledge and intent, both California prosecutors and the utility company are likely to rely on expert witnesses in the energy field, as well as experts with knowledge of wildfires. Each side will likely use their experts’ knowledge and testimony to build their own picture of what PG&E knew or understood about the likelihood of certain power utility practices causing a wildfire.
In addition, experts on the cause and development of wildfires may be asked to provide their opinions on whether PG&E’s equipment or practices could have started a particular fire, and if so, how that fire could have been started. Because the case focuses on questions of intent and proper maintenance of power equipment, these experts may also be asked to opine on whether PG&E took appropriate steps to reduce the risk that their equipment or practices would cause a fire.
The Expert Institute’s 4th Annual Legal Blog Contest has officially drawn to a close. This year was our largest and most successful contest to date, with more than 800 of the most engaging and informative legal blogs throwing their hats into the ring.
Of the contest’s nine categories, the most active categories in 2018 were Niche & Specialty, Litigation, and Criminal Law. MedMal & Personal Injury proved to be the most competitive category, with only one vote separating 1st place from 2nd place.
This year, the contest’s three grand prize winners — who received the most overall votes across all categories — received one of our three top prizes: a 2018 MacBook, an Apple iPad, and an Apple Watch.*
The grand prize winners, as well as the winners in each individual category, have earned a permanent place in The Expert Institute’s Best Legal Blogs Hall of Fame, which can be found here.
Goldberg Segalla’s Sports and Entertainment Law Insider covers the latest news in the sports and entertainment world. Its primary topics include up-to-date coverage of legal battles as wekk as developments and trends impacting all aspects of sports and entertainment — including the NFL, NCAA, and recording industry.
Versus Texas Blog, run by criminal defense firm Varghese Summersett, is a criminal law blog focusing on criminal law in Texas and the Fort Worth area, criminal litigation processes, and legislative updates to various criminal offenses, including DWI and firearms possession.
Goldberg Segalla’s Asbestos Case Tracker monitors asbestos litigation across the country and provides access to the latest court decisions, legislative updates, and other developments in a broad spectrum of industries.
We would like to thank all the blogs that participated in this year’s contest.
*Apple was not a participant in, or sponsor of, this promotion.
It does not look like it will be a good year for Johnson & Johnson. Last month, the company lost its motion to overturn a $4.7 billion jury verdict in favor of 22 plaintiffs who alleged that asbestos found in Johnson & Johnson’s Baby Powder and other talc products caused their ovarian cancer. The verdict, which consisted of $4.14 billion in punitive damages and $550 million in compensatory damages, is the sixth largest products liability verdict in U.S. history. Judge Rex Burlison of the 22nd Circuit Court of Missouri upheld the record-breaking verdict in Ingham, et al. v. Johnson & Johnson, et al., finding that the company “knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades.”
In seemingly direct response to the ruling, Johnson & Johnson stock sharply fell more than thirteen percent, losing $45 billion in market value. Now in damage control mode, the company has announced a $5 billion stock buyback plan and has taken out full-page advertisements in various news publications lauding the safety of its products. However, if the reports at trial are any indication, Johnson & Johnson will be fighting an uphill battle in proving the safety of its products.
The Link Between Asbestos-Contaminated Talc and Ovarian Cancer
The plaintiffs in the Ingham trial consisted of 22 women, six of whom are deceased and are represented by their families in wrongful death claims against Johnson & Johnson. Though each plaintiff’s individual circumstances differed, they shared one common factor – consistent usage of Johnson & Johnson’s talc products. For example, Krystal Kim, a 53-year old mother and one of the plaintiffs in the action, began using Johnson & Johnson’s Baby Powder at ten years old. She continued to use the product for decades on her body and sheets. Five years ago, Ms. Kim was diagnosed with invasive ovarian cancer. She underwent chemotherapy and had to remove parts of her colon and intestines.
The claim that their products contain asbestos and cause cancer is not new to Johnson & Johnson. According to sealed company documents that were partially admitted at trial, the company allegedly knew of asbestos contamination in its talc products since at least the 1970s. In December 2018, Reuters and the New York Times both published special reports detailing these internal documents, the bulk of which were designated as confidential during trial and obtained through the Freedom of Information Act. The reports found that “from at least 1971 to the early 2000s, the company’s raw talc and finished powders sometimes tested positive for small amounts of asbestos, and that company executives, mine managers, scientists, doctors and lawyers fretted over the problem and how to address it while failing to disclose it to regulators or the public.”
