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Title Page Kenneth S. Cohen
Expert Witnessing and
Scientific Testimony N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N
Surviving in the Courtroom
Boca Raton London New York
CRC Press is an imprint of the Taylor & Francis Group, an informa business
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CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742 © 2008 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 International Standard Book Number-10: 1-4200-5503-8 (Hardcover) International Standard Book Number-13: 978-1-4200-5503-0 (Hardcover) This book contains information obtained from authentic and highly regarded sources. Reprinted material is quoted with permission, and sources are indicated. A wide variety of references are listed. Reasonable efforts have been made to publish reliable data and information, but the author and the publisher cannot assume responsibility for the validity of all materials or for the consequences of their use. No part of this book may be reprinted, reproduced, transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www. copyright.com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC) 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Cohen, Kenneth S. Expert witnessing and scientific testimony : surviving in the courtroom / Kenneth S. Cohen. p. cm. Includes bibliographical references and index. ISBN-13: 978-1-4200-5503-0 (alk. paper) ISBN-10: 1-4200-5504-6 (alk. paper) 1. Evidence, Expert--United States. 2. Trial practice--United States. I. Title. KF8961.C64 2007 347.73’67--dc22 Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com
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Table of Contents
Preface............................................................................................................... ix Acknowledgments ............................................................................................ xi About the Author........................................................................................... xiii
1
Involvement in a Legal Action .............................. 1
Welcome to the World of Litigation! .............................................................. 1 How Did I Get Into This? ................................................................................ 2 I’m Not an Expert or a Witness....................................................................... 2 When Recognizing Errors and Omissions Is Your Job .................................. 3 Expert Witnessing ............................................................................................. 4 The Who ............................................................................................................ 7 The What and Where........................................................................................ 7 The When .......................................................................................................... 8 The How ............................................................................................................ 8 Witnesses’ Backgrounds ................................................................................... 9
2
Negligence ............................................................. 11
The Legal Definition of Negligence............................................................... 11 Professional Negligence .................................................................................. 11 Statutory Negligence....................................................................................... 13 Ignorance of the Law Is No Excuse............................................................... 14
3
Rules of Evidence and Codes of Civil Procedure............................................................... 15
What You Need to Know................................................................................ 15 The Hearsay Rule ............................................................................................ 15 The Chain of Custody .................................................................................... 16 Hazardous Materials ....................................................................................... 17 Nondestructive Testing ................................................................................... 18 The Rape Evidence Collection Kit................................................................. 19
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The Body of Scientific Literature ......................... 21
Libraries Are for Dinosaurs ........................................................................... 21 And Then There Was MEDLARS .................................................................. 22 CD-ROMS: Making Progress......................................................................... 22 The Internet .................................................................................................... 22 Too Much Information! ................................................................................. 23
5
Foundation Equals Persuasion.............................. 25
The Use of Demonstratives............................................................................ 25 The Weight of Testimony ............................................................................... 25 The Foundation of Knowledge ...................................................................... 27 Demonstratives ............................................................................................... 28 Models .................................................................................................... 28 Audiovisual Aids .................................................................................... 32 The Exponential Decay Curve ....................................................................... 33 Electron Microscopy....................................................................................... 33
6
The Expert Witness .............................................. 37
Who Qualifies? ................................................................................................ 37 Believing in Yourself ....................................................................................... 38 Witness Preparation........................................................................................ 39 The Invisible Expert........................................................................................ 40 The Truth Only Comes Out One Way .......................................................... 41 Now That I’m an Expert, What’s Next? ........................................................ 42 Who Do You Work For, the Defense or the Plaintiff? ................................. 43
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Speaking the Language of Lawyers ...................... 45
Legal Language 101......................................................................................... 45 The Discovery Process .................................................................................... 45 Interrogatory Responses........................................................................ 46 Responsiveness to the Question..................................................................... 47 Anticipating Questions................................................................................... 48 Who ........................................................................................................ 48 What ....................................................................................................... 48 When....................................................................................................... 48 Where...................................................................................................... 49 Why......................................................................................................... 49 Attorney–Client Privilege ............................................................................... 50 Don’t Speak “Legalese” ................................................................................... 50
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To Do the Courtroom Dance, First Learn the Steps................................................................ 51
Step 1: The Deposition................................................................................... 51 Step 2: The Mandatory Settlement Conference and the Motion for Summary Judgment ............................................................................... 52 Step 3: The Trial.............................................................................................. 53 Jury Selection ......................................................................................... 53 Testifying ................................................................................................ 53 The Verdict ............................................................................................. 54
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Skeletons in Your Closet ...................................... 57
Digging Up the Past........................................................................................ 57 Pretext: When the Line Is Crossed ................................................................ 58 Fee Questions .................................................................................................. 58 Finding a Few Skeletons Yourself .................................................................. 59 The Résumé: One of Your Best and Worst Tools ......................................... 59 Skeletons in Unlikely Places ........................................................................... 59 The Rehabilitation of an Expert Witness...................................................... 60
10
Impeachment Is Not Just for Presidents! ............ 63
The First Few Minutes of Cross-Examination ............................................. 63 Toward the End of Cross-Examination......................................................... 64 Don’t Underestimate the Jury........................................................................ 65 Impeachment .................................................................................................. 65 Recognizing Where Questions Are Leading ........................................ 65 A Justified Contradiction ...................................................................... 66
11
Criminal, Civil, and Workers’ Compensation Cases ..................................................................... 67
Criminal Cases ............................................................................................... 67 Civil Cases ....................................................................................................... 68 Workers’ Compensation Cases....................................................................... 69
12
Toxic Torts in Retrospect..................................... 73
An Introduction to Toxic Torts...................................................................... 73 Medical Misdiagnosis ..................................................................................... 74 Compensation: It’s Not Just for Work Anymore.......................................... 75
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One Case Is Tragic; Two or More Cases Are an Epidemic ........................................................... 77
Epidemiology .................................................................................................. 77 The Birth of a Lawsuit.................................................................................... 77 Prevention ....................................................................................................... 78 Risk .................................................................................................................. 78 The Dual Role of the Court........................................................................... 79
14
Professional Liability ............................................ 81
Even the Best Practitioners Can Be Sued!..................................................... 81 Professional Liability Insurance..................................................................... 82 Indemnification............................................................................................... 83 Multistate Operations............................................................................ 84 Hold-Harmless Agreements ........................................................................... 84 “Going Barefoot” with Limited Financial Assets.......................................... 85 Actionable Events and Activities.................................................................... 85 Scientific Accuracy, Completeness, and Documentation............................. 86
15
Out of the Ordinary: Investigations, Cases, and Trials .............................................................. 89
The Abalone’s Revenge ................................................................................... 89 When and Where Did She Die?..................................................................... 91 Peepshow Problems ........................................................................................ 91 Fried Chicken Maggots................................................................................... 92 The Musician’s Exposure to Asbestos............................................................ 93 A Double Shotgun Death in the Back Country ........................................... 94 Glitch Number 1.................................................................................... 95 Glitch Number 2.................................................................................... 95 Dr. Tyndall, I Presume? .................................................................................. 96 Is That My Pubic Hair? .................................................................................. 97 Redwood Blues................................................................................................ 98 The Bull-Riding Roofer .................................................................................. 99 Don’t Shake My Hand .................................................................................. 101 The Lethality of Human Poop..................................................................... 102 Lipoid Pneumonia Doesn’t Mean “Fat Lungs”........................................... 103
16
Do You Charge for Your Testimony? No, I Charge for My Time!........................................ 105
The Fee Structure.......................................................................................... 105
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Contracts, Retention, and Consulting Agreements........................... 106 Retention .............................................................................................. 106 Hourly Fees .......................................................................................... 107 Unique Billing Situations .................................................................... 108 Fee Bases............................................................................................... 108 The Declaration of Fees ...................................................................... 109 Billing Practices.................................................................................... 109 Collecting Your Fees ............................................................................ 110 Pro Bono Work ............................................................................................. 110 Workers’ Compensation Reports ................................................................. 110 Travel and Other Expenses........................................................................... 111 Cancellation Fees .......................................................................................... 111 Privacy versus Disclosure ............................................................................. 112
17
Expert Witnesses: The Good, the Bad, and the Ugly............................................................... 113
Trial Basics..................................................................................................... 114 The Good ...................................................................................................... 114 The Bad ......................................................................................................... 119 The Ugly ........................................................................................................ 132 Closing Argument......................................................................................... 137
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Closing Arguments ............................................. 139
Potholes in the Road to Expert Witnessing ................................................ 142 Conclusions ................................................................................................... 142
Notes ............................................................................. 145 Litigation Glossary ....................................................... 151 Appendix A: California Code of Civil Procedure, Section 2034 .................................................................. 159 Appendix B: Actual Case Report Examples ................. 169 B1: Gunderson v. A. W. Chesterton ............................................................... 169 B2: Moore v. American Honda ...................................................................... 171 B3: Horton v. Harwick Chemical Corporation ............................................. 178 B4: Willmar Poultry Company v. Carus Chemical Company ...................... 193
Appendix C: Forms and Other Data ............................ 203
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Appendix D: The Curriculum Vitae ............................ 217 D1: Curriculum Vitae of Kenneth S. Cohen............................................... 217 D2: Curriculum Vitae of Christopher E. Andreas...................................... 227
Index.............................................................................. 253
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Preface
I’ve been battered, I’ve been flattered, I’ve been bruised, I’ve been embarrassed, I’ve been bloodied, I’ve been thanked, I’ve been cajoled, I’ve been attacked, I’ve been befriended, I’ve been accused of acting, I’ve been called a charlatan, I’ve been called sneaky, I’ve been called a whore, but I’ve continued to survive as a paid expert witness. Thirty years’ experience in both part-time and full-time litigation-support activity has convinced me of the need to write this book. I’ve also run an active safety and industrial hygiene consulting practice that actually prompted the writing of this collection of helpful hints and observations. Also, this book can serve as a guide for those who are inadvertently dragged into the legal system or are professional expert witnesses. Although the preponderance of examples is drawn from an expert witness practice heavily weighted by asbestos cases, the information is applicable to other types of cases. Involvement in legal issues, either as a percipient witness or expert witness,1 has many virtues, and just as many negative aspects. These can only be learned by being involved and facing the challenges posed in actual cases that involve you, or into which you become entangled. Each new case can pose a learning experience regardless of how often the circumstance or incident has been examined previously. Finding and excavating that “smoking gun” piece of evidence after tedious hours of case review brings satisfaction far beyond any fees or hourly wage earned. Examining the actions—or inaction—of both professionals and nonprofessionals in residential, commercial, or industrial environments often serves as a lesson of what not to do in your own activities. The negative aspects aren’t the same for all those who have to be involved in litigation or engage in expert-witness work. A key aspect of being a witness is that you are fair game during cross-examination questioning. In a major case, when suing for “big dollar” amounts, you can expect to have your life history opened up like a road map, with all the detours and potholes pointed out vividly to the jury. Cross-examination is grueling to some, an enjoyable session of repartee to others. The tedium of long hours in deposition, during which your fundamental beliefs are attacked to a point of abstraction, can put off many professionals and nonprofessionals alike who would otherwise ix
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be excellent witnesses for either side of a complex litigation. A physician I know who was tangentially involved in a medical-malpractice case referred to his experience as “having an enema tube inserted in one ear and my brains washed out of the other.” The primary role of the expert witness is to make clear and simple, to the trier of fact, a complex technical or scientific issue that would be normally beyond their expected understanding. The primary role of a percipient witness is to tell the truth! I’ve attempted to make this primer to the world of litigation an exercise in enjoyable reading, spiced with actual cases, experiences, and pitfalls so that some of the tension of not knowing will be dispersed. I hope it serves to educate and clarify the mysteries of litigation for any of you who are willingly or unwillingly drawn into it. If my weak attempts at humor fail to elicit even a modicum of mirth, keep on going, as the other material is worth reading. Although I make numerous efforts to explain the legal environment, I am not an attorney, nor do I profess any legal skill beyond that which I have acquired through osmosis in my years of trial and deposition witnessing. This book is not intended to be a legal textbook nor to replace the advice of local counsel regarding any applicable statutes or procedures that may apply to you. The background I bring to the following observations and recommendations is solely from battling the legal wars for many years—in some cases losing, but most often winning. When you run with horses or swim with fish, you don’t instantly become one, but you do eventually learn how they move! Throughout this book there will be legal or scientific words and phrases that may be somewhat foreign to you and may need an explanation. Please use the litigation glossary and/or notes at the back of the book to ferret out these unknowns.
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Acknowledgments
I would like to acknowledge and thank the following contributors whose comments, encouragement, and work have made this book what it is. First and foremost, I thank my wife Karen for her patience, prompting, endurance, and love, which have helped me to continue along the arduous path of writing toward a finished manuscript. Thanks are also due to Christopher Andreas, Esq., for his chapter herein on the expert witnesses he has faced in a successful and active trial practice on asbestos toxic torts. Examples of his trial successes can be found in Appendix D. I thank my daughter Cara Cohen Haberman, M.D.; my friend Jane Villarreal; and my sister Charlotte Meyers for their editorial patience in their reviews of the first draft of this book, and a special thanks goes to Colleen Mallen for her work on the polishing of my spelling and grammatical faux pas. I owe my thanks to Mel Hovell, Ph.D.; Keith Liker, Esq.; and Enrique Medina, CIH, for their editorial skills, and the constructive criticism and encouragement that helped to prepare this guide for others who follow in my footsteps as a litigation witness or the subject of a lawsuit. And last, but not least, I thank the many other friends and relatives who read bits and pieces of the manuscript and offered constructive as well as critical commentary.
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About the Author
Kenneth S. Cohen was born in 1937 and was raised and educated primarily in the Los Angeles, CA area before joining the U.S. Navy in 1959. The Navy sent him to pharmacy school, after which he worked as a dispensing and manufacturing pharmacist at San Diego’s Balboa Naval Hospital for two and one half years. After being honorably discharged in 1963, he returned to San Diego State University to complete a bachelor’s of science in microbiology in 1965. He entered a two-year master’s program in biology, completed all the course work, did the required research, and wrote several drafts of a thesis, but had to withdraw before completing the degree due to work and family necessity. He sought closure on his education by seeking an offcampus degree, nine years later, from California Western University and was awarded the Ph.D. in occupational health in 1976. He participated in clinical-pathology research work for the National Cancer Institute at the San Diego Zoo, followed by starting his own microbiological media and clinical chemical reagent manufacturing business. He subsequently developed an active 30-year-long consulting practice in the field of industrial safety and health. He has held numerous paramedical licenses with the state of California, registration as a California professional engineer in safety, and certification in the comprehensive practice of industrial hygiene from the American Board of Industrial Hygiene. He is semiretired from a 30-plus-year active practice of industrial safety and health and currently only performs litigation support work. His last employment, and subsequent pensioned retirement, was with the state of California (Cal/OSHA) in 1998. He has been court qualified since 1974 as an expert witness in jurisdictions across the United States and has given testimony in nearly 1000 depositions and more than 500 court trials in jurisdictions scattered around the United States. He is married and resides in the suburbs of San Diego County with his wife, and enjoys his four children and five grandchildren.
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Involvement in a Legal Action
Welcome to the World of Litigation! What went wrong, or what did I do wrong? Why is there a lawsuit, and why am I being involved or sued? Why would I be called upon to be a witness in this or any other legal matter? Did I see something special that others didn’t, or do I know something unique to this action? Do I know something about the disputed issue that I’m not aware of, but others are? These are all questions that run wildly through your mind when, on an otherwise calm Friday night, at home around 9:30 in the evening, the door bell rings, and a somewhat burly looking man is unrecognized through the peephole in the front door and is holding an official-looking sheaf of papers on a clipboard while sporting an even more official-looking sheriff ’s badge pinned to his chest. He identifies himself as an off-duty sheriff, “and I have something for you!” You cautiously open the door, and he hands you the papers and says, “You’ve been served; have a good evening!” The night is young, but who can you call at ten o’clock on a Friday evening? You attempt to read what is contained on the papers, but all you see is YOU ARE COMMANDED TO APPEAR. The knot in your stomach begins to tighten, and your involvement in the litigation process has begun. You know a few attorneys, some as friends and a few in a professional sense, but you’re not sure that one would be willing or able to offer suggestions as you approach the witching hour of midnight. You barely sleep that night, and the balance of the restless weekend is flawed by making lists for what actions will be taken the coming Monday morning. Welcome to the world of litigation!
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The emotional response to receipt of a subpoena will change over time if you’re not a percipient witness but are planning on a career as an expert witness. Eventually it will just become a rare but foreseeable indication of a forthcoming deposition or trial. It always surprises the local process servers when we greet them with a smile and a thank you. A lawsuit can have meager beginnings, and yet blossom into something so engulfing as to have a life of its own. Once entangled in this web, any help laid out in the following chapters can hopefully serve as a flotation ring to your drowning self-confidence and partially fend off the legal demons who plague your dreams.
How Did I Get Into This? To begin, let us explore how things can and will go wrong, potentially getting you into this elevated state of litigation anxiety. You believe you are a reasonably normal person with general awareness and conscience regarding the conditions at work, play, and home. Could you have missed something you should have seen that was interpreted to mean you were negligent in your duty to someone or something? Could you have sold or recommended something that failed and caused injury or damage to someone? Could you have failed to respond or make a call for help for someone in need, such that your omission would have made a major difference in their health or welfare? Or are you merely someone trained and experienced in a special area of expertise that would aid in the understanding of a complex incident that is now the subject of litigation? We live in an ever-increasingly litigious world, surrounded by self-interests vying for a piece of us and some degree of retribution, and often we are totally unaware of what we could have, or should have, done differently. This fire is fanned by a burgeoning population of lawyers, cranked out of the lawschool machine, in ratios of lawyer-to-population numbers beyond our imagination. We also train, study, and work in jobs that often give us a unique perspective on how something might have been done better, safer, or with the avoidance of the subject consequences. If so, we may be sought out to testify in the ever-intimidating environment of the courtroom.
I’m Not an Expert or a Witness When performing your normal job—say, as a scientist, professional, or supervisor directed to perform routine audits of someone else’s job, for whichever side of an issue you are working on—one of your primary tasks may be defined as a duty to anticipate, recognize, evaluate, document, advise, and
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potentially control errors, processes, or omissions that might cause harm or injury to another. These conditions could be due to obvious or occult hazards, of your own design or the expectations of others. These hazards can lurk in a residential location, an industrial setting, or the general environment. When you function reasonably and do your job properly, you fulfill your designated and compensated “duty” but also an implied duty to protect your fellow workers, society, and the environment from reasonably foreseeable risk and hazard that are readily obvious or deviously occult.
When Recognizing Errors and Omissions Is Your Job As you do your job and conduct your life, you typically absorb training and experience, and find yourself repeatedly called upon to express opinions on various situations or conditions. You cite your education, training, and experience, which should have prepared and alerted you to any conditions that potentially or actually could pose a threat to someone or to the environment. You may not consider yourself to be an “expert,” as the humble person you believe yourself to be, but others may not view you so lightly. The impact of this expert challenge is intensified in the workplace environment, where lies a statutory assumption of a safe and healthful workplace. But where you live and play can also carry obligations requiring moral duties established by society. Statutory regulations governing safety and health in the workplace have existed since the late 1930s and will be discussed in subsequent chapters in more detail. For example, if you are an employer or in a supervisory position acting as an agent of the employer and you allow workers to cut furniture parts on unguarded table saws that handily remove worker fingers, you may be found negligent by breaching a recognized duty to assure those workers of a safe workplace free of potential injury. You may also be statutorily negligent by allowing those workers to perform their duties in noncompliance with statutory worker-safety laws. When and if an amputation takes place by that unforgiving table saw, you will find yourself answering the door and accepting papers accusing you of numerous and heinous acts. Let’s say you have met an associate for lunch at a posh downtown restaurant, and during dessert you observe a waiter being attacked by an irate customer, and then you quietly continue finishing dessert. Two years later, the Friday-night subpoena calls you to deposition as a witness in an assault case being brought in superior court. You think back and wonder how anyone knew you were even there. It later becomes clear that the waiter collected all the credit-card receipts from the time of the attack and assumed all were witnesses to the incident. We seldom are aware of the trail of bread crumbs we leave during the course and interactions of our lives.
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Expert Witnessing As a recognized professional in your area of practice, you may desire to serve as an expert witness in those cases where your training and experience can make a difference. It should also be noted that expert witnesses do not work for free in most cases. It is somewhat of a surprise to academics, when they enter the world of litigation, to discover that their compensation as witnesses far exceeds their university salaries. (Fee structures are discussed in more detail in chapter 17). When the decision is made to offer yourself to legal community, or when you are sought out by a lawyer who is in need of your services, the following chapters should prepare you for your perilous but rewarding journey. It serves well to remember that the expert witness is expected to be, and should always be, an objective party to the lawsuit and never function as an advocate for one side or the other. It becomes immediately transparent to the judge and jury, as well as everyone else within earshot, when the witness so wants to drive home his point as to begin arguing with cross-examining counsel; you are there to explain complicated scientific issues, not to influence the listener with your fervor! This concept of objectivity becomes clouded when your expertise is being paid for by the company you work for and owe your allegiance to. If you’ve been a trusted employee of XYZ Manufacturing for the last 30 years and are now receiving pension benefits, why would you jeopardize this relationship by revealing the company’s dirty little secrets? Be careful how you are defined and who is looked upon as your “mentor.” One of the advantages of being an independent consultant is the separation of allegiance from objectivity. Beware of your personal biases which may follow you! As an expert witness you can be requested to evaluate potential problems, defects, deficiencies, or errors. This can only be accomplished when you are able to fully appreciate a process, product, or system. Any system or product with potentially damaging defects, deficiencies, errors, or omissions that could cause harm may only become understood by you as a professional or nonprofessional when armed with a thorough overview of the process or practice under investigation. If asked to opine on a case of pustular dermatitis in dairy workers, or multiple finger amputations at a manufacturing operation, it is incumbent on you as the investigator to either know or become familiar with the processes involved. You are obligated to study these process steps and interactions prior to beginning your survey, or postpone the assignment prior to potentially missing the target due to your own lack of understanding of specific conditions. Process means, simply, that when investigating a dairy or machining operation, you should understand the various aspects and components of that operation. When your actions are viewed through
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the clarity of 20-20 hindsight, it may become instantly obvious that you may have undertaken the survey (1) having never seen a dairy or even a cow up close; (2) hoping to learn the machinery operation on the site but with no prior understanding of point-of-operation guarding; or (3) there are any combination of excuses that will leave you less than prepared. In order to make a jury understand the process that a dairy worker goes through, you must first understand it yourself. For some this can be the fun or the notso-fun part of being an expert witness: the undertaking of an investigation. Investigating a dairy farm may mean getting eye-to-eye with an udder or putting on your boots to sludge through piles of cow manure. With the assumption that you do come to the witness stand with all the preparation required for a competent evaluation of the process and opinions formulated on the issues you’ve been asked to address, you should first seek to establish what the designated process of the dairy or factory is, and if it is being operated as designed. What errors or omissions may have given rise to the pustular dermatitis or finger amputation that would have been avoided if the process was performed as designed or as it should have been designed? These questions typically form the basis of your evaluation, opinions, and projected control methodology. The same inquiry process is involved when retrospectively evaluating a damage claim that has risen to the intensity of a legal action. The major difference, and primary difficulty of litigation support work, is that you no longer have a real-time opportunity to collect evidence and gather facts as they occur. Most ongoing cases that may require the litigation expertise of the scientist, safety, or health professional have occurred months to years in the past, and the gathering of accurate information depends on time-weakened memories, missing or partially intact evidence, or an organization’s documentation-retention policy that has long since expired. A finding that all company records have been purged is not uncommon when litigating past injuries. If you are the one called upon to relate the actual conditions of the event in question, as you were present at the time of the injury, the same time-weakened memory problems may apply to your own recollections as well. When presented with the challenge of litigation involvement, or secondarily working on a case in which you believe you are informed enough to offer a level of help, you have passed the first hurdle! Open and frank discussions with legal counsel who involves or hires you regarding the case facts and your honest assessment of your ability to claim expertise in the area in question is a primary responsibility before agreeing to or taking on a litigation assignment. Credibility is your most important asset, and bluffing your way partially through a case, only to be found out later that your background and experience were insufficient and misleading to either party, will be an
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embarrassment and rebuke that may involve monetary sanctions or end your expert-witness career forever. All right, you are committed to the case; the attorney has assessed your scope of involvement or credentials and feels you have what it takes to successfully approach the project. The next thing you know, a 20-pound, overnight-express box appears at your door filled with company records, deposition transcripts, medical reports, or other documents that “look legal” but have very little meaning to you at this point. Luckily, you will find a letter from your attorney/client that outlines the nature of your involvement in the case, and what questions you are expected to answer. This “yellow brick road” is, you hope, the tool that will guide you through the maze of paper and focus your attention on the most critical issues at hand. This case, for example, might involve a crushed hand and finger amputation on a transit-mixconcrete truck driver incurred while he was inspecting the condition of his rotating-drum load. A pleasant surprise is finding a bundle of photos in the box, taken at the accident scene by a field investigator of the “allegedly unaltered” subject truck shortly after the accident. Now your retrospective accident investigation can begin. You have the photos, the sworn deposition of the driver describing the circumstances surrounding the accident, an engineering report of the truck manufacturer’s “person most knowledgeable,” 1 the treating surgeon’s contemporaneous history of the accident taken from the driver in the emergency room, and the deposition testimony of two coworker witnesses. You now have everything you needed to start a “virtual” safety survey in the comfort of your own office, with the ability to seek out any design or procedural errors, design omissions, and statutory infractions that may apply and that were, “more likely than not,” complicit in causing the accident.2 The same tasks that you would set out to perform for an assignment on something happening currently can be done in litigation retrospectively by merely applying the scientific method to the historical records provided.3 This concept of 20-20 hindsight has a modicum of advantage over real-time investigations. This is in part due to the distractions of real-time care for the injured party as well as any personal biases in the circumstances or nature of your involvement with the situation. Many employers are predisposed toward blaming the injured worker because she caused the accident by doing something she should not have done. This is contradicted in a safety-emphasizing environment by protective safety rules and procedures designed to prevent just those kinds of accidents. The reality of a manufacturing company in today’s competitive market is that management often emphasizes work productivity over workplace safety. However, when an accident does occur, management frequently completes a safety evaluation, laced with denial of responsibility, that points to the safety procedures the worker overlooked (even if they were overlooked due to unavail-
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ability) and thus blame is placed on the worker. When you are actually a party to an action, it is often difficult to remain objective or separate yourself from the reality of what should be done from what is being done. This is a far easier task when done in retrospect.
The Who Learn to identify the players. These include the victim, witnesses, supervisor, design engineers, owners or landlords, outside influencing parties, and governmental agents. Make an outline list of everyone who may have some degree of participation in or influence over the subject incident. Detail the role that each could have or did have in the culmination of the incident or associated injury process. In the language of the industrial-safety professional, this is called a job-safety analysis and is often used to characterize all of the various risk involvements that workers had, have, or will have during their employment. One personal practice I have adopted is the taking of computerized notes as I read documents in a case. I call these my case notes, which are my personal reading highlights or reading milestones. They are presented to my attorneyclient so that they may be served on the opposing side prior to giving deposition testimony. I seldom put a handwritten note in the case file as I generally forget where I wrote the note and for what purpose it was intended. (I also have difficulty reading my own horrible handwriting.) Writing computer-generated case notes is a simple task with a computer word processor that has an “outline” mode: After completion of notes, the program will number the items in a descending hierarchy that can be “keyword” searched for ease of retrieval later on.
The What and Where You should next gather all of the physical conditions that may have existed at the time of the incident. Consider the room, the space, the compartment, the area, the building, the climate, and the geography. Paint a mental picture of the dimensions, access/egress, characteristics, and mechanical processes or systems involved. Finally search for any other physical parameters that may complicate or exonerate the causal elements of your reconstruction. A classic example for the need of this data is that the aerodynamics of a dust aerosol are greatly affected by humidity. If a dust sampling were taken on a very humid or rainy day, there would be little question that the results would have been misleadingly understated. This would be of particular importance
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if the monitoring site was located in a region that had only five to ten days of rain per year. Attention to small detail can serve you well.
The When Timing is everything, particularly when retrospectively assessing conditions and control of an incident. You should establish an exact time and date of the incident, to the best level of precision available. Were any governmental statutory or consensus regulations in effect, or pending, at the time of the incident that would play a role in how the incident should have been controlled? A major factor that can influence the outcome of a litigation is the question of how long before the incident the accused defendant knew—or should have known—better. One of the simplest ways to establish that statutory law or consensus standards were in effect (and thus violated) is by citing that they had been in effect for, say, 40-plus years before the incident (as in the case of the California Safety Orders), or other government regulations. The American National Standards Institute or American Society of Mechanical Engineers standards are consensus requirements that have been around for many years. A direct example exists in the areas of asbestos and toxic-substance tort litigation. In California and in many other states, laws have been on the books regulating hazardous materials in the workplace. California’s General Industry Safety Orders have identified asbestos and other chemicals or physical agents as hazardous materials since the early 1940s and listed maximum allowable concentrations of asbestos in workroom air at five million particles per cubic foot (MPPCF).4 This regulation puts employers and others on notice that compliance with these orders requires some degree of monitoring in the workplace to validate being below the five-MPPCF level of exposure. Absent such testing, a breach of statutory law may often be per se evidence of negligence on the part of the employer.5 This can also place manufacturers, distributors, sellers, and retailers of asbestos-containing materials on notice that reasonable prudence and potential liability protection dictates they also test their products in the hands of the “reasonably foreseeable user” to verify that handling or working with them does not lead to the release of respirable asbestos-fiber bundles in excess of the five-MPPCF limit.
The How By all witness accounts, or in the absence of direct witness verification, how did the incident take place? When no case-specific witness testimony is available, you may have to rely on personal training or experience that can
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contribute to the knowledge base in support of your opinions. Court or jury opinions are rendered as judgments, which are dependant on evidence and expert opinions given at deposition or trial. Only a court-qualified expert witness, under rules of legal procedure, is allowed to render or express “opinions.” The opinions of an expert witness are given based upon a high degree of scientific, medical, or technical certainty and on the training, education, or experience of the expert. The expert witness is therefore allowed to use, as a foundation for his opinions, all of the acknowledged facts of the case, sworn testimony or interrogatory responses, or anything from the expert’s prior experience or studies. One additional aspect of what an expert can rely on is hearsay. When the custom and practice of an expert involves questioning, interviewing, or interrogating individuals as part of a fact-gathering professional practice, that type of information can be used as foundation for opinions. Prior to an asbestos trial, if given the opportunity to talk with the plaintiff and discuss the actual circumstances of his work, I can then use the information from that conversation as the basis for some of my opinions. Such information is not always available, however, due to the fact that many of the cases that come to trial no longer have a living plaintiff as the subject of the lawsuit. Case materials being reviewed may also contain reports of other experts who have evaluated your own or their own aspects of the incident and tendered their opinions for all to read as well. Many trials involving highly technical issues are often referred to as “battles of the experts.” All of the above pieces of evidence must be distilled to a point of focus called causation.6 When the cause is examined and defined, the “trier of fact” (either the judge or jury) can then determine liability and render a decision or judgment in the form of monetary damages or other appropriate orders in favor of the prevailing parties.
Witnesses’ Backgrounds This process of evaluation and distillation of evidentiary materials comes both from the experiences of percipient witnesses and the detailed work of expert witnesses. This evidence can directly affect the outcome of a litigation verdict and subsequent judgment by the court. The best that any witness can hope to do is tell the truth about her specific aspect of the case in a manner that will aid her client and do so in a manner that allows those in judgment to make sense of the testimony. The background and experience that the expert brings to the case often means the difference between victory and defeat. As with asbestos cases, the abandoned use of asbestos-containing materials leads to fewer and fewer individuals who have experience with such
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products or materials and can later become the experts for a future generation. The long latency period for the induction of asbestos-disease projects trial dates far into the future. In the field of industrial hygiene, many of the newer university graduates have historical knowledge of asbestos but may never have seen examples of such knowledge outside of the classroom. If after hearing all the pluses and minuses of expert witnessing you still desire to enter or continue in this stimulating and ever-changing field, the balance of this book is dedicated to you. Read on through the numerous potholes in the road of what I consider a very successful expert-witness practice of more than 30 years.
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Negligence
The Legal Definition of Negligence Most legal issues surround the concept of one party or the other acting in a manner that can only be described as negligent. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations such as sloppy engineering calculations. There are many forms of negligence—professional, legal, and as many types as there are professions. I’m sure that I, as a nonlawyer, am not aware of even a fraction of the types of potential negligence that can be alleged, but I will mention the two that are most often encountered in professional litigation involvement or support. A simple lay definition of negligence in the legal arena is “you knew, or should have known, what was correct to prevent or avoid the harm or damage created by inaction or omission and failed to do so.” A more accurate legal definition is “the violation of a legal duty that one person owes to another to care for the safety of that person or that person’s property.” As a nonlawyer (“I’m not actually a lawyer, I only play one on television!”) the following are the forms of negligence upon which I have been called to testify as an expert witness.
Professional Negligence A professional is an individual, who by virtue of training, education, affiliation, or experience, holds himself out to be uniquely skilled in his ability to perform specialized tasks reserved for that profession. It is worth noting that someone may be functioning as a professional but may be unaware that he is governed by the rules of his adopted profession. Malpractice by a professional can be based on negligence, misconduct, lack of ordinary skill, 11
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or breach of duty in the performance of a professional service and thus results in loss or injury. In a malpractice lawsuit the plaintiff must usually demonstrate failure by the professional to perform according to the field’s accepted standards. Physicians, lawyers, accountants, architects, industrial hygienists, and safety engineers have increasingly been subject to malpractice suits in this country, thus leading to a dramatic increase in malpracticeinsurance rates.1 The applicable standard of care by which a scientific professional is generally judged is what’s known more accurately as the standard of care in the professional community of other professionals. If a surgeon performs an operation on a patient’s infected left leg but amputates the right leg instead, a court would need to hear from another surgeon that such a practice was not up to the standard of care in the community of surgeons. If a plant-safety engineer allows workers to breathe silica dust while sandblasting in an unprotected manner, this too will be judged against what would be the standard of care in the community of safety-engineering professionals. Suing doctors may have a direct financial benefit due to the levels of malpractice insurance they carry, but suing company safety and health professionals can serve a different purpose. If an attorney desires information that only an “insider” to the company might reveal, who better to extract that information from than the plant safety and health professional as a party to the lawsuit? The safety and health professional, more likely than not, knows where all the skeletons are buried. When you sue the company safety and health person individually for professional negligence, you indirectly sue the company under the recognized legal doctrine of respondeat superior.2 When being sued, the cry from the lowly employee is, “Why sue me? My car is old, my house is mortgaged to the hilt, and my retirement is borrowed against. After all, you can’t get blood out of stone!” The cunning lawyer, twirling his waxed mustache, might say, “Tell me all you know about the company’s safety practices, and I’ll dismiss the lawsuit!” (It’s not that this scenario would ever actually happen, but it’s reasonable to consider the possibility!) Lawyers even get sued! I served as an expert in two legal malpractice cases alleging negligence on the part of attorneys who failed to perform their “duty” to their clients. In these cases the attorneys, who were the professionals, were being held to the standard of the bar of the state in which they practiced law. In both cases the attorneys were accused of being negligent by virtue of their failing to appropriately serve their clients in a reasonable manner. One case was an industrial-amputation accident where the statute of limitation was allowed to expire,3 and the attorney had not followed through with all of the paperwork needed to file the case with the court in a timely manner. This was essentially a “slam dunk” case that was misplaced under piles of other cases and never brought to trial. When the underlying case
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went to trial as a legal-malpractice action, it was won, and the malpractice judgment was entered against the attorney and in favor of the lawyer’s client, the plaintiff. The trying of the underlying case is undertaken as if it were an active lawsuit, but against “phantom” defendants who are not represented in the action. This type of trial is very atypical in both appearance and the rules that are followed due to the absence of real, participating defendants. In these situations it is often very easy to obtain discovery information from the phantom defendants, as they have very little to lose in the event of a plaintiff ’s verdict. The other case was an oil mist case in which a workers’ compensation attorney reviewed the case and said there was not merit in taking it to civil court. The worker subsequently developed more severe pulmonary-disease complications and brought an action against the workers-compensation attorney. The basis of this lawsuit was that the workers’ compensation award could in no way cover the enormous medical costs of his medical condition. The disease he had, lipoid pneumonia, was a result of the tool he used at work, which by design sprayed oil mist into his breathing zone while also lubricating the tool. The manufacturer of the tool gladly provided discovery information, as it was not the subject of the lawsuit.
Statutory Negligence Simply put, if someone or some entity violates or had violated a regulatory statute, ordinance, or law, this violation can serve as evidence of negligence per se, or statutory negligence.4 Negligence of this sort can arise from a violation of a statute that creates a public or private duty by declaring that certain requirements must be followed or that certain acts must not be performed. By enacting such a law, the legislature has determined the appropriate standard of care to which an individual’s conduct must conform; thus, conduct that violates the requirements of such a statute usually constitutes negligence. An example of this would be a building-code requirement to build a house with vapor barriers between the concrete slab and the floor. If the contractor builds the house without the vapor barrier, and there is water intrusion that fosters toxic-mold growth, the injury and illness caused to occupants would be considered statutory negligence because it constitutes a violation of the building code. Professional organizations can also create standards of care that are duties of obligation to all professionals within that category. Lawyers have a duty not to unreasonably abandon a client. Physicians have a duty to keep patient privacy information secure. Engineers have a duty to make their calculations
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in bound field notebooks that are thus permanent records. These are often considered consensus standards generated by professional organizations and in many cases are adopted by governmental bodies and incorporated into law. In California, the General Industry Safety Orders have existed since the early 1940s, and have had statutory requirement for approximately 400 hazardous substances, including asbestos. If, in the 1950s, a company knew that its employees were working with asbestos-containing materials and made no attempt to monitor whether exposures exceeded the then five million particles per cubic foot (MPPCF) regulatory-mandated standard, 5 a serious and willful action could today be brought by an asbestos-exposed and diseased worker of that employer in workers’ compensation court and in so doing could bring a doubling of the award under the statutory-negligence provision. This published governmental standard can also be used in civil actions by establishing when it should have been known that a material was hazardous.
Ignorance of the Law Is No Excuse We’ve all lived with the phrase “ignorance of the law is no excuse,” yet not everyone has the desire or ability to keep up with all of the statutory or contractual requirements of running a business, living in a neighborhood, or even belonging to a homeowner’s association. Many laws exist on the books that are never prosecuted. In some jurisdictions spitting on the street is a crime, yet few citizens are jailed for these offenses. The expert witness will often find herself embroiled in the “When should they have known?” debate based on when a rule, regulation, or published warning appeared in the general stream of information available to the accused—which is not as straightforward as it seems. The extent of one’s personal library resources can be a determinant in your value to the attorney-client when the negligence dragon raises its many Gorgonlike heads!
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Rules of Evidence and Codes of Civil Procedure
What You Need to Know This chapter will be short because the complex rules of evidence and codes of civil procedure are necessary for the attorneys to know, but only guide you as needed. What follow here, then, are some key concepts. Any rules or codes that apply to your involvement in a case will more likely than not be spelled out in case documents or provided to you by your lawyer or client. If they are not, and you do not follow these rules, your testimony at trial may be foreshortened or, at worst, may be stricken from the record! Good communications between lawyer and expert witness can’t be stressed enough, regardless of either’s level of trial experience. The judge in the courtroom is king or queen of all that he or she surveys! With few exceptions, the progression of a legal case, from inception to verdict, will follow the strict guidelines of rules and codes set down over years of legal conflict. These rules and codes have evolved over years of court decisions coming down, in part, from English common law and through the American court system.
The Hearsay Rule One important rule that particularly applies differently to the percipient and the expert witness is called the hearsay rule. Generally, a percipient witness tells what she actually knows about a case based upon firsthand knowledge of events, and no more. She may not give opinions nor conjecture regarding 15
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a hypothetical set of conditions. However, the court often allows an expert to testify about issues that may not be personally known by them, as an exception to the hearsay rule. Hearsay is basically secondhand information. This allows the expert to rely upon scientific articles, discussions with colleagues on the subject, testimony read in preparation for testimony in the case, and similar pieces of information not personally known to the expert. The origin of the hearsay rule arose out of English common law and the case of Sir Walter Raleigh being tried for treason against the crown. His guilt was predicated upon testimony that someone else heard him saying that he would slit the king’s throat. This rule in essence banned hearsay testimony because it was not the direct and personal knowledge of the witness, as it was based on out-of-court statements overheard by someone else who then used those unreliable statements as a basis to try and convict Sir Walter Raleigh of treason. The section of the California Code of Civil Procedure related to expert witnesses (§2034) appears in Appendix A in order to offer some insight as to the complexity of these codes. These codes are ever-evolving due to court rulings and appellate decisions challenging prior rules or decisions. Lawyers’ shelves are virtually wallpapered with rows of books covering the rules and codes applying solely to their area of legal specialty. One example of what happens when rules of evidence are not followed is the case of a novitiate trial attorney who was trying his first asbestos case in San Francisco Superior Court. (This attorney had settled close to 200 cases without ever going to trial; this was his first trial ever, and it showed!) I was faced with the task of giving industrial-hygiene testimony regarding the plaintiff ’s exposure to asbestos-containing materials. Prior to trial, the attorney told me, “You should throw some slides together as an introduction to asbestos for the jury.” I did that by taking slides from a variety of commercial presentations on asbestos. The day of the trial the slides were projected on a screen, one by one, and each was objected to on the basis of hearsay! Every objection by opposing counsel was sustained, and I went home with almost no testimony given and my attorney-client with much egg on his face. The attorney failed to lay appropriate evidentiary foundation as to who took the slides and how their validity was identified, so the hearsay objections were sustained by the court.
The Chain of Custody A rule of evidence that is particularly important to experts relates to the handling of physical evidence. During the course of an investigation or case evaluation, you may be asked to examine an item that has a pivotal role in
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the case. Examples might be a weapon, photos taken at an accident scene, a metal part alleged to be fatigued and cracking, or an aluminum stepladder that collapsed under the weight of an injured man. When these items come to you, they should be accompanied by a form called a “chain of custody” document (for an example, see Appendix C). This form should contain the item description, the time and date of release for all prior custodians of that item, and a time and date of release to you through a certified courier who transported the item in a manner that would not alter its state or condition (i.e., a box, container, wrapping, etc.). If the originality or condition of the subject item is questioned, each and every signatory in the chain of custody will be called to testify or give declaration as to the integrity of the item while in their custody. This becomes far more important when the evidentiary item is alleged to have been tampered with. Therefore, it is important for an expert witnesses to maintain some form of evidence locker at his or her place of business that is secure from any outside access. For this reason, I have for years maintained not only a locked cabinet where evidence is stored, but a secure building with limited personnel access and a monitored security system on the building. These levels of protection have served me well when challenged in the courtroom with the question, “And how do you know that this electrical switch has not been altered or changed prior to our expert examining it?” I merely restate my precautionary measures related to chain of custody, and the substantive testimony continues! An evidentiary procedure I learned while doing criminal-litigation support work was to sign or initial any piece of evidence that went through my possession. I place my initials on the item itself, when it is possible to find an inconspicuous and nonrelevant location on the item, and on the packaging that may contain the item. When the item is not one that would allow for direct markings, I have used tags, stickers, or similar attachment devices that identify my handling of the object. Simple outer packaging for small objects are heavy-thickness, locking freezer bags of varying sizes. Once bagged these objects can be sealed with strapping tape to ensure the content’s integrity. This allows transparency as well as the ability to mark it for future identification.
Hazardous Materials Items that are of a hazardous nature are generally frowned upon when brought into the courtroom in an unprotected fashion. This is particularly true with items such as weapons, samples of bodily tissue, or hazardous materials such as asbestos. When bringing a representative sample of asbestos
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into the courtroom, in order to illustrate some property to the jury, I will typically double-bag the item so as to provide a minimum of two redundant layers of protection in the inadvertent chance of the outer layer opening. In one courtroom presentation, I was asked to describe a Lucite cylinder that contained a section of thermal asbestos pipe covering. When I picked up the seemingly well-sealed cylinder, I noticed a small amount of white powder collecting around the bottom of the 3-foot-long container. As I held it up for the jury to see, the powder appeared to migrate to the end of the cylinder, which did not appear completely sealed to me. I motioned to the questioning attorney to approach the stand and told him of my concern. He requested a recess, which was granted by the court, and the cylinder was removed to an anteroom to be resealed. The trial continued, and a potential exposure was averted. Make sure that any hazardous material used for in-court demonstrative purposes is well-sealed or double-bagged. An ounce of prevention is worth a full day of explanation saved—or another lawsuit avoided.
Nondestructive Testing On occasion, a critical piece of evidence examined by one expert will be requested by an expert on the opposing side. The retesting may be just examination, or it may be some form of analysis. The testing parameters are usually cleared through the court, in the form of opposing motions, as to how and when the tests are to be conducted. One issue that usually pops up is whether or not the testing can consume a portion of the actual item. This type of testing is called destructive in that some of the actual item is consumed by the test procedure. When the testing can be done without altering the condition of the evidence it is described as nondestructive testing. Depending on the evidence item in question, gray areas arise that typically end up in the court requiring a hearing to learn more of what the testing entails. An example of the type of controversy that can develop once came with the examination of a consumer hair dryer alleged to contain an asbestos insulating sleeve. The hair dryer had to be disassembled in order to examine and test the composition of its heat shield. Counsel for the manufacturer argued that disassembly and reassembly would alter the original condition of the unit and should therefore be prohibited. Counsel for the asbestosinjured hairdresser argued that it was critical for the jury to appreciate the construction of the hair dryer and how the asbestos could be freely released into the breathing zone of the plaintiff. The court proceeded to cut the hairdryer in half to allow for disassembly and photography, but there was no destructive sampling of the asbestos heat shield. Sometimes you win, sometimes you lose; and sometimes it comes out a draw!
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The Rape Evidence Collection Kit Collecting rape evidence often presents barriers that are totally unexpected, even in the most sophisticated hospital settings. In the early part of my litigation career, my services were elicited by a rape victims’ advocacy group. The group was losing the battle for successful prosecutions due to the absence of evidence to link the victim to the alleged perpetrator. (This was in the early 1970s, long before DNA testing rapidly changed the complexion of rape prosecutions.) The circumstances of the volunteer group’s frustration was the absolute refusal of physicians to collect any form of evidence from the victim. Having worked in a number of hospitals and knowing a large number of physicians in the San Diego community, I found this allegation difficult to accept when posed by the members of the group. In order to prove this to myself, I asked to accompany one of the counselors and a rape victim on a visit to the local emergency room (ER). The group had already established a policy of advising victims not to shower or otherwise destroy what evidence might residually exist from their attackers. Upon arrival at the ER, the patient/victim was escorted to an examining area and placed on a gurney with a curtain drawn around her for privacy. I sat outside while the counselor and the patient/victim waited. After a full hour, the counselor came out to tell me that a procession of nurses had been by to say that the doctors were still too busy to examine her! Being both curious and concerned about the delay on this otherwise quiet weekday evening in the ER, I approached the nurses’ station, where several doctors and nurses were chatting. As soon as a pause in the conversation developed, I asked one of the nurses what the delay was and when we could expect to have the victim seen. One of the physicians, overhearing the conversation, turned to me and said, “She may never be seen by me, as I’ll be damned if I’ll get subpoenaed for court and cross-examined for five dollars an hour!” Upon leaving the nurses’ station, I noted that the nurse who was periodically consoling our victim, having heard what the doctor said, was in tears. After seeing her and hearing from the doctor, I thought there must be a better way! After a few days of discussions with several of the officers in the police department’s rape-victims unit, a sitting judge, several prosecutors, and a defense attorney, I realized that the current level of technology demanded evidence collection in a way that any nurse or other medical-staff personnel could implement it. Specific items collected from the victim’s body would then be usable in a court environment. To this end I designed and constructed a disposable rape-evidence-collection kit that was distributed to several local ERs with instructions on evidence-sample collection and chain of custody.
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With the introduction of all the sample containers, special forceps, and evidence labels, the kit became an easy way for a nurse to collect all needed evidence from the woman’s body. This could be passed, with proper chain of custody, to a police detective and officially be used at time of trial. The kit would aid in collecting semen, hair, blood, and other body fluids that might be used as evidence. The concept caught on after being accepted by nurses, doctors, and police personnel, and soon a major first-aid manufacturer began producing a commercial version of the kit and distributed it throughout the United States. From meager beginnings great ideas can grow!
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The Body of Scientific Literature
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Libraries Are for Dinosaurs In the beginning, there were libraries. When I first began to practice safety and health in the mid-1960s, public, university, or company libraries seldom collected works that dealt specifically with the fields of safety and industrial hygiene, due to the fact that their general interest was low and the breadth and range of publications was so small that shelf space was seldom allocated to these orphan sciences. At best, they were located in the areas of major science such as engineering, chemistry, and physics, or in small, personal collections, held closely and dearly by practitioners. The primary references were available only to the educated few. Some of these classics included, but were not limited to, Industrial Dust (1936), The Chemistry of Industrial Toxicology (1950), Industrial Hygiene and Toxicology (1958), The Diseases of Occupations (1962), Fundamentals of Industrial Hygiene (1971), The Accident Prevention Manual for Industrial Operations (1974),1 among a few other dusty volumes. With the creation of the U.S. Occupational Safety and Health Administration (OSHA) in 1970,2 a virtual explosion of commercial publications began to appear on a wide array of industrial-safety and health topics. Governmental publications began spewing out of the National Institute of Occupational Safety and Health (NIOSH), covering most of the chemicals and physical agents regulated by OSHA. The NIOSH “criteria” documents became the accepted authoritative reference for safety and health professionals, covering the approximately 400 industrial toxicants regulated under permissible exposure limits for hazardous materials under OSHA. The medical and scientific literature began to bloom, with papers related to accident and exposure conditions studied by a wide range and scope of 21
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investigators. Information from these typically academic reference sources was not available to most field safety and health professionals; if there was a unique exposure incident in your workplace, it would seldom become known beyond the perimeter of your plant’s property. The only means generally available for communication were local conferences and meetings of colleagues or others in the field with whom one could discuss and share this information.
And Then There Was MEDLARS Searching the medical or scientific literature in the early 1970s required spending hours in the library or asking a local librarian to make a direct topic search over a slow and expensive phone-modem terminal through the U.S. National Library of Medicine’s Medical Literature Analysis and Retrieval System, or MEDLARS. If you were fortunate enough to communicate enough relevant keywords to the librarian, and he understood what you were looking for, you might get back a small bit of appropriate data. In my experience, during those developmental years, the librarian-generated data was useful only a small fraction of the time! As a result, out of desperation for obtaining the needed data, I felt I needed to become a MEDLARS searcher myself. Becoming a MEDLARS searcher was not a simple task. In order to obtain a password to the National Library of Medicine, I first had to attend a twoweek course at the University of California–Los Angeles, primarily for librarians. It also necessitated purchasing a special terminal that would connect through a TELNET (teletype network) data-transmission system to the library. Search time was calculated in minutes, or fractions thereof, and was added to the TELNET charge, which was based on time used.
CD-ROMS: Making Progress The inconvenience of the elaborate MEDLARS system was, thankfully, soon replaced with relatively the same databases on CD-ROM, first published by the Canadian Center for Occupational Health and Safety in 1978. These, too, were somewhat costly, but afforded the luxury of untimed and limitless searches in the convenience of one’s own office.
The Internet With the advent of the Internet, the drudgery of a literature search was a thing of the past. Today, extensive data are available with the click of a
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computer mouse. Most safety and health databases are open and readily available to any user. Additionally, numerous search engines are also capable of setting forth an array of pertinent articles or postings by merely using a few key words. Regardless of how you get the data, without them a major piece of the puzzle might be missing. The downside of not having sought the data, or of not at least knowing what data is available, can come back to haunt you should your counterpart on the opposition’s side be waiting in the shadows to blindside you at trial with a revelation or two!
