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Tag Archives: Expert Witness

Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

15 Sunday Feb 2015

Posted by Celia C. Elwell, RP in Daubert Motion, Evidence, Litigation, Product Liability

≈ Comments Off on Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

Tags

Burden of Proof, Daubert Motion, Ernie Goodwin, Evidence, Expert Witness, Product Liability, Product Liability Advocate, Warning Labels

WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk, by Ernie Goodwin, Product Liability Advocate

http://tinyurl.com/plkxj4t

Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.

The case law in all jurisdictions is clear when it comes to the burden of proof for a warnings claim; there has to be a direct link between the failure of the manufacturer to warn about the hazard and the cause of the incident. Moreover, the plaintiff’s expert must consider, among many other things, all of the available accident data and not rely only on select facts from the record to support his findings. A manufacturer who is facing a speculative warnings claim has a few options for dealing with these types of claims. The most effective and frequently used tool is the Daubert motion to exclude the expert from testifying at trial. . . .

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Dueling Experts – Which One Will The Jury Believe?

25 Saturday Oct 2014

Posted by Celia C. Elwell, RP in Experts, Jury Persuasion, Trial Tips and Techniques

≈ Comments Off on Dueling Experts – Which One Will The Jury Believe?

Tags

Douglas Keene, Expert Witness, Jury Persuasion, The Jury Room Blog, Trial Tips & Techniques

What Happens When A Juror Agrees [Or Disagrees] With Your Expert Witness?, by Douglas Keene, The Jury Room Blog

http://tinyurl.com/nl3tpto

Mock jurors love to hate dueling experts who give them conflicting information regarding causation, liability, reasonableness, damages, etc. They also don’t appreciate expert witnesses who use jargon or speak so simply that jurors feel ‘talked down to’—but you already know that. What jurors want is to learn what is reliable and useful to resolve the dispute. And attorneys watching mock jurors deliberate often indignantly retort, ‘That is not what the witness said!’—as though the juror simply needed to have the testimony repeated. The research we’re about to describe explains why jurors hear what they hear instead of hearing what the expert actually said. . . .

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Witness Preparation – When May The Witness Show Anger?

09 Monday Jun 2014

Posted by Celia C. Elwell, RP in Paralegals/Legal Assistants, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Witness Preparation – When May The Witness Show Anger?

Tags

Expert Witness, Legal Assistants, Legal Insights Blog, Litigation Insights Blog, Merrie Jo Pitera, Paralegals, Witness Preparation

Witness Preparation Tip: When Is It Appropriate For A Witness To Show Anger? by Merrie Jo Pitera, Ph.D. – CEO, Litigation Insights Blog

http://tinyurl.com/ma4hps8

Many years ago, I was working on witness preparation with a corporate HR Director who was being deposed. It was quickly apparent from the moment that he walked in the room that he was not happy to be there. During his own mock direct examination, when the questions were clearly “friendly fire” from his own attorney, he was angry and aggressive. He was so mad that he was getting out of his seat and pointing at his own attorney with his finger when answering simple questions. What was worse, he was getting progressively more emotional and belligerent as the questioning continued. And we hadn’t even gotten to mock cross examination yet! It was clear we needed to take a break and pull him aside for a heart-to-heart discussion. In his current emotional state, he was the antithesis of an HR Director, and his display of anger was inadvertently reinforcing the plaintiff’s claims that the company did not care about his complaints of racial discrimination. An additional complication was that the HR Director thought his strong, angry reaction was helping his employer’s case.

While extreme, this witness’ reaction to testifying is not unusual. It is no secret that no one looks forward to being deposed. . . .

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Why Isn’t The Judge Listening?

16 Wednesday Apr 2014

Posted by Celia C. Elwell, RP in Closing Argument, Experts, Jury Persuasion, Legal Analysis, Legal Argument, Opening Argument, Trial Tips and Techniques

≈ Comments Off on Why Isn’t The Judge Listening?