The earliest reports of contaminated talc were found in 1957 by a consulting lab that had discovered the contaminants in talc from the company’s Italian supplier. Despite similar findings made throughout the decades, Johnson & Johnson continuously maintained to the U.S. Food and Drug Administration that no asbestos was “detected in any sample.” Although most internal testing conducted by Johnson & Johnson did not yield asbestos, the company’s testing methods can allow trace amounts to go undetected, while also only testing a tiny fraction of its talc. Notably, asbestos is a known carcinogen that is often found near the mineral, talc, during the mining process. According to the World Health Organization, there is no safe level of exposure to asbestos.
The reports on the Johnson & Johnson documents unearthed decades of internal memos sent by and between top executives of the company concerning asbestos contamination in its products. New testing procedures were proposed with simultaneous attempts to discredit the research indicating contamination. Most concerning, in one instance, the company demanded that the government prevent these findings from being made public. As one official from the Food and Drug Administration assured in a memo, the findings would be released “over my dead body.”
Despite Johnson & Johnson’s efforts, tests conducted over the past few years by various plaintiffs’ experts have found evidence of asbestos contamination in talc. The link between asbestos and ovarian cancer has also been indicated by the International Agency for Research on Cancer. As Mark Lanier, the plaintiffs’ attorney in the Ingham case, states: “There’s no ambiguity…It’s a no-brainer that asbestos causes ovarian cancer…That’s not an argument anyone will win.”
The company currently faces over 10,600 lawsuits alleging that its talc-based products cause cancer. However, the result of each individual case is not always easy to predict. In 2016, Johnson & Johnson lost three lawsuits in Missouri state court, with damages awards totaling $55 million, $70 million, and $72 million, respectively, to plaintiffs who developed ovarian cancer after continued use of the company’s products. However, two of these verdicts were overturned on appeal on jurisdictional grounds, which the company is hoping to repeat in the Ingham case. A $417 million jury verdict in Los Angeles this past year was also reversed by the trial judge, who found that the evidence did not support the verdict. Similarly, two New Jersey lawsuits were dismissed after the plaintiffs’ experts could not establish a causal connection between the products and ovarian cancer.
On a related note, the company has also faced numerous lawsuits filed by plaintiffs alleging their products cause mesothelioma, a cancer that affects the lining of internal organs and which is also caused by asbestos. This past year, a New Jersey jury awarded $117 million in damages to a man who developed mesothelioma after using Johnson & Johnson’s Baby Powder products for years. The company has won three mesothelioma cases, with four others being declared mistrials.
As the litigation mounts, one constant remains – Johnson & Johnson continues to maintain that its products are safe and that its talc has been tested by scientists for decades. However, as the first of its kind to go to trial, the Ingham verdict has further established that the link between Johnson & Johnson talc products and ovarian cancer is an issue that will undoubtedly be further explored as more and more litigation unfolds.
Determining who authored or signed a particular document can be a challenge. While computer software has made it easier to tell when a word-processing file was created or modified by a particular machine, determining whether a handwritten item belongs to a particular writer remains difficult.
Enter handwriting expert witnesses, who specialize in helping attorneys settle questions about written evidence.
What Do Handwriting Expert Witnesses Do?
A handwriting expert witness can help determine who wrote a particular word or signature. They can also help settle questions about when a particular item was written down, using methods such as ink dating and analysis.
As expert witnesses, handwriting experts can analyze information, form opinions, and prepare reports in a similar fashion to other types of expert witnesses. Courts have accepted testimony from handwriting experts under both the Daubert and Frye standards.
Typically, a handwriting expert witness will first examine a questioned document to determine whether it contains enough of the subject’s handwriting to allow the expert to identify its unique characteristics. If so, the expert will seek to obtain another adequate sample of a subject’s handwriting. The expert compares the characteristics that appear in both samples and forms an opinion as to whether the document in question matches the known sample.
When Is a Handwriting Expert Witness Useful?
Handwriting expert witnesses typically do not state with certainty that a particular handwriting sample came from a particular individual, even if the goal of litigation is to prove that one person wrote a particular document. Instead, handwriting experts will express their opinion as to whether the characteristics of the handwriting on the document in question are consistent or inconsistent with the known sample used for comparison.