Too Much Information! One of the most frequent questions asked of an expert witness is, “On what basis or foundational material do you base your opinions?” Here is where the material extracted from the medical or scientific literature rises up to support your opinion, concept, theory, or conclusions. The data need not be new, nor be an earthshaking discovery; it just needs to be the type of data that reasonable professionals in your field would rely upon to make similar conclusions. There is also a range of data sources available that can add or subtract weight that a jury might apply to the credibility of your opinion. Peer review, which is commonly exercises in scholarly journals, is a well-established process in the sciences. In litigation it is used as a means of weeding out legal opinion presentations with major credibility gaps and opinions which do not contribute or add to the body of science referenced. A challenge of peer review validation might come in the form of a question such as: Where in the scientific literature has anyone in your field expressed a similar opinion? Another factor in the acceptability of a published article is the publication in which it appears: An article published in the New England Journal of Medicine will always have substantially more weight than an article that appears in the National Enquirer! The more data you accumulate on the subjects in which you profess expertise, the better able you are to help your client and educate those who will make a judgment in the case. With the current technology for electronically archiving articles and written materials, voluminous library space is no longer a necessity; I currently use Adobe Acrobat software, which creates compacted electronic files of high-quality resolution that cannot be tampered with. An additional advantage of the electronic archive is the ability to keyword search the document for a phrase, name, or sentence, which saves you from rereading many pages to extract a single set of facts. When key articles are necessary and can be anticipated before testimony, you may want actual hard copies in the hands of your attorney. If the number of articles becomes unwieldy, I will bring my entire reference collection on a small but powerful
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laptop computer that fits in my briefcase. This scanned and indexed library has pulled my bacon out of the fire on more than one occasion. Be sure that any reference you decide to use is able to be properly cited and dated so that case-specific reference can be validated. Oftentimes articles copied from the older literature may degrade in legibility and completeness. Repeated photocopying can clip off journal identification and dating, and this may prove embarrassing during your testimony. Aside from articles retrieved from the literature, you may also have a small, personal library of texts upon which you may rely for fundamental concepts. In trial, I am often assaulted with the challenges of basic terms of chemistry and physics that were learned early on in my undergraduate career. One example, which will forever be emblazed in my mind as an attack on my use of the English language, was during cross-examination in a trial on an asbestos-exposure case. I was asked, “Where in the medical or scientific literature has any other industrial hygienist used the term aerodynamically active as it relates to the dispersion of asbestos fibers?” After recovering from the shock of being challenged on words I thought were common industrialhygiene vernacular, I cited a fundamental industrial-hygiene text for aerodynamically and referenced many industrial-hygiene peers who employed a standard Webster’s dictionary for a definition of the word active. The attorney who asked the question was not pleased, but the courtroom was filled with a collective chuckle. With the literal explosion of information available on the Internet, the prudent expert should exercise caution in selecting articles or bits of information that may be less than credible. Internet search engines are blind to article value or truth and concentrate primarily on keywords, regardless of the pattern of their association. Only you can judge which article or information sources should be integrated into your testimony. One example of a reputable source of information is generally the monthly or quarterly journals that your field publishes. Use discretion, and weigh your reference quality before opposing counsel does it for you in cross-examination! One offshoot of this explosion of information resources is the opportunity for opposing counsel to harass you, or attempt to harass you, with a subpoena duces tecum demanding that you produce everything you’ve ever written or had published, videotaped, photographed, read, or commented on in your professional lifetime. What I’ve just said may seem unreasonably vague and overly broad, which it most often is, but they can still demand! Get with your attorney-client to either quash or severely limit this demand for production. When efforts to reduce the scope of the request have been denied, the issue has been taken before a judge to arbitrate the reasonableness of the request. I have been through this many times and have yet to be forced to produce my library of many thousand volumes and electronic reference files.
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The Use of Demonstratives Over the past 20 years of testifying in asbestos litigation, I have developed a number of teaching tools to explain the complex nature of asbestos to a jury. In addition to electron-microscope images, I’ve used a series of pasta models as fair and accurate representations of what I see when I look at asbestos through the microscope. The actual similarities are striking when shown and recognized by scientists with knowledge of asbestos, but when I began using the noodle models, opposing counsel vigorously objected. Now that my noodles have passed the hurdles of many judicial reviews, there is hardly a trial objection to be heard. The exception to this is the occasional novitiate lawyer who feels the need to again challenge my noodle models and is rapidly silenced by the judge, who declares, “I’ve seen his noodles, and they’re okay!” Part of the role of an expert witness is to explain complex concepts to a jury consisting of individuals of different academic backgrounds and intellectual abilities. As I start preparing for testimony, I ask my attorney-client for the average educational backgrounds of the jurors. A good analogy to giving testimony with a jury present is teaching a subject to a class—except I keep in mind that during my testimony, jurors may not understand everything that I say and are, of course, unable to ask questions.
The Weight of Testimony In any legal action, foundation equals persuasion, and each of the two opposing sides attempts to persuade the trier of fact (the judge or jury) that its 25
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position is the correct one. In order to accomplish this, the pans on the scales of justice must be weighed down with persuasive expert- and percipientwitness testimony that tips the balance. Each side orchestrates a parade of witnesses, including both percipients and experts, that will present their pieces of the evidentiary pie for the jury to weigh and then accept or reject. The weight given to testimony by the jury or judge depends on the quality and credibility of the evidence presented. In the case of an expert witness, the weight of her evidence depends heavily on the foundational support established prior to an opinion being given. The questioning attorney, through a series of steplike progressions, establishes what is the basis for that opinion. An example would be as follows: Questioning Attorney: Do you have training and experience in the aerodynamics and physical properties of asbestos? Expert Witness: Yes, sir, I have studied the aerosol properties of asbestos in specialized courses from the National Institute of Occupational Safety and Health, I have field tested industrial environments for released asbestos aerosols, and I have an extensive library covering this area. Q: Can you describe some of the scholarly works you’ve reviewed in this regard? EW: Textbooks that deal specifically with aerodynamics of asbestos would include Drinker and Hatch, Industrial Dusts, 1936; William Hinds, Aerosol Technology, 1982; and a number of air-pollution texts that encompass this subject. Q: Can you tell us what field or laboratory studies you’ve performed in this area? EW: I have collected literally thousands of air samples in asbestos-contaminated environments to evaluate the distribution, flow, and settling of suspended asbestos-fiber bundles. In the laboratory, I have used environmental chambers to simulate the release and migration properties of asbestos from asbestos-containing products. Q: Your Honor, I would offer Dr. Cohen as an expert in the field of asbestos aerodynamics and physical properties.
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Articles, books, training, and field experience all are foundation for the subsequent testimony and opinions the expert will give. If opposing counsel feels the above foundation is insufficient, he or she will make an objection or motion as soon as the expert begins to opine, such as, “Your Honor, this testimony lacks foundation!” The judge can either sustain or overrule the objection at this point. The witness will either be required to give additional foundation to support his or her ability to offer such opinions as an expert or will go on to opine as previously asked.
The Foundation of Knowledge A firm appreciation of the scientific and medical literature (as discussed in Chapter 4) in your field of specialty is extremely important. Laying a foundation of knowledge based upon the world’s knowledge in the field is very persuasive and will convince the judge that you qualify as an expert witness. Once you know the area you will be asked about, reinforcing your foundational materials with key articles or book excerpts will make life so much easier on the witness stand. The physician being sued in a misdiagnosis case brings to court five leading articles supporting his medical decision(s), and the reasons therefore, as well as the treatment direction he took. The engineer being sued for design failure of building support brings to court his engineering log book; his drawings, which were countersigned by another engineer; his pages of calculations; and his postaccident investigation report showing photographs of construction defects that deviated from his design. The safety manager who is accused of negligence and malpractice when a laborer’s toes have been amputated by a jackhammer brings to court memos and documentation that management refused to accept or implement; implementation of her recommendations for steel-toed safety shoes were, due to cost controls, ignored. The examples could be endless, but in essence we establish expertise and cover our backsides with a mountain of documentation, records, and support from the literature. The witness with the most impressive mountain of foundational materials often becomes the tipping point upon which a jury casts its verdict. Documentation in your everyday activities can mean the difference between litigation survival and defeat. Who would you, as an individual juror, believe most readily—the accused engineer who designed the roof that collapsed, who wrote his calculations on scraps of paper that can no longer be found, or the engineer who kept a detailed engineering notebook that is produced for all to see? I believe the latter example wins every time.
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Demonstratives Like the old saying, “A picture is worth a thousand words,” it is critical to have appropriate show-and-tell exhibits to help the jury or the judge understand a complex issue. Pictures, models, drawings, or any other forms of descriptive explanation will go a long way in convincing the trier of fact that the situation did happen in the way you described it, and that you have a credible understanding of the issue to frame it in terms that are not parochial to your science or skill. Models In the area of asbestos litigation, the element of concern is a subvisual microscopic entity that poses many descriptive problems to a layperson’s understanding. Bringing microscopes into the courtroom is far from practical, and often pictures leave much to be desired. I realized this conundrum and discovered that I could duplicate what I saw under the microscope with common, dry household pasta. The microscopic “asbestos fiber bundle” is fairly and accurately represented in the courtroom by a 1-inch-diameter bundle of spaghetti glued together with white carpenter’s glue (see Figure 5.1). From this model, I can describe both the appearance and orientation of the bundle and can also discuss its crystalline fracture pattern of cleavage.1 Similarly, I can use curly rice noodles to illustrate the low-power appearance of serpentine asbestos, and broken shards of spaghetti to describe the linear elements of amphibole asbestos (see Figures 5.2 and 5.3).
Figure 5.1 This representation of a microscopic asbestos-fiber bundle was created by using white carpenter’s glue and a 1-inch-diameter bundle of spaghetti.
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Figure 5.2 Here, curly rice noodles are used to illustrate the low-power appearance of serpentine asbestos.
Figure 5.3 In this illustration, broken shards of spaghetti are used to demonstrate the linear elements of amphibole asbestos.
The issue of encapsulation is another difficult concept to understand on the microscopic level, so I found another use for spaghetti: a latexpaint–dipped spaghetti bundle helps me explain how the exterior surface can be coated but the interior may remain unaffected (see Figure 5.4). So that I do not have to worry about contaminating a courtroom with asbestos, I have sealed an actual specimen of serpentine-chrysotile-asbestos rock in a vial that can be passed around the jury box to illustrate the fibrous elements trapped in the surface of the rock and in veins (see Figure 5.5). The last physical exhibit I use in asbestos trials is an industrial-hygiene monitoring cassette (see Figure 5.6). This plastic structure holds a fine-porosity membrane filter that is used to trap and collect microscopic asbestos fibers floating in the air of a worker’s breathing zone. When the sampled filter membrane is viewed under an electron microscope, the size relationship of these microscopic
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Figure 5.4 This latex-dipped spaghetti is used by the author to demonstrate how coating does not affect the interior.
asbestos fibers in air becomes a point of appreciation for the jury. In my experience, these simple items viewed together build an understanding in the jurors’ minds of a microscopic world of suspended particles in air that they are incapable of visualizing with the naked eye. In another trial, involving a case of an amputation of three fingers during a home-shop woodworking procedure, it would have been impractical and unethical to run another human hand through the machine to illustrate the nature of the accident. At the request of the attorney-client, I was to come up with some means to illustrate the defective machine-guarding design with the credibility demanded for proper demonstrative evidence. The experimental design, for a videotape reenactment, was to create a surrogate arm and hand that would be able to orient the subject’s woodworking piece in such a manner that the defective guard could be shown to fail as it did in the accident. The hand was re-created with a latex surgeon’s glove. Hot dogs were inserted into the fingers of the glove to create the appearance of a human hand. Articulation of the finger joints, to give the appearance of a functioning hand, was accomplished by the insertion of a one-eighth-inch-diameter wooden shish-ka-bob skewers through the center of each hot dog. The wooden skewers were fractured at the approximate location of each knuckle to give added realism and function as the “hand’s” grip. The glove was affixed to a length of broom handle that could be held off-camera, and was covered with the sleeve of a man’s shirt. With the videotape rolling, the thickness planer—with factory-installed “defectively designed” mutton-chop spring guard—was energized and
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Figure 5.5 An actual specimen of serpentine-chrysotile-asbestos rock was sealed in a vial to illustrate the fibrous elements trapped in the surface of the rock.
Figure 5.6 In this illustration, the author used the fine-porosity membrane filter of an industrial-hygiene monitoring cassette to demonstrate the microscopic world of suspended particles in air that cannot be visualized with the naked eye.
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allowed to come up to rated speed. The “hand” began to push a block of wood over the planer blades and easily opened the guard to allow entry. As the block passed by the guard, followed by the “hand,” the guard remained open as it had when the homeowner followed the same path. Needless to say, the area was dramatically sprayed by hundreds of hot dog particles, as the “hand” had each finger planed off in turn. The whole operation took merely seconds, as did the writing of a settlement check! (It was suggested by one of the lab personnel that catsup be squirted into the fingers of the glove prior to starting the experiment, but other investigators who were present felt that this step would take the demonstration to the extreme and with it a subsequent loss of credibility that was both undesired and unintended.) Audiovisual Aids In one case of ergonomic injury, a 110-pound female refinery-maintenance worker developed bilateral carpal tunnel syndrome while using a 1-inch square-drive socket-impact wrench to tighten vessel-door bolt closures. When first brought into the case, I had never experienced the magnitude of what a 1-inch impact-driver device would be with regard to weight and size. In my use and experience, impact socket wrenches typically range from 1/4to 1/2-inch square drives, and could be handled easily by most people. When the exemplar wrench arrived by courier and was placed on my doorstep, I could barely lift it and rapidly began to understand the dilemma of the injured worker. The wrench weighed almost 40 pounds and was more than 2 feet in length. With common-sized industrial air tools, most small compressors can drive them at ±100 pounds per square inch (psi). The tool in question not only refused to function at 100 psi, but required an air reserve far beyond that of most small industrial-compressor units. We soon learned that a highvolume and high-pressure diesel-operated compressor, similar to that which would be used by a street-repair crew operating jackhammers, was the only tool strong enough to power our test experiment. The bolts tightened by our injured worker were described in her deposition as being 2 inches in diameter, an appreciable size demanding a wrench of the size involved. Her job, several times each day, was to loosen or tighten a series of 30 such bolts holding a vessel closure in place. To create an actual simulation environment to test drive this huge wrench, we welded together an 8-by-10-inch I-beam, 5 feet in length, to a 3-foot-square section of 1/2inch steel plate for a base. Holes, to accommodate the test bolts, were drilled along one edge of the I-beam at 6-inch increments from 2 feet to 4 feet above floor level. The wrench was wired with piezoelectric transducers to measure the handle force required to stabilize a worker’s grip on the tool.
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A 200-pound, 6-foot-tall construction worker was hired to operate the tool while we ran a video camera and measured the force of the tool. From the measured force of the wrench’s torque and vibration, as well as the grimacing expression on the subject’s face, it was not difficult to convince a jury as to the nature of the injury. When conducting these and other litigation simulations, the safety of the participants must always be uppermost in your consideration—the experiment cannot injure the experimenter! An asbestos test, for example, must be conducted in a sealed and protected environment so as not to contaminate the test area or the investigators. If the safety of the experiment is not made obvious, it becomes fair game for cross-examination. These are but a few of the examples of demonstratives that I have used in litigation that may illustrate a point clearly for anyone to understand. Use your imagination, and don’t be afraid to assemble the available facts in a visual model. Some jurors learn by hearing, some by seeing, and most learn best when both seeing and hearing are combined to prove a point. The benefits will be self-evident.
The Exponential Decay Curve Some concepts that are fundamental to your science may be difficult to comprehend by anyone outside your field. One such concept that I frequently use in trial is the exponential decay curve (see Figure 5.7). The curve is used to illustrate how background levels of asbestos accumulate within a space after a number of releases. It also serves to explain the persistence of background-asbestos residuals over long periods of time, as the curve becomes asymptotic.2 This same type of illustration can be used to illustrate to the jury and educate them about a number of other issues such as radiation half-life and tidal human-lung residuals. It is a simple curve with powerful implications.
Electron Microscopy When dealing with materials too small to be appreciated by the naked eye, the casual observer may not fully appreciate size relationships of the substance in question. Photo microscopy at any level of magnification, from the simple dissecting microscope at 20x–100x to the electron microscope at 1000x–100,000x, can portray the smallest of objects clearly and is a very powerful demonstrative tool. Two illustrations of this commanding tool are shown in Figures 5.8 and 5.9, which demonstrate airborne asbestos-fiber bundles collected on the surface of a sampling filter membrane. Figure 5.8,
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Simulation of an Exponential Decay 1.2
1.0
Intensity f/cc
0.8
Subsequent releases from use, maintenance and removal.
0.6
Asymptotic area of the curve that parallels the baseline.
0.4
0.2
Primary release at installation
0.0 −1 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Time (hours)
Figure 5.7 This exponential decay curve illustrates how background levels of asbestos accumulate within a space after a number of releases.
taken at 2000x, allows the jury to appreciate the actual size of asbestos-fiber bundles that would be considered breathable by persons in such an environment. Figure 5.9, taken at 5000x, allows the jury to understand the crystalline fiber bundle’s morphology and susceptibility to longitudinal cleavage, producing many more entities than the singularly appearing fiber bundle pictured would suggest to the casual viewer at lower magnification. In addition to the visual impact of these two photo micrographs, the calibration marks in the lower left-hand corner of each image allow a better understanding of scientific measurements as they relate to the fiber-bundle size. The small measurement tool (resembling a football goal post) in the calibration imprint indicates 1 micrometer or micron. Verbally explaining that this distance represents one 25,000th of an inch puts the minute size of an asbestos-fiber bundle in perspective for the jury. A further emphasis can be made that the human red-blood cell averages 5 micrometers in diameter and allows the jury to focus on just how tiny these harmful particles are. And we all know that a picture generally is worth—or outweighs—a thousand words! As a father of four children, my decisions were often called into question. “Because I said so” is an answer my children were frequently forced to accept. In trial, “Because I said so, and I’m the expert” would be continually challenged and more likely than not thrown out by the judge. Demonstratives, in conjunction with a solid base of the scientific literature, will make your testimony difficult, if not impossible, to refute!
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Figure 5.8 Photo microscopy is a powerful tool when used to illustrate objects too small to be seen by the naked eye. In this figure, airborne asbestos-fiber bundles collected on the surface of a sampling filter are demonstrated.
Figure 5.9 Taken at 5000×, this example enables the jury to understand the crystalline fiber bundle's morphology and susceptibility to longitudinal cleavage.
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Who Qualifies? In any legal proceeding, those responsible for making judgments depend on evidence presented by both sides. This evidence may be physical objects or documents, which speak for themselves, or can be testimony of live or videotaped witnesses. The acceptability of this evidence is filtered through the court, and if acceptable, is incorporated into the judicial record. Parties to a legal matter, or percipient witnesses, can testify on any areas deemed by the court to be applicable to their status in the case. They cannot give opinions on matters beyond their own personal knowledge. If you witness a robbery at the local convenience store, you may be asked to testify at the trial of the alleged perpetrator of the crime. The limits of your testimony will be exclusively to what you know, what you saw, what you heard, and the conditions of the environment that you experienced at the time of the robbery. Take the same scenario, the convenience-store robbery, and expand the hypothetical to having a customer wounded by the robber. There could be a totally different and separate legal action brought by the customer against the store owner. In this second case, the action would not be criminal but rather a civil action brought against the store owner for not providing adequate premises safeguards. The case would pivot on which—if any—safeguards or precautions the store owner took to protect the premises from customer injury. This falls to the purview of an expert witness qualified in this area by virtue of training and experience. This consumer safety and security testimony comes from an “expert witness” and bears with it some unique privilege. The expert witness becomes qualified in specific areas that cannot be supported by the physical evidence or testimony of laypersons.
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This is generally in a technical or scientific area of information that is assumed beyond the normal appreciation of either the judge or jury. An expert witness, at the time of a trial, is actually qualified by the court and must be requalified each and every time that person comes to a subsequent trial for the offering of expert opinion. This qualification by each trial judge takes place regardless of how many previous times the same individual has been court-qualified before or in other jurisdictions. Other witnesses, or experts who may be called as percipient witnesses, can testify without being qualified by the court, but only as to their personal knowledge or observed information related to the matter at hand. The trier of fact (i.e., the judge alone, or the judge and jury) hears preliminary testimony from the proposed expert, elicited by the attorney presenting the case, as to the expert’s knowledge, experience, and training that demonstrate he knows more about his subject or field than does the average layperson. The qualifications of the expert can be challenged by opposing counsel, who will also be allowed to cross-examine the expert on any area of her background, training, education, or experience. The judge then will rule on that witness’s acceptability as an expert in this specific case. This challenge to a witness’s expertise can be in front of the jury or elsewhere. This is a critical issue to be understood by science-oriented professionals, as most medical, scientific, or engineering professionals would generally be embarrassed or dismayed at calling themselves “experts.” A necessary realization, required by working expert witnesses, is that they do know more about their particular field than just about any other person who may be on a lay jury. This is an important task to overcome if one is to succeed in the area of litigation support.
Believing in Yourself An example of how confidence building can be learned by prospective witnesses is illustrated by a litigation-support consultation I undertook in the Midwest in the mid-1980s. It was a consultation assignment to a large governmental-medical agency on an asbestos contamination of one of its hospital buildings. I was asked to review the industrial-hygiene work done by agency personnel at the subject facility. During my site visit, I noted that the agency employed extremely competent and well-trained safety and hygiene personnel at the subject location. They performed their routine professional duties with regard to auditing the performance of a misguided asbestosabatement contractor handling a building-contamination project. This audit was to ensure that the contractor’s handling of the asbestos-contamination project was at a high level of care equal to, or higher than, the standard of
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care normally exercised in the asbestos-abatement community. I was informed that the agency was in the process of suing the contractor for mishandling the asbestos contamination, and the agency safety and hygiene personnel were to be witnesses in the trial. These individuals were understandably apprehensive of the upcoming legal procedure, as they had never given any deposition testimony nor set foot in a courtroom prior to the upcoming testimony to be offered in court. It soon became apparent, by request of the government’s attorney, that my primary task was to prepare these two witnesses for some approachable level of coherent testimony during their upcoming depositions and subsequent testimony at trial. To achieve this goal, I arranged to conduct a mock deposition proceeding, with me acting as opposing counsel and asking probing technical questions that could potentially undermine even a seasoned veteran of the “trial wars.” After each series of questions, I pointed out problem areas and attempted to redirect the staff members’ thinking to what they knew best about the case, pointing out every instance in which they knew more than I did about the technical aspects of the case when I represented myself as the pseudo-lawyer and were definitely expert in the answers they gave. At no time did I feed them answers—I only brought out what they already knew. The “happily ever after” of this experience resulted from what were now two very confident safety and health professionals, being qualified as expert witnesses by the court, who subsequently presented a factual basis for the agency prevailing in the matter.
Witness Preparation Witness preparation is critical in all legal cases. This doesn’t mean the testimony is changed or biased in any way, only that the person giving the testimony is a bit more familiar with what the conditions of the legal playing field will be prior to being asked to score a touchdown. At the risk of seeming redundant, let me stress that the legal arena is complex and intimidating, and those who participate generally speak in tongues. It is not uncommon for some attorneys to take advantage of that intimidation factor when questioning witnesses of their own or when cross-examining those on the other side. Advantage is gained if the attorney can get an opposing witness to say things that are not representative of what he believes to be correct, or things that cause the witness to lose credibility when speaking. The skilled trial lawyer will try to take advantage of any aspect of a witness’s demeanor or lack of conviction when testifying. This is why the more experienced witnesses seem to have an easier time dealing with the rigors of cross-examination.
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Each situation is unique. The role I served as an expert witness in preparing the witnesses in the situation discussed above is different from how an attorney prepares a witness for testimony. An attorney will prepare a witness for testimony by going over facts and also the questions that will most likely be posed during direct questioning and during cross-examination. My role is to help these professionals realize that in the eyes of the judicial system they are in fact experts. Oftentimes, people may not consider themselves experts, and I must then bolster their confidence and help them realize that they are, in fact, expert witnesses in their subject matter.
The Invisible Expert Another aspect of expert witnessing that is often overlooked until its effects are used against you is the use of the invisible expert, a person who is engaged to audit, review, or prepare questions that can be used to challenge other experts. The invisible expert witness can often exert some influence, but is seldom seen and seldom actually testifies. I have often looked out over the courtroom gallery while giving testimony and seen a “nonlawyerly” person wildly taking notes with every word I utter. More likely than not, he is someone of similar background to mine, hoping to catch a mistake or a point that cross-examination can use to refute my testimony. The invisible expert is often suspected but seldom proven. He may be lurking in the shadows in order to supply the attorney with questions and information. In deposition, the invisible expert can be detected in the style of the questioning the lead attorney is using. This becomes all too obvious when a series of attorney questions are posed that are clearly beyond her own scientific or technical knowledge. These questions are specifically directed at discovering how much you the expert witness know about the technical aspects of your testimony. The main thing to keep in mind is that you know, or should know, far more about your area of technical expertise than does the questioning attorney. When the questioning becomes highly technical, one way to defuse the obvious attempt to challenge you is to raise the technical level a notch or two. Answer the question in such a technical and detailed manner that only another expert in your field would be able to carry the line of questioning further. At other times, when recognizing that the opposing counsel is employing an invisible expert, I’ve made comments such as, “Those are wonderful questions; are you also a safety and health professional, as well as an attorney?” You may also be asked to be the invisible expert as either general-litigation support or for challenging question preparation for an opposing witness. If you are asked to be an invisible expert, a point to keep in mind is that the
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attorney you are working for wants your best evaluation and opinion even if it appears to be contrary to the client’s interests. Try to keep in mind that the attorney who hires you is the captain of the ship, and you are but one of those at the oars who propel the ship to its goal. If your interpretation or perception of an opposing witness is that she walks on water, it may be crucial in deciding that the case should be settled instead of pursuing it to trial. On the other hand, you may discover major chinks in the opposing expert’s armor that may empower your side to push for better settlement negotiations. From a position of strength, your client may then achieve a more favorable settlement offer or verdict.
The Truth Only Comes Out One Way Much of what experts do or say can be a double-edged sword. I’ve always considered the testimony of an expert witness somewhat like a small, locked treasure box. The attorneys on both sides have a ring of identical keys, forged during the discovery process, and each has the opportunity to find the correct key and open the treasure box. Once open, your testimony can potentially help or hinder either side. I’ve overheard trial attorneys and judges say that the sign of a truly good expert witness is that—if someone enters the courtroom while he is testifying—it should not be obvious which side he is working for. I can think of many occasions when I was brought in on one side, and opposing counsel attempted to turn me into a witness for their side. The truth only comes out one way, regardless of who pays the bill! Another double-edged sword is scientific testing or sample analysis. Always be aware of the fact, and advise your attorney-client that the outcome of testing may do more harm than good. If a solvent sample used at a workplace is alleged to be associated with a plaintiff ’s leukemia, you may be asked to test the solvent for leukemogenic components. Some points to keep in mind to consider and discuss with your client before agreeing to do the testing might be: Is the available sample an accurate representative of that which the plaintiff used during her work experience? Has a valid chain of custody (see Chapter 2) been maintained to assure the court that no adulteration has altered the testing outcome? Is your attorney-client aware of the consequences of the test results being negative? Has the formulation of the solvent been changed over the course of the employee’s work experience?
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This simple act of communication can be the difference between a win and a loss at time of trial. When testing is done early on in a case, it can afford your client with a major directional clue on going forward from a position of strength or settling quickly. If you perform the test and it provides a negative result, the testing is nonetheless discoverable if you are to be used as a witness. This alone may be your undoing with regard to further use or activities in this case. An old adage I learned during my first days out of college working as a medical technologist testing blood samples at a local hospital was, “I’m happy to do your blood test, but I can’t guarantee you’ll pass the Wasserman.” (For those of you not old enough to remember, the Wasserman was the first blood test for syphilis.) The principle remains the same: I’m happy to do your testing, but can’t guarantee how it will come out. Just like testimony, analytical testing comes out only one way. It is important to keep in mind that if I have had discussions with my attorney-client regarding whether or not to perform a certain test, and I am asked by opposing counsel about it during testimony, I must reveal our conversation. An important caution to any expert witness is don’t embellish or exaggerate facts, opinions, and/or date, as doing so turns the expert witness into an advocate, and that’s the attorney’s job. When an expert witnesses fall into an advocate role, he will lose whatever credibility he had previously achieved. This usually takes place during the heat of cross-examination, and the outcome can be disastrous to the expert. This is another aspect of the prime directive. Witnesses who come to court with recognized advocacy positions or entrenched biases are usually ferreted out and exposed for what they are by skilled trial attorneys who face them. Examples of this type of testimony can be seen in Chapter 16.
Now That I’m an Expert, What’s Next? All right: You know the rules, you have a bit of self-confidence, you have a professional expertise that has some relevance to current areas of litigation; so what do you do next? Marketing yourself as an expert witness can follow many paths that can lead to future success or failure. The first legal case you do is often beyond your control. You are happily following your profession without any consideration of becoming involved in legal issues. Out there in the wide world there is an attorney who has a case that cries out for expertwitness testimony that only you can provide. You get a phone call, and the next thing you know, you are an expert witness. From that point on, your growth as an expert typically depends on how good a job you do and if your side of the case wins. If both outcomes are positive, word will spread. Certain publishing companies make their living following cases and writing reviews
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so that other attorneys can find the right witness for similar cases. If your cases keep winning, so do you! Another form of marketing is joining an expert-witness registry. There are companies that serve the legal community solely in gathering stables of experts in all variation of fields. They do this for a fee, which is paid by the attorney who needs a person of expertise. You can be listed in books or electronic databases that are marketed to law firms and attorneys throughout the United States. This type of marketing brings into focus one of the downsides of being associated with litigation, which is the aversion you will experience from your normal or prior clients who now wonder if you will appropriately protect the proprietary information learned while in their employ. It works both ways: The more experience you gather, the more valuable you are, but once you’ve testified against a prior client, you may not get another consulting job within that industry.
Who Do You Work For, the Defense or the Plaintiff? In a similar vein to the tightrope you must walk between opposing client interests, as an expert witness you will eventually gravitate to either the defense’s or plaintiff ’s side of an issue. I can easily say that at almost every deposition or trial I’m involved in I’m asked what percentage of cases I have taken on for the defense versus the plaintiff. Over the course of my expertwitnessing career I have taken on about 20 percent defense cases and 80 percent plaintiff cases. I don’t try to go one way or the other, but the testimony and opinions I offer generally point to one side or the other. There is a modicum of credibility elicited when you are able to say you work both sides of an issue. As I’ve said so many times, the truth only comes out one way! It is worth repeating that while lawyers are advocates, expert witnesses should never be. Attorneys have but one goal in any legal matter. That goal is to advocate for their client and win the case. The means they pursue are various but clearly defined to the ends they desire to attain. Never underestimate the cunningness of a skilled trial attorney, or the smile and graciousness extended to you before you testify; later, with you trapped in the witness box, that same lawyer could turn into Attila the Hun. The mystery of the legal profession becomes even more challenging to understand when two attorneys, who almost came to blows before the judge, leave the courtroom and chat about the next morning’s tennis match they are planning. Go figure.
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Legal Language 101 Have you ever been challenged to read a contract, written by attorneys, and couldn’t even get past the first paragraph? You read the words over and over and still have no clue what has been asked of you or the other parties to the contract. This is not an uncommon occurrence in our ever-increasingly litigious world. Not withstanding the fact that most attorneys appear to be speaking the English language, much of what they say seems unintelligible to most nonlawyers. This technocracy ploy is similar to the cryptic, Latinbased, technical terminology used by physicians. You may hear familiar words spoken and still not understand what is said! For this reason, some degree of preparation is crucial to successfully navigating the rough and unpredictable seas of litigation.
The Discovery Process All of the actions taken by a party to a lawsuit and their attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights are collectively called the discovery process. This is very much like the children’s card game Fish but played for much higher stakes. The theory of the discovery process is that all parties will go to trial 45
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with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period. When it is discovered that one side or the other has been withholding information, you may hear the accusation that someone has been “hiding the ball.” As an expert witness in the case, you will most likely be given a great deal of discovery material to review. The eventual opinion testimony you will offer at deposition or time of trial will be made up of two portions: (1) casespecific testimony, and (2) generic testimony from your background, training, and experience. Whether formally tasked or not, you will examine the discovery materials in light of your expertise and establish your foundation for giving case-specific testimony. A skilled trial attorney will generally give you only those items of discovery that are necessary to your testimony. In the case of Smith v. Metal Manufacturing, Mr. Smith was deposed for 14 days; one of the days was his direct testimony, and 13 days were cross-examination by several defendants. If you are working for the plaintiff, you will be given the deposition volume of the day of direct testimony and possibly relevant excerpts from the cross-examination testimony. If you are working for one of the defense lawyers, you will only be given that portion of the testimony that is relevant to the defendant in question. In the defense posture, you may also be asked to focus on another defendant’s area of involvement, as your attorney-client is interested in shifting the blame from his or her client onto another defendant’s area of exposure. Interrogatory Responses Interrogatory responses are sets of questions that go back and forth between plaintiff and defense counsel to find out facts that are critical to the development of their case. The questions go to the opposing counsel but are answered and sworn to by the parties in the case or by their attorneys. Reading these interrogatory questions and answers can be difficult for the expert witness, as they are worded in “legalese,” which is not familiar to most people. A sample of this questioning tug-of-war is as shown below and taken directly from an actual case file questioning an employer: INTERROGATORY NO. 2: State the date of first employment with YOU, and the dates and titles of each job position the person verifying these interrogatories has held while employed by YOU.
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ANSWER: February 1, 2001. Legal Assistant, Assistant Secretary and Records Custodian. This language means little to me, in spite of the years I’ve been asked to read interrogatories, and may have little or no relevance to my testimony. I will “skim” this type of discovery document and look for things that I feel are related to the case. As you read the discovery document provided to you, your note taking is most efficiently done directly on the computer as you read. The case notes example in Appendix C will guide you through the types of highlights I record. Some essentials for your case notes would be the title of the document (as listed in the caption), the number of total pages, and the date the document was signed or dated. These three points often become deposition challenges as to whether or not the documents reviewed are the exact same ones held by opposing counsel.
Responsiveness to the Question Most lawyers will attempt to direct or groom even the most experienced percipient or expert witnesses prior to deposition or trial testimony. The more prestigious or financially rewarding the case, the more extensive and time-consuming is the preparation prior to the giving of pivotal testimony. A frequently expressed desire—often a request or even a demand—on the part of both defense’s and plaintiff ’s lawyers is that you limit your testimony to the specific response required to answer a question. In deposition or trial, it is called being responsive to the question. More simply, this means that if the question calls for a yes or no answer, that’s all that you should say. Saying more will often elicit the evil eye or a kick under the table. Many questions will be specifically worded in such a manner that the only reasonable answer is yes or no. If the question is not worded in that manner, you are generally free to ramble on with a narrative until someone stops you. Narrative answers to questions are generally frowned upon, by opposing counsel and the court, but can be gotten away with if you first answer responsively with a yes or no and then request of the attorney or the court that you might need to explain that answer. Generally, the explanation is permitted and can be used to clarify a possibly misleading question that has been answered with just a yes or no reply and that might confuse your opinion. If the explanation is disallowed, your attorney can probably rehabilitate your testimony in redirect questioning and cover the issues that were precluded during cross-examination.
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Anticipating Questions It doesn’t take many depositions or trial experiences for the expert witness to begin to understand and even anticipate what lawyers are going to do and say. The who, what, when, where, and why deposition questions are considered easy to deal with, but on occasion these same questions are setting you up for a totally different line of impeachment questioning that only surfaces at time of trial. Who Who you are is probed and explored to establish the details of your background and credentials, and also to offer a detailed palette of comparisons from that of the expert on the other side. This paints a scenario of questions to undermine what expertise you profess. When you sit in deposition and hear questions asked that were obviously written by someone knowledgeable in your field, you need to answer with care and respond as if these questions were posed in trial. Remember that the “invisible witness” (discussed in Chapter 6) can lurk in many unsuspecting places. What What your role is anticipated to be, in this particular case, is a critical area of pursuit by the other side due to the exclusion of testimony that was not discovered during your deposition. Questions that are frequently asked are, “What were you asked to do in this case?” or “Are these all the opinions you intend to offer at time of trial?” These are asked in order to limit your ability to testify on subjects beyond what the inquisitor has asked. A reasonable response would be to indicate that these are your general opinions and you cannot anticipate what might be asked either in direct questioning or crossexamination, nor what the subject of a posed hypothetical question might be. This leaves your attorney with the opportunity to go beyond the questions posed by the opposition’s deposition inquiry. When When you were first contacted for a case can be important. Were you a lastminute addition, or have you been working on this case for some time? This is where your case file and the record keeping you do can be crucial. For each case, there must be only one file into which everything related to that case is contained. Your case file should include time sheets, billing records, e-mail, letters of communication and record transfer, any notes made by you related to anything in the case, and any research or articles you will be relying on when you testify. In today’s world of advanced technology, you may also have
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an additional source of file information contained on your computer. I typically copy everything electronically related to a case onto a CD that I burn specifically for full disclosure at time of deposition. Where Where is often dealt with in industrial cases in which an injured worker has traveled from job to job at differing locations. In order to establish the relevance of your opinions to specific jobsite locations, you may be asked if you have ever personally been at, or performed survey inspections at, the various jobsite locations visited by the worker-plaintiff. Take your time; review your notes and any documentation that provides you with the work locations, and answer yes or no to any coincidental matching of your past consultations and the plaintiff ’s experiences. If you’ve been blessed with a long and varied work or consulting career that spans a wide range of locations, you might be able to lend firsthand knowledge and experience to the body of evidence due to having actually experienced the location that is the focus of the litigation. Why Why the accident, incident, or exposure took place is the jackpot question! This is where you get to share your opinions as to the circumstances leading up to the condition or injury that is the subject of this lawsuit, the manner in which the injury occurred, what could have or should have been done to avoid or prevent the injury, and what, if any, regulatory statutes were violated in the course of the injury. Case-specific questions and testimony generally come at the end of either side’s questioning. These are the case-related facts and opinions that go to the end point of your testimony. State what you know of the case facts and evidence, respond with your opinions, and conclude with an affirmative response as to what overall concept you wish to leave with the judge and jury. I often advise attorneys who use me at a trial that their knowledge of the case is far greater than mine, as is their memory. Whenever possible, suggest that case-specific questions be posed in the form of a hypothetical. The hypothetical question asks you to assume certain facts: “I want you to assume that fact 1, fact 2, and fact 3 are specific to Mr. Smith. Do you have an opinion, to a reasonable degree of scientific certainty, as to whether or not Mr. Smith was exposed to asbestos during the course of his work at XYZ Refinery?” Take care at this point, when asked if you have an opinion, that the only responsive reply is yes or no. After the yes or no response, you will generally be asked to present your opinion; at that time you can generally expound to your heart’s content.
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Attorney–Client Privilege A very important facet of expert-witness testimony, which you may only learn by accident, is that anything you say or discuss with the attorney who hires you is discoverable! The protection of attorney–client privilege does not extend to expert witnesses. If the attorney is new to litigation, inexperienced, or semiconscious, you may need to remind him of the discoverability of longwinded discussions on legal theory, and that you don’t need to know this information in order to perform your work. Another point to remember is that anything you bring into the courtroom is fair game for examination. If you did not bring your file, you cannot be ordered to submit it to the opposing attorney. If the judge can be convinced that you are hiding something in your briefcase, she can order you to turn it over to counsel for examination. Bring to the court only what you absolutely need for your testimony, and nothing more. This type of embarrassment has actually befallen me in trial, and this was a hard-earned lesson. It obviously could have been worse if, at the hotel, a pair of dirty underwear had been inadvertently stuffed into my briefcase and forgotten until this moment of truth.
Don’t Speak “Legalese” After 30 years of working for lawyers, I have gained a great deal of experience and knowledge about both the law and the practice of law. It would be easy to slip into a routine of being what is never affectionately referred to as a “legal smartass.” I don’t intentionally, and will not accidentally, act like a lawyer or speak like a lawyer in the course of doing work as an expert witness. Yet, I sometimes find myself wishing I could make an objection to a question I’ve been asked at deposition, but must wait for the defending attorney to wake up and challenge an obviously improper question. Expert witnesses who become advocates over time are short-lived in the business of litigation. Becoming a zealot for a cause you believe in is surely a death knell for a continuing and bountiful expert-witness practice. Knowing the facts, the literature, and the details of the case that pertain to you are enough to do your job properly. Don’t try to be a lawyer if you are not one!
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Step 1: The Deposition In several of the preceding chapters, I have alluded to the deposition process. This is the process of learning which dance steps will initially be brought forth by either the plaintiff ’s or the defendant’s counsel. The deposition is an informal setting in which questions are asked of a witness, and the answers given have the force and effect that they would if given in a court of law. A certified court reporter is present and takes down everything that is said. The attorneys present make their objections to what they consider any inappropriate questions. The only difference is that, unlike at the time of the trial, no judge is present to rule on the objections. In some jurisdictions, depositions are taken over the phone, with all parties in separate locations from one another during a conference call. This is allowed by court order and agreed upon, with the attorneys involved by stipulation.1 If you are a witness for the defense, your deposition will generally be taken by the plaintiff ’s attorney. Conversely, if you are a witness for the plaintiff, you will generally be deposed by the defense attorney. On occasion, the attorney who hires you will be asking you questions when doing what is called a perpetuation deposition if you will be unavailable for trial.2 At the start of the deposition, the court reporter will swear you in by administering an oath to tell the truth and nothing but the truth.3 Historically, the oath was sworn by placing a hand on a holy book and pledging to tell the truth. 4 This custom has essentially disappeared from the modern deposition or courtroom except where seen in the movies or on television. 51
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Prior to the start of the deposition, a witness will be given an estimate of the time that is to be allotted for the session. An expert deposition can range from under an hour to many days. It has been my experience that the skill of the deposing counsel can be quickly judged by all present when the questioning pattern avoids redundancy and is specific and to the point. In some cases the prolonging of a deposition and extending a trial date can be a form of strategy. I recall a case where a worker was exposed to benzene, a powerful and well-known organic solvent and leukemogenic agent, in a chemical plant and later developed leukemia. She was a single person with no living immediate family nor next of kin. If this case did not go to trial before she died, the case would, in essence, disappear. I was the industrial-hygiene expert in the plaintiff ’s case and was redeposed on numerous dates, one month apart, until, sadly, the woman died and the case in fact disappeared. So much for the dance strategy of the deposition.
Step 2: The Mandatory Settlement Conference and the Motion for Summary Judgment Once all witnesses are deposed and a trial date is set by the court, the two sides eventually go to a series of mandatory settlement conferences. These conference sessions, before a trial judge, are designed to expedite the process and encourage settling a case before the cost and effort of a trial are expended. Without settlement, and with a trial date growing near, a new onslaught of paperwork is submitted to the court in the form of motions. One form of motion that may involve an expert is a motion for summary judgment (MSJ). The MSJ is typically brought by the defendant in a case and essentially declares that the plaintiff does not have a sufficiently strong case to take to trial, and that the defendant should be dismissed. If this motion is granted by the court, the case is over. The plaintiff can oppose this motion, and the basis upon which it is offered, with the aid of a declaration signed by fact or expert witnesses who can contest the MSJ and suggest to the court that the case has a triable issue that must be heard by the jury. If you are asked to prepare, input, or sign such a declaration, take care to ensure that it clearly, truthfully, and exactly conveys your opinions, as it is signed under penalty of perjury. 5 An important consideration in preparing or signing a declaration is to maintain an accurate file of each point of reference the declaration says you read or reviewed. This may entail copying portions of text references or articles pertinent to the subject of the declaration.
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Step 3: The Trial Jury Selection The trial begins with all motions and posturing put behind us, and a panel of potential jurors is led into the courtroom. An interrogation process, called voir dire,6 begins to determine the suitability of jurors to sit in judgment of this case. Once the jury is seated, the trial can begin.7 Both sides typically elect to make an opening statement that provides the jury with a synoptic picture of the case to be presented. At this point the plaintiff ’s counsel begins with its “case in chief,” and a number of percipient witnesses are brought before the jury to lay out the facts of the case. Then, at some point in this series of witnesses, it is your turn to testify: It’s show-and-tell time! Testifying The attorney who brought you to this point is asked by the court to call his next witness. Your name is called (and formally so), and you step out of the gallery and into the well of the court.8 You are asked to pause before entering the witness box, at which time the court clerk will administer the oath. You take your seat with an appropriate degree of trepidation. The degree to which you will experience this typical form of anxiety is generally related to the number of cases you have been involved with in the past. When asked how to reduce this anxiety, my best advise to novitiate percipient or expert witnesses is, once again, to simply tell the truth! If you consistently tell the truth, you never have to remember what you said the time before, and will never expose yourself to impeachment or have to concern yourself much with the aforementioned anxiety.9 If your anticipated testimony is at all controversial, opposing counsel may request the court to hold a hearing on the expertise and credentials you have that qualify you as a witness or as an expert. This may be done formally or informally, depending on the decision of the court. Formal hearings, often referred to as challenges to the credibility of the science and basis of your opinions, are called Daubert-Kumho hearings.10 The informal procedure is held in camera (which simply means “in the judge’s chamber” in lawyer-speak) and involves the same players as the formal hearing: the judge, the attorneys, and the witness. The court can rule that either the science is unacceptable or it can go to the jury to decide based upon the weight of the evidence. You have now passed that hurdle, and your attorney begins the questionand-answer process of qualifying you as an expert before the court. This actually may be a duplication of what might have gone on during a prior Daubert-Kumho hearing, but now it is in the presence of the jury. When
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finished, the attorney addresses the court by offering you as an expert in the fields of X,Y, and Z. The court then asks of the defense, “Do you wish to voir dire the witness?” If the defense says yes, this will typically take place in front of the jury, but is again often reminiscent of the previous Daubert-Kumho hearing done out of the presence of the jury. The court will then inform the jury that you are now qualified as an expert. If not, you will be sent home without testifying because you failed to qualify. But let us be positive and assume you have been accepted by the court, and your testimonial career has been launched! Your attorney begins a line of questioning to introduce your opinions and conclusions to the jury. This is called direct examination. When completed, the attorney will say something like, “Your Honor, no further questions, I pass the witness.” Now it is the defense’s turn, and this is called crossexamination. Cross-examination, by rules of evidence, can only delve into issues introduced in direct examination. During both direct and cross-examinations, the other attorney may stand and raise objections as to the form of the question, relevance, foundation, or any other legal challenges upon which the court must rule. During the cross-examination, if an issue is broached that was not part of the direct testimony, the plaintiff ’s counsel may use the objection, “This goes beyond the scope of direct.” This back-and-forth dance, now a continuing series of redirect and recontinuing cross-examinations, can go on as long as the court allows, but must follow an inverted-pyramid model toward fewer and fewer questions, as the scope narrows with each succeeding exchange. (In one jurisdiction, Multnoma County, OR, some trial judges allow only one cross-examination and a single redirect examination.) When no further questions are forthcoming from either side, the court asks of all parties, “Can this witness be excused?” You now can safely go home to arduously review your testimony for possible errors or omissions that are now part of your permanent record and will follow you the rest of your testimonial life. The Verdict The outcome of the trial, and the role your testimony played in the decision, may or may not become known to you. This depends on the attorneys and their courtesy in giving you some feedback about the quality of the job you did. In some major cases, juries are polled as to their reaction to the witnesses they heard. If you are really lucky, your attorney may have taken this action and provided you with dynamic feedback on what, in the jury’s eyes, you did right and wrong. If you are not so lucky, you’ll just have to proceed on to the next case and trial, do the best you can, and continue to simply tell the truth. A synoptic distillation of the feedback typically given in cases to which I’ve been made privy is as follows:
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Beating up on a witness (or expert witness) in cross-examination tends to make the jury sympathetic to that witness. A common practice by attorneys is, when they can’t attack what an expert says, they attack the expert personally. This usually backfires on those who try it. Teaching, rather than preaching, is appreciated by the jury. Don’t speak down to the jury; they’re smarter than you think. Arrogance is not appreciated, and it stops the jury from listening to the facts. When the jury is polled, their general feelings are related, and on occasion they identify one or two witnesses who stick out in their minds. If you are privy to what they have to say, try to learn from it and adapt your future approaches toward testimony!
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Skeletons in Your Closet
Digging Up the Past A common adage heard in legal circles is, “When you’re plagued by devils, commit an old sin, and they become bored and go away. When you’re plagued by angels, pray an old prayer and they become bored and leave.” I’ve seen ploys to impeach me, attempts to refute me, efforts to shame me, actions to embarrass me, and yet I seem to have survived the many slings and arrows of outrageous legal misconduct. Longevity, in the litigation business, is its own laurel! My school records have been subpoenaed, from the last college course I took all the way back to Sandbox 101 in my earliest days in elementary school. My trash cans have been searched for mistakenly discarded treasures or scraps of information that might prove controversial when presented at trial. I truly believe that opposing counsel even knows whom I dated for my senior-highschool prom and what my date ordered for dinner that evening, even though I’ve long since forgotten. I seriously doubt that any practicing professional or lay witness can claim to have the unimpeachable background of Mother Teresa. Yet, when examined under the critical focus of the litigation microscope, our most highly camouflaged and forgotten historical blemishes may appear to glare at us in the brightly lit mirror of the courtroom. William Dyson, 1 in a guest editorial in the American Industrial Hygiene Association’s journal The Synergist, has written, “As an expert witness your life becomes an open book. You must be willing to accept this fact.”2 It is generally accepted that in litigation circles, if they cannot fault what you say, their only recourse is then to fault you. That becomes all the more true as you serve as a litigation witness or persist as an expert witness over 57
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the years. Major monetary verdicts attributed to your testimony only intensify the opposition’s fervor. Having lasted more than 30 years as an expert, and having contributed to some degree to multimillion-dollar verdicts, I have had every aspect of my life dissected beyond the realm of the imagination.
Pretext: When the Line Is Crossed A major computer manufacturer’s chief executive officer was recently accused of allegedly hiring private investigators to pretext members of its board of directors.3 This pretexting was designed to gather personal information that might be used to the CEO’s advantage. In my own career, private investigators employed by asbestos-litigation defense firms approached faculty members that I had taught with at the San Diego State University Graduate School of Public Health, inquiring surreptitously about any anecdotal comments my colleagues might have had about me. Should my fellow faculty members been foolish enough to comply, this information would have surely been used to challenge me in court at a later date. The Gramm-Leach-Bliley Act was originally enacted by the Federal Securities and Exchange Commission to protect consumers against a number of potential security issues and was updated in 1976 and 1999 to include fraudulent attempts to gain private financial data from consumers. 4 Expansions of the scope applied to pretexting came to include other privacy data related to all citizens. For this and other legal reasons, the one area of exception to revealing personal data on the witness stand that still remains is your personal financial records and income.
Fee Questions You can be asked income questions that are relevant to your testimony as an expert, if that is your role, but even this area is limited. You can be asked what you charge by the hour, day, or case. You can be asked what percentage of your income is derived from litigation work. As a lay witness, you can be asked if you are being paid for your testimony. It is generally understood that an expert witness is being paid for his efforts. I have repeatedly been asked the question in cross-examination, “Mr. Cohen, are you being paid for your testimony?” To this question I answer, “No, sir, I’m not being paid for my testimony. Rather, I’m being paid for the time I spend on the case.” There are no hidden secrets about a lay or expert witness that the other side can’t unearth. They will use all fashion of resource materials from the Internet to family Bible records. Again, as always, the remedy is tell the truth, and diffuse any scandalous morsels you think may harm you during the
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course of your direct examination. Let your own attorney bring out the fact that you got a D in first-year college chemistry, or that you flunked Sandbox 101 in kindergarten. The jury is far more likely to accept the truth and go on to the substance of your testimony if you bring it up and treat it as mundane. Everyone has a bit of chaff mixed in with their wheat—even members of the jury—and admitting to a point of vulnerability may just elicit support from jurors who have experienced similar embarrassments.