Tags

Dr. Ken Broda-Bahm, Expert Witness, Judge, Juries, Listening, Persuasive Litigator Blog, Trial Tips & Techniques

Experts: Keep It Comparative, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/n3hovpy

The expert has prepared thoroughly for her testimony before the judge. She knows each opinion and every foundation. The outline that counsel developed is all but memorized. But then, as she is about an hour into describing the detailed methods and conclusions, the judge’s eyes are drifting down to the table and the nods of understanding have stopped: He isn’t getting it. In itself, there is nothing in the testimony that is impossible to understand – on the contrary, it is organized and clear. But the judge seems to have disengaged. Instead of tracking with the testimony at each step, he is just hearing detail after detail and letting it wash over him.  And if there were a jury in the room, the problem would be even worse.

What went wrong?  . . . .

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Can A Prisoner Get An Expert Witness Under Federal Rule 706 For His Medical Condition?

02 Sunday Mar 2014

Posted by Celia C. Elwell, RP in 11th Circuit Court of Appeals, Appellate Law, Criminal Law, Evidence, Federal Rules of Evidence, Rule 706, Summary judgment

≈ Comments Off on Can A Prisoner Get An Expert Witness Under Federal Rule 706 For His Medical Condition?

Tags

11th Circuit Court of Appeals, Alabama, Colin Miller, EvidenceProf Blog, Expert Witness, Federal Rules of Evidence, Gillentine v. Correctional Medical Services, Hepatitis C, Prisoner, Rule 706, Summary judgment

Is There a Doctor in the House?: 11th Circuit Remands After Lower Court’s Erroneous Rule 706 Ruling, posted by Colin Miller, EvidenceProf Blog

http://tinyurl.com/n57dzzo

This post discusses an Alabama District Court’s and 11th Circuit Court of Appeal’s interpretation of Rule 706(a) of the Federal Rule of Evidence in a prisoner’s lawsuit in which he claims that he has Hepatitis C, his illness is not being treated and, without treatment, he will become sicker and die. -CCE

Federal Rule of Evidence 706(a) provides that:

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As you can see from the language of Rule 706(a), there is nothing in the Rule’s text limiting expert appointment to either criminal or civil cases. So where did that leave the plaintiff in Gillentine v. Correctional Medical Services, 2014 WL 701575 (11th Cir. 2014)?

 

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More On Why Lawsuits Are So Expensive.

22 Saturday Feb 2014

Posted by Celia C. Elwell, RP in Cross-Examination, Damages, Exhibits, Experts, Litigation, Motor Vehicle, Personal Injury, Plaintiff's Counsel, Product Liability, Trial Tips and Techniques, Video Deposition, Witnesses

≈ Comments Off on More On Why Lawsuits Are So Expensive.

Tags

Accident Reconstructionist, Cross-Examination, Daubert Rule, Engineer, Expert Witness, Filing Fees, Personal Injury, Product Liability, Video Deposition

Why Lawsuits Are So Expensive, Pt. II, by Gregory H. Haubrich, Foshee & Yafee, Butter’s Blog

http://greghaubrich.com/2014/02/13/why-lawsuits-are-so-expensive-pt-ii/

In my previous edition of Butter’s Blog, Part I explored why lawsuits are so expensive. In Part II, we are going to break down the costs of getting your case to trial. To get a rough estimate of what your law firm may spend handling the case,  we must first look at what kind of case it is.

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Handwriting Expert’s Report and Testimony Are Inadmissible Under Daubert/Rule 702 Test.

17 Sunday Nov 2013

Posted by Celia C. Elwell, RP in Admissibility, Court Rules, Evidence, Experts, Trial Tips and Techniques

≈ Comments Off on Handwriting Expert’s Report and Testimony Are Inadmissible Under Daubert/Rule 702 Test.

Tags

Daubert, Evidence, EvidenceProf Blog, Expert Witness, Hand Writing Expert

Hand of One: Western District of Wisconsin Finds Handwriting Expert Testimony/Report Inadmissible, by Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pmkmalc

 

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Experts, Admissibility, and Rule 705

22 Tuesday Oct 2013

Posted by Celia C. Elwell, RP in Admissibility, Court Rules, Evidence, Expert Witnesses, Forensic Evidence, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Experts, Admissibility, and Rule 705

Tags

Admissibility, Evidence, Expert Opinion, Expert Witness, Rule 705, Voir Dire

Who Made You The Expert?: Rule 705 & The Admissibility of Underlying Facts or Data, by Evidence ProfBlogger, EvidenceProfBlog
http://bit.ly/1a085YM

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