Nonetheless, the testimony of a handwriting expert can help bolster a claim that the questioned document was (or was not) written by a particular person, depending on which opinion the expert develops.
In some situations, a handwriting expert may also compare the words or phrases used in the two documents. For instance, in U.S. v. Crisp, the state’s handwriting examiner concluded that the questioned document (a note confessing to a bank robbery) was consistent with a sample of the defendant’s handwriting based in part on the fact that the word “tomorrow” was misspelled in the same way on both documents.
Handwriting experts may also have experience studying and testing various inks. These skills can help the expert form opinions as to when a document was written or signed, or whether two samples of writing were created with the same ink.
How Reliable Are the Methods Used by Handwriting Expert Witnesses?
The science of handwriting analysis is based on the presumption that no two people have identical handwriting. It assumes that because each person’s handwriting is unique, handwriting can be matched to an individual by examining subtle details and differences in writing, such as the shapes of letters, the pressure used, and where strokes are begun, ended, or joined.
Even courts that will accept a handwriting analyst as an expert witness may differ as to the nature and extent of testimony that is permissible from the expert in court. For instance, several cases in various jurisdictions have held that the expert may testify as to the similarities and differences between two handwriting samples, but may not state an ultimate conclusion as to the author’s identity, even if the expert feels confident he or she can make such as conclusion.
While not all courts have explained their reasoning, those that do tend to draw a distinction between the practice of identifying similarities and differences in handwriting characteristics and the act of drawing a definitive conclusion about identity therefrom. These courts have concluded that while the science of comparing handwriting samples meets the Daubert or Frye standard, the science of identifying individuals based on those samples has not.
Several courts have acknowledged the American Board of Forensic Document Examiners (ABFDE) as one appropriate accrediting organization for handwriting experts. The ABFDE was founded in 1977 “to establish, maintain and enhance standards of qualification” for handwriting experts and other forensic document examiners and “to certify applicants who comply with ABFDE requirements for this expertise.” The American Society for Testing and Materials (ASTM) also publishes standards for forensic document analysis, including handwriting analysis.
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In October of 2018, a Federal Court denied plaintiffs their motion for an extension and amendment of the scheduling order. The case provides an illustration of the importance of either following the scheduling order or taking steps to establish due diligence in attempting to comply with the scheduling order.
The plaintiffs breed both ranch horses and rodeo horses in New Mexico. The defendant, Standard Nutrition, provided horse feed to the plaintiffs on December 8, 2016. The plaintiffs’ horses subsequently fell ill, and two horses died within two days. Shortly thereafter, the plaintiffs retained an attorney. Nearly a year later, plaintiffs filed suit against the defendant, alleging the feed was contaminated with an antibiotic, monensin, which poisoned the plaintiffs’ horses.
Plaintiffs file suit
Defendant files an answer, denying the feed caused the horses injuries
Parties file joint status report and provisional discovery plan. Additionally, the defendant again denies causation at the joint status report. This is the first time the plaintiff identifies experts.
At Rule 16 scheduling conference, the plaintiffs acknowledge they failed to complete the initial disclosures as contemplated by the rules. The court reschedules the conference.
Rescheduled Rule 16 scheduling conference takes place. The court gives the plaintiffs until August 29 to disclose experts.
The plaintiffs do not disclose their experts as ordered
The plaintiffs file a motion for extension Re: expert reports
The defendant responds to the plaintiff’s motion
The plaintiffs reply to the defendant’s response
The plaintiffs file their status report and update to motion for extension Re: experts reports, which the court finds is actually a second motion to extend.
The court denies the motion without prejudice
An oral argument on the motion ensues
The plaintiffs file a motion to amend scheduling order
The court denies the plaintiffs’ motion to amend scheduling order
January Status Conference
At the January 29, 2018 status conference, the court made clear the purpose of the conference was to avoid subsequent requests to extend discovery deadlines. Should a party need an extension, the court explained, they must show good cause. While there are several factors the court may consider when determining good cause, in this case, the court specifically indicated the moving party’s diligent efforts to meet the timeline would be the most important factor.