Finding a Few Skeletons Yourself Searching for skeletons can also be a tool for your side. Doing a bit of personal investigating of witnesses or experts on the other side can be more rewarding than you might expect. In past cases, I have found construction experts who never were licensed contractors as they claimed, and industrial hygienists who claimed certification but never had it, and only after a bit of sleuthing were these conditions exposed.
The Résumé: One of Your Best and Worst Tools If you are serving as an expert witness, the résumé or curriculum vitae that you send to your client at the start of an assignment should be as accurate and professionally written as possible. During the course of a professional career, a number of superceded past résumés may be lurking to haunt you. One important consideration is that each iteration of your résumé should have a revision date clearly printed as the last item on the final page. This allows you, and anyone else examining the document, to have a clear understanding of when the data was written and the limits of its accuracy. Numerous treatises have been written, and are available at any library, on how to correctly assemble your own historical data for a variety of purposes. As you begin to build a working career you try to include every possible advantageous milestone in your life. As you mature in your position, this becomes less necessary and the résumé begins to shrink as you become slightly more modest. To the disadvantage of the mature expert witness, this shrinkage of well-intended bravado may provide the meat for extensive crossexamination of your qualifications.
Skeletons in Unlikely Places Sometimes, the dirt dug up to use against you comes from the strangest places. The first and only time I have had a deposition take place in my home
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was when an Alabama state magistrate ordered it due to the fact that my only business address was that of my home. It took place in my den, which was only a 10-by-15-foot room. Without a sufficient number of chairs to accommodate the people present, some had to sit on the floor. I gave the best chair to the court reporter—if you want an accurate transcript, never mess with the reporter!—and my 90-pound Doberman was also in attendance. The deposition ran less than two hours and was adjourned for the day. The next day the deposition was continued at a local hotel. What I didn’t realize was that during the short home deposition, one attorney was asking questions while the other attorney was scouring the room for trivia to be used against me. Three months later, in a New Jersey trial while I was giving testimony, an unrelated attorney from another firm and during another case asked the question, “Mr. Cohen, do you have signs on your office wall?” After recovering my composure, and responding to several leading questions, I found myself embarrassed before the jury by the reminder of a gag gift of a sign my teenage daughter had purchased as a family joke and which hung over my wife’s desk. In her innocence, my daughter had no idea what the implications of the sign that she bought for her daddy might be. The sign read, “If you can’t dazzle them with brilliance, baffle them with bullshit.” When the jury stopped laughing, I left the courtroom with a lump in my throat. The moral of this story is never have a deposition in your home or office! A court reporter’s conference room, a neutral location, or a hotel room is the only way to protect your privacy from prying eyes whose only moral criteria is winning at any cost!
The Rehabilitation of an Expert Witness Whether in deposition or during trial testimony it is always possible to misspeak or respond incorrectly to a question you have been asked by either side’s attorney. When this occurs, it is generally the responsibility of the attorney who engaged you to attempt some form of repair or rehabilitation of your testimony by asking questions that will clarify or reorient the direction of your opinion. The deciding factor is usually your attorney’s perception of the testimonial problem and getting you to respond to it in an appropriate manner. This can be done by asking you the same question as the offending one and giving you the opportunity to explain your answer. Another way to attack the issue is to pose a series of clarifying questions that more accurately reflect your true opinions. This is why the procedures redirect, re-cross, rere-direct, and so on, can go on until the truth is made known. During your initial conversations with the case attorney or client, you should make clear any potential potholes in the highway of your career (if
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any exist that you can recall) and to ask if she is comfortable with them. If brought up in cross-examination, the rehabilitation process is begun with what was hopefully a predetermined strategy of clarification of your blemishes. The ball is then in the attorney’s court to handle your small vices in order to reap your great virtues!
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Impeachment Is Not Just for Presidents!
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The First Few Minutes of Cross-Examination When most people consider the process of impeachment, their thoughts are directed toward politicians committing heinous acts while in office. In litigation, impeachment is the process by which a witness is discredited, or his testimony is compromised by demonstrating a contradiction in evidence or opinion. Simply put, impeachment is showing that a witness is not telling the truth or does not have the knowledge to have testified as he did. The most difficult job is trying to impeach the testimony of a witness who is testifying for the first time. The first-time witness carries no baggage testimony from which to draw upon. Impeachment can only be done by ensnaring the witness in a web of convoluted questions that cause him to deviate from his original position. A simple illustration of this might be: Q: Mr. Smith, I just want to make sure I understand your testimony; you’re telling this jury that the defendant had bright green eyes? A: Yes, they were bright green, and I’m sure of it! Q: Can you tell us what shade of green? Was it forest green or emerald green, or just light green? A: It was emerald green.
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Toward the End of Cross-Examination The cross-examining attorney will continue with seemingly unrelated questions until he has set up his snare, and then he will pounce as follows: Q: You’ve already described the defendant shooting the victim, in excellent detail. Can you also tell us what the weather was like that evening? A: It was cold and hazy, as I recall. Q: A cold mist, the bone-chilling kind? A: Yes, that’s a good way to describe it. Q: And how far from the barrel of the gun were you when you heard the shot? A: About three car lengths, maybe four; I’m not really sure of the exact footage. Q: Could you estimate for the jury what the length of a car would be, just approximately? A: I’d estimate about twenty feet. Q: So then, three or four car lengths would represent about sixty to eighty feet? Is that correct? A: Yes, I’d say that’s about right. Q: Now, I’ll estimate that the depth of this courtroom is about forty feet. Would you agree with that? A: Yes, that seems about right. Q: And you can see the bailiff standing in the back of the courtroom, don’t you? A: Yes, I see him quite clearly. Q: Can you tell me the color of his hair?
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A: Yes, it’s a straw blond color. Q: You’re sure of that, aren’t you? A: Yes, I’m sure, it’s a blond color. A straw blondish color. Q: Now, will you please tell the jury what the color of the bailiff ’s eyes are? A: I can’t tell from here, I can’t see them that clearly. Q: No further questions, your Honor!
Don’t Underestimate the Jury Juries are smart and generally pay attention to the testimony of live witnesses. 1 The attorney in the question-and-answer session above has obviously set the stage for the second phase of impeachment. He asks for the color detail of his client’s eyes, knowing full well that the witness’s position at the crime scene would make it impossible to determine eye color. In this example the witness either believed he saw the eye color of the defendant or felt it would embellish his testimony by being more exact. In either case, the impeachment trap was set and sprung.
Impeachment Recognizing Where Questions Are Leading A clue that many experienced experts will recognize leading to a challenge of impeachment is when the attorney asks, “Isn’t it true that … ?” This is an absolute lead-in to a series of questions that will culminate with the reading of prior testimony that is intended to contradict what has just been said. I remember that while testifying in federal court in Hawaii, this “Isn’t it true that … ?” question was asked about my opinion on asbestos-fiber drift. During my response, the attorney went behind the defendant’s lawyer’s table and returned to the questioning podium with a hand truck stacked literally 3 feet high with flagged deposition or trial transcripts. The rest of the hour was spent on a continuing series of “Isn’t it true that … ?” questions and responses. To my relief, no impeachment took place, thanks to the prime directive tell the truth. When you always and only tell the
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truth, you never have to worry about contradicting yourself. It always comes out the same. A Justified Contradiction Contradiction can be justified when the science of your profession changes. If you are asked in the 1970s about the reality of wrist radios and your testimony is that they do not exist except in comic strips, you are answering correctly at that time. But if you are asked the same question in the year 2007, the answer will not be the same; nonetheless, impeachment is not applicable. Impeachment is evaluated by the judge and jury and impacts the weight of your testimony. Mistakes that are honest and unintentional are often overlooked when judged in the light of extensive, informative, and fact-laden testimony. When making calculations, even those burned into your brain from years of repetition, small errors in arithmetic or spelling can often seem damaging when detailed on a chalkboard before an audience. But those are the types of simple mistakes we can correct and live with!
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Criminal, Civil, and Workers’ Compensation Cases
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Criminal Cases My first venture into the world of expert-witness testifying came in the criminal courts. The U.S. Navy sent me to pharmacy school, and I continued as a manufacturing and dispensing pharmacist for them for about two-anda-half years after completing my education. This supplied me with a solid grounding in toxicology and clinical drugs, which seemed like a natural entry to serving as an expert both in clinical overdose and drug abuse. Once I became known to the criminal defense bar I was asked to branch out into a number of other areas where physical evidence was involved. Many of these cases are discussed in greater detail in Chapter 15. As a result of my entry into this new area of endeavor, I found myself in dire need of additional training beyond my college classes. I enlisted the aid of a highly qualified forensic analyst who was a supervisor at the local police crime lab. With his mentoring, I began to accumulate the skill and experience needed to do many of the criminal case analyses and examinations. Testifying in these cases became one of the true challenges in my career due to the fact that I found it intimidating to be standing up against government-trained forensic analysts and medical coroners. I soon discovered they were human and vulnerable, and, just like the rest of us, putting their pants on one leg at a time. I soon became disenchanted with the criminal justice system for two main reasons. The first reason is that in San Diego County, where I reside, attorneys and experts are paid for assigned defense work. Judges at that time 67
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were issued books of coupon vouchers that were equivalent to demand notes to any bank, drawn on the county’s funds. After each day of trial the judge would tear out the number of coupons he or she felt you or the attorney who hired you were worth. This was not what your normal billing rate would be, but merely what was dancing around in the judge’s head as to your work and worth. After several cases, this diminished payment policy seemed very unfair, and I stopped taking defense work. The second disincentive factor for doing criminal-defense work was the attitude of the friends and relatives of the defendant on trial. I remember one capital-murder case where the defendant was brought into the courtroom in shackles and handcuffs. At the start of the day, I was called to testify when from out of the gallery one of the defendant’s scary friends came up to me and said, “You better get our buddy off, ’cause we know where you live!” From a philosophical point of view, this may be why many indigent or low-income criminals do not get the benefit of highly qualified technical experts, regardless of their guilt or innocence. They remain at the mercy of low-paid civil-service bureaucrats who may already be tainted by the bias of working for the prosecution. Guilt is often presumed—why else would the police officer have arrested them?
Civil Cases Two major venues exist in most jurisdictions for trying cases of monetary damages or action judgments. These are the federal and state courts. Within both court systems can be found civil or workers’ compensation trials and many other administrative-law systems. To attempt to hold to the scope of this book, I will exclude any discussions of most types of administrative-law courts with the exception of occupational health and safety hearing courts presided over by administrative-law judges. Such judges may be attorneys who are either sitting pro tem to hear cases, such as Small Claims Court judges, or are hired by an agency to hear all appeals to regulatory citations.1 Cases that are generically termed civil are typically differentiated from criminal cases, which can involve incarceration. Civil cases usually involve monetary damages or judicial orders to start or stop some action that is petitioned to the court. The types of civil claims filed that typically involve expert witnesses are many, but those generally related to the residential or industrial workplace typically are: products liability claims in which a product has caused damage or injury to a person or worker; premises liability claims in which a person or worker enters the property not of his employer or his ownership and is damaged or injured due to conditions at that location; or wrongful death claims, in which damage or injury to a worker or person
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causes the death of that person and a claim is brought to court by an heir (family member, etc.) of that worker.
Workers’ Compensation Cases Workers’ compensation cases, on the other hand, consist of employee injuries and employer conformance to legislation requiring the employer to furnish a reasonably safe place to work, suitable equipment, rules and instructions when they are reasonably necessary, and reasonably competent forepersons and superintendents who effectively enforce the employer’s rules. Under workers’ compensation law, the employer is both responsible and liable for an employee’s acts of negligence, for the employer’s own gross negligence, and for extraordinary risks of work. The workers’ compensation court is, by statutory mandate, the exclusive remedy that an employee can seek from their employer in redress for injuries or damages sustained while on the job.2 The exclusive remedy of workers’ compensation precludes an employee from suing her employer for on-the-job accidents or illnesses. In most cases the employer is not liable for accidents occurring outside the place of work or for those that have not arisen directly as a result of employment. In both the civil and workers’ compensation courts, the testimony of an expert witness may very well be identical, although the rules by which each is conducted are very different. In the civil courtroom there is usually a judge, a jury, a court reporter, court staff, and opposing attorneys. In the workers’ compensation courtroom there is an administrative-law judge but no jury, a court reporter, occasionally staff, attorneys representing the employee, and attorneys representing the various insurance companies that insured the employer over the course of the employee’s work history. In the workers’ compensation court the judge hears the evidence, makes a decision, and writes that decision in the form of an order that is binding on all parties. As in any lower-court decision, there is an appeal process, but I’ve seldom seen it exercised. An interesting aspect of the workers’ compensation case, at least when involving a toxic exposure, is that the expert witness may actually be used by both the applicant and the respondent parties. For the applicant (the worker), the expert establishes the conditions of exposure, whereas for the respondents (the employers), this becomes more complex due to the affixing of when in the historical sequence of insurers the toxic exposure took place. In the case of a cumulative-trauma agent, such as asbestos, the question becomes that of when the last exposure may have been a contributing component of the worker’s asbestos-related disease. The vying insurance companies then seek expert testimony that may show exposure during some other
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insurer’s coverage period and therefore lessening the cost of payment for their firms. As an expert witness in the workers’ compensation arena you are generally asked to prepare a report. The report usually reflects questions posed by either the applicant’s attorney or by the attorney representing a specific insurer during a specific period of coverage. Typical questions posed in an applicant request for report might be as follows: 1. Was Mr. Smith exposed to asbestos while employed by various employers from 1972 through approximately 1995? If so, please identify and describe the nature of the exposure(s) that Mr. Smith had during the period from 1972 through 1995. 2. Was Mr. Smith’s occupational exposure to asbestos between 1972 and 1995, while employed by various employers, significant enough to have caused the development of the applicant’s asbestosis? If so, please explain in detail. 3. Did the work practices of the employers as described in the materials provided to you comply with the statutory mandates of the state’s general industry safety orders that were in place during the applicant’s various employments from 1972 through 1995? Please provide complete details and how each employer complied with the safety regulations. Specifically identify each employer by name and include the dates of exposures as they pertain to each employer. The report format can be in letter form, or more elaborate and extensive when circumstances demand. Two points to keep in mind when preparing this type of report are the caption and the materials reviewed. The caption is the exact way the court addresses the claim and the case filing number: John P. Smith v. Asbestos Engineering Corporation, et. al. WCAB Case No. 0555555 The listing of materials reviewed should represent your complete file including any additional references you relied upon in developing your opinions. A typical listing might appear as follows: Social Security Records of John Smith from 1964 through 1987, 1988 through 1995, and 1952 through 2001 Application for Adjudication of Claim Verified Answers to Interrogatories Set One and Verification
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Supplemental Responses to Interrogatories, Sets One and Two, Consolidated and Verification Samuel Waters, M.D., CT Scan Review dated October 17, 2003 Samuel Waters, M.D., CT Scan Review dated February 3, 2004 William Yates, M.D., Workers’ Comp Applicant Qualified Medical Exam dated April 27, 2004 William Yates, M.D., Workers’ Comp Supplemental Review dated August 1, 2005 Samuel Waters, M.D., CT Scan Review dated December 1, 2005 Workers’ Compensation Deposition Transcripts of John Smith dated November 14, 2005 Civil Deposition Transcripts of John Smith dated June 7, 2005, June 8, 2005, and June 9, 2005 The body of the remaining report can be designed at the discretion of the investigator. The beginning outlines the questions to be answered; the middle applies your training experience and research to the specific issues; and the end represents your conclusions and opinions on the issues raised. Simply written and laid out for the judge and attorneys to evaluate, it is a statement of your case. Fully noting the basis for your opinion and conclusions in your file, the report will also be available to refresh your memory at the time of deposition or trial. The work performed in criminal, civil, and workers’ compensation venues remains essentially the same; it is only the rules you must follow that differ.
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Toxic Torts in Retrospect
An Introduction to Toxic Torts The term toxic torts was first introduced to me with the work of attorney Fred Baron of Tyler, TX, and his publication Handling Occupational Disease Cases.1 This is a how-to-book for attorneys on what seemed to be an emerging class of tort claims arising from worker exposures to industrial toxins. The Tyler case was of special interest to me. One-third of approximately 900 asbestos-insulation workers at a thermal-insulation manufacturing plant were either dead or were dying of asbestos-related diseases. In addition to these workers, a second population of exposed workers was identified at the local Tyler rose nurseries. It was discovered that a manufacturing plant sold its empty burlap bags, which once contained the raw asbestos for their thermal-insulation product, to the rose nurseries to wrap the “root balls” of the roses they sold. This toxic-tort litigation led the way for other industrial exposures that were not related to an immediate onset of symptoms. The latency experienced by asbestos victims demonstrated the concept of “cumulative trauma” agents whose effects were seen months to years beyond the date of the last exposure. Asbestos, although the focus of the Tyler cases, is but one of many such hazardous agents found in the industrial workplace. Since 1946 the American Conference of Governmental Industrial Hygienists has published a list of more than 400 compounds, chemicals, and physical agents with known toxic properties that are capable of causing injury to an exposed worker. A virtual panoply of damage and injury toxictort cases could arise from just these listed agents but for the fact that the illnesses they cause often go virtually unrecognized by most physicians or 73
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attorneys due to the lack of appropriate diagnoses and the implication of industrial etiologic agents. Most workers are classically exposed to industrial toxins and are not diagnosed within the accepted parameters of the known paradigms and algorithms’ of the medical-school curriculum. They are either treated symptomatically for an idiopathic disease or lumped into a “dumping” diagnosis of natural diseases for which no causal agent was apparent.
Medical Misdiagnosis A long-recognized factor in this problem of medical misdiagnosis is the failure of most primary-care physicians to take an adequate occupational history. This consistent brevity or total absence of occupational history in medical records continues to this day in spite of the fact that most people spend a minimum of one-third of their adult life in a work environment. Of the three common environments work, sleep, and recreation, work alone poses the greatest quantity and exposure to potential to toxic agents. This has become a far greater truism in the past 40 to 50 years of our industrial evolution. Fifty years ago paints were primarily made from linseed oil and pigment, and applied with a brush or roller device. Today paints include sophisticated mixtures of polymeric resins, carcinogenic pigments, sensitizing epoxies and catalysts, and a wide variety of neurotoxin solvents, and they are often not brush applied but sprayed into our breathing air for faster and more economically sound application. Another area that seems to elude physicians is that of household exposure. The household exposure, brought home by the out-of-home working family member, is seldom noted in the medical history of the patient. Again, using asbestos as our example, the plant worker who is exposed brings the contamination home on clothing, hair, and shoes. Family members who travel in the family car, live in the contaminated home, and greet the hardworking person with hugs can suffer an asbestos-related disease years later with no memory of an exposure scenario. In the case of a worker exposed to lead the same potential exists for contamination of the home. The welts of a worker’s shoes are excellent collection systems for leadcontaminated dust when that worker merely walks through contaminated spaces. Wearing those same shoes home, to a house carpeted with a thickpile rug, dislodges that contaminated dust by the efficient cleaning action of the carpet pile. Seldom does a pediatrician suspect a toddler patient of crawling across that same carpet and inhaling lead-laden dust when he is examining that patient for symptoms of lead encephalopathy. These are toxic-tort lawsuits in the making!
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Compensation: It’s Not Just for Work Anymore Not to be totally outdone, our “play” environment is moving rapidly to catch up to the work environment through the ever-increasing trend toward doit-yourself applications of the same products used in the industrial workplace. A brief trip down the aisles of the local home-improvement center can reveal the same chemical agents that are repeatedly indicted in exposure illnesses and lawsuits. Even if an ingredient is generally considered to be “relatively safe” it can still be used in a physiologically abusive manner and result in severe bodily injury. Just such a case example is referred to in Chapter 15, in which we will examine the story (among others) of a chemically induced pneumonia in a woman striping a patio deck on her hands and knees with ten gallons of acetone. The chemical was purchased as ten one-gallon cans from her local home-improvement center after being told by the sales associate how safely it would do the job. For those of you with some degree of legal experience, it should be increasingly obvious that the ingredients for a toxic-tort lawsuit are being revealed. Shall we name the players in our legal tragedy? Number one is the plaintiff, the woman who cleaned her wooden deck with the acetone who survived but now suffers organic brain damage subsequent to the hypoxia caused by the chemically induced pneumonia. Next comes the parade of defendants. First comes the solvent producer, a major petroleum refiner; then the repackager of the acetone into gallon cans sold to the center; and, finally, the home-improvement center whose agent negligently acted in the role of a safety professional and misled the purchaser as to the safety of her intended actions. Where in this example do we apply the efforts of the expert witness? Having been hired by the plaintiff, the expert’s role is to foundationally support each contention of causation or negligence within his area of expertise. Against the petroleum refiner, the repackager, and the center he must identify that the selling of an inherently dangerous material such as acetone demands warnings to the reasonably foreseeable user, who can then avoid those dangers. In this case, the most obvious warnings were related to the flammability of the acetone, not the implications of human overexposure. The center was further sanctioned for its blatant advertising in the print and television media that its sales associates were “experts” in the areas of sales they worked and would provide all the needed information to get the job done right! This example, and a mountain of others, repeats itself on a daily basis throughout the United States in a wide range of sales arenas selling any number of toxic agents having a similar impact potential on unsuspecting buyers. When a product is manufactured, the manufacturer finds itself to be
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the ultimate expert in that product, for who could know more than the manufacturer does about the ingredients and its own manufacturing process? When products are released onto the market there is an assumption of prior research and testing to prove them effective and/or safe before release. It would be shocking to learn just how many products are marketed with minimal thought to their toxic ingredients and the dangers of overexposure and/or misuse. The engineers and chemists who develop product formulas and applications seldom have the knowledge or inclination to look beyond the chemical or physical compatibility of product ingredients. The chemist who uses 1,1,1trichloroethane solvent for an adhesive without knowing that this chemical has well-known properties causing arrhythmias in the human heart that can lead to cardiac arrest, or the engineer who adds asbestos to concrete as a lubricant so the concrete can be pumped through hoses in a high-rise construction, have created a toxic condition regardless of the advantage given to the products manufactured. Innocent actions or design defect can be potentially harmful to someone farther down on the chain of commerce.
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Epidemiology The branch of medicine that deals with the study of the causes, distribution, and control of disease in populations is epidemiology. Epidemiologists study populations at risk and attempt to gather large numbers of subjects in their studies in order to keep their resultant findings relevant and statistically valid. When large, statistically significant numbers of study participants are not available or incorporated, the study is often considered flawed or is not an accurate reflection of a cause-and-effect relationship. In many cases that come before the courts, this level of absolute significance does not apply or has little bearing on the outcome of a trial. As seen in numerous television reenactments, the standard for proof in a criminal matter is that it be “beyond resonable doubt.” The trial court in noncriminal (i.e., civil) cases uses a preponderance of evidence standard. This standard only demands that the subject condition is “more likely than not”—that is, that there is at least a 51 percent probability.
The Birth of a Lawsuit When someone or something is damaged by another and some form of retribution or recovery is necessary, a lawsuit is born. In some instances, causes and effects are clear and self-evident. This might be the case of a defectively installed rafter bracket that failed and caused a roof to collapse. The mere demonstration of the bracket having been installed with two nails 77
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when it should have had six would make for a very short trial if not a quick settlement. Whereas in the case of a certified public accountant (CPA) with no industrial-work experience and an asbestos-associated diagnosis of mesothelioma, the picture is far less clear. What must be ferreted out of the accountant’s past is where he may have been exposed and to what extent. After learning he did his own automotive asbestos brake work, we now have an exposure and only need to determine the nature and extent of exposure, and damages. In the first example, two nails versus six, it is easy to arrive at a reasonable conclusion. If, for example, there were five nails instead of six we are closer to a proper installation although not perfect and a great deal more evidence and expert opinion is required to evaluate the extent of design necessity. In the case of the CPA as asbestos victim, the situation is not so clear or explained in such a quantitative manner. A great deal of epidemiology has been done on asbestos disease in auto mechanics who do brake work as a profession, but not on the “shade tree mechanic” like our CPA. This is where the application of epidemiology becomes questionable, as there have been no published studies of “shade tree mechanics” due to the extreme variability of conditions in which the exposures take place. Ergo the expert witness who considers the exposed individual, the procedures he followed in doing the brake work, the environment in which it was done, and the dose or exposure required to produce his disease 1 can conclude that the exposure was substantial and a causal factor in the contraction of any asbestos-related disease.
Prevention In the prior course of my professional activities as a safety and industrialhygiene engineer, I generally did not wait for all the facts to come in before taking preventive actions. As the title of this chapter implies, a preventive or preemptive action is often required to stop the condition as soon as possible. When dealing with people in small numbers in the workplace the loss and suffering that can be potentially prevented is often delayed or ignored for want of a major epidemiologic study involving gigantic numbers of workers.
Risk The concept of risk and its relationship to benefit has long challenged the safety and health professional community. When a governmental agency publishes a regulation for control of a hazardous material, it often must run the public-hearing gauntlet before it is released into law. With input from all
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manner of special interests vying for their particular vested concerns, the safety limits for the hazardous material bend under the pressure of political compromise, as “no one can be expected to live risk free!” This unfortunate reality of the governmental-regulatory process is never more true than with asbestos. The medical and scientific literature as well as our industrial history has shown that there is essentially no lowest level of asbestos exposure that can guarantee protection from mesothelioma.2 In spite of this well-recognized fact, the political exposure-level compromise still allows workers to remain exposed at levels of 0.1 fibers per cubic centimeter of air. Unfortunately, this is still a substantial exposure when judged by any standard, and one that will not protect against mesothelioma!
The Dual Role of the Court In the opinion of this writer, the law and the courts serve a very real purpose in the arena of the safety and occupational-health profession I have practiced for more than 30 years. That function is to alert and put on notice areas of design defect and operational failure that only reveal themselves by the chance happening of injured persons. Sometimes it is only the “squeaky wheel” that receives the proper lubricant. In an Orange County, CA, trial a salesman who shuffled beryllium oxide semiconductor wafer sales samples in a company storage closet later developed a severe beryllium-attributed disease. His diagnosis was considered unique and devoid of supporting epidemiologic data due to his being the only nonproduction person so afflicted. If not for the legal process of seeking some remedy for his injury, the awareness of beryllium hazards in this aspect of the electronics industry would have gone unnoticed. In this case only one exposure scenario led to a greater awareness of the actual epidemic.
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Professional Liability
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We would all like to think of ourselves as professionals, but along with that designation comes both an ethical and scientific obligation that even when unspoken bears a high level of responsibility and behavior. By calling ourselves professionals, we place ourselves in a position of being judged to a higher standard of care than nonprofessionals who might practice some or any portion of our professional activities with virtual impunity.
Even the Best Practitioners Can Be Sued! As a result of this assumed professionalism, we leave ourselves open to the ever-prevalent question, “Did I perform my duty in the correct manner and with the detail expected of a professional?” This question is most often raised in the context of a lawsuit when preventable damages have been caused and you were the most knowledgeable person involved and you either knew or should have known what was wrong and how it should have been prevented or corrected. You may perform your work with what you believe to be a “flawless performance” and yet find that your client believes you have harmed him or her as a result of your work or lack thereof. This can be the genesis of a lawsuit against you for professional malpractice, regardless of the care and precision of your work and communication with the client. Avoidance of lawsuits has become a major factor in the routine of many professional practices. Work is done with the consideration of avoiding any actions or conditions that may engender the client’s disapproval and assignment of blame for any and all evils that arise from or are even tangent to your involvement in their affairs. If problems are likely due to the high risk of the assignment, some professionals give clients advance warning of actions that will be taken before they can proceed to lawsuit. Major nationwide health-maintenance organizations, who, like other medical providers, are 81
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plagued with real and imaginary malpractice lawsuits, require all member patients to sign a contract demanding arbitration before instigating a lawsuit. Variations on this theme exist in many professional circles for the same reason: to avoid the justice system. In my previous professional consulting practice, I passed on to clients the old adage, “If I do something good for you, tell your friends. If I do something you don’t feel is right, tell me.” This in no way protected me from potential lawsuits, which are always lurking in the dark corners of professional practice, but it did set the stage for open communication. To indemnify ourselves against accusations and legal entanglement we seek various levels of protection that we correctly or incorrectly assume will isolate and defend us from those who wish to crush our professional careers with their allegations. These protections include, but are not limited to, some of the following: professional liability-insurance policies, indemnification letters or contracts with our clients or employers, hold-harmless agreements with colleagues on shared assignments, and “going barefoot” with diminished personal assets. I will deal briefly with each of these and their failings, while focusing primarily on the best professional liability protection of all: scientific accuracy, completeness, and proper documentation.
Professional Liability Insurance Over the past 30 years, several professional organizations have attempted to obtain professional liability group insurance for their members, with varying degrees of success. The success or failure of these efforts generally falls on group size, premium costs, and coverage limitations. A number of safety and health professionals contact their personal insurance agents only to find that the only coverage available is as a medical professional, which we are not, yet the agents cannot underwrite us in any other manner. This is apparently due to insurance companies’ ignorance of what a safety and health practitioner is or does, and the nearest category to dump us in is that of the lowestlevel medical professional, with premiums quoted at $4,000 per year back in the 1980s. Know what you are getting when you buy a professional liability-insurance policy. Does it cover errors and omissions (and believe me, we all make them on occasion), or does it just cover physical damage to property as a result of action or inaction? Is it occurrence-based (OB) or claims-made (CM) insurance? This difference can be critical depending on how long you intend to remain in business. The OB policy covers anything that happens during the policy period but not beyond that time; the CM policy covers claims as long as the policy is in force. When you retire and stop paying
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premiums, all of the coverage from the time of being insured disappears! Major price differences separate the OB and CM premiums. This explanation is by no means exhaustive (nor am I in the insurance business to qualify the accuracy of my statements), but I at least caution you to seek professional advice before paying out large sums of money for policies that let you sleep at night only until the subpoena comes knocking at the door. Association group coverage, when offered, was experimentally tried by insurance companies until they discovered the interested group was so small that the profit motive could not sustain continuance. Another form of insurance coverage was tried by companies employing single, or departments of, safety and health professionals, attempting to bind them under existing policies for professional engineering liability. This practice most often failed due to the inability to technically classify the safety and health professional as one who belonged in the engineering category, or due to the absence of engineering credentials, which were a prerequisite to being covered by the company policy. Newly available professional liability-policy coverage in the industrial hygiene field has reflected specific areas of coverage and limits. In one case, “mold” case involvement has a monetary cap which is 25 percent lower than would be paid other professional acts. This is one good reason to take extra care in choosing cases in which mold contamination is involved. For those of you who do have a professional liability policy, obtained either privately or from an organization, take the time to read the fine print. Policies have limits, both declared and undeclared. The declared limits include defense and payment of damages; the undeclared limits reflect the level of aggressiveness with which the insurance company’s attorney fights for your interests or the best interests of the company. You may still face losses, regardless of the outcome of the case. Time and money spent in fighting a lawsuit can often outweigh what an insurance policy will pay in hard dollars. I strongly recommend obtaining a personal attorney, even if the insurance company provides one, to insure that someone is actually looking out for your own best interests.
Indemnification Indemnification letters, clauses, or contracts provided by clients or employers are nothing more than contractual agreements to protect or defend us. In the event that damages result from our professional works that were not caused by our own errors of omission or negligence, and an associated lawsuit still names us as a contributory party, we will then be defended. Two problems exist with this level of protection: (1) if either party defaults, the contract must be litigated on a secondary level to the original
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accusations of professional liability, which can be very costly to the solo practitioner; and (2) you must still defend your actions and performance as being of the highest standard of care and best available science. Of these two, litigation is the easier, though it requires good legal counsel and lots of money. Who holds the advantage in this relationship, you or the well-heeled client or employer? The defense of your own actions and performance—and this will bear repeating throughout this chapter—is far more difficult to prove. Let us say you are performing a routine survey for which the client is only paying for a two-hour visit to the facility, but nowhere in your report does it indicate the caveat that all and every operation was not seen by you, and your report only covers the delineated portion of the operation able to be observed during the time visit. Every aspect of your time at the site, the results of your report, and your conclusions will be microscopically examined by highly paid experts employed by the other side to take apart your training, skill, ability, and professionalism without regard for the time limitation imposed by the client. The only remedy for this type of conundrum is to formally notify your client ahead of time, in writing, that time limitations may restrict your abilities. Multistate Operations Be aware that operating in more than one state can prove embarrassing if one state allows indemnification and liability waivers and another does not. Your credentials may be nationally recognized, yet the state you are asked to testify or work in has special statutes that regulate your practice. My best advice is to do a bit of research prior to crossing state lines. If the information is not available to you directly or on the Internet, request that your proposed client find out what operational restrictions exist in his or her location.
Hold-Harmless Agreements On many large jobs involving numerous subcontractors of which you are just one, a project owner or general contractor will ask all subcontractors to enter into a hold-harmless agreement. This essentially says, “I agree to not sue you, if you agree not to sue me.” Unfortunately, skilled attorneys find no difficulty in suing all involved in a damage-generating situation in order to sort out those who are truly responsible by means of the discovery process. The discovery process, as was described in more detail in Chapter 7, is a very structured legal game through which one side asks the other if it has any information on X,Y, or Z. The responding party agrees to produce these items or denies their existence. In the process, some of the agreement signers may
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willingly offer up “proof ” of your wrongdoing in order to release them from further involvement.
“Going Barefoot” with Limited Financial Assets “Going barefoot” means acting as a safety and health professional without any insurance coverage and taking the chance that your actions will be free of any misconduct or misinterpretations that might cause personal or property damage. There are those among us who claim an entire career without actionable repercussions. That may well be, but if the professional-liability bug bites, it can cut short all the amazing successes you have already accomplished, ruin an expert witness career, and leave you deeply in debt and psychologically scarred.
Actionable Events and Activities One example of a situation that, rightly or wrongly, results in a professionalliability action against a certified industrial hygienist (CIH) is as follows. A lawyer in a large metropolitan city contacts the CIH to review an upcoming asbestos-damages claim brought against a property owner/landlord who has rented an apartment to a couple with a very large and very valuable art collection that they have displayed in their apartment. It has come to the renters’ attention that the “acoustical, cottage-cheese-like” sprayed ceiling is beginning to deteriorate and delaminate. Dust and debris begin to accumulate on the horizontal surfaces of their artwork, and this dust was subsequently determined to contain substantial quantities of asbestos. The tenants vacate the premises fearing for their health, leaving their art behind, and file suit against the landlord. The CIH is asked to determine the condition of the apartment, which has been closed and sealed, in order to testify at trial regarding the validity of the claims. During the course of the inspection, the CIH and an associate, using all professionally recommended monitoring and personal-protection practices, conduct air sampling for asbestos in the apartment. The results demonstrate substantial levels of asbestos in the air and validate the claim of asbestos accumulation on many horizontal surfaces. Readying for trial, and after giving deposition testimony regarding the condition of the apartment, the CIH is served with a cross-complaint lawsuit alleging that he and his associate were the cause of the asbestos release in the apartment and that he will be held liable for any and all damages resulting from any actions brought against the landlord. It is also made clear to the
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CIH’s attorney-client that the suit will be dropped if the CIH is withdrawn from the case. The CIH is “barefoot” and otherwise devoid of any applicable insurance or legal representation. An existing in-force personal liability-insurance policy carried for years by the CIH is challenged, and the insurer is asked to cover legal expenses. The request is denied, as the fine print reveals that “professional liability” is a specific exclusion. To that end, the CIH hires an attorney, at a personal cash outlay of more than $8,000, to see the case to summary judgment and dismissal as “frivolous.” This result comes only after the court reviews exacting documentation of the survey, photos, and sampling procedures. Money is not the issue here, but the mental scars of having to prove the facts that you have considered the fundamentals of your profession are. The scars of being professionally challenged cut deep and never really go away!
Scientific Accuracy, Completeness, and Documentation We all try to be as accurate as our knowledge and equipment will allow, and when we can’t do the complete job as asked, we cover our legal behinds with as much paper and contract language as the client will bear. The one aspect of this equation that most often goes awry is the paucity of documentation we bring to our profession. One of my first consulting assignments was for a major manufacturing corporation based in the Midwest, with plants all over the country. My first meeting with corporate management was a short presentation to the engineering staff on occupational safety and health. When I entered the posh conference room I was immediately struck by the scene before me. There sat 20 engineers and managers, each with a quadrille-ruled notebook sitting in front of him. Every concept and requirement of a newly designed safety-andhealth program to be instituted in the corporation was being dutifully recorded. My curiosity caused me to ask one of the senior engineers if this note taking was common to this corporation or part of the general preparation of each engineer. His response was that engineers hired out of college knew that their engineering notebook was critical to solving problems and eliminating errors. I subsequently learned, when I was teaching at a local university’s school of engineering, that this was a curriculum requirement: d-o-c-u-m-e-n-t-a-t-i-o-n! Was this also the case for training safety-andhealth engineering professionals? I’m afraid not, from my experience. Chemists do it, engineers do it, lawyers and doctors do it, but others who call themselves professionals do not do it and find that proving their professionalism without detailed documentation always results in losses in the end.
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An attorney friend of mine once offered me this gem of trial wisdom: “If an opponent produces some data or evidence regarding the circumstances of my claim against him, I may have to work like heck to refute or contradict that evidence. But if he has no data or evidence, I can say anything I want about the claim against him!” Make sure your field notes are complete, and exhaust all possibilities that can or will go wrong. Who, what, when, why, and where are just the beginning. The more you document with pen and camera, the stronger your defense of your professional actions. The final consideration of professionalism is the ability to understand when your work and data are confidential and/or proprietary. Information and company-background data may be critical to a patented or secret process or constitute a protected trade secret. Always ask your client what level of confidentiality must be observed. When consulting in a legal matter, you may be given paperwork to review that bears the inscription, “Confidential Data: Sealed by Court Order.” This data is to be reviewed for the subject case and no other. If you break this confidence, you may be found liable for any damage caused by your breach of trust.
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In the 1970s, my wife and I owned and operated a human/veterinary clinicalpathology and environmental-testing laboratory, from which I consulted in the areas of analytical and forensic investigations.1 The array of case types varied from the simple inquiry of a mother wanting to know if the small sack of white powder hidden under her son’s underwear drawer was an illegal drug to complex causation questions in homicide investigations. As this lab was somewhat unique in having the chemical and field-personnel expertise to examine a wide array of situations, we got the attention that other “testing” labs could not elicit. That was the beginning of many years, and many different or bizarre cases, that came through our doors looking for answers. The purpose of dragging you through this string of unusual cases is to clarify that expert-witness needs come in a wide range of flavors. If you have spent your entire career focused on one topic of study, such as lead, or asbestos, or tobacco smoke, you may end up testifying in only that area. On the other hand, if you are a generalist, such as a physician or a safetymechanical-civil or electrical engineer, you may be contacted to serve as an expert witness in areas as diverse as you routinely encounter in every day’s work. The following examples, from my 30 years of forensic involvement, illustrate how varied your challenges may be.
The Abalone’s Revenge The very first case that actually took me to trial was about an abalone diver who worked off the coast of San Diego and suffered an injury while engaged in harvesting from the ocean bottom. The day of the injury he had been in 89
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the water when he became nauseated and began vomiting in his mask, and this caused him to surface unexpectedly. He was supplied air from a “hookah” rig, which was an air compressor, connected to a gasoline engine, floating on a rubber-tube platform. Connected to the compressor was 50 feet of rubber hose that led to the diver’s face mask. His diving companion, who was on the surface in a boat, pulled him out of the water and headed for shore. The two experienced divers considered this to be an unfortunate but random event. When the symptomatology continued for several days, the involved diver sought medical treatment. Hospitalization and testing revealed elevated carboxyhemoglobin levels, lipoid pneumonia, and subsequent organic brain damage attributed to carbon monoxide/lipoid-induced hypoxia. The diver eventually brought his case to an attorney, and a claim was filed against the compressor manufacturer and the gasoline-engine manufacturer for medical and punitive damages on the theory of “product liability.”2 Three years after the case was brought to court, and several months before a trial date, I was retained by the plaintiff as an expert in safety and industrial hygiene related to the quality of air produced by the manufacturer-defendants’ products. Upon examination of the hookah rig it became immediately apparent that the proximity of the compressor’s air intake to the motor exhaust was close enough to allow carbon monoxide exhaust to enter the compressed air intake and be delivered to the diver. In addition, it was noted that the compressor was oil lubricated and sealed, producing a fine aerosol of oil mist into the air stream. Together, these two agents combined to choke off the diver’s supply of oxygen at a molecular level. The carbon monoxide’s binding to the diver’s red-blood cells prevented their taking up oxygen and distributing it to the body, and the oil-mist droplets being collected by the “garbage collecting cells” (macrophages) that “wallpaper” the alveolar aircell compartments of the lungs prevented oxygen absorption. Without sufficient oxygen, the first organ of the body to suffer is the brain. Hypoxic brain damage is well-documented in the medical literature and generally leads to some degree of “organic brain damage” syndrome. The symptoms most often detected in those affected are headaches and shortterm memory loss, all of which our diver had well witnessed. The witness brought in by the defendant compressor manufacturer was a U.S. Navy medical doctor directly involved with diving medicine. While validating the patient’s medical conditions, he contested the existence of the lipoid pneumonia but felt the carbon monoxide was the sole cause of the hypoxia. Upon a well-coached cross-examination by plaintiff ’s counsel, the doctor readily acknowledged the literature on lipoid pneumonia but said that he never personally encountered it either in medical school or in 20 years of practice.
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The jury found for the plaintiff, and awarded $300,000, which in the 1970s was considered a large sum.
When and Where Did She Die? I was once contacted by the San Diego District Attorney’s office regarding somewhat unusual circumstances related to a recent homicide case with transborder implications. A woman was kidnapped, transported across the Mexican border in the trunk of a car, and in Tijuana was dumped over the wall of a dam. To establish jurisdictional responsibility it became necessary to determine which side of the border she died on, that of the United States or of Mexico. It was theorized that she may have been dead before entering Mexico due to vehicle-exhaust leaks into the trunk. This would have kept the jurisdiction in the United States, as only her body would have then been disposed of in Mexican territory. To this end I was retained to plumb the subject vehicle with carbonmonoxide measuring equipment and recording devices acceptable to the court. After the vehicle was outfitted with an infrared calibrated spectrometer and chart recorder, I was driven from the woman’s place of abduction and across the border by two San Diego Police detectives. At the end of our leisurely drive, I examined the recordings of carbon-monoxide levels measured in the trunk. To everyone’s surprise, the readings were close to ambient, and far below what would be considered lethal! It was now up to Mexican authorities to prosecute for the woman’s death due to the sudden impact of her body at the base of the dam.
Peepshow Problems During the redevelopment years of San Diego’s downtown district in the early 1980s, the city council passed a number of ordinances that would help purge the seedier elements from an area of downtown that had classically been a haven for lonely sailors and the homeless. One such ordinance directly impacted the growing number of adult bookstores and “peepshows.” 3 The ordinance required that all “theater” businesses comply with the National Fire Protection Association’s Life Safety Code relating to minimum egress illumination for theaters.4 The standard called for a minimum light level of 5 foot-candles in order to aid in exiting during an emergency. The attorney representing the owner of several of these establishments called to request my services in establishing that his business was operating within the parameters of the new ordinance. This most unusual request
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required using a calibrated light meter and crawling around the walkway that surrounded the “customer booths” and led to exit doors, measuring how much illumination was available. Notwithstanding a preconceived opinion that such environments would generally be kept at the lowest light level possible to facilitate the peepshow ambiance, I was surprised to learn that 5 foot-candles was not very much light, and that the booths were actually in compliance. My report to the attorney was welcomed and presented to the council, which then apparently made the case disappear! I later learned that the ordinance was reversed on some legal or constitutional grounds, which I never fully understood.
Fried Chicken Maggots Late one weekend evening I received a phone call on my emergency-only phone line from an attorney who wanted me to rush to the local emergency room to meet his clients, who were being treated for myiasis.5 Upon my arrival at the hospital I found a young family of five, consisting of the father, mother, and three children who had just had their stomachs pumped and were in varying stages of recovery. Upon questioning the father I learned that the family had had an outing at a local park after purchasing a container of fried chicken from a local fastfood establishment. After eating, the children went off to play while the parents lingered over their meal. While finishing the last morsels of meat from a drumstick, the mother noticed what appeared to be something crawling on the bone. It turned out to be a maggot-type larva, and it was not alone! Panic stricken, the family left the park and rushed to the local ER where our story began. Fortunately, from an evidentiary standpoint, they were smart enough to bring the remaining uneaten chicken with them. My assignment was to investigate the nature of the infestation and determine if the origin of the larvae was based upon accidental contamination or gross negligence from selling unprotected foodstuff. I was also asked to contact the fast-food establishment and notify them of their potential distribution of tainted food to others. Upon calling the store manager, I was at first shocked to hear his attempt to defuse the issue with comedy by saying, “We don’t charge extra for the added protein!” It was obvious this manager had never been trained in corporate “damage control” in spite of the store being part of a national franchise. I obviously included his statements in my investigational notes. I received the chicken container, with appropriate chain of custody procedures,6 for removal to our laboratory and further examination. It was soon discovered, by careful dissection, that the remaining leg portions of chicken
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were similarly infested. As a result of a mental archaeological expedition into my past studies of biology, I quickly became aware that my “evidence” might soon fly away due to its transition from maggots to adult flies. Detailed photographic documentation was, as always, undertaken and then a cheesecloth netting was secured over the mouth of the container to retain any adults of the species that might emerge. The primary question, which would be debated in the lawsuit, was whether the food was allowed to remain exposed to flies long enough for eggs to be laid and hatched, or whether live larvae were deposited on the cooked chicken. This could only be determined by speciation of the adult flies. Of the two main species of domestic flies found in the United States, one lays eggs, and the other nurtures its eggs in the adult fly body and lays live larvae on a food source to allow them to mature. Identifying one fly species from another, unfortunately, required the additional expertise of an entomologist, who came to the case as an additional expert witness. The entomologist, after examining the adult flies, concluded that the larvae were laid live, suggesting that the fast-food store’s sanitation was not the best but also that it didn’t leave the food unattended for overly long periods of time. The forgoing circumstances highlight a very important point for expert witnessing: don’t go beyond your comfort area of expertise! If you are not an entomologist, find one if needed for the investigation. If not, suggest it to the attorney in charge of the case. If you try to be all things to all people, those who are working equally hard against your case will surely find it out and hold it against you before a jury. Pleased to some degree with my report, the attorney and the corporatefranchise people arrived at a mutually agreeable settlement, and everyone in the plaintiff ’s family fully recovered!
The Musician’s Exposure to Asbestos Of all the occupationally acquired diseases, asbestos-associated disease has probably been one of the most studied and reported in the medical and lay literature. The worst form of asbestos-related disease is a tumor of the lining of the thoracic or abdominal cavity called mesothelioma. Mesothelioma was once thought to be somewhat rare in occurrence, but unquestionably attributed to some exposure to asbestos regardless of the extent of the exposure. A case was brought to me of a 55-year-old musician who had been playing guitar since his teenage years. His upbringing and education in a rural southern community appeared to be free of any known source of asbestos contamination. He moved to the West Coast, bringing only a few pieces of
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clothing and his musical instruments to further his musical career, and had done no other type of work save survival employment in a wide variety of fast-food establishments. His treating physician, aware of the complications associated with this type of disease and its associated medical costs, suggested the patient look into some legal advice in recovering some of his costs. His chosen legal firm was one I had worked on other asbestos cases for, and they called me to assist in determining the origins of their client’s exposure. After a brief survey of the plaintiff’s lifestyle and history, the only piece of potential evidence that might contain asbestos was an electronic guitar amplifier manufactured by a well-known company. The amplifier consisted of a speaker enclosure with the electronics mounted inside and external controls at the top of the enclosure. The vintage of the amplifier was my first clue that we may have identified the etiologic agent, as it was about 30 years old and powered by vacuum tubes. For those of you who do not remember the era of electronics before transistors and semiconductors, electronic devices were operated using glass vacuum tubes with heated filaments that caused a flow of electrons within a glass envelope. Some of these tubes would generate a great deal of heat, and the wooden amplifier enclosure required some protection to avoid a fire. Upon opening the enclosure and examining the placement of the amplifier component, I discovered a loosely woven asbestos-paper barrier shielding all sides of the heated-tube locations. It was concluded that the vibration and movement of the speaker cone (caused by the rhythm of the music) had acted as a pneumatic piston, driving the available asbestos-fiber bundles off the paper surface, out through the vent ports of the cabinet enclosure, and into the waiting lungs of the musician. The lesson of this experience is that asbestos was used ubiquitously in a wide variety of applications for more than 60 years. It was incorporated into many products from thermal steam insulation and cords for electric irons to decorative flocking on Christmas trees. The many valuable, rocklike properties of asbestos have now been overshadowed by the illnesses that breathing its dust has produced. When looking at a person suffering from an asbestosrelated disease, the causative agent most likely can be found by that person’s association with a product that required those rocklike properties to perform as intended. If you look hard enough, you will find the source of someone’s asbestos exposure in some aspect of his or her life history!
A Double Shotgun Death in the Back Country Early in my forensic career I did some forensic investigations in criminal cases. I was retained by a criminal defense attorney to help defend a man accused
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of a double shotgun homicide in the back country of San Diego County. At first, the case appeared to be somewhat straightforward, but as it unfolded, there were many unanswered questions that raised the “shadow of doubt” as to the completeness of the evidence against the defendant. My adversaries in this case would be the police and sheriff ’s crime-lab technicians and internal investigators from the district attorney’s office. I was directed by my client, the attorney, to hopefully find some glitches in the prosecutor’s case that would be helpful at trial. At my disposal were crime-scene photos, coroner’s reports, witness statements, and the criminal indictment. Glitch Number 1 I noticed in one of the photos that, after allegedly fatally shooting two men with 12-gauge rifled shotgun slugs,7 the perpetrator had apparently plunged the shotgun barrel into a mound of dirt in a butt-up position. As it was only one month before trial, I had the attorney request the impounded gun be released to me for examination from the court’s property room. When the gun was picked up it was wrapped in plastic and identified with an investigator’s signature. Back in the laboratory, a detailed inspection of the shotgun barrel revealed an intact plug of dirt still lodged in the barrel. This would stand as evidentiary proof that the gun, although in the possession of the prosecution for months, had neither been examined nor tested for ballistic comparison with the slugs found in the bodies. Glitch Number 2 The coroner’s report listed a time of death but did not support this conclusion with foundational evidence. Under normal procedure, a medical examiner will establish time of death by one of several means. Signs of “livor mortis” were not noted;8 external air temperature at the time of examination was not noted. The final flaw of omission was that no deep-body temperature measurements were made. Classically, criminal-forensic studies have shown a linear progression of body-temperature depression from the last moment of life to equilibration with external temperatures. This enables a medical examiner to establish a time-of-death range based upon comparing deep-body temperature and external air temperature and calculating backward. Absent this data collection, any assumption of when the murder took place would be mere speculation. With these two case “flaws” in mind the case was brought to trial. Testimony was brisk from most percipient witnesses, and then it was my turn to appear for trial. Upon entering the courtroom, I had my first chance to see and meet the defendant I was asked to help. As an objective scientist I was expected to look beyond his appearance, although he bore a definite resem-
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blance to Charles Manson. I took the stand, made my points regarding the lack of gun-related evidence, and was about to opine on the coroner’s report when objections came from the district attorney, who said, “Mr. Cohen is not an M.D., and therefore cannot give medical testimony!” As defense counsel had come prepared for this situation, I was requalified based on my paramedical background and clinical training, and this convinced the court to allow me to testify.
Dr. Tyndall, I Presume? In 1984, I began actively participating in asbestos litigation as an expert witness. My principal role in these cases was to make clear to the trier of fact (generally a lay jury) the technical aspects of asbestos exposure to a worker. In those early days, the primary defense for some of the asbestos manufacturers was, “Our product doesn’t release any asbestos, therefore there was no exposure.” Having studied and tested a large number of industrial and shipboard environments, I instinctively felt this was incorrect, but was at a loss as to how to demonstrate this release without contaminating a courtroom. During the mid 1970s, I had spent some time in the British Isles lecturing on industrial-hygiene techniques and procedures to safety engineers and occupational hygienists. As is all too often true, a teacher also learns from his students, and several of the class attendees shared with me some of their procedures, which were essentially unused in the United States. One of the students, a hygienist from Her Majesty’s Factory Inspectorate,9 described a procedure used to evaluate the need for dust monitoring in a factory environment. He explained how two inspectors would ask for a subject building to be darkened for the test. They would then stand apart from each other and pass a high-intensity flashlight back and forth at eye level. If the air was then visibly dust laden, and the factory employed materials that were regulated as to the maximum dust concentration allowed, they would have to return and perform quantitative dust measurements. The visual principle employed was known as the Tyndall effect, first described by one Dr. John Tyndall in the late 1800s. It is basically a lightscattering phenomenon that allows one to visualize subvisible particles in the air that could not otherwise be seen with the naked eye. Examples of this Tyndall phenomenon would be the motes of dust that can only be seen in a beam of sunlight coming through a window or the dust in a movie theater’s air that can only be seen in the intense beam of the projector. After having learned this new tool in my classes in England, I began applying the principle whenever I taught students about toxic dusts. The model I used was a simple rubbing of the skin during a lecture session and
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tasking the students to visualize what was generally known to be a shedding of superficial skin cells common to all persons. In normal classroom light no student could see the falling cells. After darkening the classroom and turning on the projector beam, the same rubbing of skin on the back of my hand revealed a shower of visible particles only within the beam of the projector. The first trial using this technique was one against an asbestos-based packing-material manufacturer. The defendant’s strategy was to convince the court that no asbestos was released from its product during anticipated routine use. After subjecting its product in the laboratory to conditions simulating “normal use,” the segment of packing material was placed in a sealed environmental chamber and handled in the beam of an intense collimated lamp. The experiment was videotaped, and the shower of particles was captured for posterity! I was called to court, in rebuttal,10 to present this new evidence as a challenge to the claim that the product did not release asbestos into the air. So as not to prejudice the jury until the court had an opportunity to rule on the admissibility of the evidence, the videotape was shown only in the judge’s chambers. The judge was clearly surprised at being able to see what had been only alluded to in prior evidence. He turned to the opposing counsel and said in the most sarcastic tone I’ve heard from a judge, “And you represented to this court that your product would not release asbestos?” The video was played to the jury in tandem with my testimony explaining what was being visualized. After a short period of deliberation the jury came back with a $350,000 verdict, and my videotape-production career was launched. After that trial, literally dozens of other asbestos-containing products were tested in the Tyndall chamber. Other industrial hygienists and material scientists have duplicated this technique and have used it in trials throughout the United States. Dr. Tyndall has had a rebirth in the scientific world!
Is That My Pubic Hair? In the early days of my criminal forensic experience, I developed a kit for collecting rape evidence from a victim.11 As a result, I was contacted by a criminal defense attorney who asked me to work on a case of alleged incest between a grandfather and his young granddaughter. The case was being charged by the local district attorney and child-protective-services unit. The child was examined after the grandfather’s arrest, and it was determined that there had been vaginal penetration and tearing. During this examination, within her labial folds was found what appeared to be a pubic hair, which on an 8-year-old girl would have been close to impossible.
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In the early 1970s, DNA testing had not yet found its application in criminalistics. Even if a root ball was present on the hair shaft, the only available test methodology was to make a comparison of the hair scale pattern and that of one taken from the accused. Getting a court order to pluck the evidence was unnecessary, as we were trying to exonerate the attorney’s client. A visit to the county jail revealed a sad old man who appeared in total denial and dismay. Explaining what I needed from him was an effort beyond what my hourly fee demanded. Remembering that I was responsible for the chain of custody, I personally extracted several samples to be analyzed back at the laboratory. The procedure for this analysis (as I was yet to hone my skills on the scanning electron microscope) was to make a translucent cast of the suspect and evidentiary hairs onto millimeter-thick Lucite sheets. The hairs were sandwiched between the Lucite and a microscope slide and gently heated to allow the Lucite to cast around the shaft of the hair and imprint the scale pattern. After completion of the hair preparations, I examined them under a comparison dual microscope and was surprised to find they were almost a perfect match. My report was not what the attorney desired to hear, but it made his efforts toward a plea bargain much more rapid!
Redwood Blues With the coming of the winter rains, a 36-year-old woman decided to protect her beautiful wooden patio deck against the elements. She proceeded to the local home-improvement center to purchase a “sealer” for her deck. The sales associate recommended a top-of-the-line product that he guaranteed would do the job. She took the sealer home, applied it according to the manufacturer’s directions, and believed that after it dried the deck would weather any storm without worry. She waited one day after the application, and the deck still wasn’t dry. She waited two days, four days, a week and the deck was still sticky and not able to be walked upon. She returned to the center and found the same young salesman who sold her the sealer. His five-minute analysis suggested that the sealer she used was incompatible with the previous coating used on the deck. He then sold her 10 one-gallon cans of pure acetone, which he warranted would be the quickest means of removing the sticky, nondrying sealer. The woman obediently took the acetone home and proceeded to scrub the 1500-square-foot deck on her hands and knees with containers of acetone. She had to pause occasionally, as the vapors of acetone were so thick that they made her a bit woozy. Than night she slept well and woke up with a bit of shortness of breath. As the day progressed, her difficulty with breathing got worse, and by week’s end it was so severe she finally went to the doctor. After the doctor listened
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to her chest, she was immediately admitted to the hospital with a diagnosis of noninfectious pneumonia. A week of hospitalization, diagnostic testing, and medication, and she was released to her husband’s care and concern. Her mental functions left something to be desired. She was readmitted to the hospital and was under the care of a neurologist, with a diagnosis of organic brain damage with short-term memory loss, subsequent to the hypoxia of pneumonia. In layperson terms, the acetone irritated the lung to the point it wept into itself, cutting off her oxygen supply to the brain. The suit that followed required an expert to explain how “one of the safest solvents” could cause such a problem, and whether anyone had adequately warned her of any danger. Acetone is a reasonably safe solvent when used with appropriate precautions, with one of the highest allowable airhealth concentrations permitted in a worker’s breathing zone. The warning on the can addressed two issues, the extreme flammability and the health effects related to vapor intoxication. A detailed analysis of the labeling inadequacy came first, and second was developing an understanding of how such a massive exposure occurred. As a trial date approached and deposition testimony revealed what would be presented at time of trial, the solvent manufacturing and packaging defendants scurried to make settlement offers that rapidly resolved their part of the case. The last remaining defendant, the home center and its sales associate, who were named as a party to the action, stated their defense: “Those who use a do-it-yourself product are sophisticated users and should have known the risks!” This theory was quickly dispelled with a showing of the center’s advertising copy stating, “If you don’t know, we’ll help you through it!” The primary rationale for suing the associate was to invoke the recognized legal doctrine of respondeat superior, “let the master answer.” Again, in lay terms, it suggests that any actions of the associate are under the control and direction of the center management, and the center was negligent as it either knew, or should have known, what its associate was recommending and how safe those recommendations were!
The Bull-Riding Roofer A large apartment complex was being reroofed with asphalt over the course of several weeks due to the staggered topography of the three-story-high multistructured buildings. Each section of the complex had a flat roof surface covered with large gravel over the built-up asphalt base and with no parapet at the roof edge other than a 4-inch shoulder. In order to reroof the building the commercial roofing company would have to remove the gravel from the asphalt surface prior to applying another layer that would seal the roof against
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weather elements. The tool the company used was a device that looked like a gas-powered lawnmower on steroids. The blade’s circular motion over the gravel would dislodge the rocks from the adhering asphalt while the operator hung on like he was wrestling a bucking bronco. The accident occurred during the course of work when a gravel-removal worker was running the machine at the edge of the roof. He was jostled off his footing, over the side of the building, and onto a sidewalk three stories below. The eventual lawsuit, brought by the neurologically damaged and paralyzed worker, was against the homeowners’ association and the manufacturer of the gravel-removing machine. The main purpose of my involvement as an expert witness was to deal with the adequacy of any warnings regarding the use of the machine and the issues of premises safety pertaining to the building owners. The warning issue was hardly an effort, as the operator’s manual and any labels on the machine totally ignored the issue of vibratory action and use at the edge of the roof. The premises safety issue was a bit more complicated. In my role as a professional safety engineer, I opined that the building should have been built with a full parapet to protect a variety of workers who were required to do maintenance on the building’s rooftop units. During my cross-examination by the building owner’s lawyer, at the end of a full day of testimony, the judge suggested a recess until the next morning. The lawyer begged for one final question, a question he knew he could leave in the minds of the jury before the recess; the judge agreed. The question directed to me was, “When should the building owners have known of the need for a parapet, and when was this need first published in the literature?” As the courtroom cleared I was left with this question and all night to come up with a suitable answer. That night I was without a clue as to when or where a requirement was first described or if it had ever been described previously. The idea of a parapet was just good common safety sense on my part, and now I had to prove to the court that there was actually some foundation for my reasoning. While taking a break in my frantic search through the safety literature in my library, I began to browse through a pile of new computer-software programs collecting on my desk that I would be reviewing for a computer column I was writing. The first program I put into the CD drive was called The Word. It was a keyword-searchable version of the King James Bible. On a lark, I typed in roof and safety, and up sprung Deuteronomy 22:8, which answered my prayer: “When thou buildest a new house, then thou shalt make a battlement for thy roof, that thou bring not blood upon thy house, if any man fall from thence.” The next morning, when the court reconvened, my cross-examination continued with the attorney repeating the same question he had asked the
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evening before. I calmly answered, “The first publication of the need for a parapet was when the Book of Deuteronomy was written.” With his mouth hanging open, I read the passage to the jury and sat quietly to a hushed courtroom. The settlement amount in our favor was very large!
Don’t Shake My Hand Infectious hepatitis can be transferred by hand-to-mouth contact, and most frequently occurs as the result of humans shedding the virus in their stool and subsequent poor bathroom habits and hand washing. I was contacted by an attorney who represented a mining operation in the Central Valley of California. The mining operation was essentially stopped due to an outbreak of hepatitis in the workforce, and eight cases of workers’ compensation claims had been filed for medically documented incidents of the disease. After flying and then driving into the desolate California foothills I found the entrance road to the mine. Pushing my rental car stealthily up a winding mountain dirt road, I came upon a mining operation that looked like it was held together with baling wire and chewing gum. The buildings were covered with very fine dust, as were the parked vehicles scattered around the buildings. I saw no designated office entrance, so I began looking for some sign of supervisory personnel with whom I could connect. This was easier said than done, as everyone I met was equally covered with dust; obviously there was no hierarchical discrimination. When I finally found and greeted the foreman he took me on a tour of the mining operation. The substance being strip-mined, diatomaceous earth granules, was brought to the site in huge dump trucks. The material was dumped in hopper bins, sorted as to size of granules, and bagged for retail sales. At first, I thought my assignment was misdirected and I’d forgotten to bring all of my silicamonitoring equipment. But alas, my task was seeking out the potential source of hepatitis, and so I turned a blind eye to the omnipresent dust carrying what I imagined to be an inordinately high silica content based on the geology of the area. My primary role in this case was to advise the attorney on the merit of the hepatitis claims and what possible route of infection might have been avoided by his clients. My first clue that this would be a very short consultation was my introduction to the company restroom. When I asked to see the employees’ restroom facilities, the foreman indicated there was only one restroom and it was both unisex and nondiscriminatory between management and the labor force. In fact, when I finally was shown the restroom location, it was nothing more than a “porta-potty” located between two buildings. Upon closer examination, the inside of the porta-potty was nothing more than a
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platform seat over a barrel of chemicals. My immediate response was to ask the foreman where people washed their hands, and he pointed to a freestanding inverted 5-gallon bottled-water dispenser. He gladly demonstrated his dexterity in washing one hand while depressing the faucet button, and then switching hands to deal with the unwashed hand. Some cases are easier to solve than others! Hepatitis is obviously passed from hand to hand when bad toilet habits cannot be controled with proper sanitation. Further inquiry of the foreman also identified that the bottled water was the only source of water on the property. My recommendations were swift and to the point: multiple porta-potties with water, sinks, and soap built into the units, sufficient in number to accommodate the workforce. Eventually, the company would need to introduce a water tower and imported supply to sustain an otherwise profitable operation. I left the property after debriefing the foreman and telephoning a report in to my client. I still remember the look on the foreman’s face as I drove away from the facility having refused to shake his hand!
The Lethality of Human Poop We all know, unless we’re totally oblivious to our surroundings or lack of the sense of smell, that human excrement has a unique pungent property. The aroma we detect is directly related to the microbial decomposition of the things we eat. The two major gases produced in this fermentation process are methane and hydrogen sulfide. Methane burns and in high concentrations will violently explode, but hydrogen-sulfide gas is actually the more dangerous of the two from a health standpoint. Fecal matter contains sulfur molecules that are processed by the microbial populations in the excrement, and produce the gaseous by-product hydrogen sulfide, which is commonly recognized in low concentrations as the smell of rotten eggs. In higher, lethal concentrations, the gas paralyzes the olfactory senses and can generally kill as it goes undetected. I was called into this case by an attorney representing the parents of a young man who was killed on the job while servicing equipment at a Midwestern city’s solid-waste treatment plant. The company he worked for did maintenance work on mechanical systems of various sorts for municipalities throughout the state. One morning, he was assigned to unblock an underground bar-screen operation, which filtered out solids from the waste stream. This operation was built into a subterranean cement vault through which flowed the effluent stream of partially digested excrement. After entering the vault and working for a few minutes he was overcome by the hydrogen-sulfide gas and died. The cause of death, attributed by the medical examiner, was hydrogen-sulfide poisoning.
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My task was to determine the source and concentration of the hydrogensulfide gas and, more important, what the city should have done to safeguard the premises and warn contractor personnel of the lethal hazards. During the investigation, I noted that the interior of the vault was riddled with pock marks in the concrete. The corrosive action of hydrogen sulfide on concrete is well-known to chemists and those in the industrial-hygiene field, and this explains the appearance of the vault’s interior. I also found no evidence of monitoring equipment or sensors that could alarm if concentrations were raised to adverse health-effect levels. My job was made even easier due to the absence of any warning signs or posted cautions about the lethal gas potential of a process that has, as its major component, fermenting excrement! The wastewater industry is well aware of the potential danger from the generation of hydrogen sulfide, as is clearly warned in their publications. Occupational health and safety laws clearly have statutes dealing with what concentrations are prohibited under the law. Yet, no one in the city nor the management of the plant operation took an affirmative role in preventing conditions that could lead to a death such as had befallen our client’s son. During the trial the testimony was focused on showing that the premises were defectively designed and thus directly responsible for the lethal conditions under which the city asked contractor employees to work. Even the most hazardous and defectively designed conditions can be worked safely if sufficient and effective warnings exist to prepare workers for personal protection and isolation mechanisms of control. The city was held to have been negligent in the maintenance of their premises.
Lipoid Pneumonia Doesn’t Mean “Fat Lungs” It has been said that those who do not learn from history are doomed to repeat it. This is dramatically true in the field of occupational health and safety. The lessons of years passed do not seem to be handed down with the technology they follow, and this is particularly true of the processes used in today’s industrial world. I still remember my father’s workshop, with a greasy old oilcan that would make any number of tools work smoother and quieter with just a drop or two of its contents. Today we have aerosol cans that speedily apply all forms of lubricants, from liquid lithium grease to synthetic penetrating oils. Some of the spray goes onto its intended target, and some of it is inhaled by uncautious users during application. Once inhaled, the tiny aerosol droplets of oil are easily distributed into the depths of our lungs. When the microscopic oil droplets are comfortably situated in a warm and cushioned air sac, our lungs begin to resent their presence and send their garbage-collection cells (macrophages) to gobble them up and take them away. The tragedy of this scenario is that with too many of these microscopic
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droplets in the lung, the army of macrophages is so large that they wallpaper the walls of the air sack and cut off the flow of oxygen to our blood stream. This condition is called lipoid pneumonia. Lipoid pneumonia is no new kid on the block. It has been known down through the years in candlemaking, tallow rendering, painting, metalworking and other occupations that spray or splash oils into workers’ breathing zones. It is also one of the most misdiagnosed diseases in medicine because physicians are taught that pneumonia is a condition of the lung filling up with fluid. The rapid diagnosis is by X-ray, through which the infiltrators can be visualized as foreign to the lung. In contrast, when macrophages fill in they are invisible on an X-ray because they are normal to the lungs. I became involved in a case involving a massive outbreak of lipoid pneumonia in patients who were misdiagnosed with everything from the flu to bronchitis. These workers were all involved in cleanup of a major oil spill in Alaska. Huge contracts were doled out to firms who would clean the waterways of the oil sludge and residue in order to resurrect the fragile environment. Hundreds of workers were brought up from the lower 48 states to fight the mighty battle. Crews worked with steam-equipped boats and hoses to spray the oil off the rocks and shoreline with a heated force necessary to soften the crude-oil sludge. The combination of steam and pressure created a saturated oil mist for all to breathe with little or no respiratory protection. Lipoid pneumonia ran rampant, as was revealed during the litigation discovery process. The lead plaintiff suffered not only from lipoid pneumonia but also from subsequent organic brain damage caused by a diminished supply of oxygen to the brain. How difficult can it be for sophisticated oil company medical personnel and supervising industrial-hygiene contractors to recognize that spraying oil in the breathing zone of workers will result in lipoid pneumonia? It is my guess—though I really shouldn’t speculate—that they failed to heed the lessons of the past, and the multimillion-dollar verdict proved that they are doomed to repeat it. Enough of my war stories. I could go on for double this number of pages, with my 30 years in the business, but you are probably already asleep. As an expert witness you will never know the diversity of situations you are asked to explore until the phone rings and an attorney says, “I think I need your help.” If nothing else, they will make great bedtime stories to tell the grandkids.
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Do You Charge for Your Testimony? No, I Charge for My Time!
The Fee Structure When testifying, the primary responsibility of any expert witness is to listen carefully to each and every question and to respond to the question with a full and complete answer and nothing more. Regardless of what some people think, listening, when done carefully, takes a lot of work—and that work, like any other, deserves payment. I can’t count the number of times I’ve been asked the question, “Do you charge for your testimony?” This question is usually an attempt to make you look like a paid gunslinger whose testimony can be bought. And, of course, the appropriate response is, “No, I charge for my time, not my testimony!” Fees are sometimes a touchy subject, which makes the jury aware of just how costly the legal system is to them as individuals and society in general. I’ve often pondered about how the jury would interpret the fee structures charged by experts in light of the typical salaries earned by most jurors. These fears are apparently unfounded, as most media-savvy jurors are very knowledgeable about professional salaries and litigation costs. In addition, as the trial progresses, this same question about fees will be asked of the expert witnesses on both sides and responded to under penalty of perjury. Again, the truth is the truth, and what you are paid is a matter of the court record. Fees are normally broken down into three main categories: (1) fees for case retention, (2) hourly rates, and (3) fees for special projects or investigations. When I began to do expert witness work in the early 1970s, I stumbled 105
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over fee and collection issues a number of times until I was lucky enough to be coached by an older, more seasoned criminal-forensics expert. He suggested developing a “case retention” policy, an “hourly” rate for consultation or investigation, and rates for any special projects or literature research that might be done on behalf of a client. This helps to smooth over the hurdles of accounting and slow-paying clients. Contracts, Retention, and Consulting Agreements Some litigation consultants require elaborate contracts, while others work on a handshake basis. Whatever your comfort level you should have an appreciation for the plusses and minuses of each form of doing business. At the beginning of my consulting and litigation-support practice I used a consulting agreement that spanned two pages of tiny print and all conceivable contingencies. I’ve placed a generic version of that old consulting agreement in Appendix C that you can freely copy or modify if you desire to use such a document. You may want to lift a paragraph or two for inclusion in a document you already use or adapt the whole agreement to your individual needs. This agreement was written by a lawyer and covered more things than even I fully understood. I haven’t used it in the last 15 years. Currently, I only have three fee scales: (1) retention fees, (2) deposition fees, and (3) trial fees plus expenses. This doesn’t require contract language; I can easily relate it over the phone and if needed for some third-party payer’s bookkeeping I can write a one-page, two-paragraph letter to cover it all. Let the punishment fit the crime! Retention A retainer is a prepaid amount agreed upon to retain someone’s services. In the case of the expert witness it covers the time spent on any submitted materials to be read and it becomes the contractual relationship between you and your client in the specific, captioned case in question. The amount of reading to be covered by the retainer fee should be delineated prior to any commitment to accept the case. It is my policy that for the single-case retainer I will read one or two volumes of deposition, opposing expert medical and/or scientific reports, and any legal documents that contain relevant information to my testimony. A retainer-reading caution that should be considered by any prospective expert-witness candidate is the format of the material to be read. Depositions come in either “full page” or “condensed” versions, and the condensed, small-type copies are much more difficult to read because four normal pages are condensed onto a single 8.5" × 11" piece of paper. Another area bearing discussion is the size of the deposition. I have, in the past, been told that only the plaintiff ’s direct videotaped deposition was being
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sent. When I received the material I discovered, however, that there were 11 volumes of condensed deposition, each containing 200 or 300 pages. This goes beyond the retainer commitment and if the entire set of volumes must be read, an hourly charge is added and billed. I have also received, in electronic format, close to a gigabyte of data that represented everything in the client’s electronic file system—far more than I could use or was willing to read for the retainer fee stated. Communication with your client is both demanded and appreciated; if you don’t take advantage of it, you will regret not doing so! It is important to note that on occasion your attorney-client will send you original documents to review. This should be discouraged whenever possible due to the potential for losing or damaging irreplaceable materials. If you do end up with originals, review them with the caution appropriate to these court documents and return them via a traceable courier-delivery service as soon as possible. Upon completion of the reading, the retainer funds are exhausted, and all additional assignments are charged separately. If additional reading of deposition materials is required, you should inform your client that the “meter will be running” at your hourly rate. Another aspect and advantage of the case retainer is that contractually your client now has your permission to “disclose” you on the court-required expert-witness designation, which is shared with the opposing counsel. Another aspect of retention can be conflict prevention. In some cases you may be retained in a case not for your expertise but to keep you from being used by the other side. This can be discussed overtly or be done without your knowledge. An indication of this pseudo-retention is when a check arrives without materials or direction for the work that is desired. When this situation arises, you may still be called by the opposing counsel as a hostile witness at time of trial. Hourly Fees It has been my experience that hourly fees should reflect the specific case and exact nature of the work being performed. The hourly rate for deposition is based upon the number of hours, or any part of an hour, consumed by the moving party.1 In some cases, there may be deposition or trial preparation time which will be billed as a separate line item on your invoice. If at all possible—and this is generally considered a reasonable request—ask for a semiquantitative time commitment for a deposition session. This will allow both you and the various participants at the deposition to allocate and block the time. When informed that approximately two hours is needed for deposition, I block two hours of my time and expect to be compensated for the
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time used. If then the deposition goes for one-and-a-half hours, the attorney taking the “lead” in the deposition pays for the full two hours. If it only lasts one hour, then only one hour is paid. This, of course, is not possible during trial, as the ebb and flow of testimony and procedural tasks will then dictate the pace. Many jurisdictions will have local rules or codified fee considerations that you should know before going into the field of expert witnessing. You can see in Appendix A, the California Evidence Code on Expert Witnesses, that fees and payments are strictly regulated. An expert’s fee must be paid at the time of the deposition or within five working days. In the event of the deposition being held telephonically (as is permitted in some jurisdictions) you are entitled to your first hour’s fee prior to the day of the deposition. In the area of California workers’ compensation cases, expert fees are limited to $200 per hour by statute. Unlike time-and-charges billing in civil-court actions, experts in workers’ compensation cases will charge for separate preparation time in addition to hourly deposition or hearing fees. Unique Billing Situations Special projects or literature-research time pose special considerations, as each task may vary with the nature of the case. It has always been my practice to identify the potential cost of a project to the client prior to the project commencing. Without this prior approval, fee collection often becomes a lesson in minutia justification. If the subject of the study requires an innovative design for an accident simulation as opposed to expert-witness research hours in a biomedical library the time and costs will be more extensive. These are the details the client needs to know and accept before committing to the work. Attorneys typically bill for all increments of time spent on a case, including telephone time. I have always offered all my past and current clients full access to telephonic consultation without charge. Some calls are brief, others go on for many minutes, but I consider my ability to answer questions or offer direction as something of a marketing tool; phone calls are free, other work is billed! Fee Bases Expert-witness fees typically reflect levels of experience, familiarity with court testimony, and academic or professional credentials. Rates for medical testimony vary from $250 per hour to $5,000 per day. Scientific testimony varies from $75 per hour to $500 per hour, depending on the area of specialization. In the field of industrial hygiene and safety, fees generally go as high as $400 per hour, but vary with the time period and conditions of the economy. As this book ages, the above figures will vary, so network with
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other expert witnesses to get a better and more current appreciation of prevailing fee structures. The Declaration of Fees On occasion, an expert witness may be asked to prepare a declaration in support of some motion, or an opposition to a motion, brought before the court by your client or the opposing party. The preparation of a declaration can involve a little or a great deal of effort on the part of the expert witness. Your client, the attorney, may prepare a draft declaration for you to correct and sign, or you may be asked to write the declaration from scratch. In either case, if you expend the effort required to read, revise, write, and correct any inaccuracies in the text, you deserve to charge a fee for this work. A point to remember regarding declarations and their signing is to read them carefully before you sign them. What you declare under penalty of perjury on paper has the same effect as if you were testifying in trial! Billing Practices You cannot expect your client to pay a fee without some form of invoice or letter of demand. When your work has stretched over several weeks or months do not wait until the case is finished before billing. Timely billing is always appreciated and generally elicits prompt payment. In today’s era of computerized stationary generation it should be no problem to formulate a one-page invoice template that can be filled in and then presented to the client for payment. The invoice should include the business name (what you call yourself or your company) and an address where funds can be sent. In the ever-present IRS world in which we live, you may also save time and avoid slow payment by indicating your tax identification number. Without a tax ID number you will have to submit your personal Social Security number, which I avoid doing whenever possible. Obtaining a tax ID number is a simple, single-form request of the Internal Revenue Service. If the fee is governed by a statutory time for remittance, which is the case in some jurisdictions, this should be your guide for following up with another “past due” invoice. I generally allow five working days (as is statutory requirement in California) for deposition payment and one month on other fees before beginning any action, and this is based upon my published terms. On my invoice it indicates, “Fees are net 30 days, unpaid accounts will be charged 1% per month plus any collection costs.” This tends to expedite payment in most cases. When on occasion it doesn’t, I end up going into a “collection mode” to settle accounts.
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Collecting Your Fees On amounts under $7,500, the current jurisdictional limit in small-claims court in California, I undertake my own collection strategy. The small-claims court looks for certain procedures to have been tried prior to bringing an action. These procedures include several attempts to effect collection by either telephone or demand letter. My policy is to call twice and write one letter of demand before filing in small-claims court. I have unfortunately had to sue several attorneys in this way but have found it a reasonable and very rapid way to bring about payment. I have often been asked if I will work for attorneys who have been slow to pay, and the answer is yes. Most lawyers and law firms are very busy and your fees are just one small cog in their wheels of progress. Lost invoices or other distractions can happen to anyone! One aspect of small-claims actions is that very soon after being served with court subpoena papers, a check is almost instantly forthcoming. I learned, after suing an attorney for the first time, that when a judgment is issued by the court, it apparently goes on their record and follows them until you acknowledge satisfaction of the judgment.
Pro Bono Work A seldom-recognized aspect of professional life is the obligation to give back to the community that has given you benefit in the past. This is true in law, medicine, and other professions, and is called pro bono activity.2 I make it clear to the clients that use me on a repeated basis that I am happy to take on a pro bono case whenever the attorney is also extending herself in a pro bono mode, and the opportunity does arise. I can only say from experience that expert-witness work has been good to me over the years, and I believe that one good deed deserves another!
Workers’ Compensation Reports Unlike work in civil cases, the role of the expert witness in a workers’ compensation case often requires a report to a workers’ compensation appeals board or similar entity. When this report is generated it is a part of the retainer fee and is not charged separately. The reason for this difference in fee structure is a diminished amount of review by the expert witness to address the specific questions posed by the client. The expectations of the civil case may encompass an entire life’s work history of exposures or a detailed reconstruction of a defective products failure. By contrast, in the average workers’ compensation case I am generally asked to evaluate only a single employer’s
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potential for exposure or injury and assess whether the evidence reflects any statutory negligence. This difference clearly separates the civil fee structure from that applied to workers’ compensation. Collecting workers’ compensation fees for deposition can be a particular problem, as most attorneys who defend these cases work for a variety of insurance companies. They will submit your bill to the insurance carrier, and it may take weeks or months to receive payment. To manage these collections I’ve begun using a petition for payment process sent directly to the presiding judge of the appeals board for the venue of the case. Samples of the three forms I use—a cover letter, a petition for payment, and an order for payment—can be found in Appendix C.
Travel and Other Expenses Not all cases are venued in your own neighborhood. If you must travel to a distant location and incur hotel, cab, flight, or any other expenses they are charged to the client. I offer my client an array of variables with regard to choice of accommodation. When a flight is necessary and I must travel on, for example, a Tuesday to testify on Wednesday, I offer the client the option of being charged for two consulting days plus travel-direct expenses or paying one day and first-class airfare and per-diem expenses. As I slide into the twilight of my expert-witness career, I need the evening of rest prior to trial to equilibrate and be ready for a day of testimony. When I was younger, I could take nighttime “red-eye” flights or arrive an hour or two before trial and be ready to go. Today, however, the machinery is a bit more rusty than it once was! When requested (though I find it seldom is) by a client, some form of detail or listing of expense items will have to be submitted. Putting together a quick spreadsheet template can simplify and expedite input of items and amounts during a busy schedule.
Cancellation Fees Your time is as valuable as that of any other professional, and you deserve to be compensated for it. I consider that allotting time out of my day and busy schedule is equivalent to performing work. The reason for this is that if I had not committed time to the scheduled task, I could have done some other gainful work. To that end, I’ve developed a cancellation policy. I make sure that the client is fully aware of the policy and that charges will be billed if the commitment is not completed. My cancellation policy states that no charges will be billed for any trial or deposition appearance when 48-hour
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advance notice of the cancellation is received. If a trial day is cancelled with less than 48-hours’ notice, a trial fee is billed. If a deposition is cancelled with less than 48-hours’ notice, one hour of deposition fee is charged. A quagmire that you will want to avoid is the arrangement of contingency fees. If your fee is based upon the outcome of the trial, it is hard to avoid the inherent bias of wanting to win and therefore wanting to be paid. Contingency fees have been structured (so I have been told) in one of two basic ways: (1) there is a minimal fee charged for work and then a bonus expected upon a successful outcome of the trial, or (2) by keeping track of your time, and through charges at your customary rates, you will be paid in full if your client wins; if not, fees will be negotiated. I strongly advise against both types of contingency-fee structures, as they turn you into an advocate for your side. Regardless of your trial demeanor this will be obvious to everyone in the courtroom. My suggestion is to fairly base your fees and only work for an advance retainer and no less than monthly billing and payment for hourly work. Do not take on a case for which you question your ability to do a good job, as your reputation is the most important commodity you possess.
Privacy versus Disclosure In trial on the witness stand, you will be asked many questions that are designed to bolster or diminish your credibility in the eyes of the jury. One area that is still reserved, on privacy grounds, is your annual income. You can be asked what percentage of cases you do for plaintiffs versus defendants, and what you charge for your time in trial and deposition. You can be asked about the frequency of your litigation work, but not about how much you earned from litigation support in the past year, or what your taxes were in that year. The busier you are, the more cases you take on, the more rigorous the opposition’s attack will be on your income as a result of litigation support. The work of the expert witness is considered to be lucrative, challenging, and frustrating. Your fee structure will evolve over time, and will continually reflect the changes and growth of your ability, your past experience, and your trial presence. Charge a fair amount for the work you do and your fee will seldom be challenged. There’s and old Russian saying (roughly translated from the wisdom of my dear departed father): “Pigs come out last!” Sustaining my expert-witness practice over the past 30 years has resulted from reasonable charges that were not the highest nor the lowest in my field. Of course, what I consider reasonable might be characterized by others as “high end,” but you get what you pay for!
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17
CHRISTOPHER E. ANDREAS
I am a plaintiff ’s attorney practicing in San Francisco, CA. During the past 10 years, I have tried in excess of 40 personal-injury cases to verdict. My practice is focused on representing individuals suffering from asbestos disease. While settlement is always preferable, a trial by jury is frequently necessary to achieve justice and full compensation for my clients. The men and women I represent either worked in residential, commercial, industrial, and maritime construction during the 1940s through the 1970s, or were family members with household exposure. They were unwittingly exposed to hazardous levels of airborne asbestos while working with or around asbestos-containing products. Invariably, this work was performed without benefit of respiratory protection or the most rudimentary dustcontrol measures. As a consequence of their past exposure to asbestos, rather than enjoying retirement, my clients instead face incurable disease and premature death. Unfortunately, many of the people I represent die prior to trial. Those who do survive have courageously battled through unimaginable pain and emotional distress to present their case to a jury. Quite literally, the trial will be the final chapter in their lives. A favorable verdict means more than simply winning; it means peace of mind for these men and women. A positive verdict permits them to die with the knowledge that their loved ones will at least be financially secure when they finally give up the good fight. Against this backdrop, I cannot help but be acutely aware of what hangs in the balance every time I step into the courtroom. The pressure to win is tremendous. Losing is simply not an option. 113
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Trial Basics A trial is in many ways analogous to a theatrical production. The parties, witnesses, judge, and even the court staff perform for an audience of jurors who will ultimately render the penultimate critique. Just as a Broadway play or musical cannot be staged until the director has assembled a capable cast and crew, a trial cannot proceed until the trial lawyer has identified necessary witnesses and prepared them to testify. The trial lawyer, like the director, can ill afford awkward gaps once the curtain rises. A seamless presentation is an absolute must, for there is no such thing as a “redo” when it comes to either a trial or a Broadway production. In a civil trial, the plaintiff bears the burden of proof. The plaintiff ’s attorney must introduce evidence establishing that the facts giving rise to his client’s legal claims are more likely to be true than not true. This burden of proof is sometimes referred to as the preponderance of evidence standard. As California’s jury instructions define it, “Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.” Testimony is typically provided by live witnesses at the trial. However, the testimony of an ill, deceased, or otherwise absent witness may also be presented via deposition or prior trial testimony. Fact witnesses, also known as percipient witnesses, testify about what they personally saw, heard, or smelled. They are not, in most instances, permitted to express opinions while testifying. In contrast, expert-witness testimony is almost always presented in the form of an opinion. Expert witnesses rarely have personal knowledge of the underlying facts in a case. This is not to say that an expert is free to disregard the facts. Indeed, expert opinions are only permitted if they are rationally based on the facts and derived from analytic methods that are generally accepted by mainstream medicine and science. Percipient and expert witnesses play pivotal roles in every trial, but in my cases the testimony of a credible, well-qualified expert witness is frequently the deciding factor for many jurors. In the following sections I will discuss some of my experiences with expert witnesses, both positive and negative. Although the focus will be largely on industrial-hygiene experts, I firmly believe that potential expert witnesses from other scientific disciplines will also benefit from hearing about the good, the bad, and the ugly.
The Good What constitutes a “good” expert witness? This is not as easily answered as you might think.
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Inevitably, conflicting expert opinions will be presented during the course of a trial. It is, of course, the jury’s task to resolve such conflicts. Jurors are instructed that they need not accept the opinion of an expert. Rather, they can choose to believe all, part, or none of an expert’s testimony. An expert’s qualifications, biases, demeanor, and methodology figure prominently in such an assessment. It is therefore crucial that the trial attorney select expert witnesses who are not only well-qualified to render the opinions they impart to the jury but equally capable of withstanding the sometimes withering attacks leveled against them by opposing counsel. In my cases the jury must be educated about asbestos in order to appreciate just how hazardous it was for my clients to work with and around it. I rely on the expert testimony of an industrial hygienist to accomplish this goal. There are very few industrial hygienists presently alive—much less practicing—today who actively worked in the field when asbestos-containing products were still being manufactured, distributed, and used in this country. At first blush, this may not seem to be a critical distinction. After all, industrial hygiene has recognized asbestos as a workplace hazard and trained its adherents on the subject for many decades. However, I have learned that presenting the opinions of an industrial hygienist with “real world” asbestos experience can literally mean the difference between winning and losing at trial. Over the years, I have retained the services of several well-qualified industrial hygienists to testify at trial. In each instance, the choice was made on the basis of their experience specific to asbestos. My direct examination of an industrial hygienist begins with a thorough discussion of his background, training, and experience. I pay particular attention to the work he has done on behalf of governmental agencies as well as corporate clients involving asbestos-hazard identification and control. The fact that my expert was previously retained outside of litigation by former manufacturers and distributors of asbestos-containing products is not lost on jurors. Perhaps more important, the industrial-hygiene experts I retain are recognized by their peers as experts on the subject of asbestos. They have authored book chapters and articles in peer-reviewed journals, and have been consultants for regulatory agencies regarding the hazards of asbestos. Major universities invite these experts to teach the next generation of industrial hygienists, toxicologists, public-health professionals, and physicians about asbestos so that they will be equipped to deal with the scourge of this latent hazard in the future. The following excerpt from a recent asbestos trial demonstrates how an expert’s background and qualifications can and should be highlighted for a jury.
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Q: Are you presently employed? A: Semiretired. Q: From what occupation did you semiretire? A: I retired from the state of California in 1998. I was with the Division of Industrial Relations, a section called Cal/OSHA. Q: And what was your position with Cal/OSHA when you retired in 1998? A: I was a safety and hygiene inspector, industrial hygiene and safety inspector. Q: Let me get you to define those terms up front if I might. I guess we’ll start with safety. What is the role of a safety inspector? A: A safety inspector deals with the industrial hazards that a worker might be exposed to that are readily observable; an unguarded saw blade; a cord across a floor that somebody could trip on; some sharp objects; et cetera. Q: Were you, during the course of your career, licensed and certified in any way by the federal government or agencies within the federal government? A: Yes, sir. There were a number of certification programs which were necessary. One happened to be an association with something called the AHERA program: A-H-E-R-A, Asbestos Hazard Emergency Response Act, where the Environmental Protection Agency decided to regulate asbestos in schools and to help principals, administrators, and teachers to understand what construction materials may have been manufactured with asbestos that they should be aware of. Q: In particular, we asked you about some work that you’ve done. You mentioned Cal/OSHA. Any other governmental agency that you consulted for on the subject of asbestos? A: I’ve done a great deal of consulting for the Navy. I helped the Navy develop programs in asbestos with regard to shore-based
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facilities. Because, just like any other construction site or factory, the Navy has factories that incorporate asbestos into their buildings and into their processes. I also coauthored for the Navy Technical Manual on Asbestos that the Navy, I believe, is still using. And that technical manual was on advising what the Navy calls their maintenance department, it’s called the Public Works. In the Navy Public Works program, people were instructed on how to deal with asbestos, how to recognize it. And I actually was involved with the Navy in bringing samples of material from bases all over the world that the Navy had to analyze in my laboratory to see if it had or did not have asbestos in it so that Public Works people at those locations could know what precautions they would need if they went out and worked in those areas. Q: Have your publications appeared in peer-reviewed journals in your area? A: Yes, sir. Q: And have you served as a peer reviewer for others’ work? A: I have on occasion, yes, sir. Q: For journals in your field? A: Yes, sir. Q: Let me ask you about whether or not you have taught over the course of your career. A: Yes, I have. Q: In what areas? A: Well, I’ve taught both at the seminar level for professionals as well as the academic level in universities. I’ve taught—some of the first teaching I did was at the medical school at the University of California–San Diego. I taught a course called Industrial Toxicology for Physicians. Industrial toxicology is merely a course on industrial poisons, toxins, the things that would affect a worker. And asbestos was obviously one of the major ones that I taught as it related to particulate or lung inhalations. I also taught indus-
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trial hygiene at National University, which is a private university in San Diego. I taught at San Diego State. I was one of the founding faculty at the Graduate School of Public Health at San Diego State that opened in the early 1980s and taught industrial hygiene and a number of other courses at San Diego State. I also taught at UCSD, University of California–San Diego, at the School of Engineering. I taught industrial hygiene for hazardous-waste-management workers, persons who work dealing with hazardouswaste management who also needed to know how to protect themselves and their workers against industrial toxins. Q: Let me turn to consulting work now. Over the course of your career, outside of what you told us about how you consulted for the Navy and so forth, have you also consulted for private industry? A: Yes, sir, I have. Q: For how long have you done that? A: Thirty years. Q: Thirty years. Can you give us some sense of the types of companies that you’ve—that have retained you to consult with them on industrial hygienist and toxicology issues? A: Certainly. I’ve consulted for companies that were involved in asbestos manufacture and production: Garlock, W. R. Grace, KerrMcGee, Raymark, and other companies such as that who were actually manufacturing asbestos products. Q: You are here today to speak with the jury in a legal context. Have you done that over the years? A: I have worked in the area of what I call forensics, yes; legal litigation support, since the mid- to late 1960s. Q: And has it been all asbestos or other issues? A: No, sir. What I’ve been able to do is apply the scientific theory to cases that I’ve been asked to be involved in in the criminal area in a number of things such as that. When I was with the Navy as an enlisted person, the Navy sent me to pharmacy school, so I got
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involved in a number of cases involving pharmaceuticals and drugs, and that was part of the forensic work that I did, the criminal forensics. I then left the criminal area and got into something called product-liability litigation, where a product would fail, it would hurt somebody, it would do something bad, and someone would—an attorney would ask me to analyze that product to see why it went wrong, what was defective about it. And I did that for a number of years. And I started testifying in asbestos in approximately 1985—1984, 1985, as I was requested to talk about asbestos as one of many industrial toxins that might affect workers. Q: And in that regard, over the last 20 years or so, have you testified for plaintiffs and defendants both? A: Yes, sir. While background and qualifications are critical, the good expert witness must also present well to the jury. By that I mean that she must be able to engage the jury, grab its attention, and make it understand frequently complex—some might say less than stimulating—subject matter. With that said, it is simply not possible for a trial attorney to prepare an expert witness to be engaging or personable on the stand; either they are or they are not. I have found that expert witnesses who have taught at the undergraduate or graduate levels typically possess these intangible traits. It translates into a delivery that is both easygoing and professional at the same time. The good expert never talks down to a jury. She connects with jurors. Of course, the type of case involved will dictate whether a given expert witness is a good fit. If she possesses the requisite background, training, and qualifications and is able to deliver competent, well-reasoned opinions in a way that does not put the jury off, then you have what I would consider a good expert. The good expert makes a trial attorney’s difficult job easier because he has one less thing to worry about while juggling the many balls in the air during a trial. On the other hand, a bad expert not only makes the trial attorney’s job more difficult but presents the real threat of single-handedly “sinking” the case.
The Bad Just as it can be difficult to define what makes an expert witness good, it can be equally difficult to identify with any degree of precision that which makes an expert witness bad.
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I can honestly say that I have been blessed with the opportunity to present expert witnesses who fall into the good category. This assessment has been echoed by jurors after trial. To the extent that I have encountered bad expert witnesses it has been confined to the experts called by my adversaries. The greatest tool in the trial attorney’s arsenal for exposing the bad expert witness is cross-examination, either at deposition or trial. I have found that “trial cross” is the most effective means of exposing bad expert witnesses. A deposition attended only by attorneys and a court reporter is a poor substitute for the dynamic atmosphere of a courtroom, where the witness must respond to questions before a judge and jury. Whether they be percipient or expert, the simple fact is that witnesses always feel more comfortable testifying at deposition. The bad expert typically is less qualified to speak on the subject, evinces a clear bias, appears combative, and frequently is poorly prepared. While a skillful attorney can highlight these weaknesses at deposition, the courtroom is the venue best suited to exposing a bad expert. While there are many examples I could cite, the following excerpt taken from a deposition I took of a defense industrial-hygiene expert makes abundantly clear the difference between a good and bad expert witness. By way of background, this industrial-hygiene expert was produced by a Canadian asbestos-mining company defendant that supplied raw asbestos fiber to the manufacturer of the insulating cements that the plaintiff had mixed and applied in the U.S. Navy during the 1950s. His sole task was to provide an opinion or assessment regarding the relative significance of the plaintiff ’s exposure to his client’s asbestos fiber. Q: Who do you understand retained your services in this case? A: The—the law firm of Wilson Elser. Q: Do you have any understanding or appreciation as to who they represent in this matter? A: Um, I understand their client is Asbestos Corporation Limited. Q: What do you know about Asbestos Corporation Limited? A: Um, I was told that they, um, operated a chrysotile asbestos mine, and—for a period of time—and that they were the exclusive supplier of chrysotile fiber to Eagle Picher.
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Q: And you say that you—as far as this information that you just relayed about Asbestos Corporation Limited—that somebody told you about that? A: Yes. Q: Who was that? A: The opposing counsel. Q: Now, other than that discussion with the opposing counsel, do you have any other information about Asbestos Corporation Limited? A: No. Q: Do you know where their mine was located? A: I don’t know exactly. I believe I was told in Canada, but I’m not— Q: Do you happen to know where in Canada? A: Not a hundred percent sure. Q: To the extent you’re at all sure, do you know where in Canada? A: No. Q: Have you ever visited an asbestos mine, sir? A: I believe I have. Q: Where? A: In the central part of—of California. Q: Which—what was the name of that mine? A: I don’t recall. Q: When did you visit that mine?
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A: It’s been quite a number of years now. More than 15 would be my estimate. Q: What was your reason for visiting the mine? A: I seem to recall that the—the mine was being closed at the time, and they were converting it to an asbestos landfill. Q: And what was your role? A: That’s my recollection, at least. I’m not a hundred percent sure, but I seem to recall—it’s been a number of years now. Q: What was your role in visiting the mine? A: I—as I recall, it was just to see the operation as it was being set up. More of what I’ll refer to as kind of a marketing-type visit. Q: What does that mean, a marketing-type visit? A: I think that the mine wanted to, um, demonstrate that they had, um, established certain procedures for handling asbestos waste and—and they wanted individuals to, um, recommend use of that mine. Q: I guess my question at this point would be have you ever visited an asbestos mine that was operating and producing asbestos? A: No. Q: I take it you’ve never visited an asbestos mine in Canada. Is that fair? A: Yes. Q: Have you ever seen any products manufactured by Eagle Picher your entire life? A: I don’t know. I may have. Q: Sitting here today, you can’t tell me that you have. Is that correct?
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A: That’s—I don’t know one way or the other. Q: Have you ever observed insulation mud being mixed, and that being insulation mud with asbestos? A: Yes. Q: When? A: Um, numbers of times. It would be in the early ’70s. Q: Okay. And what was the circumstance—what were the circumstances? In other words, why were you in a position to see that? A: Um, I don’t recall. I have seen it both, asbestos- and nonasbestos-containing insulating materials made. Q: Okay. I’m focusing in on insulation mud at this point. Is it your testimony, Mr. Smith,1 that you have personally witnessed the mixing of asbestos-containing insulation mud? [Pause.] I’m sorry, did you give an answer? A: No. I’m not—I’m just trying to—when you say insulating mud, can you please give me a definition of what you believe insulating mud is and where it’s used so that I can—so I can better answer your question? Q: Well, you’re the expert here, so I’m going to ask you what is your understanding of what insulating mud is. A: Well, the term can be used in a number of ways, and that’s why I need to know what you believe it to be, and then I can answer the question. Q: All right. So if I understand your testimony then, you were simply told by somebody that what was being used was asbestoscontaining? A: Yes. Q: And do you recall where this was? A: Yes.
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Q: Where? A: Um, it was at a—an aluminum smelter. I don’t recall the location, though. Q: Why were you there? A: Um, I was there as an environmental-health specialist for the company. Q: What does that mean? A: Pardon? Q: What does environmental-health specialist mean? A: That was my title at the time. Q: All right. But could you define what that means for me? What were you doing as an environmental-health specialist? A: Um, I was evaluating the workplace for various types of exposures. Q: So let me just ask this question as a foundational question: When were you first certified as an industrial hygienist? A: In 1980. Q: All right. So this was in approximately 1974, about six years before you were certified as an industrial hygienist? A: Yes. Q: And you say you were evaluating a workplace there at this aluminum smelter for occupational exposures? A: Yes. Q: What specifically were you doing? Were you sampling the air? A: I was not sampling. It was—you’re speaking of an occasion that occurred more than 30 years ago, but it was probably nothing more than a walk-through assessment at the time.
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Q: So let me see if I can wrap this up. Is it accurate to state, Mr. Smith, that you can’t recall an incident in your career where you sampled the air while individuals were mixing and applying asbestos-containing insulating cement in conjunction with thermal insulation? A: That would be correct. I do not take any air samples. Q: You’ve never done such an air sample. Isn’t that right, Mr. Smith? OPPOSING COUNSEL: Objection. Vague and ambiguous. Q: As to the insulating cement and in conjunction with asbestoscontaining thermal insulation. A: I’m sorry. You’ve lost me. I don’t understand the question. Q: If I understand then, Mr. Smith, you have never to your knowledge or recollection sampled air while individuals were mixing and applying asbestos-containing insulation cement in conjunction with thermal insulation? A: That certainly would be true for the aluminum smelter, and I don’t recall doing any sampling. I may have, but I just don’t recall. Q: Well, let me just ask this, then, as a follow-up question. You may have. Does that mean that you don’t recall a specific instance of doing that in your career? A: Yes. That would be correct. Q: Would that be—would it be further true that you have no recollection, if in fact you ever did that, of any of the fiber counts that you may have recorded? A: That would be correct. Q: What is your present fee for reviewing the materials and talking about the case with the defense attorneys?
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A: The—my hourly rate is $225. Q: Is that a universal charge? In other words, that’s what you charge for your time at deposition and in trial as well? A: No. Deposition and trial time is $350. Q: Do you charge for your travel time? A: I do. Q: At this same rate, $350 per hour? A: No. No. It’s—the $350 is specific to deposition and trial time. Q: All right. So it would be the $225 rate then for travel? A: Yes. Q: Have you actually prepared a bill and submitted it to the opposing counsel for this case? A: Um, I don’t believe we have. Q: By the way, who do you work for? A: The Smith Group. Q: Are you the Smith? A: Well, I’m not sure if I understand the question, but I’m the only Smith in the Smith Group. Q: Okay. I’m just trying to figure out if there’s another Smith, I guess. So you are the president of the Smith Group? A: I am. Q: Earlier you told us, Mr. Smith, that you were first certified as an industrial hygienist in 1980. Did I get that correctly? A: Yes. I completed my certification in 1980.
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Q: And was that a comprehensive practice certification? A: Yes. That was in comprehensive practice. Q: Tell me how many companies over the course of your career outside of litigation for the time being that you’ve worked for who actually produced or manufactured an asbestos-containing product. A: I have not worked for any companies that produce or manufacture an asbestos-containing product. Q: Outside of litigation. Correct? A: I—I am not employed by any company that has—that had made an asbestos-containing product. Q: All right. Well, let me just clear this up. The Smith Group is a consulting company. Is that fair? A: Yes. Q: Has the Smith Group ever consulted outside of litigation for any company that manufactured or produced asbestos-containing products? A: Um, we have consulted, but not with a manufacturer. Q: All right. So your answer would be no, the Smith Group has never consulted outside of litigation with any company that manufactured asbestos-containing products. Fair? A: That’s correct. Q: Now, you have—let’s turn to litigation—the Smith Group has in fact consulted in litigation over the last 26 years. Is that fair? A: I don’t believe that we consulted for, um, all 26 years. Q: All right. Mr. Smith, when did you first consult in litigation involving asbestos personal injury?
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A: I don’t recall the first case. I would presume it was in the late ’80s. Q: Since that time how many cases have you been retained in asbestos personal-injury litigation? A: There have been many, but I don’t know the exact number. Q: Would it be hundreds? A: I would believe so. Q: During the course of your work as a consultant in asbestos personal-injury litigation since the late 1980s, how many cases have you testified in on behalf of the plaintiffs? A: And just for my understanding, when you refer to personal injury, you’re only referring to civil litigation. Is that right? Q: Right. Like this case? A: Like this case. Q: Right. A: Um, I don’t believe I have ever. Q: Would it be fair to say then since the late ’80s, when you got involved and first retained as a consultant in an asbestos personalinjury litigation, that your work has been exclusively for defendants? A: Um, with regard to asbestos, that would be correct. All I can think of would be a property-damage case. Q: Is it fair to say that you’ve never been retained and testified at trial in any case on behalf of a plaintiff who has alleged they have contracted an asbestos-related disease? A: Yes. Q: All right. Have you ever taught at any institution on the subject of industrial hygiene to medical doctors?