March Joint Status Conference
On March 9, 2018, the plaintiffs identified the following potential testifying trial experts:
Treating veterinarian, also identified as a veterinary expert
Individual who read or interpreted the testing results of the feed at issue (or a designee, consistent with the rules)
An expert to testify to the effects of the antibiotic, monensin, on livestock, as well as the standard of care applied to the issue of monensin in horse feed
An expert to testify as to the standards of care which apply regarding the manufacture, storage, shipment, and delivery of the feed at issue, including, but not limited to “carryover,” maintenance, and cleaning of all facilities and equipment, as well as ingredients used in a mill where horse feed is produced.
May Rule 16 Scheduling Conference
At the rescheduled scheduling conference, the court gave the plaintiffs until August 29, 2018 to disclose their experts. When asked, the plaintiffs indicated they had no objection to the deadline. The court again went to great lengths to explain to the parties their obligations regarding the disclosure of their expert witnesses, as well as their obligation to have their experts ready to be deposed on the date they are identified.
August 31 Request for Extension
In their motion, the plaintiffs requested an extension of the expert disclosure deadline. This request was filed two days after their disclosure was due. In their request, they asked for an October 1, 2018, due date for disclosure.
October Status Report and Arguments
In their October status report, the plaintiffs asked for a “brief” but unspecified amount of additional time. The court denied this request on October 2, 2018. Oral arguments were heard on October 19, 2018. The plaintiffs acknowledged they were not prepared to identify any experts on either liability or causation. Further, the plaintiffs acknowledged they may not ever have experts on the issues of liability or causation. The plaintiffs indicated to the court they needed additional time to perform tests on the horses, as well as additional time to complete depositions for expert review. The plaintiffs renewed their request for an extension for a “brief but sufficient period of time” to complete their disclosures.
The defendant argued that the plaintiffs failed to prove good cause to extend the deadline. The defendant pointed out that the plaintiffs had more than a year and apparently had yet to find an expert to support their claims.
The court first pointed out that the Federal Rule of Civil Procedure 26 (a)(2)(D) provides parties must make disclosures as ordered by the court in the scheduling order. When good cause is shown, the court may modify the scheduling order pursuant to Federal Rule of Civil Procedure 16 (b)(4). The court then looked to the rules within the Tenth Circuit, which have detailed the factors courts should consider when determining whether good cause exists, including:
Whether the trial is imminent
Whether the request is opposed
Whether the non-moving party would be prejudiced
Whether the moving party was diligent in obtaining discovery within the guidelines established by the court
The foreseeability of the need for additional discovery given the time framed allowed by the district court and
The likelihood that the extended time will lead to relevant evidence.
As the court cautioned the parties at the beginning of the case, the diligence of the party requesting the continuance is the touchstone of the above factors. The court then engaged in a balancing of the factors and the facts of the case.
The trial was not set until July of 2019, thus, the lack of imminence of the trial weighed in favor of granting the plaintiffs’ request. However, all other factors weighed against them.
The defendant opposed the motion for a continuance. The defendant had already disclosed its experts pursuant to the scheduling order, thus they were prejudiced. Typically, it is the plaintiff who must first disclose their expert, giving the defendant the opportunity to determine if experts are even needed to defend against the suit.
The plaintiffs’ apparent lack of diligence also weighed against them. Without question, the plaintiffs had been on notice since December of 2017 that the defendants denied liability and causation. Yet, nearly a year later, the plaintiffs did not have any experts to testify about liability or causation, nor had the plaintiffs taken the horses to be examined by a veterinarian, nor had the horses been subject to additional testing. This, the court noted, should have occurred at the beginning of the case. Preliminary testing, which was performed only a month before disclosures were due, was found by the court to indicate a lack of diligence.
The court also found the plaintiffs knew they would need an expert from the very beginning.
Finally, the court ruled they were not convinced an extension would actually lead to relevant evidence. After all, the court reasoned, the plaintiffs were on record indicating they still were not certain they could find an expert on the issues of causation and liability at all – even if they were granted an extension.
Why Scheduling Orders Matter
From a public policy standpoint, scheduling orders matter because they keep both parties on task. The order recognizes each party’s need for resolution of their court case. However, the scheduling order does provide for some wiggle room when the facts and circumstances of the case warrant an extension. In this case, however, the plaintiff was unable to provide the court with a reasonable expectation that a different result could be obtained. Further, the court found their past efforts lacking. In such a case, the court is well within their rights to deny a civil litigant extended time.