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A: No. Q: As you sit here today, can you cite to me any industrial-hygiene study which the industrial hygienists and authors have recorded fiber-per-cc [cubic centimeter] counts or millions of particles per cubic foot during operations where asbestos-insulating cement was mixed and applied? A: I cannot think of a specific study with asbestos cements. Q: Right. And I’m not asking you for a study that’s entitled, you know, “Fiber Counts for Mixing Asbestos Insulating Cements.” I’m referring to any study in which there is data recorded on fiber counts or particles per cubic foot during that operation, amongst others. A: I can think of studies that may have indicated it, but I just don’t recall those levels at this time. One additional example follows that illustrates the attempt on the part of the expert witness to interject a joke into his testimony; this results in a humorous backfire, to roars of laughter from the jury: JUDGE: Did I qualify you as an expert in industrial-hygiene stuff? I believe I did. Overruled. A: I don’t have any data on the average diameter. I know the length is very short. Most of the fibers are less than 5 microns in length; therefore, the diameter would be very small. Q: Let me direct your attention to—oh, we have already marked this as Exhibit 167. This is a brochure, Dr. Jones, on Calidria Asbestos RG-144. Have you seen that document? A: I’ve seen similar documents. I don’t know about this specific one. Q: Let me put up on our viewer, here, page 3. This is the physical property from Union Carbide’s own brochure about Calidria, the specific grade RG-144. Do you have that in mind? A: I do, yes.
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Q: And it says there under “fiber diameter,” that would be what I wrote here, 0.025 microns in diameter? A: Yes, it would. Q: And then it says length/diameter aspect ratio. Aspect ratio is comparing how long it is compared to how wide it is, right? A: That’s correct. Q: For something to be a fiber, under the definition of fiber, it has to have an aspect ratio of three or greater? A: Yes. Q: Meaning it has got to be three times longer than it is fat? A: Yes. You and I would qualify as fibers. Q: Let’s hope that remains true. From one fiber to another, let me ask you: If I see there it says, “length/diameter, two hundred average, one thousand maximum,” what can that tell us about the average fiber length, if we know the fiber diameter is as indicated? A: It is about 5 microns, or .5 microns; 5 microns is what I would say. Q: Five microns? A: Yes. Q: If you do the math? A: Yes, I did. Q: And the length, the longest length there would be 25 microns? A: Yes, according to that. Q: So RG-144 has got an average diameter here, and it is from 5 to 25 microns in length; is that right?
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A: No. To be very precise, the average is 5 microns in length. The maximum is 25, but there are many fibers that are less than 5 microns in length. Q: Sure. That is how you would get it back to the average is five? A: Yes. Q: So that would be—these would all describe respirable asbestos fibers? A: Yes, it would. Q: Now Mr. Brydon asked you a couple of questions about American PolyTherm. You have never been to American PolyTherm, have you? A: No, I have never had the opportunity. Q: And other than reading Mr. Weatherly’s deposition that we took, plaintiffs took in this case, you really don’t know anything about American PolyTherm; is that fair? A: And Mr. Bakkiels’ deposition, yes. Q: Have you seen Mr. Taggart’s testimony? A: I have not. Q: One of the things Mr. Brydon asked you was, if AmericanPolyTherm had done all this stuff here in OSHA, that it would have reduced the potential exposure to people at American PolyTherm, I think you said between 95 to 99 percent. Do you recall that? A: Yes, I do. Q: Okay. Well, let me ask you some questions about this. Let’s assume that they get these pallets of Calidria delivered to them in their building. Have you seen the pictures of the building? A: I have not.
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Q: Do you know where in the building they were stored or materials were kept—Calidria? A: Specifically, no. Q: I would like you to assume it is basically a building that has got three areas with big roll-up doors that connect them, and one is in storage in a different room than where the mixer is. A: I apologize. I did see the aerial photographs of the buildings. The takeaway lessons from this discussion are very basic. Do not hold yourself out as an expert on a topic you are ill-prepared to address or on which you are not otherwise qualified to discuss. Answer questions posed to you in deposition or trial squarely; do not mince words or appear evasive. Finally, if you plan on acting as an expert in a specific litigation arena for an extended period of time, make sure that you are not always testifying exclusively for one side. Jurors will tune in a good expert and tune out a bad expert every time. While it may be embarrassing to be exposed as a bad expert in deposition, it is far worse at trial.
The Ugly The “ugly” expert is nothing more than a really bad expert. Discerning a bright line between bad and ugly is, after all, a subjective call. Happily, the ugly expert is the rarest of exceptions to the rule. Suffice it to say, the ugly expert does not typically garner repeat customers in the legal field. Rather than beating a dead horse, I will simply rest my case (no pun intended) by providing the following excerpt of cross-examination drawn from another asbestos trial. The expert industrial hygienist in the crosshairs this time was hired by a defendant company that produced only one asbestos product, an asbestos cloth used primarily to finish thermal insulation. This gentleman not only sacrificed his own credibility, but obliterated any credibility the defense attorney may have banked on with the jury, and amazingly he did so with a wink and a smile. Q: Who are the defendants you consulted for? A: Yes.
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Q: Who? A: Pittsburgh-Corning, Rapid American, Klinger Gaskets. I think there is another one in there somewhere. Oh, yes, a roof-tar manufacturer. Q: Can you tell us how much of your income currently—well, let’s just say during the period you consulted for asbestos defendants in this litigation, how much of your income has been derived from that consultation work? A: I estimated in the past on the order of 50 percent. Q: Let me ask you this question right now, doctor: You’ve done asbestos air sampling over your career; is that correct? A: Yes, sir. Q: Many times? A: Oh, maybe a dozen or so times. Q: For asbestos air sampling—excuse me. Did I say asbestos air sampling? A: Yes, you did. Q: You would say how many times again? A: A dozen or two dozen, something on that order. This is handson stuff, not directing someone else. Q: I understand. That’s what my question was getting at there. So about a dozen or so times that you’ve done that? A: Yes. Q: Really? A: Yes. Q: On industrial hygiene-type issues?
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A: Yes. Q: You’re aware Exxon has an industrial-hygiene department? A: Oh, sure. This was sort of an oversight job that I did. Q: Did you ever work with a man named Jim Hammond? A: I know Jim, yes. I never worked with him, but I know him. Q: Is he a good industrial hygienist? A: I don’t know. I can’t evaluate his industrial-hygiene prowess. All I can tell you is that when he started teaching at the University of Texas, he had adopted my book as the teaching tool to use. Q: Wow, okay. A: So he used to be a good teacher. Q: Apparently so. Until fairly recently, you were a paid consultant and lobbyist for the tobacco companies or Tobacco Institute, correct? A: Tobacco Institute. Q: That was 1984 to 1993, correct? A: Yep. Q: You said you were a consultant. You were actually a lobbyist; is that right? A: Yes, I suppose I did consider something to be lobbying twice. Q: What was that? A: Talk to legislators with a lobbyist. Q: On behalf of the tobacco companies? A: On behalf of the Tobacco Institute.
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Q: I apologize. The Tobacco Institute is made up by tobacco companies? A: No, it’s funded by the tobacco companies, not funded by them, and is a nonprofit organization. Q: I guess they don’t need to make a profit when they have all the tobacco money coming in, right? A: I suppose that’s true. OPPOSING COUNSEL: I object. Q: Were you lobbying for the Tobacco Institute in relation to forestalling legislation with respect to regulating smoke? A: Not to my knowledge, no. I don’t know what we were doing there, frankly. I was talking about secondhand smoke and its lack of effect on people. Q: Okay. Now, most recently you’ve been receiving a check from Raybestos-Manhattan or Raymark, as you prefer, correct? A: No. The checks come from Bjork, Lawrence, Poeschl and Kohn law firm. Q: That’s opposing counsel’s firm? A: She’s a consultant for the firm, yes. Q: That’s true. She doesn’t directly work for Bjork, correct? A: That’s correct. Q: You’re both consultants in a way? A: That’s right, but I don’t bill her. I bill the Bjork firm. Q: I believe you said you testify in trial or work with them on something in a magnitude of cases. A: On that order, yes.
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Q: In the space of a year? A: Less than a year. It won’t be a full year till July or so. Q: How many depositions have you given on behalf of RaybestosManhattan or Raymark? A: I don’t know. Probably about the same number as trials. Q: You were charging—had you already adjusted your charges to 300 bucks an hour when you started working for them? A: Oh, yes. That was two or three years ago, anyway. Q: How many trials have you testified in for them? A: Again, it’s on the order of eight. I don’t know. I haven’t counted them. Q: I know you didn’t. Later on that same page, you’re asked about how much asbestos is released from pipe covering and block. And you indicate that you don’t know. Is that still the case? A: Yes. Q: So would you consider yourself to be an expert on the behavioral characteristics of Raybestos-Manhattan’s cloth when used as intended? A: It depends on how one defines “expert.” Q: Well, I guess it does. Do you consider yourself to be expert on that subject? A: No, I’m afraid I don’t consider myself to be an expert on much of anything, sir. Q: You would consider yourself to be expert on industrial hygiene, wouldn’t you?
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A: If one defines an expert as a person who knows more about it than the average person, absolutely. And, in fact, that would apply to my previous answer as well. Q: Let me ask it this way. Wouldn’t you agree with me, doctor, that it would be difficult to find an industrial hygienist who knows less about the asbestos-fiber release from Raybestos-Manhattan cloth than you do? A: It would also be difficult— Q: Excuse me, doctor, if you can answer that question. A: The answer is, yes, it would difficult to find one who knows less. Q: And that’s your considered opinion? A: Of course.
Closing Argument In closing, I want to make it clear to all those who may be considering a turn as an expert witness that it was not my intention to discourage you from embracing this important role in our legal system. Indeed, as an attorney I encourage such participation. For all its foibles, our legal system is still the most open and fair system in the world. Nowhere else are ordinary citizens invested with the responsibility to directly participate in government by adjudicating disputes that so clearly impact the social fabric of a nation. In order to make a just decision, our juries must be informed. It is the expert witness who is charged with educating them. Without the participation of expert witnesses our legal system would fail.
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At time of trial, after all the evidence has been presented for both sides, there comes a time of closure when each side is given the opportunity to sum up what has been offered as evidence in its client’s favor and to remind the trier of fact what has been offered. These almost final steps in the trial are called closing arguments. I also felt this book should have a closing-argument section in order to review important areas covered, which the reader can then revisit. In the pages of this book, many scientific, legal, and personal experiences dealt with in a 30-year expert-witness practice have been explored. In the cases and anecdotes given, I have tried my best to recount the details of my experiences as accurately as my almost-70-year-old brain will allow. So I hope you have followed me down the “yellow brick road” of being a litigation expert witness, with all the benefits and potholes, the swerves and turns, so that we arrive at our destination of feeling at ease in the legal arena if we must be there or desire to be there. Errors and omissions, in our everyday lives and at work, give rise to anger, injury, and attributed fault. When errors and omissions occur to the detriment of another, a lawsuit is sure to follow. The legal process does not provide the opportunity for attorneys to convey facts or evidence to the court or the jury; only witnesses or physical evidence can. The attorney is merely the conduit for evidence to be judged by either a judge or jury. After an incident has happened, either as the result of accidental circumstances or as a result of someone or something’s negligence, the piper must be paid! When negligence is alleged, it must be proved with sufficient evidence, often by way of expert opinion on the issues in question. It is worthy of your efforts to understand at least some of the various types of negligent behavior before becoming involved in a lawsuit. The opportunity to potentially learn from other people’s mistakes may also benefit you in your personal activities and business. 139
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You don’t need to be a lawyer to appreciate and have a basic understanding of the rules you are governed by when entering the world of litigation. The few simple evidentiary areas and procedural rules learned can carry you a long way toward understanding what you can and cannot do or why you can or cannot bring your point of view to the forefront! Sitting in the witness box is a lot like being the “dummy” in a game of bridge. You must depend on the lawyers to ask the right questions and prompt you for the right answers or you will find yourself quietly stewing in the witness box with much to say and a virtual gag in your mouth. If you are a technical type, make sure you know the latest and greatest information and techniques about your special area of expertise. Whenever possible, keep yourself updated on the legal, scientific, engineering, and medical aspects of what applies in your current field of expertise. It is very important to remember that the acceptability and weight given to your testimony and opinions is directly proportional to the extent of foundation you have given for expressing them. In every legal case, each side attempts to persuade the trier of fact that their side is the true and righteous way. It is just like the evaluation of a future home: If the houses you consider vary in their structure and substance, it is easier to form your decision. The house constructed of straw and speculation is at one end of the spectrum while the brick and mortar structure is at the opposite end. The literature you cite, the examples from your experience that you relate, and the details of your specialized training are the bricks and mortar of your testimony. The straw house can be blown down with the weakest gust of wind, but the cross-examination hurricane makes little impression on the brick house built on a solid foundation of facts. If you were the jury, which one would you choose? Have the confidence of your own self-worth! When you have expertise in a unique subject area supported by years of experience, the court will, more likely than not, judge you to be an expert. You certainly know a great deal more about your subject that a layperson or the average juror. Self-confidence is the key. Know your facts, support them with corresponding opinions of others, and explain your opinion like a teacher to students who now know you but don’t yet know your subject. The judge or jury should be considered anxious receptors-students for your teaching explanations of complicated technical concepts put before them. Trust in the trier of fact’s handling of your information, for she may pleasantly surprise you! Many professionals have their own form of language and use it to communicate among themselves, yet seldom adequately communicate it well to those whom they serve; lawyers and doctors are notorious for this behavior. Never hesitate to ask the meaning of a question if you do not understand its
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terminology or if you find its form unintelligible. One of the most respectable answers to any legal question is, “I don’t know.” The courtroom is a workplace, just like any other. The witnesses, lawyers, judge, bailiff, jury, clerk, court reporter, and others are doing their jobs. When you understand and appreciate those jobs, the courtroom will never again be an intimidation. As I’ve said so many times, in this book, your most important job is to tell the truth. We all have skeletons in our past, and there are very few exceptions to the rule. When involved in a litigation matter, let those representing you know “up front” what your deepest and darkest secrets are, and what you think the best way to handle them might be. Diffusing an issue by having your attorney-client address it first in direct examination is the safest way of making it a nonissue. Once disclosed, your demons may actually be considered inconsequential to your client or the court. If, however, you permit them to be disclosed by the opposition’s attorneys on cross-examination, you run the very real risk of becoming visibly emotional on the witness stand. Worse yet, you will likely also be perceived by the judge, jury, or both as having something to hide. Be scrupulously honest! The best part about the prime directive tell the truth is that you never have to remember what you said the prior time the question was asked. With 30 years of depositions and trial testimony transcripts behind me, it would be easy to impeach me if I were to contradict myself on my testimony. Litigation testimony, either in trial or deposition, seems to follow you like a shadow and can creep up on you when you least expect it! In all my years of witnessing, I have yet to be impeached, because, as I’ve said, the truth only comes out one way. The real difference between criminal, civil, and workers’ compensation cases is merely the rules by which the game is played. Criminal cases can be intimidating when working with the darker elements of society. My only other comparison observation, between working civil versus workers’ compensation cases, is that the pace in workers’ compensation cases is a bit slower and somewhat more laid back than in civil matters. We live and work in a chemically enhanced world, and very little is known about the chemicals, and physical stressors with which we come in contact on a daily basis. As science and medicine learn more about the adverse affects of those chemicals, our focus is heightened by those who become injured who are not content to allow the insult to exist with impunity and thus choose to bring a toxic-tort suit against anyone responsible. When dealing with human injury, we may never have a huge population to evaluate, yet we are forced to draw conclusions from what we know. The hope for those in the public-health professions who must sort out the data is that the data is available as well as accurate. All too often, anecdotal
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accounts of injury data are cloistered in dusty medical case files and out-ofdate court records. Contemporaneous measurements or indicators of exposure are not generally available, and we must be content with the 20-20 hindsight of educated opinions. We do the best we can in our professional lives and sometimes are not aware that we are held to a standard higher than we once believed. When our actions are reviewed with the cold, hard focus of 20-20 hindsight, our vulnerability stands out. Do good work and keep good records to avoid professional negligence and stay out of the spotlight.
Potholes in the Road to Expert Witnessing From the attorney’s perspective, we are able to learn some of the pitfalls that many witnesses have experienced. It is often helpful to see ourselves from the perspective of someone on the other side of the aisle. The following list of potholes in the road to successful expert witnessing may help you to avoid tripping: Know the case file well enough to testify from memory. Do not answer questions you do not fully understand. Avoid becoming a biased advocate; leave that to the lawyers. Do not testify in areas outside your expertise. Maintain physical-evidence integrity with a proper chain of custody. Never lose your temper on the stand, no matter how provoked. Examine a hypothetical question critically and demand more information if needed. Remember that juries pay attention to everything you say and do. Failing to disclose pockmarks on your résumé can lead to disaster. If opposing counsel asks you to confirm a concept that is correct and accurate, do it! It will add to your credibility. Do not exaggerate or embellish facts, events, or data.
Conclusions It is important to keep in mind that expert witnessing is a critical part of successful litigation. Understanding your role can go a long way toward reducing your anxiety and any tension that might develop between you and your attorney-client. As an expert you must be free of any recognized bias, whereas your attorney-client must have absolute bias toward his client. The lawyer’s job is to vigorously present the evidence in the light most favorable
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to his client, whereas the expert witness must present the unbiased facts and truth of the matter with the same level of vigor. I hope that this primer on the litigation system has been of some small help in your understanding of the law, legal matters, and the fundamentals of expert witnessing. It has been an enjoyable adventure for me, and I hope for you, the reader, as well. Here’s wishing you success in whatever part of this expert-witness adventure you undertake.
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Notes
Preface 1. A percipient witness is someone who has firsthand knowledge of events or conditons relevant to a legal action; an expert witness is someone who has knowledge or training in a particular field exceeding that of the average layperson or jury member.
Chapter 1 1. The “person most knowledgable” is a person from a company or organization, designated by that entity, to be the most knowledgeable person about the subject at hand and also potentially the custodian of any records related to the issue. 2. The finding of a violated regulatory statute can often be used as per se evidence of negligence. The phrase “more likely than not” is frequently used to indicate an absence of absoluteness, an opinion that reflects a 51 percent probability, or a preponderance of the evidence. 3. The scientific method comprises the principles and procedures for the systematic pursuit of knowledge involving the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation and testing of hypotheses. 4. California Administrative Code, Title 8. 5. California Evidence Code §669 & 669-1. 6. Causation is the act or process of causing the incident.
Chapter 2 1. More detailed information on industrial hygiene and safety professional liability is dealt with in Chapter 13.
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2. Taken literally, respondeat superior means “let the master answer.” This legal doctrine states that an employer is responsible for negligent employee actions performed within the course of employment. 3. In most states, a statute of limitation—a time limit—is set for filing a legal action; if the expiration date is missed, a case cannot be brought, and the matter will be dismissed by the court. 4. Negligence per se is the legal doctrine whereby certain acts constitute violations of statutes or regulations may be considered intrinsically negligent. 5. The industrial-hygiene standard of 5 MPPCF is measured with impinger technology as “total dust count” in air.
Chapter 4 1. Phillip Drinker and Theodore Hatch, Industrial Dust: Hygienic Significance, Measurement and Control (New York: McGraw-Hill, 1936); Hervey B. Elkins, The Chemistry of Industrial Toxicology (New York: John Wiley and Sons, 1950); Frank A. Patty, Industrial Hygiene and Toxicology (New York: Interscience, 1958); Donald Hunter, The Diseases of Occupations (Boston: Little, Brown, 1962); Julian B. Olishifski, Fundamentals of Industrial Hygiene (Chicago: National Safety Council, 1971); National Safety Council, Accident Prevention Manual for Industrial Operations, 6th ed. (Chicago: National Safety Council, 1974). 2. OSHA was created through the U.S. Occupational Safety and Health Act; Public Law 91-694-1970.
Chapter 5 1. Cleavage is the longitudinal separation of smaller-diameter fiber bundles from the original. This is a somewhat unique property of the asbestos-crystal configuration. 2. The asymptotic area of the curve parallels the baseline and, by definition, only reaches the baseline at infinity.
Chapter 8 1. A stipulation is an agreement made by both sides on an issue, and it is, by law, binding. 2. A perpetuation deposition memorializes your testimony and opinions when you are not available to be at trial in person. These depositions must be agreed to by all parties and are often videotaped beforehand to later be played to the jury.
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3. A witness can be sworn in or asked to affirm his or her intent to tell the truth during this testimony. 4. If a witness desires one, the holy book can be of any recognized religious faith (though there are some limitations, and this varies from jurisdiction to jursidiction) and often is available from the court bailiff upon request. 5. A signed statement, sworn to be true by the signer, will potentially expose the signer to be guilty of the crime of perjury if the statement is shown to be materially false—that is, if the lie is relevant and significant to the case. 6. Voir dire literally means “to speak the truth,” and is used to qualify both jurors and expert witnesses. 7. Jury size varies with the jurisdiction. There are usually 12 jurors and between two and four alternates, but some states only use six jurors and two alternates. 8. The gallery is the area behind the short “fence” from which onlookers (family members, the press, etc.) view the trial. The well is the area where the judge, clerk, reporter, bailiff, attorneys, and jury sit. 9. Impeachment is the process whereby a witness’s credibility is challenged if, for example, he has changed specific testimony from one case to the next, or within the case, without justification. For more on impeachment, see Chapter 10. 10. Daubert hearing is in Federal Court; the Kelly-Frye is in California Courts.
Chapter 9 1. William Dyson, Ph.D., CIH, serves frequently as an expert witness in asbestos litigation. 2. William Dyson, “Wanted: Industrial Hygienists as Expert Witnesses,” Synergist 17, no. 6 (2006), pp. iv–v. 3. To pretext is to represent oneself as someone else in order to obtain personal information that would otherwise be protected by law or ethical convention. 4. The Gramm-Leach-Bliley Act (15 USC, Subchapter I, Secs. 6801–6809) prohibits pretexting—that is, the use of false pretenses, including fraudulent statements and impersonation—to obtain consumers’ personal financial information, such as bank balances. This law also prohibits the knowing solicitation of others to engage in pretexting.
Chapter 10 1. Often an unavailable witness will be videotaped elsewhere to preserve testimony and presented to the court onscreen. This can often be a monotonous distraction to an otherwise attentive jury and lacks the impact of a live witness.
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Chapter 11 1. Pro tem is a shortened form of the Latin pro tempore, meaning “temporarily” or “for the time being.” In law, judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as substitute for a regular judge. A regulatory citation is in essence having a governmental official write a “ticket” for breaking the law or violating a statute. 2. The legal concept of exclusive remedy precludes an employee from suing his or her employer for injury except under workers’ compensation law.
Chapter 12 1. Fred Baron, Handling Occupational Disease Cases (Alameda, Calif.: Lawpress, 1981).
Chapter 13 1. The dose is the extent or concentration of exposure experienced on a “more likely than not” basis. 2. See Occupational Exposure to Hazardous Chemicals in Laboratories, Occupational Safety and Health Standards no. 29 CFR 1910; available online at http://grants.nih.gov/grants/policy/select_agent/29CFR_Occupational_ exposure.pdf.
Chapter 15 1. The term forensic comes from the Latin forensis, “belonging to the forum,” which was ancient Rome’s site for public debate or trials. It currently means “pertaining to the courts.” 2. It is the responsibility of manufacturers, distributors, and sellers of products to the public to deliver these products reasonably free of defects that can harm an individual or numerous persons, and to be held liable on that responsibility if their products are proved to be defective. 3. “Peepshows” are arcade-type businesses that employ coin-operated viewing booths showing a wide array of “X-rated” film clips. 4. The National Fire Protection Association maintains nationally accepted standards for building fire safety. 5. Myiasis is a disease resulting from ingestion of food contaminated with domestic fly larva or maggots.
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6. The chain of custody (see Chapter 2) is the trail of documentation that identifies whose hands a piece of evidence left and whose it was forwarded to; it is a legal “tracking” system for items of physical evidence. 7. The gauge is a measure of the number of lead shot balls that can be placed in a one-pound circle. A 12-gauge projectile or shot diameter is the equivalent of .729 inches. Rifled shotgun slugs are solid lead projectiles fired from an unrifled shotgun barrel, with a diameter compatible to the gauge of the shotgun. The projectile is rifled to aid in its release and trajectory from the barrel, as opposed to the gun barrel being rifled, as in a nonshotgun-type weapon. 8. The term livor describes the gravitation marks on a body due to blood pooling. This process, and to the extent it is partial or complete, can suggest number of hours of body positioning and is related to external temperatures. 9. Her Majesty’s Factory Inspectorate is the agency equivalent to the U.S. Occupational Safety and Health Administration. 10. In litigation, rebuttal is the process of presenting evidence in order to contradict or nullify other evidence that has been presented by an adverse party. 11. The rape evidence-collection kit is discussed in more detail in Chapter 3.
Chapter 16 1. The names of the witnesses in these testimony extracts have been changed to protect their privacy.
Chapter 17 1. The moving party is the one making a motion before the court with the goal of achieving some end result. 2. The term pro bono comes from the longer Latin pro bono publico, which means “for the public good.”
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Litigation Glossary
It should be made clear to the reader that the following glossary is neither complete nor is it intended to address all issues related to expert witnessing or scientific testimony. For more complete and exhaustive definitions of legal terms, the reader is directed to any number of legal dictionaries commercially available. The following terms are those directly related to the chapters in the present volume. To any of the lawyers who may read this glossary, I apologize in advance for any misuse or lack of legal understanding. Aerosol
A cloud of solid or liquid particles in a gas.
Amicus curiae Typically a brief filed by a nonparty to the action but as a “friend of the court.” This brief outlines the thinking of the third party, which may assist the court in its deliberations. Applicant The subject of a workers’ compensation claim, hearing, or lawsuit, generally the subject worker. Ballistic Pertaining to the science of analyzing firearms or projectile usage in crimes. Barefoot A term applied to professionals, or others subject to liability lawsuits, who elect to operate without the protection of malpractice insurance. “Going barefoot” typically refers to an uninsured professional. Brief A legal, written argument submitted to the court to establish a party’s position on an issue. The format of the brief is generally prescribed by the court’s jurisdiction. Burden of proof The duty of proving an allegation or assertion. The burden of proof in litigation is on the plaintiff to show, through a preponderance of evidence or the weight of evidence that all the facts necessary to win a judgment are probably true. Case caption The formal name of the plaintiff/applicant and the defendant/respondent named in the legal action. The caption also will contain the jurisdiction information and case filing number assigned by the court clerk. 151
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Case in chief The trial presentation, for one side or the other, that lays out the facts as that side sees them. Challenge In litigation, the ability of an attorney to exclude a juror or a witness when appropriate grounds for that exclusion are defined. Civil actions
All forms of legal action that are not criminal action.
Conflict of interest An acquired or existing bias against an opposing side of a legal issue which would preclude objective testimony on the part of an expert witness. Contingency fee The fee charged by an expert that is based upon the outcome of the case. This is generally considered unethical for an expert witness, due to the bias toward winning needed to improve or achieve a fee. This is one of the many reasons for being paid an advance retainer. Cross-examination Questioning of the witness present by the opposing party during deposition or at trial in their case in chief. Often, leading questions are asked in cross-examination. Daubert-Kumho hearing The Daubert Standard is a legal precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of expert witnesses’ testimony during legal proceedings. The citation is Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). A Daubert/Kumho motion is a motion raised, before or during trial, to exclude the presentation of unqualified evidence to the jury. This is a special case of motion in limine, usually used to exclude the testimony of an expert witness who has no such expertise or who used questionable methods to obtain the information. Defective by design Inherently faulty or dangerous in construction. A product is defective by design when it causes harm or damage to someone or something even though it fulfills its intended function. Defendant The subject of a civil or criminal lawsuit; the party who is being sued. Deliberation The period of review and consideration, by either a judge or jury, prior to passing judgment on an issue. Deponent The person (e.g., percipient or expert witness) speaking in a deposition. Deposition An informal procedure in which testimony is taken (under penalty of perjury) from a witness in the presence of a court reporter and all parties to a lawsuit. This can be done in a lawyer’s office, a hotel room, another location, or over the phone, but still has the same force and effect
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as if the testimony were given in a court of law. Depositions can be read into the record at trial because they are testimony. Direct examination
The questioning of a witness during a party’s case in chief.
Disclosure Providing case-specific or expert information to the other side. Any evidence not disclosed prior to the discovery cutoff can be potentially excluded from being introduced at the time of trial. Discovery cutoff The limitation of evidentiary demands and expert disclosures that usually occurs 30 days before a trial. Discovery process The process through which each side asks for evidentiary bits of information (which must be surrendered if available) from the other side. The conclusion of the discovery process is the discovery cutoff. Duty A legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that the defendant held a duty to the plaintiff; this can be a duty of care in a negligence case or a duty to perform in a contract case. Evidence Physical or testimonial information in support for or against one side of a lawsuit or the other. Most evidence gathered in the discovery process is presented at the time of trial, if it has been admitted by the court. Expert witness A person qualified by the court to give expert testimony as a result of that person’s being more knowledgeable in the subject area than a layperson. Forensic Pertaining to the courts. Originally from the Latin forensis, “belonging to the forum,” ancient Rome’s site for public debate or trials. Forensic studies are those that aid the court in its deliberation. Foundation in evidence The provision to the judge of the qualification of a witness (particularly an expert witness), a document, or other piece of evidence that assures the court of the talent and experience of the witness or the authenticity of the document or article. Full disclosure The presentation, to all parties, of facts or conditions which may alter, hamper, or bias the outcome of testimony or the lawsuit. An example would be when XYZ Company is being sued and it is discovered that the expert contracted by the opposing counsel was fired from his or her employ. Disclosure of this information is critical to the discovery process. Idiopathic Arising from an obscure, unknown, or peculiar cause. An idiopathic medical diagnosis is one that says, in essence, that the patient is sick but the doctors do not know why.
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Impeachment The process of demonstrating that a witness is not telling the truth or does not have the knowledge to testify as she did. Impinger A sampling instrument employing impingement for the collection of particulate matter. Common types are: (i) the midget impinger employing impingment in 1–10 cm3 water, (ii) the standard impinger employing impingement in 75 cm3 water, and (iii) dry impingers. Impingers are also suitable for sampling certain gases and vapors. Interrogatories Legal procedures during the discovery process wherein each side poses questions to the other side. These questions must be answered under oath and have the same weight as evidence during trial. Judgment other.
An order of the court directing action on or by one party or the
Jurisdiction The geographic location of the court and the origin or specifications for local rules governing legal cases. Jury A group of people taken from the local community who will evaluate the evidence and sit in judgment during a trial. Jury poll The questioning of jury members, after a trial is completed, to get their reactions to various experts and other witnesses, and to ascertain why they decided the case the way they did. Leading question A question asked of a witness that directs the answer in a way that is managed by the attorney asking the question. A leading-question objection is appropriate for a percipient witness but does not apply to expert witnesses. Leukemogenic agent A chemical known or suspected of inducing or promoting leukemia in an animal or human. A factor that is known or attributed to be a cause of leukemia. Lipoid pneumonia Exogenous lipoid pneumonia is an uncommon condition resulting from aspirating or inhaling fatlike material such as mineral oil found in laxatives and various aerosolized industrial materials. These substances elicit a foreign body reaction and proliferative fibrosis in the lung. Live witness One who testifies in person rather than by videotape or through the reading of a written transcript. Local Rules Rules or procedures set by the court, in the local jurisdiction, that govern evidentiary, discovery, and trial procedures unique to that city or county. An example would be the General Orders for San Francisco Superior Court.
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Mandatory settlement conference A court-ordered meeting between all parties, refereed by the judge, in an effort to avoid trial and settle the case. More likely than not A phrase used to express the probability of an expert’s opinion being correct. The basis of the probability assumes that a preponderance (at least 51 percent) of the evidence available agrees with the opinion. Motion A written or oral plea to the court for action or judgment on a specific issue; a formal request made to a judge for an order or judgment. Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later date, to get a modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party’s case, for a rehearing, for sanctions (payment of the moving party’s costs or attorney’s fees), or for dozens of other purposes. Most motions require a written petition, a written brief of legal reasons for granting the motion (often called “points and authorities”), written notice to the attorney for the opposing party, and a hearing before a judge. However, during a trial or a hearing, an oral motion may be permitted. Motion for summary judgment A motion to have the court issue a ruling that no factual issues remain to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain undisputed material facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled, and therefore need not be tried. The motion is supported by declarations under oath, excerpts from depositions under oath, admissions of fact, and other discovery, as well as a legal argument (points and authorities) that argue that there are no triable issues of fact and that the undisputed facts require a summary judgment for the moving party. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are in fact triable issues of fact. If it is unclear whether there is a triable issue of fact in any cause of action, then summary-judgment must be denied as to that cause of action. The theory behind the summary judgment process is to cut down on unnecessary litigation by eliminating without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated, and are particularly dangerous to the party against whom the motion is made. Motion in limine A motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial. Negligence per se Negligence due to the violation of a specific statute or regulation, such as driving over the speed limit, which is prohibited in specific vehicle code provisions. Also known as statutory negligence.
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Objection A verbal challenge made during deposition or at the time of trial to evidence that is either improper or not probative to the action at hand. Opine
State or express an opinion.
Perpetuation testimony A type of testimony, either by deposition or videotaped deposition, in which the deponent may not be available for actual trial testimony. This is done when a witness may be out of the country during the estimated time of trial or, if ill, may pass away before the trial begins. Percipient witness A person with direct personal knowledge about the incident or the environment in which it took place. Plaintiff
The subject or initiator of a civil lawsuit; the party suing.
Preponderance of evidence The greater weight (at least 51 percent) of the evidence required in a civil lawsuit for the trier of fact to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Prime directive A principal, authoritative guideline. The prime directive in expert witnessing is, tell the truth, no matter what! Privileged communications Discussions or written communications directly with an attorney that are confidential and may not be disclosed or shared. Probative In evidence law, tending to prove something. Thus, testimony that is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel. Pro bono work Work done without compensation and in the public’s interest. From the Latin pro bono publico, “for the public’s good.” Propounded
Set forth for consideration; delivered to the opposing party.
Pro tem For the time being, temporary. An attorney may receive a pro tem assignment to serve as a judge in, for instance, small-claims court until a new judge is appointed or elected. Purview
A range of vision, extent of comprehension, or experience; outlook.
Rebuttal testimony Testimony that is allowed specifically for the purpose of contradicting the testimony of a prior witness. This testimony is generally limited to the scope of what is being rebutted. Redirect Examination, at the time of trial, that takes place after crossexamination. This is additional direct examination but is typically limited to the scope of what was covered in cross-examination.
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Res Ipsa Loquitor Latin for “the thing speaks for itself,” a doctrine of law in which one is presumed to be negligent if he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, yet without negligence the accident would not have happened. Respondent In litigation, the subject of a workers’ compensation hearing or lawsuit—generally the employer. Statute
A law passed by a governmental body.
Stipulation
A matter agreed to by all parties to a litigation.
Subpoena A legal document, issued by a court or an officer of the court, that orders a person to appear or documents to be produced. Tort Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil case can be brought for monetary compensation. Trial date The date set by the court upon which all pretrial motions must be heard and ruled upon and the trial can begin. Trier of fact Either the judge or the judge and jury who will be deciding an issue based upon the evidence received and admitted. Voir dire A preliminary questioning used to qualify both jurors and expert witnesses. The French voir dire means, literally, “to speak the truth.” Work product Preparative work done by an attorney in advance of trial that is not subject to subpoena or the discovery process.
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Appendix A: California Code of Civil Procedure, Section 2034
§2034.010. This chapter does not apply to exchanges of lists of experts and valuation data in eminent domain proceedings under Chapter 7 (commencing with Section 1258.010) of Title 7 of Part 3. §2034.210. After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses to the following extent: (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. (b) If any expert designated by a party under subdivision (a) is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under Section §2034.260. (c) Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert described in subdivision (b) in the course of preparing that expert’s opinion. §2034.220. Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.
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§2034.230. (a) A demand for an exchange of information concerning expert trial witnesses shall be in writing and shall identify, below the title of the case, the party making the demand. The demand shall state that it is being made under this chapter. (b) The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange. §2034.240. The party demanding an exchange of information concerning expert trial witnesses shall serve the demand on all parties who have appeared in the action. §2034.250. (a) A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions: 1. That the demand be quashed because it was not timely served. 2. That the date of exchange be earlier or later than that specified in the demand. 3. That the exchange be made only on specified terms and conditions. 4. That the production and exchange of any reports and writings of experts be made at a different place or at a different time than specified in the demand. 5. That some or all of the parties be divided into sides on the basis of their identity of interest in the issues in the action, and that the designation of any experts as described in subdivision (b) of Section §2034.210 be made by any side so created. 6. That a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section §2034.210. (c) If the motion for a protective order is denied in whole or in part, the court may order that the parties against whom the motion is brought, provide
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or permit the discovery against which the protection was sought on those terms and conditions that are just. (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. §2034.260. (a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange. (b) The exchange of expert witness information shall include either of the following: 1. A list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial. 2. A statement that the party does not presently intend to offer the testimony of any expert witness. (c) If any witness on the list is an expert as described in subdivision (b) of Section §2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain: 1. A brief narrative statement of the qualifications of each expert. 2. A brief narrative statement of the general substance of the testimony that the expert is expected to give. 3. A representation that the expert has agreed to testify at the trial. 4. A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. 5. A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney. §2034.270. If a demand for an exchange of information concerning expert trial witnesses includes a demand for production of reports and writings as
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described in subdivision (c) of Section §2034.210, all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert described in subdivision (b) of Section §2034.210. §2034.280. (a) Within 20 days after the exchange described in Section §2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject. (b) This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section §2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts. (c) The party shall also make those experts available immediately for a deposition under Article 3 (commencing with Section §2034.410), which deposition may be taken even though the time limit for discovery under Chapter 8 (commencing with Section 2024.010) has expired. §2034.290. (a) A demand for an exchange of information concerning expert trial witnesses, and any expert witness lists and declarations exchanged shall not be filed with the court. (b) The party demanding the exchange shall retain both the original of the demand, with the original proof of service affixed, and the original of all expert witness lists and declarations exchanged in response to the demand until six months after final disposition of the action. At that time, all originals may be destroyed unless the court, on motion of any party and for good cause shown, orders that the originals be preserved for a longer period. (c) Notwithstanding subdivisions (a) and (b), a demand for exchange of information concerning expert trial witnesses, and all expert witness lists and declarations exchanged in response to it, shall be lodged with the court when their contents become relevant to an issue in any pending matter in the action. §2034.300. Except as provided in Section §2034.310 and in Articles 4(commencing with Section §2034.610) and 5 (commencing with Section §2034.710), on objection of any party who has made a complete and timely compliance with Section §2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:
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(a) List that witness as an expert under Section §2034.260. (b) Submit an expert witness declaration. (c) Produce reports and writings of expert witnesses under Section §2034.270. (d) Make that expert available for a deposition under Article 3 (commencing with Section §2034.410). §2034.310. A party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied: (a) That expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section §2034.410). (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion. §2034.410. On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list. The procedures for taking oral and written depositions set forth in Chapters 9 (commencing with Section 2025.010), 10 (commencing with Section 2026.010), and 11 (commencing with Section 2028.010) apply to a deposition of a listed trial expert witness except as provided in this article. §2034.420. The deposition of any expert described in subdivision (b) of Section §2034.260 shall be taken at a place that is within 75 miles of the courthouse where the action is pending. On motion for a protective order by the party designating an expert witness, and on a showing of exceptional hardship, the court may order that the deposition be taken at a more distant place from the courthouse. §2034.430. (a) Except as provided in subdivision (f), this section applies to an expert witness, other than a party or an employee of a party, who is any of the following: 1. An expert described in subdivision (b) of Section §2034.260. 2. A treating physician and surgeon or other treating health care practitioner who is to be asked during the deposition to express opinion testimony, including opinion or factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular treatment decision made by the practitioner,
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but not including testimony requiring only the reading of words and symbols contained in the relevant medical record or, if those words and symbols are not legible to the deponent, the approximation by the deponent of what those words or symbols are. 3. An architect, professional engineer, or licensed land surveyor who was involved with the original project design or survey for which that person is asked to express an opinion within the person’s expertise and relevant to the action or proceeding. (b) A party desiring to depose an expert witness described in subdivision (a) shall pay the expert’s reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena, or from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition. (c) If any counsel representing the expert or a non-noticing party is late to the deposition, the expert’s reasonable and customary hourly or daily fee for the time period determined from the time noticed in the deposition subpoena until the counsel’s late arrival, shall be paid by that tardy counsel. (d) Notwithstanding subdivision (c), the hourly or daily fee charged to the tardy counsel shall not exceed the fee charged to the party who retained the expert, except where the expert donated services to a charitable or other nonprofit organization. (e) A daily fee shall only be charged for a full day of attendance at a deposition or where the expert was required by the deposing party to be available for a full day and the expert necessarily had to forego all business that the expert would otherwise have conducted that day but for the request that the expert be available all day for the scheduled deposition. (f) In a worker’s compensation case arising under Division 4 (commencing with Section 3201) or Division 4.5 (commencing with Section 6100) of the Labor Code, a party desiring to depose any expert on another party’s expert witness list shall pay the fee under this section. §2034.440. The party designating an expert is responsible for any fee charged by the expert for preparing for a deposition and for traveling to the place of the deposition, as well as for any travel expenses of the expert. §2034.450. (a) The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the
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expert’s fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition. (b) The expert’s fee shall be delivered to the attorney for the party designating the expert. (c) If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert’s fee within five days of receipt of an itemized statement from the expert. §2034.460. (a) The service of a proper deposition notice accompanied by the tender of the expert witness fee described in Section §2034.430 is effective to require the party employing or retaining the expert to produce the expert for the deposition. (b) If the party noticing the deposition fails to tender the expert’s fee under Section §2034.430, the expert shall not be deposed at that time unless the parties stipulate otherwise. §2034.470. (a) If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. In any attempt at an informal resolution under Section 2016.040, either the party or the expert shall provide the other with all of the following: 1. Proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation. 2. The total number of times the presently demanded fee has ever been charged and received by that expert. 3. The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion. (c) In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court’s determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.
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(d) In an action filed after January 1, 1994, the expert or the party designating the expert shall also provide, and the court’s determination as to the reasonableness of the fee shall also be based on, both of the following: 1. The total number of times the presently demanded fee has ever been charged and received by that expert. 2. The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion. (e) The court may also consider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination. (f) Upon a determination that the fee demanded by that expert is unreasonable, and based upon the evidence and factors considered, the court shall set the fee of the expert providing testimony. (g) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. §2034.710. (a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. (b) A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. (c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. §2034.720. The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied: (a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses. (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.
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(c) The court has determined that the moving party did all of the following: 1. Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. 2. Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. 3. Promptly thereafter served a copy of the proposed expert witness information described in Section §2034.260 on all other parties who have appeared in the action. (d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section §2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion. §2034.730. The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to submit tardy expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. §2034.610. (a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: 1. Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. 2. Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give. (b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. (c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
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§2034.620. The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied: (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits. (c) The court has determined either of the following: 1. The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness. 2. The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: (A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. (B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section §2034.260 on all other parties who have appeared in the action. (d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section §2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion. §2034.630. The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
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Appendix B: Actual Case Report Examples
The examples of case reports that follow are but a brief representation of what information is published by the court after the case has come to completion. This generally appears within several months after a case completion and is usually published on the Internet (if not also elsewhere) by the clerk of the court. A review of this type of information can provide some degree of insight as to the judge’s thinking and the role of the various pivotal witnesses. In the examples that follow, the identification and/or testimony of myself as the expert witness is given in bold type.
B1: Gunderson v. A. W. Chesterton Spotlight Case Fact Sheet Case Summary. Plaintiff, Genevieve Gunderson, is 75 years old and is dying from mesothelioma. She alleged she contracted mesothelioma from asbestos exposure brought home by her ex-husband from 1948 to 1963. It was undisputed that Ms. Gunderson has an asbestos-caused mesothelioma. Her ex-husband, Gordon Fraser, was a pipefitter at large industrial sites from 1946 to 1982 throughout Southern California. He was married to Ms. Gunderson from 1948 to 1963. During the marriage, he wore his work clothes home and she laundered them twice weekly. He worked at Union Oil (Unocal) on several large construction projects for a total time of approximately three years from 1948 to 1963. These were all new construction projects and his employers were Bechtel and Fluor Corporation (both of whom settled during the trial). Unocal presented both duty and state-of-the-art defenses. Defendant argued it was unforeseeable that before 1960, “take-home” exposures could cause disease. Therefore, they argued no duty as a matter of law (the court denied all motions on this issue.) They also argued that they were not neg169
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ligent. They supported their case with the expert testimony of Dr. William Hughson, a pulmonologist and Howard Spielman, a Certified Industrial Hygienist. Plaintiff responded with state-of-the-art testimony of Dr. Barry Castleman. The defendant found in plaintiff ’s favor on three separate theories of ordinary negligence, premises liability, and peculiar risk. Jury Trial: Genevieve J. Gunderson v. A. W. Chesterton Company, et al. San Francisco Superior Court Case No. 406207 Judge: The Honorable Tomar Mason, Department 608 Case Filed: March 29, 2002 Verdict Rendered: December 12, 2002 The Case On December 12, 2002, a San Francisco jury awarded $11,550,750 to Genevieve Gunderson of Torrance, California, for a terminal cancer she contracted from her husband’s clothing in the 1950s. The verdict against Unocal was on three separate theories of negligence. Ms. Gunderson is dying of mesothelioma, an incurable asbestos-caused cancer. Genevieve Gunderson is a 75-year-old homemaker and retired hairdresser from Torrance, California, who was exposed to asbestos by her former husband, Gordon Fraser, who worked as a pipefitter at various industrial sites, including Unocal in Wilmington, California, from 1948 to 1963. In October, 2001, Genevieve Gunderson, mother of one adult child, four grandchildren, and several great-grandchildren, was diagnosed with mesothelioma, a cancer caused by exposure to asbestos. Ms. Gunderson’s prognosis is terminal and she has been given only months to live. Ms. Gunderson filed her lawsuit in San Francisco in March, 2002. In October, 2002, following a three-week jury trial and three days of deliberation, the jury found the remaining defendant, Unocal, 9.3% at fault. Ms. Gunderson was exposed to asbestos in her home when she shook out and laundered her husband’s work clothing. Her former husband, Mr. Fraser, worked intermittently at the Unocal refinery in Wilmington, California, as a pipefitter for approximately three years from 1948 to 1963 during their marriage. The jury found that Ms. Gunderson suffered $550,750 in lost income and medical expenses based upon the expert testimony of Santa Rosa economist Dr. Barry Ben-Zion and Berkeley pulmonologist Dr. Barry Horn. Ms. Gunderson was also awarded $11 million for her pain and suffering. Evidence was presented that cancers such as Ms. Gunderson’s can be caused by relatively low exposures, including dust brought home on workers’ clothing. Though
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largely ignored, the industrial community was well aware of recommendations for providing changing rooms, work clothing, and workplace laundry service to workers who worked around asbestos and other harmful dust. The case was initially filed in March, 2002, against 40 separate defendants, and was advanced to trial quickly because of Ms. Gunderson’s terminal condition. Before trial, all defendants except Unocal, Chevron, and Fluor Corporation settled. Chevron and Fluor Corporation settled during trial. The total verdict will be reduced by the other parties’ settlements. The final judgment against Unocal is estimated to be approximately $1.5 million. Total Verdict Total Economic Damages: $550,750 Total Non-Economic Damages: $11 million Trial testimony: 3 weeks: deliberations lasted 3 days Trial commenced: November 14, 2002 and concluded December 12, 2002 Allocation: 90.7% to all other defendants; 9.3% to Union Oil Net judgment after settlement verdict and costs approximately $1,485,725 Experts Plaintiff ’s experts included: Richard Hatfield, Materials Analyst Specialist, Atlanta, GA; Barry R. Horn, M.D., Pulmonologist, Berkeley, CA; Barry Castleman, M.D., Medical State of the Art, Baltimore, MD; Barry BenZion, Ph.D., Economist, Santa Rosa, CA; Kenneth Cohen, C.I.H., Ph.D., El Cajon, CA; Allan Smith, M.D., Ph.D., Epidemiologist, Oakland, CA. Defense experts included: William Hughson, M.D., Pulmonologist, San Diego, CA; Howard Spielman, Certified Industrial Hygienist, Los Alamitos, CA. Prior settlement negotiations: Plaintiff served CCP§ 998 offer for $300,000 which was rejected. During the trial, plaintiff ’s last demand was $700,000.
B2: Moore v. American Honda Court of Appeals Division I, State of Washington Opinion Information Sheet Docket Number: 55923-1-I Title of Case: Patricia Moore, Appellant v. American Honda Motor Co et al., Respondents File Date: 03/20/2006 Source of Appeal. Appeal from Superior Court of King County
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Docket No: 03-2-33651-3 Judgment or order under review Date filed: 02/18/2005 Judge signing: Hon. Sharon Armstrong Judges. Marlin Appelwick Ronald Cox William Baker Counsel of Record. Counsel for Appellant(s). Zachary B Herschensohn Brayton Purcell 621 SW Morrison St Ste 950 Portland, OR 97205-3824 Scott Allen Niebling Brayton Purcell 621 SW Morrison St Ste 950 Portland, OR 97205-3824 Counsel for Respondent(s). Ronald Clayton Gardner Gardner Bond Trabolsi 2200 6th Ave Ste 600 Seattle, WA 98121-1849 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON PATRICIA E. MOORE, as
)
Personal Representative of
) No. 55923-1-I
the Estate of
)
PAUL A. MOORE,
) DIVISION ONE
Appellant,
)) ) UNPUBLISHED OPINION
v.
)) ))
AMERICAN HONDA MOTOR CO.,
)
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INC.; AMERICAN SUZUKI MOTOR
)
CO., INC.; ASBESTOS
)
CORPORATION LIMITED; ATLAS ) TURNER, INC.; AURORA CYCLE; ) BMW OF NORTH AMERICA, LLC;
)
BSA MOTORCYCLES; BARTELL’S
)
ASBESTOS SETTLEMENT TRUST;
)
BATES INDUSTRIES; BECK/ARNLEY
)
WORLDPARTS CORP.; BELL
)
ASBESTOS MINES, LTD; BIG
)
FOUR, INC.; BILL LOWE CYCLE;
)
BURNS INTERNATIONAL SERVICES
)
CORPORATION; CARLISLE ) CORPORATION; CSK AUTO, INC.;
)
CUSTOM CYCLE PARTS; CYCLE
)
BARN, INC.; DAIMLERCHRYSLER
)
CORPORATION; DANA
)
CORPORATION; DESTINATION
)
HARLEY-DAVIDSON, INC.; DIXIE
)
DISTRIBUTING; DRAG
) FILED: March 20, 2006
SPECIALTIES; DUCATI NORTH
)
AMERICA, INC.; DUNN LUMBER
)
CO., INC.; ENPRO INDUSTRIES,
)
INC.; ERNST HARDWARE; EXPERT
)
CYCLE; FIDALGO INSULATION;
)
FORD MOTOR COMPANY; GARLOCK
)
SEALING TECHNOLOGIES, LLC.;
)
GARY BANG; GATKE CORPORATION;
)
GENERAL MOTORS CORPORATION;
)
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GLOBAL MOTORSPORTS GROUP;
)
GREAT WALL MANUFACTURING;
)
HANSON PERMANENTE CEMENT,
)
INC.; HARLEY-DAVIDSON MOTOR
)
COMPANY, INC.; HONEYWELL
)
INTERNATIONAL, INC.;
)
HUSQVARNA MOTORCYCLES; INDIAN
)
MOTORCYCLES; KAWASAKI MOTORS
)
CORP., USA; MARLOTTS;
)
MCGOODIES; METROPOLITIAN LIFE
)
INSURANCE COMPANY; MOTO GUZZI
)
MOTORCYCLE; NORTON
)
MOTORCYCLES; OWENS-ILLINOIS,
)
INC.; PACCAR, INC.; PNEUMO
)
ABEX CORPORATION; ROCKY POINT
)
CYCLE; STANDARD MOTOR
)
PRODUCTS, INC.; THURMAN
)
INDUSTRIES, INC.; TRIPLE A ) ACCESSORIES; TRIUMPH
)
MOTORCYCLE AMERICA LTD.;
)
VOLKSWAGEN OF AMERICA, INC.;
)
WHEEL SPORTS DISTRIBUTION;
)
WHITE FRONT STORES, INC.;
)
WINNING PERFORMANCE; YAMAHA
)
MOTOR CORPORATION, USA; and
)
FIRST DOE through ONE
)
HUNDREDTH DOE;
) )
Respondents.
)
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Per Curiam Patricia Moore, as personal representative of the Estate of Paul Moore (Estate), brought this action against Global Motorsports Group (GMG), alleging that her late husband died of mesothelioma after exposure to asbestos sold by GMG. Because the evidence fails to create a reasonable inference that Moore was exposed to asbestos supplied by GMG, we affirm the trial court’s dismissal on summary judgment. Facts Paul Moore owned and operated a series of motorcycle shops, beginning with Seattle Assembly & Accessory (SA&A) in 1976. From 1986 to 2000, he operated Rebel Motorcycle Mart in a series of locations, including Nevada, Tacoma, and Puyallup. In each of his shops, Moore sold motorcycle accessories and parts and performed motorcycle repairs. In about 1977, under the name of Custom Chrome, Inc. (CCI), GMG started selling wholesale motorcycle accessories and replacement parts, including asbestos-containing brake, clutch, and gasket products. Over the years, Moore purchased products from several wholesalers, including GMG. He died from mesothelioma on August 19, 2000. In 2003, Patricia Moore, as personal representative of the estate of her late husband, filed this action, alleging Moore was exposed to asbestos purchased from GMG and other entities. For purposes of this appeal, only the allegations against GMG remain. GMG eventually moved for summary judgment, arguing the Estate had failed to submit any evidence that it sold products containing asbestos to Moore. In considering the motion, the trial court had before it the following materials. By deposition, Patricia Moore stated that for the period before 1986, she could not recall any particular seller of brake and clutch parts, only that SS&A had used several different distributors. She believed that after 1986, when Moore opened Rebel Motorcycle Mart, CCI became the primary supplier of parts and accessories, but she could not recall whether any brake and clutch parts purchased during that period contained asbestos. She stated that from 1986 to 2000, when Moore worked primarily on Harley Davidson motorcycles, he also purchased brake, clutch, and gasket products directly from Harley Davidson dealers. Neither the Estate nor GMG submitted any invoices or other records identifying any specific friction products that Moore had purchased from GMG. The only evidence in the record indicating what parts from GMG contained asbestos was a series of catalogues that GMG issued after 1977. These catalogues indicate that GMG began offering asbestos-free brake pads in 1986. The record contains evidence that Harley-Davidson motorcy-
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cles had asbestos-containing brake components until 1973 and asbestoscontaining clutch components until 1984. George Dean worked for Moore from 1977 to 1981. During this period, Dean did virtually all of the repair work while Moore sold accessories in a different part of the shop. Dean stated that the shop purchased brake and clutch parts directly from dealerships and from after-market companies such as CCI. After first stating that he was “certain” that Moore had ordered brake and clutch parts from CCI, Dean explained his answer as follows: “I cannot say 100 percent that he did. This would be an assumption. I would assume that he did at one time or another, but I couldn’t tell you 100 percent that he did.” Dean had no specific recollection of Moore working with brake pads purchased from CCI. Nor could Dean recall working with brake pads from CCI in Moore’s presence. Dean characterized brake pads as “a very, very small part” of the items supplied by CCI and could not recall any details about the brake parts that CCI might have supplied. Dean recalled that the parts purchased from CCI were primarily chrome accessories, such as light bars, crash bars, and brake caliper covers. Keith Recker testified that he met Moore in 1993 and that Moore would sell CCI parts in their original packaging to shop customers. Recker also specifically recalled seeing Moore working with brake parts from CCI in the shop, but did not know whether any of the CCI parts contained asbestos. Edward Moore, Moore’s son, recalled that Moore ordered brake parts from several distributors, including CCI, but could not identify the manufacturer of any of the brake parts and did not know whether the brake parts contained asbestos. Walter Harrison purchased a muffler through Moore from the CCI catalogue in about 1995, but he did not know if the muffler contained asbestos. By declaration, Ken Cohen, a certified industrial hygienist, stated that in his opinion, Moore had been exposed to significant amounts of asbestos from brake and gasket components during the period that George Dean had worked in the shop, both from installing components himself and from his presence when others installed these components. Based on his knowledge of motorcycle parts, Cohen concluded that during the period from 1976 to 2000, it was more likely than not that the brake, clutch, and gasket parts purchased from after-market companies like CCI contained asbestos, “absent evidence to the contrary.” The trial court entered an order granting GMG’s summary judgment motion on February 18, 2005.
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Standard of Review When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court and considers the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665(1995). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). Decision In order to sustain its claim, the Estate was required to demonstrate, among other things, that Moore was exposed to asbestos-containing friction products—brakes, clutches, or gaskets—supplied by GMG. See Lockwood v. A C & S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987). In Washington, a plaintiff need not personally identify the asbestos products to which he was exposed in order to recover; direct or circumstantial evidence may be sufficient to identify the manufacturer of asbestos products present in a workplace. Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 323-24, 14 P.3d 789 (2000) (evidence that a worker saw specific asbestos-containing products at the work site “almost every day” for seven years, coupled with evidence that the defendant was a local distributor of both products and local distributors were the first source for immediate needs, sufficient to support an inference that plaintiff was exposed to defendant-supplied products); see also Lockwood, 109 Wn.2d at 247 (testimony from other workers placing a manufacturer’s product at defendant’s work site, along with expert testimony about asbestos drifting, sufficient to permit reasonable inference that plaintiff was exposed to the manufacturer’s product). On appeal, GMG concedes the evidence supports an inference that Moore purchased various friction products from GMG over the years. But we agree with GMG that even when viewed in the light most favorable to the Estate, the evidence fails to support an inference that Moore was exposed to asbestos from GMG products. Several witnesses testified that Moore ordered friction parts from several distributors, including CCI, but for the period before 1993, no one was able to identify any specific parts ordered from CCI or recall Moore working with any specific CCI parts. George Dean explained that he ‘assume{d}’ Moore purchased CCI brake pads ‘at one time or another,’ and acknowledged that such purchases would have been ‘a very, very small part’ of the brake pads purchased by the shop. For the period after 1993, Keith Recker specifically
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recalled that Moore sold packaged CCI brake parts in the shop and would use the same packaged parts for repairing motorcycles. But Recker did not know whether any of the CCI parts contained asbestos. In order to support the inference that Moore was exposed to asbestos from CCI parts, the Estate relies primarily on the declaration of Ken Cohen, a certified industrial hygienist, who opined that motorcycle friction parts sold in the United States during the period from 1976 to 2000 by after-market companies “like” CCI “more likely than not” contained asbestos. But Cohen does not indicate that this conclusion is based on any specific knowledge of CCI’s products. Given the absence of evidence identifying any specific CCI products used by Moore or specifically tying Moore to CCI friction products until 1993, the undisputed evidence that Moore purchased friction products from multiple sources, the fact that a major motorcycle manufacturer discontinued asbestos-containing brake products by 1973 and clutch products by 1984, and the fact that CCI began offering asbestos-free brake pads by 1986, the trier of fact would have to rely on speculation or conjecture to find that Moore was exposed to asbestos from CCI friction products, either during the installation of new products or the removal of old products. Conclusory opinions, lacking any meaningful factual support, are insufficient to defeat a motion for summary judgment. See Guile v. Ballard Community Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993). Affirmed. For the court:
B3: Horton v. Harwick Chemical Corporation Precedent-Setting Decision Horton et al., Appellants, v. Harwick Chemical Corporation; A.W. Chesterton et al., Appellees. Robert Derrick, Appellant v. John Crane, Inc., et al., Appellees. [Cite as Horton v. Harwick Chem. Corp. (1995), Ohio St.3d] Civil procedure — Appropriate summary judgment standard for proving causation in asbestos cases — Torts — Alternative liability cannot apply, when. 1. For each defendant in a multidefendant asbestos case, the plaintiff has the burden of proving exposure to the defendant’s product and
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that the product was a substantial factor in causing the plaintiff ’s injury. 2. A defendant need not prove that he was exposed to a specific product on a regular basis over some extended period of time in close proximity to where the plaintiff actually worked in order to prove that the product was a substantial factor in causing his injury. (Lohrmann v. Pittsburgh Corning Corp. [C.A.4, 1986], 782 F.2d 1156, disapproved.) 3. Summary judgment is proper in an asbestos case in the same circumstances as in any other case, i.e, when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party. 4. Alternative liability cannot apply if the defendants’ products do not create a substantially similar risk of harm. Nos. 94-115 and 94-1041 — Submitted January 11, 1995 — Decided September 13, 1995. Appeals from the Court of Appeals for Montgomery County, Nos. 13872 and 14159. These consolidated cases arise from the asbestos-related injuries allegedly suffered by appellants Robert S. Derrick and Edward Horton. Edward Horton worked for Dayton Tire and Rubber Company (“DTR”) from 1946 to 1980. During his first four years at DTR, Horton worked in the general services department, where he performed cleaning duties throughout the DTR plant. From 1950 until his retirement, Horton worked as a tire builder, except for one year that he spent as a bias cutter in the tire building department. Horton alleges that his exposure to asbestos fibers at the DTR plant caused him to contract asbestosis, asbestos-related pleural thickening, and small airways obstruction. On July 13, 1990, Horton and others filed a personal injury action in the Summit County Court of Common Pleas against various manufacturers and distributors of asbestos products. Mrs. Horton filed a claim for loss of consortium. The part of the case dealing with the Hortons was transferred to the Montgomery County Common Pleas Court on November 15, 1990. In 1992, seventeen of the defendants moved the court for summary judgment. On December 30, 1992, the court sustained the motions of thirteen defendants, overruled the motions of two defendants, and struck the motions of two as untimely.
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The Hortons appealed to the Second District Court of Appeals the entry of summary judgment in favor of the thirteen. They eventually dismissed their appeal on the record as to eight, leaving the following five defendants: (1) A.W. Chesterton Company (“Chesterton”); (2) McNeil (Ohio) Corporation (“McNeil [Ohio]”); (3) McNeil-Akron, Inc. (“McNeil-Akron”); (4) Pittsburgh Corning Corporation (“Pittsburgh Corning”); and (5) John Crane, Inc. (“John Crane”). McNeil (Ohio) and McNeil-Akron settled with the Hortons during the pendency of their appeal. On November 23, 1993, the appellate court affirmed the judgment of the trial court in favor of appellees, Chesterton, Pittsburgh Corning, and John Crane. Derrick, a lifetime nonsmoker but for a few months in his youth [sic], worked at DTR from 1942 through 1975, except for two years of military service from 1953 to 1955. Derrick served in a variety of capacities at the plant, including working in the receiving department, as a janitor, and in the Banbury mixer department. He alleges that as a result of his exposure to asbestos fibers in the course of his employment at DTR, he contracted asbestosis and asbestos-related pleural thickening. On February 8, 1991, Derrick filed a personal injury action in Montgomery County Common Pleas Court, alleging that his illness was the direct and proximate result of the shedding of asbestos fibers into the air of his work environment by the defective, asbestos-containing products of the named defendants. Fourteen of the defendants moved the trial court for summary judgment. Derrick dismissed six of those defendants on the record, and on July 6, 1993, the court sustained the motions of five of the remaining defendants, and overruled the motion of one other. Derrick appealed to the Second District Court of Appeals the entry of summary judgment in favor of four defendants: (1) Chesterton, (2) McNeil (Ohio), (3) Pittsburgh Corning, and (4) John Crane. According to the opinion of the court of appeals, McNeil (Ohio) settled with Derrick after the appeal was filed. The appellate court affirmed the trial court’s summary judgments in favor of appellees Chesterton, Pittsburgh Corning, and John Crane on March 30, 1994. Derrick appealed to this court and we consolidated his appeal with that of appellants Edward and Dorothy Horton. In both of these cases, the appellate court employed the “frequencyproximity” test set forth in Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156, to determine whether plaintiffs’ evidence regarding causation was sufficient to withstand defendants’ summary judgment motions. Under the Lohrmann test, to escape summary judgment a plaintiff must present evidence of “exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually
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worked.” Id. at 1162-1163. This court never has specifically adopted the Lohrmann test. Both plaintiffs presented evidence that during the time that they worked for DTR asbestos-containing products of each of the appellees were present in the facility. The trial and appellate courts held, however, that neither plaintiff demonstrated exposure to any of the appellees’ products on a regular basis over some extended period of time in proximity to where the plaintiff actually worked, and therefore granted summary judgment to the appellees. These case are before this court upon the allowance of motions to certify the records. Michael F. Colley Co., L.P.A., Daniel N. Abraham, Thomas F. Martello, Jr., and David K. Frank, for appellants. Baden & Jones Co., L.P.A., Thomas P. Erven, and Nancy R. Blankenbuehler, for appellee A.W. Chesterton Company. Day, Cook & Gallagher, David L. Day and Dale D. Cook, for appellee John Crane, Inc. Hermann, Cahn & Schneider, Gary D. Hermann, Jay H. Salamon, and Romney B. Cullers, for appellee Pittsburgh Corning Corporation. A. Russell Smith and R. Bryan Nace, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers. Charles R. Armstrong and Carolyn T. Wonders, urging reversal for amicus curiae, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, CLC. Joyce Goldstein Co., L.P.A., and Joyce Goldstein, urging reversal for amicus curiae, Cleveland Building and Construction Trades Council, AFL-CIO. Adams Legal Services and Russell J. Adams, urging reversal for amicus curiae, Asbestos Victims of America. Davis & Young Co., L.P.A., and Martin J. Murphy, urging affirmance for amicus curiae, Owens-Corning Fiberglas Corporation. Ronald G. Rossetti, Jr., urging affirmance for amicus curiae, Ohio Association of Civil Trial Attorneys. Vorys, Sater, Seymour & Pease, Mary Ellen Fairfield, Richard D. Schuster, and Brent C. Taggart, urging affirmance for amici curiae, Acands, Inc., BF Goodrich Company and the Goodyear Tire & Rubber Company. Baker & Hostetler, Randall L. Solomon and John H. Burtch, urging affirmance for amicus curiae, Center for Claims Resolution. Bunda, Stutz & Dewitt, Robert A. Bunda, Barbara J. Stutz, and Anne Y. Koester, urging affirmance for amicus curiae, Owens-Illinois, Inc.
Pfeifer, J. We are asked in this case to set forth the appropriate summary judgment standard for causation in asbestos cases, and specifically, whether
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Ohio courts should adopt the Lohrmann test. While this court is aware of the docketing problems that may exist with asbestos-exposure cases, we will not cause plaintiffs in such cases to carry a greater summary judgment burden than other personal injury plaintiffs. In our view, the Lohrmann standard casts judges in an inappropriate role, is overly burdensome, and is unnecessary. We are also asked in this case to adopt alternative liability as a possible theory for recovery. This court has recognized the viability of alternative liability in the past, but we find it inappropriate in the cases at hand, since there is no evidence that the defendants’ products created a substantially similar risk of harm. I. In Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph five of the syllabus, this court held that “[w]here a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is on the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm.” In the asbestos cases, the plaintiff also has the burden of proving exposure to asbestos-containing products. Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 42, 514 N.E.2d 691, 693. The Lohrmann test purports to be a tool for determining whether a plaintiff ’s evidence of causation, i.e., whether a particular product was a substantial factor in producing the plaintiff ’s injury, is sufficient to withstand summary judgment. However, the test creates less a legal standard than a medical or scientific one. Under Lohrmann, a product cannot possibly cause an injury unless a plaintiff has worked in close proximity to the product on a regular basis for an extended period of time. By employing the Lohrmann test, the trial judge usurps the traditional role of the medical or scientific expert, establishing a mechanistic test regarding causation which no contrary expert testimony can overcome. The Lohrmann test puts trial judges in the position of having to find, for instance, that sporadic, intense exposure to asbestos over an extended period of time cannot cause asbestos-related disease. In effect, the Lohrmann test requires judges to take judicial notice that an asbestos-containing product can cause injury only when someone works in close proximity to the product on a regular basis over an extended period of time. Evid. R. 201(B) describes the kind of facts which may be judicially noticed: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
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determination by resort to sources whose accuracy cannot reasonably be questioned.” We certainly cannot say that there is no reasonable dispute as to what level of exposure can cause asbestos-related diseases. In refusing to adopt the Lohrmann test in Schultz v. Keene Corp. (N.D.Ill. 1990), 729 F.Supp. 609, 615, the court wrote: “[The] rule * * * flies in the face of evidence which indicates that short periods of exposure — from one day to three months — can cause significant damage to the lungs. See Workplace Exposure to Asbestos: Review and Recommendations, U.S. Dep’t of Health and Human Servs. and U.S. Dep’t. of Labor, DHHS (NIOSH) Publication No. 81-103, at 3 (Nov. 1980).” Medical science suggests that very limited exposure to asbestos can cause mesothelioma, perhaps the worst of asbestos-related diseases. See, e.g., “Mesothelioma: Has Patient Had Contact With Even Small Amount of Asbestos?,” 257 JAMA 1569 (Mar. 27, 1987); New York Academy of Sciences, Cancer and the Worker (1977) 50, cited with approval in Hardy v. Johns-Manville Sales Corp. (E.D. Tex. 1981), 509 F.Supp. 1353, 1355, reversed on other grounds, 681 F.2d 334 (C.A.5, 1982). The temporal aspects of the Lohrmann test are scientifically dubious. “The length of time that an individual was exposed to asbestos does not in itself determine how serious the injury will be. Several factors, including individual idiosyncrasy, the intensity of the exposure, and the nature of the contaminant all play a part in the development of the disease.” Schultz, supra, 729 F.Supp. at 615, citing Zurich Ins. Co. v. Raymark Indus., Inc. (1987), 118 Ill.2d 23, 37, 514 N.E.2d 150, 156. The proximity aspect of the Lohrmann test also chooses sides in a scientifically disputed area. In these cases, Dr. Kenneth S. Cohen, a registered professional engineer, certified industrial hygienist, and asbestos inspector who holds a PhD in occupational health, testified through affidavit that asbestos fibers can travel significant distances through the air, resulting in substantial asbestos exposure even to employees who are not working directly or in close proximity to any product containing asbestos. Dr. Cohen described in his affidavit the process of “re-entrainment,” by which the physical action of air movement, vibration, or physical trauma causes aerodynamically active asbestos fibers and particles to “take flight” and sail into the air. He stated that it was “more likely than not that some of the fibers and particles released in one corner of the [DTR] plant would travel on drafts and air currents throughout the plant, including to its furthest
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opposite point.” Dr. Cohen stated that the theory that a worker would only be exposed to asbestos released in the immediate vicinity of his workplace is a “scientific impossibility,” due to the aerodynamic quality of the fibers and the plant’s inevitable air turbulence. Dr. Cohen stated that the plaintiffs “were more likely than not substantially exposed to asbestos and talc fibers and particles from all manufacturers whose asbestos and talc containing products were used in the [DTR] facility during the periods they worked there.” It is not the province of the judge to immediately foreclose the validity of testimony such as Dr. Cohen’s. The case that appellee Chesterton cites as the leading case regarding the “fiber drift” theory, Robertson v. Allied Signal, Inc. (C.A.3, 1990), 914 F.2d 360, actually recognizes the theory’s validity. While allowing the use of the theory only with evidence of frequency and regularity, Robertson does nonetheless accept that a worker not in close proximity to the actual product may still inhale the product’s fibers: “The fiber drift theory can not stand alone; it must be supported by evidence showing the frequency of products’ use and the regularity of the plaintiff ’s employment in an area into which there is a reasonable probability that the fibers drifted.” Id. The true worth of testimony like Dr. Cohen’s is determined in the jury room when weighed against competing testimony. We are unwilling to close the door on the legitimacy of the “fiber drift” theory in every case in Ohio courts. Indeed, the Lohrmann test is the product of the attempts of Maryland federal courts to deal with claims brought by employees of shipyards, workplaces so large that fiber drift might seem impossible. The Lohrmann court stressed the immensity of the shipyard in that case as a reason for affirming the district court’s use of what later became known as the Lohrmann test: “[W]hen one considers the size of a workplace such as Key Highway Shipyard, the mere proof that the plaintiff and a certain asbestos product are at the shipyard at the same time, without more, does not prove exposure to that product.” Lohrmann, 782 F.2d at 1162. We think it unwise to apply a rule designed for shipyards to workplaces of every size. More important, we think it unwise to apply a strict standard rooted in science when the science on the issue is unresolved. Lohrmann creates an allknowing, trumping medical expert that disallows competing scientific viewpoints on the causes of asbestos-related diseases.
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The Lohrmann test is the result of the law and public policy outstripping the science at the heart of the asbestos problem. Sometimes when a phenomenon grounded in science creates public concerns, policymakers cannot wait for the science to catch up with those concerns, and a public-policy-generated pseudoscience can be the result. The Lohrmann test creates such pseudoscience in an arena where there is a long tradition of leaving science to the experts. Also, the Lohrmann test invites a trial judge into the domain of the jury. The temporal aspects of the test, frequency and regularity, are subject to an unlimited range of possibilities. How many exposures does it take to meet the acceptable level of frequency? Can a judge be sure that one less exposure could not have caused asbestos-related disease? What is a regular basis? Does intense exposure over a shorter duration reduce the regularity requirement? In regard to proximity, how close to the product is close enough? Will a few feet make the difference? The Lohrmann test does not call for simple responses which follow directly from a presentation of the evidence. Instead, the test involves a weighing of the plaintiff ’s evidence on the sliding scale of the test’s three loosely defined criteria. The inquiry by the trial judge should be whether there is evidence of exposure and evidence tying that exposure to the disease. Whether that evidence is strong enough to prove causation is an issue for the jury. Finally, the Lohrmann test departs from our standard regarding summary judgment. “Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution. Doubts must be resolved in favor of the nonmoving party.” Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64, 66, 609 N.E.2d 144, 145. Plaintiffs in asbestos cases deserve that same degree of caution in their cases. The Lohrmann test resolves doubts about causation mechanically in the favor of the defendant from the outset. It stacks the deck against plaintiffs by foreclosing all but one avenue of proof of causation. For each defendant in a multidefendant asbestos case, the plaintiff has the burden of proving exposure to the defendant’s product and that the product was a substantial factor in causing the plaintiff ’s injury. A defendant need not prove that he was exposed to a specific product on a regular basis over some extended period of time in close proximity to where the plaintiff actually worked in order to prove that the product was a substantial factor in causing his injury. Instead, we adopt the definition of “substantial factor” contained in Restatement of the Law 2d, Torts (1965), Section 431, Comment a: “The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead
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reasonable men to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called ‘philosophical sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Summary judgment is proper in an asbestos case in the same circumstances as in any other case, i.e., when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party. Thus, we decline to establish a formulaic approach in an area which defies that kind of analysis, and therefore do not adopt the Lohrmann test. We therefore reverse the court of appeals and remand these cases to the trial court for a determination consistent with this opinion. II. The theory of alternative liability originated in Summers v. Tice (1948), 33 Cal.2d 80, 199 P.2d 1. In Summers, the plaintiff and the two defendants went hunting together. The defendants negligently fired their guns simultaneously in the direction of the plaintiff and a pellet struck him in the eye. Since the plaintiff could not identify the responsible defendant, the court shifted the causation burden to the defendants. Id. at 86-87, 199 P.2d at 4-5. Alternative liability had its Ohio genesis in Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, syllabus, in which this court adopted the doctrine as set forth in 2 Restatement of the Law 2d, Torts (1965), Section 433B(3): “Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one caused it, the burden is upon each such actor to prove that he has not caused the harm.” In Minnich, the plaintiff was injured when ethyl acetate he was using to clean a printing press ignited. The complaint alleged that two companies had supplied ethyl acetate to Minnich’s employer; the supplier of the actual ethyl acetate that ignited was unknown, since it had been transferred to an unmarked bottle prior to its use by Minnich. Thus, this court applied alternative liability, since each of the defendants had allegedly supplied an identical, defective product to the plaintiff.
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This court first faced the issue of alternative liability in asbestos cases in Goldman, supra. This court in Goldman did not foreclose the possibility of the use of the theory in asbestos cases, but instead explained the limitations of its use therein. In Goldman, the plaintiff could not identify any of the defendants as having supplied asbestos materials to his employer. Thus, Goldman could not demonstrate that each of the defendants had acted tortiously. As this court noted, while the theory of alternative liability relaxes the traditional requirement that the plaintiff prove that a specific defendant caused the injury, it applies only where the plaintiff shows that all the defendants acted tortiously. Goldman, 33 Ohio St. 3d at 46, 514 N.E.2d at 696. The factor which makes alternative liability inappropriate in this case was mentioned in dicta in Goldman. The present cases lack what was present in the seminal cases in this area: defendants creating a substantially similar risk of harm. In Summers, for example, the defendants shot guns with identical ammunition in the direction of the plaintiff. In Minnich, both defendants allegedly supplied the same defective chemical to the plaintiff ’s employer. As this court stated in Goldman, “[a]sbestos-containing products do not create similar risks of harm because there are several varieties of asbestos fibers, and they are used in various quantities, even in the same class of product.” Goldman, 33 Ohio St.3d at 46, 514 N.E.2d at 697. The records in these cases fail to demonstrate that the level of risk posed by each of the defendants’ products is substantially similar. In the types of cases traditionally employing alternative liability, the plaintiff is unable even to differentiate between the possible responsible parties. In the within cases, the plaintiffs can at least identify which products they were exposed to most, which contained the highest levels of asbestos, and which were used in a manner more likely to release fibers into the air. Alternative liability is a unique theory to be employed in unique situations. This court in Minnich limited application of the theory to “situations similar to the one at bar.” Minnich, 15 Ohio St.3d at 397, 15 OBR at 512, 473 N.E.2d at 1200. Alternative liability cannot apply if the defendants’ products do not create a substantially similar risk of harm. Since there is no evidence that defendants’ products created a substantially similar risk of harm, we will not apply the theory in the within cases. We therefore agree with the appellate court on that issue. Judgments Reversed and Causes Remanded MOYER, C.J., concurs in part and dissents in part. DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in part. WRIGHT and COOK, JJ., concur in part and dissent in part.
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Moyer, C.J., concurring in part and dissenting in part. I concur in the first, third and fourth paragraphs of the syllabus and in the well-advised decision of the majority to reject the theory of alternative liability. I dissent from the majority opinion because it does not provide the bench and bar with a test that can consistently be applied in asbestos cases. I would adopt the “frequency-proximity” test adopted in the case of Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156. No persuasive argument has been given to persuade me that Ohio should not adopt the test applied in the majority of jurisdictions in the country that have considered the issue. For the foregoing reasons I would affirm the judgments of the court of appeals. DOUGLAS, J., concurring in part and dissenting in part. I enthusiastically concur in the clear, cogent and well-reasoned discussion of the majority concerning Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156, and the so-called Lohrmann test. I also concur in paragraphs two and three of the syllabus and in the ultimate judgment of the majority even though I must confess that I am unsure what I would do, upon remand, if I were the trial judge. I respectfully dissent from paragraphs one and four of the syllabus and the discussion of the majority in Part II of the opinion concerning alternative liability. I. Whether the majority does so intentionally or unintentionally, I believe the majority, by today’s decision, ends asbestos litigation in Ohio in multidefendant cases. By saying, in the first paragraph of the syllabus, that a plaintiff in such cases “has the burden of proving exposure to the defendant’s product and that the product was a substantial factor in causing the plaintiff ’s injury” (emphasis added), the majority creates a standard that no plaintiff will ever be able to meet. Each defendant in a multidefendant case will say that it was another defendant’s product that caused the injury, and a plaintiff, of course, will never be able to show that the injury was caused by, for example, the asbestos in the ceiling tiles rather than the asbestos which was wrapped around the pipes or heating ducts. The test for plaintiffs in asbestos cases should be no different from what it is for other plaintiffs in other multidefendant tort cases. In asbestos cases, the test should be that a plaintiff must show that he or she has an asbestosrelated illness, that she or he was exposed to an asbestos product of the defendant(s) and that exposure to asbestos was a factor in causing plaintiff’s harm. When plaintiff proves these facts by a preponderance of the evidence, the causation burden then shifts to defendants (who typically have better knowledge of their product placement) to show that it was not their product that caused the harm to plaintiff. This then leads to the theory of alternative liability.
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II. For its discussion of alternative liability, the majority relies principally on Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, and dicta in Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691. I believe that neither case is on point and both can be easily distinguished. It is true that in Minnich, we applied, as set forth by the majority herein, alternative liability. The distinguishing feature of Minnich from the case at bar is that in Minnich, it was clear that the harm had been caused by one of two actors but it was unclear which of the actors had caused the harm. This court shifted the burden to both actors for each to prove that, individually, it was not the tortfeasor. In the asbestos cases, the allegation is not that a single tortfeasor caused the injury. Rather, the allegation is that the injury was caused by exposure to asbestos which was placed in the premises by several different actors, all of whom are alleged to be responsible. The same is true of Goldman. In Goldman, the plaintiff could not show that any of the defendants had provided the asbestos materials alleged to have caused the injury. Not so in the case at bar. Rather than citing either Minnich or Goldman, I would cite this court’s case of Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505, which I find to be more directly on point. In Huston, the plaintiff was involved in a beer party at a private home, which was attended by a number of persons, most of whom were under the legal drinking age. Plaintiff Huston left the party in a car with two other guests. The car was involved in an accident and plaintiff Huston was injured. Plaintiff, along with his parents, sued a number of people, claiming that the defendants had provided (or permitted the providing of) alcohol to minors in violation of law and that this conduct resulted in plaintiff ’s being injured. Apparently a number of the guests at the party had brought beer with them, and a pony keg of beer and various cans and bottles of beer were commingled in a bathtub. One of the issues in Huston presented the question whether a plaintiff, in a multidefendant action, is required to prove the specific source of the alcohol that allegedly contributed to plaintiff ’s injury or whether it is enough, under the alternative liability theory, that two or more defendants committed tortious acts and that plaintiff was injured as a proximate result of the wrongdoing of at least one of the defendants. The trial court in Huston granted summary judgment to certain defendants. The court of appeals reversed and we affirmed the judgment of the court of appeals. Writing for a five-member majority of this court, Justice Herbert Brown cited 2 Restatement of the Law 2d, Torts (1965), Section 433B(3), which had been adopted by this court in Minnich, supra. Justice Brown went on to say that: “Comment f to subsection (3), supra, states that
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the reason for the exception is the unfairness of permitting tortfeasors to escape liability simply because the nature of their conduct and of the resulting injury has made it difficult or impossible to prove which of them caused the harm. Id. at 446. The exception applies when each of two or more actors has acted tortiously and the harm has resulted from the conduct of one or more of them. 2 Restatement of the Law 2d, Torts (1965), Section 433B, Comment g.” (Emphasis added.) Huston, supra, 52 Ohio St.3d at 218, 556 N.E.2d at 510. At 219, 556 N.E.2d at 510, Huston goes on to say that “[a]pplying these principles to the present case, plaintiffs must show: (1) that the beer furnished to underage persons came from the Cordells, Goodsite or the other named defendants, and (2) that Huston was injured as a proximate result of the wrongdoing of at least one of these defendants.” (Emphasis added.) Finally, and most tellingly, I believe, we said that “[t]he trial court erred when it granted summary judgment on the basis that plaintiffs failed to prove the specific source of the beer consumed by [the alleged driver] Bodnar.” (Emphasis added.) Id. This is precisely the issue now before us. In the case we are now considering, allegedly all the defendants before the court supplied products of a similar nature, some or all of which caused the injuries to these plaintiffs. Thus, since the theory of alternative liability is the law of Ohio today, Huston, supra, we should either follow Huston or overrule it. Since the majority does not follow Huston, I respectfully concur in part and dissent in part. RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion. WRIGHT, J., concurring in part and dissenting in part. I quite agree with the majority’s rejection of the theory of alternative liability in this case and join paragraphs three and four of the syllabus. However, I vigorously disagree with its treatment of the court of appeals’ opinion and its rejection of the “frequency-proximity” test adopted in the leading case of Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156, which has been embraced in practically every other jurisdiction which has reviewed asbestos cases. 1 The majority and the appellants apparently accept the proposition that “the plaintiff has the burden of proving exposure to the defendant’s product and that the product was a substantial factor in causing plaintiff ’s injury.” (Paragraph one of the syllabus.) The majority goes on to state, “[W]e decline to establish a formulaic approach in an area which defies that kind of analysis,” and rejects Lohrmann. What the majority has done is to adopt no test whatsoever and in the process relegate Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, and Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691, to meaningless pronouncements. The majority appears to adopt what, for lack of a better term, could be described as the “fiber drift theory,” which, in essence, states that if there is some evidence that a defendant’s product was located in or near or some-
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where in the vicinity of the place where plaintiff worked then there is potential liability, despite the total absence of a showing of plaintiff ’s proximity to those products or evidence as to the frequency of the exposures. I have no quarrel with the notion that asbestos particles have the ability to “take flight” and “sail” into the air. Appellant’s expert indicates that such particles might be released in one corner of a plant and travel by way of drafts and air currents throughout the immediate vicinity of a workplace. However, what is lacking here is any evidence suggesting that any of defendant-appellees’ products were a substantial factor in causing the appellants’ injuries. I think it goes without saying that under Ohio law, to get past a summary judgment a plaintiff must present evidence creating a probability, not a mere possibility, of a casual relationship between a defendant’s conduct or product and the alleged harm. Is there sufficient evidence here to create a jury question where the plaintiffs merely show that there was a possibility that they may have been exposed to the defendants’ products where they worked? Perhaps, but I suggest that the plaintiffs must present evidence that would tend to show the circumstances of the exposure, including some idea as to the time, place, and manner in which the product was used and where the plaintiff was in relation to the product. The Second District Court of Appeals did just this and concluded that there was no evidence other than speculation to support the posture of appellants. Civ.R. 56, which deals with summary judgment, and our various decisions dealing with it place the trial court in the posture of a gatekeeper, whose role is to take from the jury’s province cases which fail to achieve a certain minimum amount of evidentiary proof. This case is surely one that fails the test. Due to the majority’s brevity in reviewing the facts, I feel that I should excerpt a portion of the court of appeals’ opinion which analyzes the law as it relates to the facts. In its opinion in Horton (Nov. 23, 1993), Montgomery App. No. 13872, unreported, at 4-5, the court of appeals correctly noted that in Lohrmann, the Fourth Circuit required “a plaintiff to introduce evidence which would allow the jury to reasonably conclude that the conduct of the defendant was a substantial factor in causing the plaintiff ’s harm. Id. [Lohrmann, 782 F.2d] at 1162. That requirement was derived from the Restatement (Second) of Torts §431, which defines what constitutes legal cause. Lohrmann held that simply showing that asbestos-containing products were present in a large workplace while the plaintiff worked there is not sufficient to meet the ‘substantial factor’ test because it does not prove that the plaintiff was exposed to the asbestos-containing products. Id. Rather, the plaintiff must present evidence to show the frequency of the use of the product and the regularity of the plaintiff ’s employment in proximity thereto. Id.” The court of appeals properly stated, “The frequency-proximity test *** is not a test which is distinct from the substantial factor standard; rather, it
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is a tool to enable a court to determine whether the plaintiff in an asbestos case has put forth sufficient evidence against a defendant to show that a reasonable jury could find that the defendant’s conduct was a substantial factor in causing the plaintiff ’s harm. *** “***The frequency-proximity test does not require any greater showing than the substantial factor standard; rather, the test determines when the plaintiff has met his burden under that standard.” Id. at 6-7. As noted by the court of appeals, “The basis for this assignment of error is an affidavit filed by the Hortons explaining the fiber drift theory as it relates to DTR. Dr. Kenneth Cohen made the affidavit after an inspection of DTR conducted in 1989. DTR closed a few weeks after Mr. Horton retired in 1980, so inferably the plant was in substantially the same condition at the time of the inspection as it was when he still worked there. Dr. Cohen is a recognized expert in industrial hygiene. The fiber drift theory holds that asbestos fibers can become airborne and drift away from their original source. Through repeated disturbances by such forces as air currents or vibrations, these ‘aerodynamically active fibers and particles’ can be transported throughout the plant. Based on this theory, Dr. Cohen states that ‘[a]ny worker whose workplace was within the Dayton Tire and Rubber Company plant was an asbestos and talc breather if asbestos and talc fibers and particles were released within the confines of this facility. The plaintiff workers who worked inside of this facility during use, installation, damage to, repair, or removal of asbestos-containing and talc-containing products during their employment more probably than not suffered substantial occupational exposure to asbestos and talc fibers and particles by breathing them into their lungs ***.’ “Dr. Cohen does not confirm that any asbestos or talc fibers were ever released in DTR. He does not name any manufacturers of any asbestos or talc present within the plant. He refers to all workers inside of the facility, but he does not account for the fact that there was more than one building in the DTR plant. In oral argument, counsel for the Hortons conceded that the fibers would only drift within the contained structures where the asbestos was located.” (Emphasis added.) Id. at 7-8. For the foregoing reasons, I would affirm the judgment of the court of appeals. COOK, J., concurs in the foregoing opinion.
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Note 1. See, e.g., Jackson v. Anchor Packing Co. (C.A.8, 1993), 994 F.2d 1295; Tragarz v. Keene Corp. (C.A.7, 1992), 980 F.2d 411; Robertson v. Allied Signal, Inc. (C.A.3, 1990), 914 F.2d 360; Menne v. Celotex Corp. (C.A.10, 1988), 861 F.2d 1453; Blackston v. Shook & Fletcher Insulation Co. (C.A.11, 1985), 764 F.2d 1480; Spaur v. Owens-Corning Fiberglas Corp. (Iowa 1994), 510 N.W.2d 854; Sholtis v. Am. Cyanamid Co. (1989), 238 N.J.Super. 8, 568 A.2d 1196; Eckenrod v. GAF Corp. (Pa.Super. 1988), 544 A.2d 50; Lockwood v. AC & S, Inc. (1987), 109 Wash.2d 235, 744 P.2d 605.
B4: Willmar Poultry Company v. Carus Chemical Company Court of Appeals of Minnesota. WILLMAR POULTRY COMPANY, Respondent, v. CARUS CHEMICAL COMPANY, Appellant, Hawkins Chemical, Inc., et al., Defendants. No. C4-85-716. Dec. 17, 1985. Review Denied Feb. 14 and Feb. 19, 1986. Operator of turkey hatchery brought products liability suit against manufacturer of chemical which, when used in combination with another chemical as fumigant, caused fire destroying hatchery building. The District Court, Hennepin County, Charles A. Porter, J., entered judgment finding operator of hatchery 20% responsible, and manufacturer 80% responsible on theory of inadequate warnings, and manufacturer appealed. The Court of Appeals, Huspeni, J., held that: (1) question of fact as to whether past use of chemical in fumigating hatchery alerted operator to danger of fire precluded summary judgment in favor of manufacturer; (2) evidence was insufficient to raise jury question on negligence of distributors of chemicals involved; (3) trial court did not abuse its discretion in refusing to give an instruction regarding operator’s assumption of the risks; and (4) trial court did not abuse its discretion in framing jury instructions regarding manufacturer’s duty to test its product. Affirmed.
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*832 Syllabus by the Court 1. Respondent’s recovery against appellant was not precluded on the basis that no one at the respondent company read the warnings on the potassium permanganate drums. 2. Respondent’s recovery against appellant was not precluded on the basis that respondent was aware of the risks involved in fumigating its facility. 3. The trial court did not err in refusing to submit to the jury the issue of the distributors’ negligence. 4. The trial court did not err in its jury instructions. James L. Fetterly, Minneapolis, for respondent. Eric J. Magnuson, Minneapolis, for appellant. Heard, considered, and decided by HUSPENI, P.J., and FOLEY and FORSBERG, JJ. Opinion HUSPENI, Judge. Respondent Willmar Poultry Company (Willmar Poultry) brought this products liability action against appellant Carus Chemical Company (Carus), Reichhold Chemicals, Inc. (Reichhold), Hawkins Chemical, Inc. (Hawkins) and Thompson-Hayward Chemical Company (Thompson-Hayward), seeking to recover damages arising from a fire which occurred at Willmar Poultry’s facility. Reichhold, Hawkins, and Thompson-Hayward settled with Willmar Poultry prior to trial. Following a lengthy trial, the jury allocated responsibility for the fire 20% to Willmar Poultry, 80% to Carus, and 0% to Reichhold. The trial court denied Carus’ motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Carus appeals. We affirm. Facts Willmar Poultry operates a turkey hatchery in Willmar, Minnesota. It periodically fumigates its hatchery buildings and incubators in order to disinfect them. For a number of years, Willmar Poultry fumigated its buildings and incubators by combining potassium permanganate and a 37% formaldehyde solution. Carus is the sole manufacturer of potassium permanganate in the United States, and sells the product under the trade name “Cairox.” Carus recommends that potassium permanganate be used in combination with formaldehyde for fumigating poultry hatcheries.
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Reichhold manufactures a formaldehyde solution and sells its product under the trade name “Formalin.” Willmar Poultry purchased the potassium permanganate involved in this case from Hawkins and it purchased the formaldehyde solution from Thompson-Hayward. On November 17, 1978, as the final stage of a major cleaning of its facility, Willmar Poultry planned to do a large-scale fumigation. It had never done such an extensive fumigation before. Its normal procedure was to pour a measured amount of potassium permanganate into a three pound coffee can which contained a small amount of the formaldehyde solution. The employees of Willmar Poultry did a few tests during the week prior to the fumigation to determine the size of containers they should use and a method for mixing the large quantities of chemicals. They decided to use stock tanks to fumigate the smaller rooms in the hatchery and garbage dumpsters to fumigate the larger areas of the facility. They also decided to modify their usual procedure to accommodate the larger amounts of chemicals that were required. Ray Norling, the vice president of Willmar Poultry, testified that he decided to do an experiment prior to the fumigation in order to test two gas masks and also to determine whether any unexpected reactions would occur when he poured the formaldehyde solution on the potassium permanganate. He used a stock tank for his experiment. Within twenty to thirty seconds *833 after he poured the formaldehyde solution on the potassium permanganate, he observed a flame that was blue at the base and, above a couple of inches of blue flame, the flame was red. At times, the flame reached a height of twelve inches. The flame was as thick as a pointer. After three to four minutes, the flame subsided and Norling saw the flame go out. The flame was not unexpected because Norling had observed soot in other containers that were previously used for fumigation. Norling then implemented a plan which he considered would control the flow of the formaldehyde solution and prevent a fast release of fumes. The employees placed approximately 180 pounds of potassium permanganate in the bottom of a dumpster and approximately 45 gallons of the formaldehyde solution in a 55-gallon drum which was set on a stand above the dumpster. Attached to the drum was a spigot and a hose. The employees planned that, when they opened the spigot, the formaldehyde solution would run from the drum into the dumpster and mix with the potassium permanganate. They considered that the spigot would allow them to control the rate at which the formaldehyde solution would pour into the potassium permanganate, and therefore, they would be able to control the rate and speed of the chemical reaction. As a result of this setup, the chemicals were mixed at a much slower rate than was normal. Norling testified that he thought the slower the rate of
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mixture, the less fumes would be created, the personnel would have a longer time to leave the building without being harmed by the fumes, and any problems would be avoided. Norling expected some fire in the bottom of the dumpster, but he testified that he would “anticipate the same kind of flame that I saw in the stock tank.” All of Willmar Poultry’s precautions backfired. When employees of Willmar Poultry opened the spigot on the drum, the formaldehyde solution poured on to the potassium permanganate and there was an instantaneous violent chemical reaction. Within seconds, fire leapt to the ceiling of the hatchery and the uncontrollable fire destroyed the building. No one was injured. Dr. Kent Voorhees, one of Willmar Poultry’s experts, testified at trial that Willmar Poultry’s method of mixing the potassium permanganate and the formaldehyde solution created a serious risk of fire. Voorhees conducted a number of experiments with potassium permanganate and the formaldehyde solution. Most of the experiments were videotaped and the videotape was shown to the jury. He used a number of different containers—coffee cans, barrels, stock tanks and dumpsters. Voorhees opined, based on his experiments, that the reaction of the two chemicals is unpredictable. Voorhees described five factors that influence the chemical reaction: (1) in order to have a controlled chemical reaction, the chemicals need to be mixed completely and thoroughly; (2) the faster the chemicals are mixed together, the safer the reaction is; (3) it is safer to add the potassium permanganate to the formaldehyde solution, rather than vice versa; (4) containers with high sides tend to create a column of formaldehyde gas and thus create a higher risk of flames; (5) there is a maximum limit to the amount of chemicals that can be safely used. Voorhees concluded that potassium permanganate and formaldehyde cannot be used safely to fumigate a large building. He further testified that the slow addition of small amounts of the formaldehyde solution to large quantities of potassium permanganate is the most hazardous way to mix the two chemicals. Each drum of potassium permanganate had three labels on it. One label stated: DANGER: STRONG OXIDIZER CONTACT WITH OTHER MATERIALS MAY CAUSE FIRE. KEEP FROM CONTACT WITH CLOTHING AND OTHER COMBUSTIBLE MATERIALS. REMOVE AND WASH CLOTHING PROMPTLY. STORE IN TIGHTLY CLOSED CONTAINERS. DO NOT *834 STORE NEAR COMBUSTIBLE MATERIALS.
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Another label stated, among other things, that “contact with combustible material may cause fire or explosion.” The third label contained a yellow flame symbol with the word “OXIDIZER” printed underneath the symbol. Willmar Poultry’s other expert witness, Dr. Kenneth Cohen, testified that the warnings on the potassium permanganate were inadequate. First, he testified that the warning labels specifically contradict the long-standing and recommended practice in the poultry industry of combining a combustible material (the formaldehyde solution) with a strong oxidizer (potassium permanganate). Second, Cohen testified that the labels did not set an upper limit on the quantities of chemicals that could be safely mixed. Cohen suggested that the labels should use stronger language to communicate to the user the possibility of an explosion and they should specifically state that additional information is required before a user can safely proceed with “any unique processes that are contrary to the instructions on the label.” Carus’ expert, Charles O’Connor, testified that the labels were adequate. He testified that the labels on the potassium permanganate drums satisfied the standards of the American National Standard Institute. Further, he opined that the language of the labels is easily understood by someone with a sixth grade education. He did not believe there was any inconsistency between the language on the labels and the use of potassium permanganate for fumigation. In his opinion, the label on the potassium permanganate adequately warned users of the hazards of mixing the two chemicals together. The jury determined that the potassium permanganate was in a defective condition which was unreasonably dangerous, because Carus failed to provide adequate warnings and/or instructions for the safe use of the product (in combination with the formaldehyde solution) as a fumigant for buildings. The jury also determined that Carus’ failure to provide adequate warnings directly caused Willmar Poultry’s loss. The jury found no fault on the part of Reichhold. The trial court did not submit the issue of Hawkins’ and Thompson-Hayward’s negligence to the jury. The parties stipulated to damages of 1.8 million dollars. Issues 1. Was Willmar Poultry’s recovery against Carus precluded on the basis that no one at Willmar Poultry read the warnings on the potassium permanganate drums? 2. Was Willmar Poultry’s recovery against Carus precluded on the basis that Willmar Poultry was aware of the risks involved in fumigating its facility? 3. Did the trial court err in refusing to submit to the jury the issue of the distributors’ negligence?
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4. Did the trial court err in its jury instructions? Analysis I. Carus argues that no one at Willmar Poultry read the warnings or instructions contained on the potassium permanganate drums and, as a result, Carus’ alleged failure to adequately warn Willmar Poultry could not as a matter of law be a direct cause of Willmar Poultry’s loss. We need not determine whether the failure of a user to read the provided warnings bars recovery based on an inadequate warning. Our review of the evidence indicates that the jury could have determined that at least Norling and Donald Lenz, two Willmar Poultry employees who were involved in the fumigation, had read the labels on the potassium permanganate drums before the fire. II. Carus also argues that Willmar Poultry’s awareness of the risks involved in using potassium permanganate precludes its *835 claim of an inadequate warning as a matter of law. We disagree. [1] A manufacturer has no duty to warn when a user or operator is aware of the dangers of a product. Dahlbeck v. Dico Co., 355 N.W.2d 157, 163 (Minn.App.1984), pet. for rev. denied, (Minn. Feb. 6, 1985) (quoting Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir.1981)). See also Independent School District No. 14 v. Ampro Corp., 361 N.W.2d 138, 143 (Minn.App.1985), pet. for rev. denied, (Minn. Mar. 29, 1985). Willmar Poultry admitted knowing about some of the risks involved with fumigation. Based on Willmar Poultry’s previous fumigations and Norling’s experiment, Willmar Poultry did know that the chemical reaction between potassium permanganate and the formaldehyde solution created heat and some flames. Further, it did know that its employees should only be exposed to the chemicals for a short period of time. Finally, there is testimony that Norling and other Willmar Poultry employees were concerned about how to safely fumigate the facility. [2][3] Past experience with a product, however, does not necessarily alert users to all of the dangers associated with the product. See Blasing v. P.R.L. Hardenbergh Co., 303 Minn. 41, 48, 226 N.W.2d 110, 115 (1975). See Ampro Corp., 361 N.W.2d at 143 (plaintiff admitted knowing that the polyurethane foam-filled landing mats might burn, but it indicated no knowledge of the speed or intensity with which they burned). There is testimony which indicates that Willmar Poultry was not aware of the risks involved in slowly adding small amounts of the formaldehyde solution to
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large quantities of potassium permanganate. There is evidence that its prior fumigations did not make it aware of these risks. All of the prior fumigations at the hatchery were on a much smaller scale. Norling’s testimony and Voorhees’ expert testimony viewed together indicate that neither Norling nor any of the other employees knew about the dangers involved in fumigating large buildings. We believe the evidence concerning Willmar Poultry’s knowledge of the risks at least raised a question of fact for the jury to determine. The jury was instructed that “[t]here is no duty to warn where the product user knows the danger.” The issue of Willmar Poultry’s prior knowledge of the risks was appropriately left to the jury to consider. We cannot determine this issue as a matter of law. III. Carus claims the trial court erred in refusing to submit to the jury the issue of Hawkins’ and Thompson-Hayward’s negligence. Carus argues that the trial court erroneously relied on Minn.Stat. § 544.41 (1984), which limits nonmanufacturers’ liability in products liability actions. Carus further argues that there was sufficient evidence of the distributors’ negligence to submit the issue to the jury. Initially, we note that, contrary to Carus’ argument, the trial court utilized section 544.41, not as a basis for its nonsubmission of Hawkins’ and Thompson-Hayward’s negligence to the jury, but for guidance in determining whether enough evidence of the negligence of the two distributors had been presented to raise a jury question. The trial court essentially directed a verdict in favor of the distributors when it decided to not submit the issue of their negligence to the jury. [4] In reviewing a directed verdict, we must make an independent determination of the sufficiency of the evidence to present a fact question to the jury. Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983). The directed verdict is sustainable if it clearly would be the duty of the trial court to set aside a contrary verdict, as against the evidence or contrary to the law of the case. Id. at 670. [5] A negligence claim against the distributors required proof that they had knowledge of the products’ condition and the risks involved in that condition. See 836 Bilotta v. Kelley Co., 346 N.W.2d 616, 622 (Minn. 1984). Here, there was evidence that Hawkins sold Willmar Poultry the potassium permanganate which was used in fumigating the facility and that ThompsonHayward sold the formaldehyde solution. Both distributors did know that their chemicals were used for fumigation. The distributors’ knowledge of how their products are used, however, is not enough evidence to create a fact question for a jury. No evidence was presented that the distributors knew
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and appreciated the risks involved or that they had knowledge of any inadequacies in the warnings. We agree with the trial court that there is no evidence in the record that the distributors knew or reasonably should have known that the warnings provided by Carus were inadequate. Hence, the trial court did not err in refusing to submit to the jury the issue of the distributors’ negligence. IV. Carus contends that the trial court committed two errors in the jury instructions. [6][7] First, Carus asserts that the trial court erred in refusing to give the jury an instruction regarding Willmar Poultry’s assumption of the risk. We find no error. It is within the trial court’s discretion to give an assumption of the risk instruction. Kantorowicz v. VFW Post, No. 230, 349 N.W.2d 597, 599 (Minn.Ct.App.1984). In Springrose v. Willmore, 292 Minn. 23, 24-25, 192 N.W.2d 826, 827 (1971), the supreme court mandated that “assumption of risk must be apportioned under our comparative negligence statute.” Here, the court gave the jury a typical comparative negligence instruction. The jury was able to consider the evidence regarding Willmar Poultry’s assumption of the risks involved within the framework of that instruction. See Kantorowicz, 349 N.W.2d at 600. Hence, we do not find that the trial court abused its discretion in refusing to give an assumption of the risk instruction to the jury. Carus also claims the trial court erred in instructing that Carus had a duty to test its product. The trial court instructed the jury regarding a manufacturer’s knowledge of its product as follows: In determining whether the manufacturers of the two chemicals knew or reasonably could have discovered the danger, you are instructed that they are obligated to keep informed of the scientific knowledge and discoveries in the field. A manufacturer of goods has a duty to use reasonable care to test the goods to protect those who will use them from the unreasonable risk of harm while the goods are being used for the recommended purpose. The first part of this instruction is part of the proposed Minnesota JIG for “failure to warn” products liability cases. The second part is the proposed Minnesota JIG for negligence products liability actions involving manufacturing flaws. Carus asserts that a manufacturer’s duty to test its product is only applicable to negligence actions and that the jury instruction that it had a duty to test the potassium permanganate in conjunction with the formaldehyde solution was prejudicially erroneous. [8] A trial court has broad discretion in instructing a jury as long as the law of the case is fully, fairly and correctly stated. Swanson v. LaFontaine, 238 Minn. 460, 469, 57 N.W.2d 262, 268 (1953). The trial court explained its instruction in its post-trial memorandum on the basis that “[t]he duty to
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develop adequate warnings and instruction may well encompass a duty to test a product to discover defects.” [9] We conclude that the trial court did not abuse its discretion in framing the jury instructions. First, it is well-recognized that “failure to warn” strict liability actions are based on negligence concepts. See Bilotta v. Kelley Co., Inc., 346 N.W.2d at 622. Thus, an instruction which the Minnesota JIG suggests should be given in a negligence products liability action may well state the law applicable to a strict liability “failure to warn” case. *837 [10][11] In a strict liability “failure to warn” case, a manufacturer is only required to warn of forseeable risks in its product. Karjala v. JohnsManville Products Corp., 523 F.2d 155, 159 (8th Cir.1975). Both a manufacturer’s duty to be informed of current scientific knowledge and a manufacturer’s duty to exercise reasonable care and foresight to discover a danger in his product is relevant to whether a manufacturer knew or should have known of the risks in its product. See id. at 159 n. 6; Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1089 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974). Hence, under the particular facts of this case, where there was a great deal of evidence that Carus had not tested its potassium permanganate product for many years, we do not believe the trial court abused its discretion in instructing the jury as it did. We find that the instruction accurately stated the law applicable to the case. Decision Willmar Poultry’s recovery against Carus was not precluded on either the basis that no one at Willmar Poultry read the warnings on the potassium permanganate drums or on the basis that Willmar Poultry was aware of the risks involved in using potassium permanganate. In addition, the trial court did not err in refusing to submit to the jury the issue of the distributors’ negligence. Finally, the trial court did not err in its instructions to the jury. Affirmed. 378 N.W.2d 830, Prod.Liab.Rep. (CCH) P 10,903 END OF DOCUMENT
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Appendix C: Forms and Other Data
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I. First contacted April 28, 2006 A. Retention B. Materials review C. Documentation and memorialization below
II. Exhibit A for Sam Smith A. Work Hx chronology B. Consisting of 22 pages C. Dated August 18, 2005 D. Reviewed and retained to permanent file.
III. Supplemental/amended responses to interrogatories A. Sets Nos. 1 and 2 B. Consisting of 15 pages C. Dated January 29, 2005 D. Reviewed and recycled
IV. Supplemental/amended responses to interrogatories A. Sets Nos. 1 and 2 B. Consisting of 14 pages C. Dated January 6, 2005 D. Reviewed and recycled
V. Supplemental/amended responses to SMITH, Sam vs. Asb. Def’s, et.al. Page-1 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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Appendix C: Forms and Other Data
Interrogatories A. Set No.1 B. Consisting of 21 pages C. Dated October 14, 2004 D. Reviewed and recycled
VI. Video Direct Depo of Sam Smith A. Consisting of 174 pages B. Taken on November 17, 2004 C. Discussion Re: D. Discussion:
Personal and Family Hx
Medical Hx
E. Employment Hx 1. Pearl Harbor NSY a) Did his apprentice training there (1) As an outside Marine machinist (2) From 1970-74 (3) Finished as a step 2 journeyman b) Total time at Pearl was 9 years (1) Until 1979 c) Worked both surface craft and submarines d) Ships he worked on: (1) FF 1052 fast frigate SMITH, Sam vs. Asb. Def’s, et.al. Page-2 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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(a) USS Knox (b) USS Brewton (c) USS Bradley (2) CG’s guided missile cruisers and Oilers (a) USS Quellet (b) USS Reeves (c) USS Ponchatula (d) USS Haciampa (e) USS Kawishawi (2) SS submarines (a) USS Blueback (b) USS Barbill e) Worked in the engine/fire room 95% of the time f) Boiler systems he recalled (1) Babcock & Wilcox (2) Foster-Wheeler g) Discussed the packing he used: (1) Garlock (2) Chesterton (3) Anchor (4) John Crane (5) Used a corkscrew to dig out the packing h) Discussed the gaskets he used: SMITH, Sam vs. Asb. Def’s, et.al. Page-3 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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(1) Garlock (2) Flexitallic i) Discussion re: Pumps he worked on (1) Shaft seal packing j) Discussion re: Turbines he worked on (1) Steam seal packing k) Discussion re: electrical work that he worked around (1) He worked around electricians working (a) Pulling cables (b) Installing cables (c) Installing electrical boxes (d) Working switchboards (e) Work on generators (f) Wiring and unwiring electric motors
(2) He recalls Bakelite, phenolic and micarta insulators (3) The electricians used compressed air to blow out the “cans” of accumulated dust l) Also did work as a lagger from time to time (1) During the years he worked at Pearl Harbor, the insulators didn’t do removal, only installation. (2) He worked the thermal insulation (2) He covered the insulation with asbestos cloth (a) Cut the cloth with a scissors SMITH, Sam vs. Asb. Def’s, et.al. Page-4 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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2. Puget Sound NSY a) Bremerton, WA b) He was there for 11 years c) He was still working as a machinist d) He was now a journeyman-5 e) Same type of work as Pearl Harbor f) Here her also worked on compressors as well as generators (1) Large sheets of Micarta used to insulate the generators. (2) The sheets had to be cut to fit the footprint of the generator g) He worked on aircraft carriers: (1) USS Ranger (2) USS Midway (3) USS Constellation (4) USS Enterprise (5) USS Oriskany h) He was loaned to LBNSY for 6 months 2. Northwest Marine a) Porland, OR b) Private shipyard c) He continued as an outside machinist SMITH, Sam vs. Asb. Def’s, et.al. Page-5 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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k) He recalls the class of ships he worked: (1) Oil tankers (2) Cruise ships (3) Coast Guard ships (4) The Inactive Fleet (a) MSC’s (b) APL’s
4. Southwest Marine a) San Pedro, CA b) Same type of work as above 5. Power Generating and Consulting a) They did generator work on Naval vessels 6. Pacific Ship Repair a) National City, CA b) Same type of work as above 7. Henderson Automotive a) Phoenix, AX b) Worked a little over 1 year c) He was an automotive mechanic d) He did brake and clutch jobs along with other work (1) He used compressed air to blow out the dust (2) He felt the “dustiness” was not as bad on disc brakes as it was on drums SMITH, Sam vs. Asb. Def’s, et.al. Page-6 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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F. No further exposure testimony beyond this point! G. Reviewed and recycled
Appendix C-2: This is an example of the direct note taking while reading case review materials. Making notes, directly into a computer word processing program has served well to act as a submission to opposing counsel as the entirety of notes made in a case.
SMITH, Sam vs. Asb. Def’s, et.al. Page-7 Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020 Phone (619) 579-6233 Fax (619) 579-1350 e-mail
[email protected]
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Appendix C: Forms and Other Data
211
Lab Sent to: Sample Number
Sample Date
Date: Sample Identification
Description
Analysis required
Released By:
Signature:
Date & time:
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212 KENNETH S. COHEN FEE SCHEDULE - June 1, XXXX. [dba CONSULTING HEALTH SERVICES(CHS)]
DAILY CONSULTATION This constitutes a day-by-day consultive arrangement on an "as-needed" basis at the rate of $2,000.00 per day plus out-of-pocket expenses, travel, and per diem. Days available will be scheduled as calendar openings permit. Less than 1-full day rates (Hourly Rates) are available in the San Diego County area only and are restricted to investigational activity only. Fractional day rates are charged at $400.00 per hour, with a two-hour minimum. One consulting day consists of six working hours, with a half day being three hours. One testimonial day consists of four working hours of testimony. The fee for Deposition testimony is $400.00 per hour, with a one hour minimum. Calendar days blocked or reserved, and unused, are billed at the full rate for the activity scheduled. Cancellation must be made at least two weeks prior to the date in question1. Deposition, Court, Cal/OSHA Appeals Board or OSHRC testimony is charged only at the daily rate. Depositions noticed for an advance date will be prepaid for as a "full day rate" due to the inability of other scheduling. The "full day rate" for deposition or court testimony is $2,000.00 per day. If hourly testimonial rates are demanded, they will be charged at $400.00 per hour. Consulting Health Services or Kenneth S.Cohen will at all times operate in a professional and prudent manner to offer Client the highest quality performance possible in keeping with the cost limitations established; however, no warranty as to the outcome of Client's case or project is possible and none is expressed herein or elsewhere. Fee schedule: All fees are Net and due as presented, and are NON-REFUNDABLE. Standard rates for daily consultation will be charged according to the below listed scale: => Start-up2 Retainer (Legal) $1,500.00 => Daily rate (Routine) $2,000.00/day => Hourly rate(2-hr.min.) $ 400.00/hour => Deposition & Trial $2,000.00/day $ 400.00/hour => Expenses (Invoice basis) Hourly rates apply to travel time under four(4)hours, and consultation within the San Diego area. Cancellation Charges: Dates "booked" or reserved will be charged for at the task-related fee unless canceled two weeks prior. The fee charged within the two 1See
Cancellation Charges. Start up retainers are designed to facilitate long term projects or studies. Included in “start up” activities are case file reading, pertinant research, permission to disclose, and review with client, at which point the entire retainer fee is exhausted.
2
week period will be 25% of the original fee up until 48 hours prior. Any cancellation made within the 48 hour period will still be billed at the full price. Demonstrative expenses: All video, computer, and photographic work will be estimated prior to Client’s monetary commitment. Charges will be additional for all work of a tangible nature including set-up time and the physical equipment needs of the presentation. Photographic and Videotape productions will be on a time and charges basis plus supplies and will be cleared by Client prior to work being performed. Review materials: Materials sent for review should be photocopies and photographic duplicates rather than original materials. Chain of Custody materials should be so identified at time of delivery. Physical items of evidence will be maintained in protective custody for a period not to exceed one(1) year beyond the date of the last written communication with the client. SERVICES AVAILABLE: SCIENTIFIC AND FORENSIC INVESTIGATIONS COMPLETE PHOTOGRAPHIC DOCUMENTATION VIDEOTAPE PRODUCTIONS AND DOCUMENTATION INDUSTRIAL SAFETY&HEALTH STUDIES COMPUTERIZED LITERATURE SEARCHES CASE REVIEW AND CONSULTATION FIELD INVESTIGATIONS AND DISCOVERY SPECIALIZED LITIGATION-BASED PROBLEM SOLVING TRAINING PROGRAMS Preparation and travel time is included in the fee for most types of training programs, if no equipment, display or classroom-use equipment are used. If equipment, display or classroom use equipment is needed, an additional one (1) day at $2,000 must be charged for time involved in shipping, packing, cleaning, and repairing equipment, and for wear-and-tear on equipment. Actual cost of shipping equipment via airline cargo services, with pick-up and delivery charges, will be charged on an actual cost basis. EXPENSE BASIS Actual expenses include round trip air fare (first class) from San Diego,California to client's site and return to San Diego; lodging; rental car; and training materials. Meals are charged at $155.00 per day. (At client's option, a travel day can substitute for 1st class travel) When travel is required to a client's site of consultation, litigation, or arbitration, one-half (1/2) day of fee is charged for travel to the site, and onehalf (1/2) day of fee is charged for return within the Continental U.S. If outside Continental U.S., one (1) day of fee is charged for travel to site and one (1) day of fee is charged for return to home base.
REPORT GENERATION FEE SCHEDULE
Consulting Agreement as of June 1, 1998 Page-1
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Appendix C: Forms and Other Data Report generation of consultation or surveys will be prepared and charges will be based on actual time spent at $400.00 per hour. Report generation can be estimated at one-half (1/2) hour for each hour of onsite activity.
213 per month charge will be added to the total. The charges stated on the price list do not include any sale, use, or other taxes unless so stated specifically. Such taxes will be added to invoice prices in those instances in which CHS is required to collect them from customer.
GENERAL TERMS AND CONDITIONS OF SALE Warranty-Liability: CHS will perform Industrial Hygiene Services, and upon request, provide Customer with a written report of results within a specified time from receipt of purchase. Notwithstanding anything herein to the contrary, CHS's liability in connection with any claim relating to Industrial Hygiene Services shall be limited to, at CHS's option, repeating the Services at CHS's expense, or the refund of the charges paid for performance of the Services. Except as expressly stated above, CHS makes no warranty, express or implied, whether of merchantability or fitness for any particular purpose, or use, or otherwise of the Services. In no event shall CHS be liable to Customer for any special, indirect, incidental or consequential damages arising out of, or as the result of, the performance of the Services, the use or loss of the use of a report prepared by CHS, or for any charges or expenses of any nature incurred without CHS's written consent. Indemnification: Customer shall defend and indemnify and hold CHS harmless from and against all costs, expenses, damages, liabilities, or claims of any nature whatsoever resulting from or in any way relating to CHS's performing, or failing to perform, the Services. Force Majeure: CHS shall not be liable for any default or delay in performance if caused, directly or indirectly, by acts of God, war, force of arms, fire, the elements, riot, labor disputes, picketing or other labor controversies, sabotage, civil commotion, accidents, any governmental action, prohibition or regulation, delay in transportation facilities, shortage or breakdown of, or inability to obtain or non-arrival of, any labor, material or equipment used in the performance of the Services, failure of any party to perform any contract with CHS relative to the performance of the Services covered hereby, or from any cause whatsoever beyond CHS'S control, whether or not such cause be similar or dissimilar to those enumerated. CHS shall be compensated for costs3 incurred when Services cannot be completed for any of the above causes.
Miscellaneous: The consulting services are contracted for according to the laws of the State of California. This document constitutes the full understanding of the parties (CHS and Customer), and no terms, conditions, understanding or agreement purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by the parties to be bound. In the unlikely circumstances that sums payable under this agreement become the subject of litigation, your signature on this agreement acknowledges our right to recover from you our reasonable attorney's fees, costs and expert witness fees which may be incurred in collecting any sums due as a result of services rendered to you under the terms of this agreement. OFFERED BY:
X
CONSULTING HEALTH SERVICES DATE ____________________ ACCEPTED BY:
X ______________________________________ Re: Lois Missik vs. GATX, Case No. 97-CV-303 (Judge Kontos) Court of Common Pleas, Warren, OHIO .
DATE ___________________ BY ______________________ TITLE ____________________
PLEASE RETURN SIGNED AGREEMENT, INORDER THAT COMMENCE.
COPY WORK
OF MAY
Rev. June 1, XXXX
Charges and Payment: CHS will perform consulting services in return for fees as outlined on this agreement form, where applicable, or as stated on CHS's current price list, which may change periodically. Terms of payment are NET after receipt of invoice. After thirty (30) days from receipt of invoice, a two percent (2%) 3Exclusive
_____________________________________
of fees. Page - 2
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1 2 3
215
Kenneth S. Cohen, PhD., in propria persona P.O. Box 1294 El Cajon, CA 92022 (619)555-5555 STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF INDUSTRIAL ACCIDENTS WORKERS’ COMPENSATION APPEALS BOARD
4 5 6 7 8
10 11
) Case No.: [Case number] ) ) ORDER ) ) ) ) ) ) )
[Plaintiff's name],
9
Plaintiff, vs. [Defendant's name],
12
Defendant
13 14
A Petition for payment of expert witness deposition fees been filed herein, and good
15
cause appearing, Defendant is hereby ordered to pay Kenneth S. Cohen, PhD. reasonable expert
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witness fees of $ ___________.
17 18 19
If said fee is not paid within 25 days of the date of this Order, defendant is also ordered to pay penalties and interest thereon. UNLESS, on or before 15 days after service hereof said defendant shall file and serve
20
written objection thereto setting forth good cause why said order should not issue. In the event
21
objection is filed and served within said, time, this Order shall be of no effect, and the matter will
22
be referred to a calendar hearing.
23 24 25
DATED:
___________
__________________________________________ Judge, Workers’ Compensation Appeals Board
26
[Summary of pleading] - 1
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216
1 2 3
Kenneth S. Cohen, PhD. in propria persona P.O. Box 1294 El Cajon, CA 92022 (619)579-6233
4
WORKERS’ COMPENSATION APPEALS BOARD
5
STATE OF CALIFORNIA
6 7
[Plaintiff's name],
8 9 10
Plaintiff, vs. [Defendant's name],
11
Defendant
12 13 14 15
) Case No.: [Case number] ) ) PETITION FOR PAYMENT OF EXPERT ) WITNESS FEES ) ) ) ) ) )
COMES NOW, Kenneth S. Cohen, PhD. Who respectfully requests an Order issue allowing payment for his Expert Witness Deposition fee. The deposition of Kenneth S. Cohen, PhD. was taken at the request of ______________ ,
16
attorney for Defendant _____________. A request for fees was presented at the time of the
17
deposition.
18 19 20 21
Wherefore, these fees remain unpaid at this time Kenneth S. Cohen, PhD. requests that an Order issue herein allowing Expert Witness fees in the sum of $ _____. If payment is not made within 30 days of the date of the Order, defendants shall pay a penalty of 10% plus interest.
22 23 24
DATED:
___________
Respectfully submitted,
25 26
[Summary of pleading] - 1
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Appendix D: The Curriculum Vitae
D1: Curriculum Vitae of Kenneth S. Cohen In an era of one-page résumés, I have included my own curriculum vitae here to illustrate what the typical expert witness might include for purposes of explaining his background as it applies to a particular case or to establish his qualifications in the case of a court challenge. The CV shown below is one that I give to potential legal clients as well as what I used when representing myself to industrial or business clients. “Is This Your Most Current Résumé?” You should note the revision date at the end of the last page. This should be changed with every modification or update to your information. As you work into retirement, you may desire to include past licenses and certifications to establish your expertise in those areas even if you no longer hold the license or certificate. When doing so, you should indicate that the license or certificate was held, but has been retired or has not been renewed. Size does matter! Ten pages may seem like a lot of information, but if you have had an active professional practice your lifetime of experiences can easily fill the space. Many resources suggest a variety of résumé configurations and this is just one more which has worked successfully for me. Choose a format which best supports the expert-witness direction toward which you are aiming. There is no magic size or length. Remember your target reader audience. The resumé will be most effective if it is an outline of “talking points.” If there are specific areas about which the reader/client desires more information, it can be elaborated in a phone call or e-mail.
217
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Résumé Documentation Keep a résumé notebook in which you have a photocopy of each and every résumé revision, to fend off challenges which may arise. Once again, documentation is your best defense. CURRICULUM VITAE OF KENNETH S. COHEN P.O. Box 1294 El Cajon, CA 92022 (619) XXX-XXXX Personal Information Born: May 30, 1937, Los Angeles, CA. Health: Excellent; height 5'8", weight 180 lbs. Married: 1961, wife Karen, B.S. (microbiology); four children Residence: Own home in suburb of San Diego; forty years in area. Medical technician; former director/manager of clinical/environmental lab. Clearances held: Secret/Department of Defense, confidential. Education Pharmacy school in conjunction with U.S. Navy tour of duty, 1960. Upper division (B.S.) and graduate work at San Diego State University. Both programs were in the fields of microbiology with a heavy emphasis on chemistry. Last attended 1967. Doctoral work completed at California Western University; Ph.D. awarded 1976. Dissertational investigation in the area of occupational health (industrial ventilation engineering): Toxic Vapor Simulation of Industrial Ventilation Systems Using Sulfur Hexafluoride. License and Certifications—Existing or Previously Held California Licensed Forensic Alcohol Supervisor No expiration date California Licensed Junior College Teaching Credential #77131 No longer active California Licensed Medical Laboratory Techincian #11169 Renewed annually; no longer active
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California Licensed Manufacturing Pharmacist #E-5351-M No expiration date California Licensed Public Health Microbiologist #1146 No expiration date California Licensed Radiation Safety Officer #2592-59 No longer active California Registered Professional Engineer (SF-2929) Reregistered annually; voluntarily retired June 2003 Canadian Registered Occupational Hygienist #421 CRBOH February 1992; no longer active Certified Industrial Hygienist (CIH-ABIH) #1537 Comprehensive practice; recertified 1986–1992, 1992–1998; voluntarily retired June 2003 Certified Marine Chemist Training (NFPA) 100/300 hours. No longer active Shipyard Competent Person Training (NFPA) No longer active Certified Mine Safety and Health (MSHA) Instructor No longer active Certified AHERA Asbestos Inspector & Management Planner [8802-02014 and 8802-02-078] Recertified 1989, 1990, 1991, 1992 (UC–Berkley); no longer active California Registered Environmental Assessor (REA-00703) No longer active Additional Postgraduate Education American Conference of Governmental Industrial Hygienists: “Labeling and Warning Systems,” 1977 Harvard University: “Evaluation and Control of Occupational Hazards,” 1977 Texas A & M University: “Safety in the Chemical Industry,” 1977 B & K Forum: “Acoustical Engineering Principles,” workshop, 1978 South Dakota Trial Lawyers Association: “Defective Products,” seminar, 1978 University of Minnesota: “Recombinant DNA and Laboratory Safety” (at UC–San Diego), 1978 American College of Chest Physicians: “International Conference on Occupational Lung Disease,” 1979 Cook County Hospital, Chicago: “Update in Occupational Medicine,” 1979
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McCrone Research Institute: “Microscopic Identification of Asbestos,” 1979 Mt. Sinai School of Medicine, New York: “Recent Advances in Occupational Medicine,” 1979 Society for Occupational and Environmental Health: “Epidemiologic Methods for Occupational and Environmental Studies,” 1979 UC–Los Angeles: “On-line Services Training for the National Library of Medicine,” 1981 University of Utah: “Design and Evaluation of Industrial Ventilation Systems,” 1980 U.S. Mine Safety and Health Administration: “Toxicology Data Base Workshops,” 1981 McCrone Research Institute: “Advanced Microscopic Identification of Asbestos,” 1984 UC–Davis: “Occupational and Environmental Medicine,” 1985 Lovelace Inhalation Toxicology Research Foundation: “Concepts in Inhalation Toxicology,” 1986 Tufts University: “AHERA Inspection and Management Planning,” 1988 UC–Berkeley: “Advanced Topics in Building (Asbestos) Inspection and Management Planning,” annually, 1989–1992 University of Washington: “Advances in Pesticide Medicine,” 1989 U.S. Environmental Protection Agency: “Total Exposure Assessment Monitoring (TEAM) Workshop,” 1989 California Department of Health Services: “Environmental Epidemiology,” 1990 UC–Davis: “Environmental Auditing: Legal and Regulatory Framework,” 1990 U.S. Environmental Protection Agency: “Medical and Infectious Waste Management and Disposal,” 1990 American Industrial Hygiene Conference and Exposition 91: “Industrial Hygiene in the Healthcare Industry: Before and After OSHA’s BloodBorne Pathogen Standard,” 1991 Published Biographies American Men and Women of Science: Physical Biological Sciences, 14th ed., 1979 Biographical Directory of the American Public Health Association, 1979 Selected Affiliations (Committee or Service; Past and Current) Air Pollution Control Association
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American Academy of Industrial Hygiene Diplomate American Chemical Society Chemical Health and Safety Committee Chemistry and the Law Committee American College of Toxicology Occupational Health Committee (ad hoc) American Conference of Governmental Industrial Hygienists American Industrial Hygiene Association Computer Applications Committee (chair) Law Committee Textbook Committee (ad hoc) Toxicology Committee Education and Training Committee Continuing Education Committee American Public Health Association Occupational Health Section American Society of Safety Engineers National Member Education Committee National Professional Development Committee Safety Engineer of the Year 1982 San Diego Chapter (president, 1984) National Environmental Health Association National Fire Protection Association Electrical Standards Committee New York Academy of Sciences San Diego County Lung Association Environmental Health Task Force San Diego County Pulmonary Society Society of Environmental Toxicology and Chemistry Selected Court Qualifications and Testimony Expert witness testimony, court qualified in municipal, superior, and federal jurisdictions; or professional litigation support consultation has been given throughout the United States in the following areas: Alcohol and intoxication effects Asbestos: maritime, commercial, industrial, and residential applications; health effects Defense and plaintiff attorney review of case aspects in many areas of potential litigation Drugs: theraputic and abuse substances
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Ergonomics and workplace design Homicide: medical aspects Homicide: chemical exposure induction Medical, hospital, and staff malpractice case review Microbiological contamination of food: products and sources Occupational toxicology Product defect, labeling, and liability Product failure engineering Safety aspects of industrial, commercial, and residential sites Warnings, labels, and human factor engineering Selected Publications Monographs E. E. Lory, D. S. Coin, K. S. Cohen, J. S. Dyer, and M. J. Hienzsch, Management Procedures for Assessment of Friable Asbestos Insulating Materials. Port Hueneme, Calif.: Naval Civil Engineering Laboratory, 1980. Book Articles “Computer Applications Glossary.” In American Conference of Governmental Industrial Hygienists, ed., Microcomputer Applications in Occupational Safety and Health. Boca Raton, Fla.: Lewis, 1987. “Computer Glossary.” In K. Cohen, originating ed., Computer Applications in Safety and Health. Akron Ohio: American Industrial Hygiene Association, 1989. “How to Tap Occupational Safety and Health Resources.” In P. Slote, ed., Handbook of Occupational Safety and Health. New York: John Wiley and Sons, 1987. “Professional Liability in Occupational Health.” In J. S. Lee and W. N. Rom, eds., Legal and Ethical Dilemmas in Occupational Health. Ann Arbor, Mich. Ann Arbor Science, 1982. “Unique Occurrences of Asbestos.” In G. A. Peters and B. J. Peters, eds., The Current Status of the Asbestos Public Health Problem. Salem, N.H.: Butterworth, 1994. Journal Articles “Asbestos in Buildings: To Remove or Not to Remove, That Is the Question.” American Industrial Hygiene Association Journal 46 (1985).
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“A Basic Tool-Kit for the Safety Practitioner: Suggested Tools for Documenting Recognized Health Hazards.” Professional Safety, December 1978. “Custom TOXFILE Can Offer Low-Cost Toxicological Data Base.” Occupational Health and Safety, May 1984. “Dust Reduction in Asbestos Bulk Sampling.” Applied Industrial Hygiene 3, no. 4 (1988). “Hazardous Material Information Resources.” Occupational Health and Safety, February 1983. “Health Hazard Awareness.” Protection, October 1978. “Health and Safety Consultants: Uses and Abuses.” Occupational Health and Safety, November 1982. “Hidden Chemical Dangers May Exist Despite Safety Precautions.” Occupational Health and Safety, February 1984. “Lipoid Pneumonia: An Old Enemy, Revisited in San Diego.” American Society of Safety Engineers–San Diego Newsletter, February 1991. “Sarcoidosis and Beryllium Exposure.” Western Journal of Medicine 163, no. 4 (1995). “Toxicology Tunnel Vision.” Professional Safety, December 1977. “Unrecognized Industrial Diseases Caused by Chemicals.” Occupational Medicine and Workers Compensation Newsletter 2, no. 1 (1978). “The Video-Tape Revolution in Employee Education.” Occupational Health and Safety, July 1982. E. Medina and K. S. Cohen, “Mexico’s Regulations on Hazardous Materials and Wastes.” Asbestos Hazard Management Program Newsletter 4, no. 1 (1990). Poster J. Abraham, K. Cohen, B. Powell, and C. Merrit. “Analysis of Bulk and Aerosolized Asbestos Fibers from Children’s Play Sand Reveal a Potential Health Hazard.” Research Poster Winner, State University of New York Health Science Center Second Annual Research Poster Session, Syracuse, N.Y., November 30, 1988. Editorial Positions (Past or Current) Journal of the American Industrial Hygiene Association Article review: toxicology Journal of Applied Industrial Hygiene Computers in safety and health Occupational Health and Safety Editorial advisory board “In Review” monthly column
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Employment History (Nonacademic) 1965–1967: National Cancer Institute at the San Diego Zoo Hospital, San Diego, CA. Established and directed clinical pathology laboratory for research on subhuman primates used in cancer studies. 1967–1971: Biological Associates/Scott Labs, San Diego, CA. Owner/general manager of biological chemical manufacturing company. Made disposable microbiological growth media and reagent chemicals. 1972–1976: Micronomics International, Inc., El Cajon, CA. Director of industrial hygiene and analytical services (periodic). Field and lab studies, experimental design and expert witness testimony. 1973–1974: Interhealth Laboratories, Inc., San Diego, CA. Clinical laboratory marketing and quality control supervisor. 1974–1975: Systems, Science, and Software, Inc., La Jolla, CA. Manager of environmental lab and instrumentation development. 1975: Campbell Industries, Inc., San Diego, CA. Employee and consultant. Corporate director of health and safety for two major shipyards and several manufacturing locations. 1976–1978: Naval Regional Medical Center, San Diego, CA. Acting head of industrial hygiene services for the San Diego region. 1988: Owen Consultants, San Diego, CA. Corporate vice president and manager of environmental sciences. 1978–1988, 1989–1994: Consulting Health Services (Divison of Toxos Corporation, 1980–), El Cajon, CA. Industrial hygiene & safety consulting. 1994–1998: California Occupational Safety and Health Administration, High Hazard Unit, Anaheim CA. Associate industrial hygienist. Regulatory compliance inspections. 1998–present: Retired from active industrial hygiene and safety engineering practice. Semiretirement activity in the area of litigation support (limited basis). Employment History (Academic) University of California–San Diego Medical School, Continuing Education Unit, Department of Community Medicine Industrial Toxicology I and II Industrial Hygiene X405.5
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San Diego Community College: Introduction to Occupational Safety and Health Standards, Codes, Regulations, and OSHA Law Introduction to FED/OSHA (eight-hour apprentice course) Industrial Hygiene Clinical Chemistry Clinical Microbiology National University, San Diego, CA Industrial Hygiene Toxicology I & II Occupational Health University of Southern California Recognition of Occupational Health Hazards San Diego State University Nursing Microbiology Lab Graduate School of Public Health Industrial Hygiene Air Pollution Control Lab Environmental Hygiene Lab Industrial Ventilation School of Engineering Control of the Human Environment Lecture Seats and Speaking Engagements Indiana University, Navy Safety School: “Industrial Carcinogens,” 1976–77. American Society of Safety Engineers: “Health Hazard Awareness for the Safety Practitioner,” 1976–1978. Nationwide touring presentation. San Diego Trial Lawyers Association: “Courtroom Medicine Laboratory Diagnosis,” 1977. University of Wisconsin, School for Workers: “Asbestos Health Hazard Workshop,” Foreign Military Training Unit, Stewards Long Beach Naval Shipyard, 1977. E. St. John Holt and Associates, Ltd., Southhampton: “Health Hazard Awareness,” 1978. Lecture series throughout the United Kingdom. Arizona State University, U.S. Air Force Ground Safety School: “Introduction to Occupational Health,” 1978–1979. University of California–Davis, Medical School: “The Pathology Spectrum of Occupational Lung Disease,” 1979.
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University of Southern California, School of Safety and Systems Management: “Recognition of Occupational Health Hazards—NIOSH 510,” 1980. University of Utah, Rocky Mountain Center for Occupational and Environmental Health: “Advanced Respiratory Protection-Legal Aspects,” 1980. Colorado State University: “EPA—Introduction to Indoor Air Quality Problems.” Tucson, AZ, and Reno, NV, 1995. Rev. 12/06
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D2: Curriculum Vitae of Christopher E. Andreas The résumé of an attorney typically differs dramatically from that of an expert witness, as it is used primarily as a marketing tool to reflect the firm employing the attorney as well as prospective clients who may be searching for an attorney to handle their case. This résumé below was adapted from the Brayton-Purcell Web site (www.braytonlaw.com). Checking Out the Attorney It is not uncommon to get a phone call from an attorney who desires to use your services but who is totally unfamiliar to you. During the phone call, you may be asked for a résumé or curriculum vitae (CV). I typically do not respond to phone requests and ask the caller to send either an e-mail request or a letter. This allows me to gather a good bit of information prior to accepting a case retainer from someone I have never known. With an e-mail address, or a letterhead, I can then do a quick search on the Internet to become better acquainted with the attorney and the firm. As you will see from Mr. Andreas’ CV, a number of case victories are listed. From this you can glean the area of his practice, the various jurisdictions he has been accepted in, his educational background, and how current his trial experiences are: a great deal of information in a quick read. Attorneys’ Résumés Are an Indication of How Well-Versed They Are I have had good and bad experiences with a wide array of attorneys, and there are now a number of attorneys that I prefer to avoid. The criteria I use is based upon how potentially skillfully and easily the attorney will handle my direct testimony and any rehabilitation of cross-examination that becomes necessary. Informative Case Information Another purpose for reviewing this attorney’s accomplishments is to gain a better understanding of the legal processes you will encounter. Reading the synoptic details of cases can give you an insight into what goes into a trial makeup. Curriculum Vitae of Christopher E. Andreas Personal Mr. Andreas is a native of San Francisco, California
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Education Town School and Saint Ignatius High School; graduated from Fountain Valley School in Colorado Springs, Colorado, in 1982. Mr. Andreas attended Lewis and Clark College in Portland, Oregon, earning a B.A. in 1986 with a double major in English and history. San Francisco Law School (J.D. 1994). Upon returning to San Francisco, Mr. Andreas operated his own business for several years before ultimately deciding to pursue a J.D. Mr. Andreas attended San Francisco Law School, where he served on the Moot Court Board and graduated in the top 10% of his class in 1994. Employment After passing the California Bar Examination, Mr. Andreas worked with his father, Arthur Andreas, a well-regarded solo practitioner in San Francisco. Mr. Andreas began working with Brayton Purcell in 1995, and became a junior partner in January 2000. His responsibilities include case management, law and motion, and all phases of discovery. He is involved in preparing and conducting trials in California and Oregon on behalf of injured workers and their families. He has been lead counsel on multiple jury trials in the San Francisco Superior Court, where he has successfully vindicated the rights of injured persons in over thirty cases since 1997. He obtained a verdict against Lorillard Tobacco Company in a wrongful death case, one of only four such verdicts nationwide. Mr. Andreas is admitted to the California Bar and the U.S. District Court, Northern District of California. He is a member of Consumer Attorneys of California, Trial Lawyers for Public Justice, the Bar Association of San Francisco, the Marin Trial Lawyers Association, the American Trial Lawyer’s Association and the Consumer Attorneys Association of Los Angeles. Court Cases Family of Deceased Plasterer Awarded $2.9 Million against Manufacturers of Asbestos-Containing Plastic Cements Sharon McKinney, et al v. Amcord, Inc. and California Portland Cement Company Civil Jury Trial Superior Court, San Francisco County Judge: Padovani Mitchell Trial Type: Product Liability—Negligence Verdict: $2,955,702.21 Eight weeks, January 2000
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SAN FRANCISCO, California, January 10, 2000. A San Francisco jury awarded $2,955,702.21 to the family of lifelong plasterer Roland McKinney. Mr. McKinney died at the age of sixty-four of malignant lung cancer caused in part by his occupational exposure to asbestos. Defendants included California Portland Cement, and Amcord, Inc. (formerly Riverside Cement Company), manufacturers of asbestos-containing construction products. Mr. McKinney had an extensive work history involving asbestos exposure over many decades. He was a radar operator in the U.S. Navy from 1953 through 1955 at the Naval Air Station, Point Magu, Oxnard, California, and Port Hueneme Naval Base, Port Hueneme, California. His primary exposure to asbestos stemmed from his lengthy career as a plasterer before and after his naval duty. After working for Williamson Plastering from 1955 through 1983, Mr. McKinney began his own plastering business, which he operated until 1989. In 1996, Mr. McKinney was diagnosed with malignant lung cancer, and died shortly thereafter. Mr. McKinney was survived by his wife Sharon and two children, Kevin and Melody. Evidence was presented at trial that California Portland and Amcord were the primary manufacturers and suppliers of asbestos-containing “gunapplied plastic cements” in the Southern California area during Mr. McKinney’s career. The evidence indicated that Mr. McKinney regularly used these products in the application of exterior finishes throughout his thirty years of plastering work. Gun-applied plastic cements were historically used to form supportive layers underneath stucco-finished construction in both residential and commercial buildings. The jury found that California Portland and Amcord asbestos-containing products were defective, and that both defendants acted negligently in the manufacture and sale of these products. The jury found that Mr. McKinney’s cancer was causally related to his exposure to asbestos-containing products. The jury further found that Mrs. McKinney and her family had suffered a loss of financial support as well as the love, companionship, and moral support of Mr. McKinney as a result of his premature death. The jury’s award was divided into $205,702.21 for economic damages and $2,750,000 as noneconomic damages. The jury made an additional special finding that Amcord, Inc. acted with conscious disregard for the rights and safety of its consumers, including decedent Mr. McKinney. Plaintiff was represented at trial by Christopher E. Andreas, a junior partner in the firm of Brayton Purcell of Novato, California.
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Jury Awards $371,050 to Ironworker Injured by Asbestos Products Cecil and Oneida Martin v. Plant Maintenance, Inc. of California Civil Jury Trial Superior Court, San Francisco County Judge: John Dearman Trial Type: Negligence Verdict: $371,050 Fourteen days, April 2000 SAN FRANCISCO, California, April 19, 2000. On April 19, 2000, a San Francisco jury awarded $371,050.00 to Cecil Martin, a retired ironworker suffering from asbestosis and asbestos-related pleural disease due to his occupational exposure to asbestos. The defendant was Plant Maintenance, Inc. of California, a company that has performed maintenance contracts involving the use, removal and disturbing of asbestos-containing products at major East Bay oil refineries for a number of years. During the trial, Mr. Martin described how the activities of Plant Maintenance had exposed him to asbestos, and a variety of medical experts and treating physicians described how this exposure had caused him to develop asbestos-related lung disease and severe breathing problems. “Mr. Martin is so ill that he was not able to attend trial, and we had to use videotaped testimony,” noted Christopher Andreas, attorney for Mr. Martin. The jury was also provided evidence of the history of medical and scientific knowledge regarding the health hazards of asbestos exposure and corporate documents relating to Plant Maintenance’s direct knowledge of asbestos hazards. Plant Maintenance contended that Mr. Martin did not have asbestosis, and that they were not negligent. Cecil Martin had a long work history of asbestos exposure covering many decades while working as an ironworker at several major East Bay oil refineries. The jury determined that Plant Maintenance was negligent in carrying on its maintenance contracts at these oil refineries and exposing Cecil Martin to asbestos dust. The jury further found that the plaintiff was injured as a result of exposure to asbestos dust created by the negligent activities of Plant Maintenance, Inc. Mr. Martin and his wife Oneida Martin were represented at trial by Christopher E. Andreas of Brayton Purcell, Novato, California.
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Jury Awards $1,048,100.00 in Kent Micronite Asbestos Cigarette Filter Case Donna Traverso, et al. v. Lorillard Tobacco Company Civil Jury Trial Superior Court, San Francisco County Judge: John E. Munter Trial Type: Wrongful Death—Products Liability—Negligence—Mesothelioma Verdict: $1,048,100 Three weeks, May 2000 SAN FRANCISCO, California, May 8, 2000. A jury awarded $1,048,100.00 to two children of a woman who contracted and died from malignant abdominal mesothelioma caused by her exposure to asbestos during the period 1953–1956 when she smoked Kent Micronite asbestos-filtered cigarettes. The plaintiffs were Donna Traverso and Paul Bucedi. The defendant was Lorillard Tobacco Company, manufacturer of micronite asbestos-filtered cigarettes between 1952 and 1956. The trial began on April 17, 2000, before San Francisco Superior Court Judge John E. Munter. A jury was impaneled to hear the case and heard testimony. Closing arguments were presented May 3, 2000. The jury deliberated for three days before reaching a verdict. During the trial, testimony concerning the decedent’s smoking of Kent Micronite asbestos-filtered cigarettes, medical diagnosis, epidemiology, historical knowledge of the danger of asbestos, cell biology, and pathology was presented. Decedent Daisy Bucedi (nee Daisy Hammer) was born on June 21, 1919 in San Francisco, California. Ms. Bucedi attended Mission High School and graduated in 1937. She met her husband, John Bucedi, also of San Francisco, in 1941 and they were married in 1942. Ms. Bucedi gave birth to her daughter Donna in 1945, and her son Paul in 1950. The family resided initially in the inner Richmond District until 1953 when they moved to Francisco Street in the North Beach District. Donna attended Sts. Peter and Paul Elementary School and later graduated from Star of the Sea High School. Paul attended Sts. Peter and Paul Elementary School and high school at Sacred Heart. Daisy Bucedi smoked cigarettes from 1937 to 1997. Ms. Bucedi smoked approximately one pack of cigarettes per day during this period of time. From 1937 to 1952, she smoked Sensation and/or Chesterfield brand cigarettes and from the fall of 1953 to 1979 she smoked Kent brand cigarettes. Daisy Bucedi was diagnosed with malignant abdominal mesothelioma in July 1996 and succumbed to that disease on December 29, 1997.
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Evidence at trial demonstrated that defendant Lorillard Tobacco Company knew or should have known of the dangers associated with asbestos before 1952 when it first made and sold Kent Micronite asbestos-filtered cigarettes. Thereafter, despite such knowledge, Lorillard Tobacco Company (by and through its predecessor P. Lorillard Tobacco Company) continued to manufacture, market, and sell Kent Micronite asbestosfiltered cigarettes until at least May 1956, when a new filter media was substituted. Throughout this period Lorillard never advised or warned consumers that its Kent cigarette filters contained crocidolite asbestos, the most potent carcinogen of the various asbestos fiber types. Despite independent testing conducted at the request of Lorillard in 1954, which demonstrated fiber release from Kent cigarette filters, the company continued to manufacture and sell its product, without recall, for another two years. Between 1952 and 1956 Lorillard sold thirteeen billion Kent Micronite asbestos-filtered cigarettes. The jury found Lorillard Tobacco Company guilty of negligence and products liability. By a vote of 9–3, the jury further found that Lorillard Tobacco Company committed oppression in its conduct, which finding allowed for a second phase of trial, which was set to begin May 10, 2000. In that phase of trial, the jury would have been asked to assess punitive and exemplary damages against Lorillard Tobacco Company. Prior to the start of the second phase of trial the case was fully resolved between the parties. Plaintiffs were represented at trial by Christopher Andreas of Brayton Purcell, Novato, California. Defendant Lorillard Tobacco Company was represented at trial by Roger Geary, David Thorne, and William Crampton of Shook, Hardy and Bacon, Kansas City, Missouri. Jury Awards Over $8,000,000 in Asbestos Case Alan Vasen v. Exxon Mobil Corporation Civil Jury Trial Superior Court, San Francisco County Judge: Carlos Bea Trial Type: Negligence (Control) Verdict: $8,224,600 Three weeks, March 2001 SAN FRANCISCO, California, March 21, 2001. A jury awarded $8,224,600 to a former insulator afflicted with a fatal form of cancer, malignant pleural mesothelioma, caused by his occupational exposure to asbestos. The plaintiff was Alan Vasen. The defendant was Exxon Mobil Corporation (formerly
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Exxon Corporation; Standard Oil of New Jersey/Humble Oil/Esso Oil), the owner and operator of an oil refinery located in Benicia, California. The trial began on January 29, 2001, before San Francisco Superior Court Judge Carlos Bea. A jury was impaneled to hear the case and heard testimony. Closing arguments were presented March 16, 2001. The jury deliberated for three days before reaching its verdict. During the trial, testimony concerning asbestos, medical diagnosis, epidemiology, cell biology, industrial hygiene, and Exxon Mobil’s extensive corporate knowledge of the dangers of asbestos was presented, as well as evidence regarding Mr. Vasen’s occupational exposure circumstances. Alan Vasen began work as an insulator in late 1962 after serving honorably in the U.S. Navy aboard the USS Ticonderoga. Mr. Vasen joined the Heat, Frost, and Asbestos Workers Union Local 16, San Francisco, California, at the age of twenty-two years old. He worked as an insulator apprentice for four years and thereafter as an insulator mechanic until he retired in 1997. During the course of his career, Mr. Vasen worked at numerous job sites throughout the San Francisco Bay Area and Northern California. Most of his work prior to 1975 involved the application and removal of asbestoscontaining insulation, including pipe covering, block insulation, and insulating cements manufactured by Johns Manville, Owens Corning, Fibreboard, and Pittsburgh Corning. These products contained up to 65 percent asbestos fiber by weight. Mr. Vasen was required to cut, saw, and miter the insulation before application, activities that generated excessive levels of asbestos dust. Mr. Vasen was unaware of the hazards of asbestos until the mid-1970s and did not protect himself from breathing the dust created by his work prior to that time. Exxon Mobil Corporation, formerly known as Exxon Corporation (Standard Oil of New Jersey/Humble Oil/Esso Oil), designed, approved, and oversaw the construction of an oil refinery located in Benicia, California, during the period 1966–1969. Alan Vasen worked as an insulator at this site from September 1968 through mid-April 1969. Mr. Vasen installed thousands of lineal feet of asbestos pipe covering and thousands of square feet of asbestosblock insulation throughout the operating units of the Benicia refinery. Evidence was presented at trial that Exxon Mobil had actual knowledge of the health hazards posed by asbestos insulation work beginning in 1937 when one of its safety engineers, Roy Bonsib, published an intracompany report detailing such hazards to insulators and recommending safe work practices to avoid exposures at company refineries. The so-called Bonsib Report was never published outside of Exxon Mobil. In 1947, the company hired James Hammond, a certified industrial hygienist, to oversee safety company-wide. Mr. Hammond’s videotaped deposition played to the jury, revealed that he fully appreciated the risks of
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asbestos exposure attendant to the work performed by insulators when he started with Exxon Mobil in 1947. Mr. Hammond testified that in conjunction with Exxon Mobil’s considerable medical department, he further refined the recommendations of Bonsib with respect to safe asbestos work practices. Mr. Hammond adopted stringent maximum permissible exposure levels for asbestos starting in 1947, which he enforced throughout the company with the assistance of company industrial hygienists and safety personnel. In 1949, Mr. Hammond coauthored a confidential report in which he and other top safety personnel revealed their belief that asbestos could cause lung cancer and that insulators were a trade at risk for that fatal disease. By 1966, Mr. Hammond had become aware of and convinced that asbestos fiber inhalation could cause mesothelioma at levels lower than his own mandated limits and as a result he tightened his company’s already stringent asbestos handling guidelines further. The threat of mesothelioma spurred Mr. Hammond to actively promote the use of non-asbestos insulation at company properties whenever feasible. In addition to the videotaped testimony of Mr. Hammond, the jury was also presented with the videotaped deposition of Dr. Neill Weaver, the former medical director for the company, who admitted that he and other company physicians had accepted the connection between asbestos insulation work and mesothelioma by 1964. Dr. John Lione, a protégé of Dr. Weaver and successor to the medical directorship, claimed that the company asbestos safety programs, developed in conjunction with James Hammond, were extraordinarily effective, as demonstrated by the lack of any serious asbestos disease in Exxon Mobil employees up to the present time. Mr. Hammond testified that control of safety for the Benicia Refinery project resided initially with the general contractor hired to construct the plant. However, Mr. Hammond further testified that once processing units were mechanically complete and turned over to Exxon Mobil, a process that started in early 1968, he and Exxon Mobil’s safety department were responsible for the protection of all individuals working in the units, including the employees of outside contractors such as Mr. Vasen. Despite Exxon Mobil’s extensive knowledge of the hazards posed by insulation work at Benicia, inexplicably it failed to warn Mr. Vasen or any of the 450 insulators on site and/or exercise its authority to stop the work and institute its asbestoshandling guidelines. Exxon Mobil did not provide respiratory protection to any insulator at Benicia after it assumed control of safety and permitted Mr. Vasen and his crew to be exposed to extremely hazardous levels of asbestos. Mr. Vasen was diagnosed with malignant pleural mesothelioma in February 2000, several months after his fifty-ninth birthday. Mr. Vasen was a lifetime nonsmoker and nondrinker. He underwent four chemotherapy treatments that had no salutary effect and the chemotherapy was discontinued.
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He has been receiving palliative care since the fall of 2000, which consists of increasing doses of morphine to control the pain. Dr. Sidney Crain, his treating physician, has given Mr. Vasen a very poor prognosis and anticipates that he will die within the next month. Malignant pleural mesothelioma is a rare form of cancer involving the lining of the chest cavity called the serous membrane or, more commonly, the “pleura.” It is caused by exposure to asbestos and is not caused by smoking. It typically presents in workers decades after exposure to asbestos and is invariably fatal. Despite much focused study and attention in medicine, there is still no effective cure or treatment for malignant mesothelioma. “I am happy for my client,” said Christopher Andreas, the plaintiff ’s attorney. “Unfortunately, the unnecessary exposures he suffered at Benicia and the abject failure of Exxon Mobil to pass on its superior knowledge about asbestos to Alan Vasen in 1968, contributed greatly to the tragic situation in this man’s life today. Mr. Vasen was a very healthy man before his diagnosis, and likely would have enjoyed a long life. Now he is living day by day and dealing with issues surrounding his death. It did not have to turn out this way.” Plaintiffs were represented at trial by Christopher Andreas of Brayton Purcell, Novato, California. Defendant Exxon Mobil Corporation was represented at trial by Susan Ogdie and William Armstrong, Ogdie and Armstrong, Oakland, California. San Francisco Jury Awards $150,000 to Mechanic with Asbestosis Lewis Sunderman v. Aqua-Chem Inc. Civil Jury Trial Superior Court, San Francisco County Judge: Ernest H. Goldsmith Trial Type: Products Liability—Negligence Verdict: $150,000 Three weeks, November 2002 San Francisco, California, November 21, 2002. A San Francisco jury awarded $150,000 to a retired instrument mechanic and maintenance supervisor suffering from asbestos pleural disease and asbestosis caused by on-the-job exposure to asbestos. The plaintiff was Lewis Sunderman, who is seventynine years old and a decorated war veteran. The defendant was Aqua-Chem, Inc. and its Cleaver Brooks division, the leading manufacturer of package boilers worldwide. San Francisco Superior Court Judge Ernest H. Goldsmith presided over the three-week trial. The jury heard testimony about asbestos, medical diag-
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nosis, epidemiology, cardiology, industrial hygiene, and Cleaver Brooks’ knowledge that its boilers contained asbestos. A History of Asbestos Exposure. Mr. Sunderman spoke about his long history of occupational exposure to asbestos. He first came into contact with the substance while serving in the U.S. Marines at boot camp on Parris Island, North Carolina. For two to three days he helped clean up asbestoscontaining debris from two Cleaver Brooks boilers located at that site. He was again exposed to asbestos for almost two years while serving onboard the USS Denver during World War II. After the war, Mr. Sunderman worked for ten years as an instrument mechanic at Cincinnati Gas and Electric Company. He estimates that he mixed and applied five hundred bags of asbestos insulating cement while at the company. He was also exposed to asbestos packing materials during valve repair. Mr. Sunderman relocated to California in the early 1960s and was employed as a maintenance supervisor until his retirement in 1987. During this period he was intermittently exposed to asbestos through his own work and as a bystander to maintenance, inspection, and repair of Cleaver Brooks boilers at Foremost Food and Chemical, Oakland, California; HITCO, Gardena, California; and at the Felters Company, Jackson, Michigan. Mr. Sunderman’s exposure to Cleaver Brooks boilers occurred when asbestos-containing gaskets, cements, refractory, and millboard were disturbed. These products contained up to 95 percent asbestos fiber by weight. He did not protect himself from breathing the dust because he was unaware of asbestos hazards at that time. Manufacturer Never Warned About Asbestos in Its Boilers. Cleaver Brooks has designed, manufactured, sold, and delivered package boilers since 1931. Its packaged fire-tube and water-tube boilers contained asbestos components from 1931 until sometime in the late 1970s or early 1980s. The company also manufactured asbestos-containing gaskets, refractory lining materials and insulation for the boilers. Cleaver Brooks boilers must be inspected and maintained on a yearly basis. Each inspection involves the removal of door, manhole, and hand-hole gaskets containing asbestos. Repairing boilers frequently involved disturbance of asbestos-containing refractory linings and insulation. The company never tested its boilers for asbestos fiber release or warned customers about asbestos hazards. It never recalled a boiler or any asbestos component or issued safe work practices brochures to its customers. The Plight of Asbestos Victims. Asbestos pleural disease and asbestosis are chronic respiratory diseases caused by inhalation of asbestos fibers.
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In Mr. Sunderman’s case, these conditions affect his breathing and play a major role in preventing him from receiving needed coronary artery surgery. He has never smoked. “In light of what is occurring in Washington, D.C., with proposed asbestos legislation which is designed to deprive asbestos victims of their right to a jury trial, it was great to have this jury validate Mr. Sunderman’s case with a verdict,” said the plaintiff ’s attorney, Christopher Andreas. “Under the proposed legislation, somebody like Mr. Sunderman would be turned away at the courthouse door.” Mr. Andreas is from the Novato, California, office of Brayton Purcell. The defendant, Aqua-Chem, Inc., was represented by Christopher Wood of C. W. Wood and Associates, San Francisco, and Leonardo Vachina of Berry and Berry, Oakland, California. San Francisco Jury Awards Over $5,000,000 in Asbestos Lung Cancer Case Edward Jones v. John Crane Incorporated, et al Civil Jury Trial Superior Court, San Francisco County Judge: Ernest H. Goldsmith Trial Type: Products Liability—Negligence Verdict: $5,048,000 Four weeks, August 2003 San Francisco, California, August 1, 2003. A jury awarded over $5,000,000 to a retired U.S. Navy machinist and engineering officer suffering from terminal lung cancer caused by his occupational exposure to asbestos. The defendants were John Crane, Inc., an asbestos steam packing and gasket manufacturer, and Leslie Controls, Inc., a manufacturer of asbestos-containing marine valves. The plaintiffs were Edward Jones and his wife Elleree Jones of Santa Cruz, California. Edward Jones was first exposed to asbestos while working at a steel mill in Colorado when he was sixteen years old. He was involved in the cleanup of insulation debris during piping and furnace repairs. He joined the U.S. Navy in 1950, serving as an apprentice machinist and machinist mate on the USS Juneau during the Korean War and aboard various other vessels until the early 1960s. Mr. Jones maintained and repaired equipment, including valves, pumps, turbines, and auxiliary equipment during these early years of his Navy career. He was routinely exposed to insulation, packing, and gaskets containing asbestos. Despite only having an eighth-grade education, Mr. Jones rose through the ranks of the Navy, receiving specialized training in deep sea diving and
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eventually in the operation of nuclear powered submarines. After he stopped performing hands-on repairs and maintenance, Mr. Jones continued to be exposed to asbestos in the 1960s and 1970s when he supervised other Navy machinists and engineering department personnel aboard submarine tenders and nuclear submarines. Mr. Jones testified that John Crane’s asbestos steam packing was used throughout his career, saying it was “synonymous with packing.” He also had repaired valves manufactured by Leslie Controls, Inc. and was a bystander to repair activities on the same valves when he later became a supervisor. In 1978, Mr. Jones retired from the Navy as an officer in the shipbuilding division and received an honorable discharge. He then worked with Lockheed Shipbuilding in Washington State until 1985 supervising the construction of Navy submarine tenders. During this period, he was intermittently exposed to asbestos from the use of asbestos packing and gaskets. Mr. Jones was diagnosed with a primary lung cancer in December 2000, and underwent lung lobe resection and chemotherapy. Sadly, Mr. Jones’s cancer has spread to his liver, and doctors believe that he will die within a year. At trial, Mr. Jones described the course of his medical treatment and the effect it has had on his life. His wife, Elleree Jones, also testified regarding her husband’s struggle with cancer and how it had impacted their marriage. The defendants unsuccessfully claimed that Mr. Jones’s lung cancer was caused solely by his prior cigarette smoking, which occurred from 1949-1970. A History of Asbestos in John Crane and Leslie Control Products. John Crane, Inc. (formerly known as John Crane Packing Company) engaged in the manufacture and sale of a wide variety of asbestos steam packing from at least 1930. In 1985 it discontinued the use of asbestos in its products. The company never tested its products for asbestos fiber release until it became involved in asbestos personal injury litigation in the early 1980s. At trial, John Crane claimed that it was exempt from labeling requirements. However, the company nonetheless placed warnings on its products regarding the hazards of asbestos in 1983, coinciding with its first involvement as a defendant in asbestos litigation. Before that time, the company did not warn its customers about asbestos health hazards. John Crane has never recalled a single product containing asbestos. It did not call any corporate witnesses at trial. Leslie Control, Inc. has been a major supplier of asbestos-containing marine valves to the U.S. Navy since World War I. The valves for steam applications contained asbestos packing and gaskets since at least the 1930s. The packing was manufactured by John Crane. Leslie Controls never placed warnings regarding asbestos on its valves or in its technical manuals and has never recalled any of its products. At trial,
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Leslie Controls presented a corporate witness that claimed the company did not have knowledge of asbestos as a health hazard until the 1980s. The plaintiff presented evidence about both defendants’ longstanding involvement in manufacturing asbestos-containing products. Mr. Jones testified for over three days regarding his occupational exposure circumstances. Christopher Andreas of Brayton Purcell in Novato, California, represented the plaintiffs at trial. Defendant John Crane, Inc. was represented at trial by Philip Ward, Robert Nelder, and John Katerndahl of Hassard Bonnington LLC, San Francisco. Defendant Leslie Controls, Inc. was represented at trial by Kenneth McCarthy of Knox Ricksen LLC, Oakland, California. San Francisco Jury Awards $2,999,543 in Asbestos Case Philip Hoeffer v. Rockwell Automation Civil Jury Trial Superior Court, San Francisco County Judge: Alex Saldamando Trial Type: Products Liability—Negligence Verdict: $2,999,543 Four weeks, November-December 2003 San Francisco, California, December 9, 2003. A jury awarded $2,999,543 to a seventy-year-old retired electrician, Philip Hoeffer, who is terminally ill with malignant pleural mesothelioma caused by asbestos exposure on the job. The defendant, Rockwell Automation, was held liable for the defective products and negligence of its Allen Bradley division and a former division, Rostone Corporation. Rostone Corporation developed, manufactured, and sold asbestos-containing phenolic plastic compounds and molded asbestos-containing parts for many of the major electrical equipment manufacturers since the 1940s, including General Electric, Westinghouse, Cutler Hammer, and Allen Bradley. Rostone asbestos-containing phenolic plastic compounds and molded parts were used for arc chutes, breakers, contactors, and enclosures found in distribution panels, breaker boxes, rotary switches, motor controllers, and other electrical equipment prior to 1985. Allen Bradley manufactured and sold asbestos-containing electrical equipment prior to 1985. The trial began on November 3, 2003, before San Francisco Superior Court Judge Alex Saldamando. A jury was impaneled to hear the case. Jury members listened to closing arguments on December 3, 2003, then deliberated for four days before reaching a verdict. During the trial, they heard evidence concerning Rockwell Automation and its predecessor companies’ involvement with asbestos, as well as testimony about the historical use of
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asbestos, the medical diagnosis of mesothelioma, epidemiology, pulmonary medicine, pulmonary pathology, industrial hygiene, and medical articles concerning asbestos and disease. A History of Asbestos Exposure. The plaintiff, Philip Hoeffer, was born in Southern California. He was first exposed to asbestos as a teenager when he disassembled and rebuilt an automobile that included asbestoscontaining brakes, clutches, and engine gaskets. An enthusiast of sprint car racing, Mr. Hoeffer performed similar automobile repairs on other vehicles from 1944 through 1962. After attending Pasadena City College for two years and Saint Mary’s College in Moraga, California, for one year, Mr. Hoeffer enlisted in the U.S. Navy in 1950. He trained as a Navy electrician and served aboard the ARD29, the USS Hanson, and the USS Yorktown until his honorable discharge in 1955. While carrying out his duties Mr. Hoeffer came in constant contact with electrical equipment. He cleaned contacts with emery cloth and maintained the equipment with files and screwdrivers, frequently abrading the phenolic plastic parts, which released asbestos. Also, evidence showed that the operation of the equipment generated airborne asbestos due to friction and wear from moving parts. The equipment aboard Mr. Hoeffer’s Navy ships included Westinghouse panels, Cutler Hammer panels, and Allen Bradley switches, all of which contained Rostone molded parts. After his discharge from the Navy Mr. Hoeffer worked as a design engineer for Ralph M. Parsons in Pasadena, California, from 1956 to 1962. He developed prototype military equipment using early electronic miniaturization technology. In constructing these prototypes, Mr. Hoeffer cut and drilled asbestos-containing phenolic panels to use as circuit boards. In 1969, Mr. Hoeffer moved to Charlottesville, Virginia. He worked for R. E. Lee and Sons, a large general contractor, from 1973 to 1978. During the construction of a nurse’s dormitory at the University of Virginia in 1973, Mr. Hoeffer supervised drywall workers sanding asbestos-containing joint compounds. He also oversaw the cleanup of electrical equipment debris when an explosion destroyed Westinghouse distribution panels on every other floor of the nine-story building. Rostone asbestos-containing molded parts were used in those panels. Mr. Hoeffer worked as the head of renovations for the University of Virginia in Charlottesville from 1978 to 2003, when he retired due to his present illness. He was frequently exposed to asbestos when performing retrofit, repair, and maintenance on electrical equipment made by Westinghouse, Allen Bradley, and General Electric. Most to this equipment contained Rostone molded parts that included asbestos.
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Companies Failed to Warn about Asbestos Exposure Hazards. N e i ther Allen Bradley nor Rostone Corporation tested their products for fiber release during the decades each engaged in the manufacture and sale of asbestos-containing products. Neither company provided any warning to consumers about asbestos and did not indicate that asbestos was used in their phenolic plastic parts. Neither company recalled any of its asbestos-containing products, despite successfully developing asbestos-free substitutes in the late 1970s and early 1980s. Rockwell Automation presented expert witness testimony concerning fiber release testing performed at the request of Rockwell Automation’s national supervising counsel during the course of recent litigation. This testing, which revealed small fiber counts, was conducted under alleged “worst case” conditions. This claim proved false, however. Historic internal documents obtained from Allen Bradley showed that more extensive testing of the same products had been done years before and produced visible dust from wearing of the asbestos-containing phenolic plastic parts. Rockwell Automation produced none of these test results at trial. A Mesothelioma Diagnosis. Mr. Hoeffer was diagnosed with malignant pleural mesothelioma, a rare cancer of the lining of the lung, in June 2002. Previously he had survived a rare cancer, malignant schwannoma, diagnosed in 1986. He had been free of cancer for over ten years when he was diagnosed with mesothelioma. Medical testimony showed that his mesothelioma was unrelated to his prior malignancy and that it was caused by his asbestos exposure. At trial, Mr. Hoeffer described the course of his medical treatment and the effect it has had on his life. Despite doing well on chemotherapy and having his tumor progress slowly, Mr. Hoeffer is expected to die within the next twelve to twenty-four months. Christopher Andreas and John Goldstein of Brayton Purcell, Novato, California, represented the plaintiff at trial. Rockwell Automation was represented at trial by Christopher Keele and Christian Marsh of Stoel Rives LLP, San Francisco. Nancy Stone of Shea and Gardner, Washington, D.C., is the national supervising counsel for Rockwell Automation.
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San Francisco Jury Awards $1,250,000.00 in Asbestosis Case Geronia Quarles v. Advocate Mines, Ltd. Civil Jury Trial Superior Court, San Francisco County Judge: Ellen Chaitin Trial Type: Products Liability—Negligence—Asbestosis Verdict: $1,250,000 Three weeks, January 2005 San Francisco, California, January 26, 2005. A San Francisco jury unanimously awarded damages of $1,250,000.00 in favor of a retired pipefitter with asbestosis and pleural disease caused by his occupational exposure to asbestos. The plaintiff, Geronia Quarles, of Fresno, California, is sixty-nine years old. The defendant, Advocate Mines, Ltd., was held liable for their defective asbestos fiber supplied to make Johns-Manville Transite pipe in their Stockton, California facility. The jury made an additional unanimous finding of malice or oppression against the defendant. Advocate Mines, Ltd., in partnership with the Johns-Manville Corporation, owned and operated an asbestos mine in Baie Verte, Newfoundland, starting in the 1950s. Advocate Mines sold asbestos fiber to various manufacturers of asbestos-containing products, including Johns-Manville Corporation, for use in Transite asbestos-cement pipe. The trial began on January 4, 2005, before San Francisco Superior Court Judge Ellen Chaitin. A jury was impaneled to hear the case and heard testimony. Closing arguments were presented January 19, 2005. The jury deliberated for one day before reaching its verdict. During the trial, in addition to evidence concerning Advocate Mines’ involvement with asbestos, testimony concerning the historical use of asbestos, medical diagnosis, historical medical articles concerning asbestos and disease, pulmonary medicine, radiology, and industrial hygiene was presented. Geronia Quarles was born in Palestine, Texas and relocated to Fresno, California as a child. As a pipefitter in the 1970s installing underground pipelines for new housing developments Mr. Quarles handled, cut, and beveled Johns-Manville Transite pipe containing Advocate Mines asbestos fiber, which generated respirable asbestos. Advocate Mines did not provide any warning to consumers about their asbestos fiber used in Johns-Manville Transite pipe and continued to sell asbestos fiber even after their own miners went on strike due to asbestosrelated health problems.
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Mr. Quarles was diagnosed with asbestosis and pleural disease in October 2003. Medical testimony established that his asbestosis and pleural disease was caused by his occupational exposure to asbestos. Plaintiff was represented at trial by James P. Nevin and Christopher E. Andreas of Brayton Purcell, Novato, California. The defendant, Advocate Mines, Ltd., was represented at trial by John Graniez of Lewis Brisbois Bisgaard and Smith LLP, Los Angeles. San Francisco Jury Awards $8,673,704 in Mesothelioma Case Anthony Cadlo and Maxlyn Cadlo v. John Crane Inc. and Metalclad Insulation Corp. Civil Jury Trial Superior Court, San Francisco County Judge: John J. Conway Trial Type: Products Liability—Negligence Verdict: $8,673,704 Seven weeks, February-March, 2005 San Francisco, California, March 22, 2005. A San Francisco jury awarded $8,673,704.74 to a sixty-year-old former U.S. Navy machinist and engineering officer suffering from terminal pleural mesothelioma caused by his servicerelated asbestos exposure. The plaintiffs are Anthony Cadlo and his wife, Maxlyn Cadlo. The defendants are John Crane, Inc., a former manufacturer of asbestos pump and valve packing and distributor of asbestos gaskets, and Metalclad Insulation Corporation, a former supplier of asbestos thermal insulation products. The trial began on February 1, 2005, before San Francisco Superior Court Judge John J. Conway. A jury was impaneled to hear the case and heard testimony. Closing arguments were presented March 14, 2005. The jury deliberated for over three days before reaching its verdict. During the trial, testimony was introduced concerning the historical use of asbestos, the state of medical knowledge historically regarding asbestos, cell biology, epidemiology, pulmonary medicine, pulmonary pathology, and industrial hygiene. Evidence was also presented regarding defendants’ involvement in the supply of asbestos-containing products to the U.S. Navy. Anthony Cadlo testified at the trial, despite weighing less than 140 pounds, suffering with tumor protrusions on his left chest, and being tethered to supplemental oxygen on a twenty-four-hour basis.
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A History of Asbestos Exposure. Mr. Cadlo joined the U.S. Navy in 1964 at the age of eighteen. He received training as a Navy machinist mate at the Great Lakes Naval Station in Illinois, where he learned how to maintain and repair equipment on naval vessels, including pumps and valves. In order to effect those repairs, Mr. Cadlo was required to remove and install asbestoscontaining pump and valve packing as well as asbestos-containing gaskets. Mr. Cadlo was assigned to the USS Black (DD-666), a Fletcher-class destroyer, in early 1965. He joined the ship in the Philippines and was soon involved in the first of two combat cruises in Vietnam. Mr. Cadlo was also aboard the Black when it participated in the Tet Offensive. He was discharged honorably in June 1968. During his service aboard the Black, Mr. Cadlo served as an apprentice machinist and machinist mate. His duty station was in the forward engine room, where he was routinely exposed to hazardous levels of respirable asbestos from thermal insulation, packing and gaskets. This asbestos exposure occurred while Mr. Cadlo and other machinist mates maintained and repaired valves, pumps, piping, and auxiliary equipment in ports, including the San Diego Destroyer Base and Sasebo, Japan. Mr. Cadlo was also exposed to asbestos during the repeated firing of the Black’s three- and five-inch guns in combat, which caused thermal insulation throughout the ship to vibrate and emit asbestos dust. Mr. Cadlo and the crew of the Black were also heavily exposed to asbestos during a three-month overhaul at Long Beach Naval Shipyard in late 1965, involving extensive thermal insulation removal and installation. Although Mr. Cadlo was unable to recall the manufacturers or distributors of any of the asbestos products he worked with and around on the Black, plaintiffs presented such evidence through four of Mr. Cadlo’s shipmates and a former insulator from the Long Beach Naval Shipyard. Mr. Cadlo’s shipmates identified John Crane, Inc. as the predominant manufacturer of asbestos pump and valve packing used on the Black before and during Mr. Cadlo’s service on the ship. John Crane, Inc. was also identified as one of the manufacturers of asbestos gaskets used on the Black during the same time period. A former insulator from Long Beach Naval Shipyard, Charles Ay, testified to the regular and routine supply of large quantities of asbestos thermal insulation to the shipyard by Metalclad Insulation during the 1960s. Insulation stored in common supply areas was utilized for the repair and overhaul of Navy ships involved in the Vietnam conflict. Mr. Ay further testified to performing multiple repairs and overhauls on the Black from 1960 through 1966, including the three month overhaul in late 1965. Mr. Cadlo never wore respiratory protection while on the Black and was unaware of the hazards of asbestos. Neither Mr. Cadlo nor his shipmates saw
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any warnings from the manufacturers or suppliers of the asbestos products they worked with and around on the ship. After his discharge in 1968, Mr. Cadlo was never again exposed occupationally to asbestos. John Crane, Inc. (formerly known as John Crane Packing Company) of Morton Grove, Illinois, engaged in the manufacture and sale of a wide variety of asbestos pump and valve packing from at least 1930. In 1985 it discontinued the use of asbestos in its products and advertised its nonasbestos packing as “safer” than asbestos packing. John Crane never tested its products for fiber release during normal and foreseeable use until it became involved in asbestos personal injury litigation in the early 1980s. John Crane first placed asbestos warnings on its products regarding the hazards of asbestos in 1983, coinciding with the first asbestos personal injury claims being filed against it. Prior to that time the company did not warn its customers about asbestos health hazards. Metalclad Insulation Corporation, a thermal insulation supplier and insulation contracting firm, began operations in 1933 in Southern California. While it is currently located in Anaheim, California, Metalclad Insulation Corporation was headquartered in Torrance, California, during the 1960s. Evidence introduced at trial demonstrated that Metalclad Insulation regularly supplied large quantities of asbestos pipe covering, block insulation, insulation cement, and asbestos cloth to the Long Beach Naval Shipyard for use on naval vessels during the Vietnam War. The company made no effort to provide warnings or safe work practice information with its products. When asbestos thermal insulation was discontinued in 1972 due to health concerns, Metalclad Insulation sold off its existing asbestos inventory for a profit despite the fact that nonasbestos substitutes were available through manufacturers. Mr. Cadlo’s Mesothelioma Diagnosis. Anthony Cadlo was diagnosed with malignant pleural mesothelioma in August 2002. Mesothelioma is a rare cancer of the lining of the lung which is incurable and invariably fatal. The only established cause of mesothelioma in the United States is asbestos. The diagnosis of Mr. Cadlo’s mesothelioma and its asbestos cause was not disputed by the defendants. Defendant John Crane presented expert testimony suggesting that its packing and gasket products released “trivial” amounts of chrysotile asbestos during removal and installation. Additionally, John Crane alleged through expert testimony that chrysotile asbestos poses little to no risk of mesothelioma and thus that company products could not have been a cause of Mr. Cadlo’s mesothelioma. Metalclad Insulation did not dispute that its asbestos products could release high levels of respirable asbestos and conceded in closing argument that its products were defective. Metalclad Insulation contended that plain-
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tiffs had not met their burden of proof demonstrating that its products were ever used on the Black. Plaintiffs were represented at trial by Christopher Andreas of Brayton Purcell, Novato, California. Defendant John Crane, Inc. was represented at trial by Philip Ward and John Katerndahl of Hassard Bonnington LLC, San Francisco. Defendant Metalclad Insulation Corporation was represented at trial by Frank Berfield of McKenna, Long, and Aldridge LLP, San Francisco. Jury Awards $2.8 Million for Terminal Asbestosis Harold Phelps and Neva Phelps v. Hamilton Materials, Inc. Civil Jury Trial Superior Court, San Francisco County Judge: James McBride Trial Type: Products Liability—Negligence—Asbestosis Verdict: $2,842,442 Three weeks, September–October, 2005 San Francisco, California, October 4, 2005. A San Francisco jury awarded Harold Phelps and his wife Neva $2.8 million in damages because of occupational exposure to asbestos. Mr. Phelps, who is seventy-seven years old, suffers from terminal asbestosis and is dependant on oxygen twenty-four hours a day. The Las Cruces, New Mexico, resident had to be driven to San Francisco for the trial because the airlines would not allow his liquid oxygen on board any plane. Mr. Phelps worked as a mechanic, laborer, and carpenter. He was likely first exposed to asbestos as a child when he delivered lunch to his father at work in a locomotive roundhouse. Mr. Phelps was also exposed to asbestos during his years in the U.S. Navy and U.S. Army; at work as a mechanic replacing automotive brakes, clutches and engines; and during his years in construction. At no time during his career was Mr. Phelps advised to wear any form of respiratory protection. Hamilton Materials, the defendant, manufactured asbestos drywall finishing materials that Mr. Phelps was exposed to during his work as a carpenter. The jury deliberated for five days before finding Hamilton Materials liable. They determined that Hamilton Materials products were defectively designed, that the company had failed to provide adequate warnings, and that they were negligent. Hamilton Materials was represented by Robert Channel and Florence McLain of the law firm Walsworth, Franklin, Bevins, and McCall, San Francisco, California. Christopher E. Andreas of Brayton Purcell, Novato, California, represented Mr. Phelps. The trial lasted just over three weeks and was presided over by the Honorable James McBride.
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“The jury members were very touched by the Phelps’ predicament,” said Christopher Andreas, Mr. Phelps’s attorney. “The couple has been happily married for over fifty-seven years. A number of jurors even went so far as to request the Phelps’s address so that they could write to them. As one juror put it, ‘This was one of the most unique and amazing experiences I have ever had.’” San Francisco Jury Awards $1,083,000 in Asbestos Cancer Case Merle Sandy v. Exxon Mobil Corporation Civil Jury Trial Superior Court, San Francisco County Judge: Gail Dekreon Trial Type: Premises Liability—Negligence Verdict: $1,083,000 Three and one-half weeks, January–February 2006 San Francisco, California, February 17, 2006. A jury awarded $1,083,000 to Merle Sandy, a sixty-year-old retired pipefitter suffering from asbestos pleural disease, asbestosis, and colon cancer caused by his on-the-job exposure to asbestos. The defendant, Exxon Mobil Corporation, is the former owner and operator of an oil refinery located in Benicia, California, where Merle Sandy did industrial maintenance work. He was exposed to hazardous levels of asbestos while removing insulation and while working with asbestos gaskets, packing, and welding blankets. Employed by an independent contractor, Mr. Sandy worked at the Benicia refinery from 1970 through 1974. He also worked at the refinery in 1977 and 1979. A History of Asbestos Exposure and Disease. In the mid-1990s, Mr. Sandy’s chest CT scans showed asbestos pleural plaques and early signs of asbestosis. In 2004 he was diagnosed with stage 1 colon cancer and underwent surgery. The cancer returned in 2005 and metastasized to his liver. Despite extensive treatment efforts, Mr. Sandy’s cancer has progressed and his disease is considered terminal. Mr. Sandy was first exposed to asbestos when he was fourteen years old. His father, a pipefitter, brought Mr. Sandy with him on a summer pipeline job in Wyoming. Mr. Sandy was exposed to asbestos welding strips and insulation while working as a helper. From 1963 to 1966, Mr. Sandy worked as a roughneck at oil drilling operations throughout the San Joaquin Valley. He was exposed to asbestos while dumping hundreds of bags of dry-drilling mud mix. He wore no respiratory protection. Mr. Sandy became a full-time pipefitter in 1966, joining Local 342, Vallejo, California. He retired in 1999. In addition to working at Exxon
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Mobil’s Benicia refinery, Mr. Sandy worked as an industrial pipefitter at a number of sites throughout the San Francisco Bay Area, including chemical plants, oil refineries and manufacturing facilities. No respiratory protection was provided, and he was exposed to asbestos during his work with insulation, gaskets, packing and welding blankets. In 1974 Mr. Sandy traveled to Alaska, where he worked on the Alyeska pipeline. Over the next fifteen years there he was exposed on an intermittent basis to asbestos working with gaskets, packing and welding blankets. Once again, Mr. Sandy was not offered respiratory protection. Exxon Mobil Was Aware of Asbestos Hazards. The Merle Sandy v. Exxon Mobil Corporation trial began on January 16, 2006, with jury selection before San Francisco Superior Court Judge Gail Dekreon. A jury was impaneled to hear the case and received testimony. Closing arguments were presented February 9, 2006. The jury deliberated for over four days before reaching its verdict. During the trial, testimony was introduced concerning Exxon Mobil’s extensive knowledge of asbestos hazards dating back to the late 1930s, the historical uses of asbestos in industrial settings, the state of medical knowledge historically regarding asbestos, cell biology, pulmonary medicine, and industrial hygiene. Plaintiff presented testimony from the videotaped depositions of Exxon Mobil’s former chief industrial hygienist James Hammond and medical director Neill Weaver, M.D. This testimony, as well as internal company documents, established that Exxon Mobil was fully aware of the risk of disease posed by asbestos dust at its refinery properties as early as 1937. The Benicia refinery was constructed between 1966 and 1969. Asbestos insulation, gaskets, and packing were widely used. Mr. Sandy’s employer, a local mechanical contractor, received the first maintenance contract once the Benicia refinery was fully operational. Exxon Mobil retained control over Mr. Sandy’s work by issuing permits designed to identify hazards he might encounter in his work and requiring compliance with company safety rules and regulations, none of which referenced asbestos. Exxon Mobil provided Mr. Sandy with asbestos gaskets, packing, and welding blankets to carry out his work, but gave him no warnings about these items. Although Exxon Mobil personnel oversaw Mr. Sandy’s work at Benicia, he was never told that the products he was working with were hazardous, or provided with information about the location of asbestos at the refinery. He was not given instructions about how to work safely to prevent asbestos exposure or provided with respiratory protection. Testimony from plaintiffs’ experts showed that Mr. Sandy was significantly and substantially exposed to hazardous levels of asbestos throughout
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his career. Also, each and every exposure was a substantial factor contributing to his risk of later developing an asbestos-related disease, including asbestosis and cancer. Merle Sandy was represented at trial by Christopher Andreas and Andrew Chew of the Novato, California office of Brayton Purcell. Exxon Mobil Corporation was represented at trial by William Armstrong and Lisa Sapcoe of Armstrong and Associates, Oakland, California. San Francisco Jury Awards Over $11.5 Million in Asbestos Case Joseph Garza and Mary Garza v. Asbestos Corporation Limited Civil Jury Trial Superior Court, San Francisco County Judge: Suzanne Bolanos Trial Type: Defective Product—Negligence Verdict: $11,578,294 Three and one-half weeks, June-July 2006 San Francisco, California, July 12, 2006. A San Francisco jury awarded $1,178,294 in compensatory damages to a sevety-five-year-old Navy veteran and retired maintenance mechanic suffering from severe asbestos pleural disease and asbestosis. His spouse was awarded $400,000 for loss of consortium. The jury also found that the defendant, Asbestos Corporation, Ltd., acted with legal malice or oppression and awarded an additional $10 million in punitive damages. The defendant is the owner and former operator of asbestos mines in the Thetford Mines region of Quebec, Canada. The plaintiffs are Joseph and Mary Garza, currently residing in Longmont, Colorado. The trial began on June 20, 2006, with jury selection before San Francisco Superior Court Judge Suzanne Bolanos. A jury was impaneled to hear the case and receive testimony. Closing arguments in the first phase of the case were presented on July 6, 2006. The jury deliberated for only six hours before reaching its verdict. A second phase of the case began and concluded on July 12, 2006, with a verdict of $10,000,000 in punitive damages. Testimony during the trial concerned Asbestos Corporation’s admitted knowledge of asbestos hazards dating back to the 1940s and the historical uses of asbestos in the maritime and industrial settings where Mr. Garza was exposed. It also covered the state of medical knowledge regarding asbestos, pulmonary medicine, industrial hygiene, and forensic economics. Mr. Garza was diagnosed with asbestos pleural disease and asbestosis in early 2004. He was placed on supplemental oxygen shortly thereafter. His
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asbestos-related lung disease has since progressed and his normal life expectancy is reduced as a result. Asbestos Exposure as a Boilerman. Mr. Garza was first exposed to asbestos when he joined the U.S. Navy in 1948 at the age of eighteen. Initially he was assigned to the aircraft carrier USS Antietam, where he served as a fireman (engineman) in the engine rooms aboard the ship. During this period he was exposed to asbestos insulation debris while sweeping up after repairs and also through removing and installing asbestos gaskets and packing from pumps and valves. Mr. Garza was transferred to the USS Randall, a Navy troop and cargo transport vessel, in 1949; there he served for over five years as a boilerman assigned to the boiler rooms below deck. During his service aboard the Randall, Mr. Garza was exposed on a regular basis to insulation products, including asbestos insulating cements and pipe and boiler insulation, as well as gaskets and packing. He personally mixed and applied insulation cements to make repairs and was present and in close proximity to others performing the same work. Mr. Garza transferred to the destroyer USS Agerholm in mid-1955. This was the last ship on which he served during his Navy career. Once again, Mr. Garza worked as a boilerman. He was exposed in the same manner to the same products on the Agerholm as he had been on the Randall. Mr. Garza stated that one of the most prevalent asbestos insulating cements he and other sailors used during his Navy service was Eagle Picher Super 66. Expert testimony established that the mixing, application, and cleanup of this dry powder material released extremely high levels of asbestos in the confined spaces of the engine and boiler rooms aboard vessels. The widespread use of Eagle Picher Super 66 insulating cement aboard Navy ships and at Navy shipyards during the 1940s and 1950s was corroborated through the testimony of a retired Navy shipyard insulator. At no time during his Navy service was Mr. Garza advised to wear any form of respiratory protection. In June 1957, Mr. Garza was honorably discharged from the U.S. Navy. He and his wife Mary, whom he had met while on leave in San Francisco, California, settled in the Bay Area to raise their family. Mr. Garza began working for Westinghouse Corporation in Sunnyvale, California, as a tester of steam turbines. During the sixteen years he was employed at Westinghouse, Mr. Garza was exposed on an intermittent basis to asbestos insulation used in turbines. No respiratory protection was provided. From 1973 through 1993, Mr. Garza worked for various employers in the Bay Area, primarily as a boiler operator and maintenance mechanic. He was exposed intermittently to existing asbestos insulation, gaskets and pack-
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Appendix D: The Curriculum Vitae
251
ing during this period. Mr. Garza was not advised to wear respiratory protection. He retired in 1993. Defendant Supplied Asbestos Fiber Used in Insulating Cement. Evidence introduced at trial established that Asbestos Corporation was the exclusive supplier of asbestos fiber to Eagle Picher Industries of Joplin, Missouri, from 1935 to 1957. The asbestos used in Eagle Picher’s Super 66 insulating cement was entirely comprised of Asbestos Corporation Limited’s chrysotile asbestos fiber. Asbestos Corporation Limited began operating its asbestos mines in the Thetford Mines region of Quebec, Canada, in 1925. The company admitted that it was “certainly aware” of the health hazards posed by inhalation of asbestos by the 1940s. It shipped its raw asbestos fiber to manufacturers of finished goods in jute bags (akin to canvas) until sometime in the 1960s, when it switched to paper (later plastic) to reduce dust emissions. The first warning label regarding asbestos health hazards appeared on Asbestos Corporation Limited bags in early 1970. Asbestos Corporation Limited sales brochures from 1935, 1956 and 1961 were introduced into evidence and established that the company never warned its customers of the known health hazards of its product, nor otherwise advised of safe work practices with asbestos. Asbestos Corporation Limited ceased operating its mines in the mid1980s; however, it continues to derive income from the mining and sale of asbestos worldwide through its participation in a limited partnership with other asbestos mines, known as LAB and Company, Limited. Asbestos Corporation Limited permits LAB and Company, Limited, to mine asbestos from its mines in exchange for a 22.5% interest in the partnership and the profits derived. No corporate witness appeared at trial on behalf of Asbestos Corporation Limited to testify regarding its past conduct and practices or to address its current operations. Plaintiff ’s Health Deteriorates Due to Asbestos Exposure. Mr. and Mrs. Garza moved from the Bay Area to Longmont, Colorado, in 2000 to live with their youngest daughter’s family. Due to increasing difficulty with his breathing, Mr. Garza saw a pulmonologist in early 2004 and was diagnosed with asbestos pleural disease and asbestosis. He was placed on supplemental oxygen shortly thereafter and remains on supplemental oxygen on a twenty-four-hour basis. Mr. Garza takes various medications to control the anxiety caused by his breathing problems and for chest discomfort. Medical testimony at trial established that he is likely to die within the next five years as a consequence of his asbestos lung disease. Mr. and Mrs. Garza have been married for fifty-six years. Mrs. Garza was unable to travel from Colorado to attend the trial. She is currently disabled
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and almost entirely dependent on her husband to perform household services, such as cooking, cleaning, gardening, and maintenance. He testified that as of the time of trial he was 80 percent reduced in his ability to perform these services and feared that as his disease progressed he would become completely incapacitated, requiring Mrs. Garza to live in an assisted care facility. Plaintiffs presented the live testimony of Joseph Garza; deposition testimony from Robert Bockstahler, corporate witness for Eagle Picher Industries; and various expert witnesses on the subjects of industrial hygiene, the historical state of the art regarding asbestos health hazards, pulmonary medicine, and forensic economics in the first phase of the trial. The jury found for plaintiffs, awarding them compensatory damages totaling $1,578,294 at the conclusion of the first phase. A finding of legal malice or oppression was also made by the jury entitling plaintiffs to seek punitive damages from Asbestos Corporation in a second phase that considered the company’s financial condition. Despite Asbestos Corporation’s refusal to produce its corporate officers for deposition in advance of the second phase, as ordered by the court, and its provision of scant financial condition information, plaintiffs’ expert forensic economist Barry Ben-Zion, Ph.D. was nonetheless able to utilize publicly available sources and provide the jury with various means for assessing the company’s fiscal health on July 12, 2006. Plaintiffs were represented at trial by Christopher Andreas and Paul Vaillancourt of Brayton Purcell, Novato, California. Defendant Asbestos Corporation Limited was represented at trial by Randall Bernard of Wilson Elser Moskowitz Edelman and Dicker of San Francisco.
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Index
A
Harold Phelps and Neva Phelps v. Hamilton Materials, Inc., 246–247 Horton v. Harwick Chemical Corporation, 178–193 Joseph Garza and Mary Garza v. Asbestos Corporation Limited, 249–252 Lewis Sunderman v. Aqua-Chem Inc., 235–237 Merle Sandy v. Exxon Mobil Corporation, 247–249 models used in, 28–30, 31f Philip Hoeffer v. Rockwell Automation, 239–241 Tyndall effect and, 96–97 "ugly" expert witnesses in, 132–137 Attorney-client privilege, 50 Attorneys curriculum vitae of, 227–252 on expert witnesses, 113–137 Audiovisual aids, 32–33
Accident Prevention Manual for Industrial Operations, The, 21 Adobe Acrobat, 23 Aerosol Technology, 26 Alan Vasen v. Exxon Mobil Corporation, 232–235 Alternative liability, 186–187 American Conference of Governmental Industrial Hygienists, 73 American Industrial Hygiene Association, 57 Andreas, Christopher on expert witnesses, 113–137 résumé of, 227–252 Anthony Cadlo and Maxyln Cadlo v. John Crane Inc. and Metalclad Insulation Corp., 243–246 Anticipating questions, 48–49 Asbestos litigation, 16, 24, 38–39, 93–94, 113 Alan Vasen v. Exxon Mobil Corporation, 232–235 bad expert witnesses in, 119–132 Cecil and Oneida Martin v. Plant Maintenance, Inc. of California, 230 Donna Traverso, et al. v. Lorillard Tobacco Company, 231 Edward Jones v. John Crane Incorporated, et al, 237–239 electron microscopy and, 33–34, 35f exponential decay curve and, 33, 34f Geronia Quarles v. Advocate Mines, Ltd., 242–243 good expert witnesses in, 115–119 Gunderson v. A. W. Chesterton, 169–171
B Baron, Fred, 73 Bases, fee, 108–109 Billing practices, 109, 214–216
C California Code of Civil Procedure, 159–168 Canadian Center for Occupational Health and Safety, 22 Cancellation fees, 111–112 Case notes, 7 Kenneth S. Cohen, 204–210
253
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Cases and incidents Alan Vasen v. Exxon Mobil Corporation, 232 Anthony Cadlo and Maxyln Cadlo v. John Crane Inc. and Metalclad Insulation Corp., 243–246 anticipating questions regarding, 48–49 asbestos, 16, 24, 31f, 33, 38–39, 93–94, 96–97, 113, 115–119, 230, 231, 232–235, 237–239 Cecil and Oneida Martin v. Plant Maintenance, Inc. of California, 230 civil, 68–69 criminal, 67–68, 91, 94–96 determining how events take place in, 8–9 Edward Jones v. John Crane Incorporated, et al, 237–239 Geronia Quarles v. Advocate Mines, Ltd., 242–243 Gunderson v. A. W. Chesterton, 169–171 Harold Phelps and Neva Phelps v. Hamilton Materials, Inc., 246–247 Horton v. Harwick Chemical Corporation, 178–193 Joseph Garza and Mary Garza v. Asbestos Corporation Limited, 249–252 key players in, 7 Lewis Sunderman v. Aqua-Chem Inc., 235–237 Merle Sandy v. Exxon Mobil Corporation, 247–249 Moore v. American Honda, 171–178 Philip Hoeffer v. Rockwell Automation, 239–241 physical conditions of, 7–8 products liability claims, 68, 89–91, 98–99, 193–201 rape, 19–20, 97–98 timing of, 8 toxic torts, 73–74 varieties of, 89 workers’ compensation, 69–71, 110–111 Causation, 9, 145n6 CD-ROM databases, 22 Cecil and Oneida Martin v. Plant Maintenance, Inc. of California, 230
Certified industrial hygienists, 85–86 Chain of custody, 16–17, 92–93, 98, 149n6 form, 211 Chemistry of Industrial Toxicology, The, 21 CIHs, 85–86 Citations, regulatory, 68, 148n2 Civil cases, 68–69 Claims-made insurance, 82–83 Cleavage, 146n1 Closing arguments, 139–143 Codes of civil procedures California, 159–168 expert witnesses and, 16, 108 Cohen, Kenneth S. affiliations, 220–221 bill for services, 214–216 case notes, 204–210 court qualifications and testimony, 221–222 editorial positions, 223 education and training, 218–220 employment history (academic), 224–225 employment history (nonacademic), 224 expert testimony by, 176, 183–184, 192 lecture seats and speaking engagements, 225–226 publications, 222–223 résumé of, 217–226 Common law, English, 15, 16 Confidence of expert witnesses, 38–39, 140–141 Consensus standards, 14 Contracts, retention, and consulting agreements, 106–107 Contradictions, justified, 66 Credibility of expert witnesses, 5–6 Criminal cases, 67–68, 91, 94–96 Cross-examination testimony, 54, 63–65, 100–101 Curriculum vitae. See Résumés Custody, chain of, 16–17
D Daubert-Kumho hearings, 53, 147n10 Declaration of fees, 109 Demonstratives audiovisual, 32–33 models, 28–32
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Index value of, 25 videotape reenactment, 30, 32 Depositions, 51–52, 106–107 cancellation fees, 111–112 locations for, 59–60 perpetuation, 51, 146n2 Destructive testing, 18 Direct examination, 54 Disclosure versus privacy, 112 Discovery process, 45–46, 84 Diseases of Occupations, The, 21 DNA testing and rape evidence collection kits, 19–20, 97–98 Documentation, 86–87 Donna Traverso, et al. v. Lorillard Tobacco Company, 231 Double-edged sword of testimony, 41–42 Drinker, Phillip, 146n1 Dyson, William, 57
E Edward Jones v. John Crane Incorporated, et al, 237–239 Electron microscopy, 33–34, 35f, 98 Emergency rooms and rape evidence collection kits, 19–20 English common law, 15, 16 Epidemiology, 77–79, 101–102 Errors and omissions, recognizing, 3, 4 Evidence chain of custody, 16–17, 92–93, 98, 149n6, 211 hazardous materials as, 17–18 hearsay, 9, 15–16 nondestructive testing, 18 preponderance of, 77, 114, 145n2 rape, 19–20, 97–98 scientific accuracy, completeness, and documentation, 86–87 Exclusive remedies, 69, 148n2 Excrement, human, 102–103 Experts, invisible, 40–41 Expert witnesses. See also Testimony; Witnesses answer format during questioning, 47 attacked personally, 57–58 attorney-client privilege and, 50 avoiding becoming advocates, 50 background reading prior of, 6
255 backgrounds of, 9–10 bad, 119–132 challenges of, 142 Christopher E. Andreas on, 113–137 confidence of, 38–39, 140–141 contracts, retention, and consulting agreements, 106–107 credibility of, 5–6 in criminal cases, 67–68 deposition of, 51–52, 59–60 evaluating potential problems, 4–5 fee questions asked of, 58–59 fee structure, 105–110, 212–213 foundation of knowledge, 27, 145n1 good, 114–119 impeachment of, 63–66 as invisible experts, 40–41 knowledge gained in normal work, 2–3 marketing, 42–43 objectiveness of, 4 preparation of witnesses by, 39–40 privacy versus disclosure and, 112 pro bono work by, 110, 149n2 rehabilitation of, 60–61 résumés of, 59, 217–226 retrospective work, 4–5 truth and, 41–42 "ugly," 132–137 who qualifies as, 37–38 working for defense versus plaintfiffs, 43 Exponential decay curve, 33, 34f
F Fee(s) bases, 108–109 billing practices, 109, 214–216 cancellation, 111–112 collecting, 110 declaration of, 109 hourly, 107–108 questions about, 58–59 structure of, 105–110, 212–213 travels expenses and, 111 Foundation of knowledge, 27, 145n1 Fundamentals of Industrial Hygiene, 21
G Galleries, courtroom, 147n8
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Geronia Quarles v. Advocate Mines, Ltd., 242–243 “Going barefoot,” 85 Goldman, supra, 187 Goldman v. Johns-Manville Sales Corp., 190 Gramm-Leach-Bliley Act, 58, 147n4 Gunderson v. A. W. Chesterton, 169–171
Judges, 9, 25 determining weight of testimony, 25–27 pro tem, 68, 148n1 Juries, 65, 147n7 selection, 53 Justified contradictions, 66
K H Handling Occupational Disease Cases, 73 Harold Phelps and Neva Phelps v. Hamilton Materials, Inc., 246–247 Hatch, Theodore, 146n1 Hazardous materials, 17–18 risk from, 78–79 Health-related cases epidemiology and, 77–79, 101–102 expert witnesses hired for, 75–76, 92–93 medical misdiagnosis, 74 technology and, 102–104 toxic torts, 73–74, 102–103 Hearsay rule, 9, 15–16 Hepatitis, 101–102 Hinds, William, 26 20-20 hindsight, 5, 6, 142 Hold-harmless agreements, 84–85 Homicides, 91, 94–96 Horton v. Harwick Chemical Corporation, 178–193 Hourly fees, 107–108 Huston v. Koneiczny, 189–190
I Ignorance of the law, 14 Impeachment, 63–66, 147n9 In camera hearings, 53 Indemnification, 83–84 Industrial Dust, 21, 26, 146n1 Industrial Hygiene and Toxicology, 21 Insurance, professional liability, 82–83 Internet, the, 22–23 Interrogatory responses, 46–47 Invisible experts, 40–41
J Joseph Garza and Mary Garza v. Asbestos Corporation Limited, 249–252
Key players in litigation, 7 Knowledge, foundation of, 27, 145n1
L Laws ignorance of, 14 peepshow, 91–92, 148n3 purpose in safety and occupational health, 79 Lawsuits. See Litigation Leading questions, 65–66 Lewis Sunderman v. Aqua-Chem Inc., 235–237 Liability alternative, 186–187 causation and, 9, 145n6 insurance, 82–83 premises, 68 products, 68, 89–91, 98–99, 193–201 professional, 81–87 Library collections of safety and industrial works, 21 Limited financial assets and "going barefoot," 85 Lipoid pneumonia, 103–104 Literature, medical and scientific CD-ROM databases, 22 held by libraries, 21–22 on the Internet, 22–23 MEDLARS searching for, 22 selecting reliable, 23–24 Litigation avoidance, 81–82 discovery process, 45–46 hearsay in, 9 identifying key players in, 7 interrogatory responses in, 46–47 origins of, 77–78 physical conditions of incidents and, 7–8 society and, 2
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Index statute of limitations and, 12–13, 146n3 subpoenas and, 1–2 timing of incidents and, 8 toxic-tort, 73–74 Livor, 149n8 Lorhmann test, 180–186 Lorhmann v. Pittsburgh Corning Corp., 180–186, 188
M Malpractice, 11–13, 81–82 Mandatory settlement conferences, 52 Medical misdiagnosis, 74 MEDLARS, 22 Merle Sandy v. Exxon Mobil Corporation, 247–249 Mesothelioma, 93, 169–171 Microscopy, electron, 33–34, 35f Minnich v. Ashland Oil Co., 186–187, 189 Misdiagnosis, medical, 74 Models, 28–32 Moore v. American Honda, 171–178 Motion for summary judgment, 52 Multistate operations and professional liability, 84 Myiasis, 92, 148n5
N National Enquirer, 23 National Institute of Occupational Safety and Health, 21 National Library of Medicine, U. S., 22 Negligence, 139 legal definition of, 11 per se, 13–14, 146n4 professional, 11–13 statutory, 13–14 New England Journal of Medicine, 23 NIOSH. See National Institute of Occupational Safety and Health NLM. See National Library of Medicine, U. S. Nondestructive testing, 18
O Oaths, 53, 147n3–4 Objectiveness of expert witnesses, 4
257 Occupational Safety and Health Administration, U. S., 21 Occurrence-based insurance, 82–83 OSHA. See Occupational Safety and Health Administration, U. S.
P Pang v. Minch, 182 Peepshow laws, 91–92, 148n3 Percipient witnesses, 114, 145n1 Perpetuation depositions, 51, 146n2 Per se, negligence, 13–14 Personal attacks against expert witnesses, 57–58 Philip Hoeffer v. Rockwell Automation, 239–241 Physicians malpractice, 11–13 medical misdiagnosis cases and, 74 Premises liability claims, 68 Preponderance of evidence standard, 77, 114, 145n2 Pretexting, 58, 147n3 Preventive actions, 78 Prime directive, 42 Privacy versus disclosure, 112 Pro bono work, 110, 149n2 Products liability claims, 68, 89–91, 98–99 Willmar Poultry Company v. Carus Chemical Company, 193–201 Professional liability actionable events and activities and, 85–86 avoidance of litigation and, 81–82 "going barefoot" and, 85 hold-harmless agreements and, 84–85 indemnification and, 83–84 insurance, 82–83 multistate operations and, 84 scientific accuracy, completeness, and documentation, 86–87 Professional negligence, 11–13
Q Qualifications of expert witnesses, 37–38 Questions anticipating, 48–49 fee, 58–59
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format of answers to, 47 leading, 65–66 rehabilitative, 60–61
R Rape evidence collection kits, 19–20, 97–98 Re-cross, 60 Redirect, 60 Regulatory citations, 68, 148n2 Rehabilitation of expert witnesses, 60–61 Reports, workers’ compensation case, 70–71, 110–111 Re-re-direct, 60 Respondeat superior, 12, 99, 146n2 Responses, interrogatory, 46–47 Résumés of attorneys, 217–226 of expert witnesses, 59, 217–2216 Retainers, 106–107 Risk, 78–79 Robertson v. Allied Signal, 184 Rules of evidence chain of custody, 16–17 hazardous materials, 17–18 hearsay, 9, 15–16 nondestructive testing, 18 rape evidence collection kits and, 19–20
T Testimony. See also Expert witnesses cross-examination, 54, 63–65, 100–101 demonstratives used in, 25 depositions, 51–52, 59–60, 106–107 direct examination, 54 impeachment of, 63–66, 147n9 justified contradictions in, 66 rehabilitation of expert witnesses through, 60–61 responsiveness to questions during, 47 during trial, 53–54 truthful, 41–42, 141 weight of, 25–27 Testing, nondestructive, 18 Torts, toxic, 73–74 Toxic torts, 73–74 Travel expenses, 111 Trials basic elements, 114 closing arguments, 139–143 jury selection for, 53 testimony during, 53–54 verdicts, 54–55 Triers of fact, 9 determining weight of testimony, 25–27 jury selection and, 53 Truth in testimony, 41–42, 141 Tyndall, John, 96 Tyndall effect, 96–97
S Schultz v. Keene Corp., 183 Scientific accuracy, completeness, and documentation, 86–87 Scientific method, the, 145n3 Standards of care, 12 consensus, 14 preponderance of evidence, 77, 114, 145n2 Statute of limitations, 12–13, 146n3 Statutory negligence, 13–14 Stipulations, 51, 146n1 Subpoenas, 1–2 duces tecum, 24 Summers v. Tice, 186 Synergist, The, 57
V Verdicts, 54–55 Videotape reenactments, 30, 32 Voir dire, 53, 147n6
W Willmar Poultry Company v. Carus Chemical Company, 193–201 Witnesses. See also Expert witnesses; Testimony oaths taken by, 53, 147n3–4 percipient, 114, 145n1 preparation, 39–40 Workers’ compensation cases, 69–71, 110–111 Wrongful death claims, 68–69
