Expert Witness Blog

Practical guidance for expert witnesses — testimony, report writing, depositions, fees and building a successful practice.

February 23, 2014

Medical Expert Witnesses Availability for Plaintiff and Defense

The American Board of Medical Quality (ABMQ) in their policy on medical expert consulting and testifying (#35) states: Physicians should be available to consult with both the defense or plaintiff bar as this enables both physicians and the public to be protected. Dr. Thomas Gutheil will be speaking at the SEAK National Expert Witness Conference on May 3-4, 2014 in

February 23, 2014

Expert Witnesses Notes Not Covered Under Draft Work Product Protection

Attorney David Dummer explained that the notes that expert witnesses take are not covered by FRCP 26(b) 4 (B)s protection of drafts. Speaking at the SEAK National Expert Witness Conference he reported that following: ￭ Courts appear to be allowing liberal discovery into the work performed by a testifying expert and may continue to narrowly construe Rule 26(b)(4)(B)’s protection of

February 23, 2014

Forensic Pathologist on Sequence of Gunshots

Should a forensic pathologist who partially relies on witness statements to formulate his opinion on the sequence of gunshots be permitted to testify? The court, in Fancher v. Barrientos, Dist. Court, D. New Mexico 2014 after a Daubert hearing permitted the testimony. The court stated: Dr. Di Maio testified that the generally accepted diagnostic method in the field of forensic

February 21, 2014

Nurse Expert Witness on Medical Coding and Billing

Should an RN with extensive background in medical coding and billing be permitted to testify that only 30% of short-stay admission had adequate documentation to support the in-patient level of care billed to Medicare? A Florida court said yes and rejected the attempt to exclude her testimony. The court, in US v. Halifax Hospital Medical Center, Dist. Court, MD Florida

February 21, 2014

Expert Witness on Opposing Experts

How far can and should expert witnesses be permitted to go in commenting on the opposing expert and his opinions? The court, in Landis v. HEARTHMARK, LLC, Dist. Court, ND West Virginia 2014 placed strict limits on the sniping between expert witnesses. The court stated: Pending before this Court is Plaintiffs’ Motion to Exclude All Evidence Regarding the Divorce and

February 1, 2014

Forensic Accounting Firms Face Pyramid Crisis

Forensic accounting firms across the country are struggling with a new self-created pyramid crisis. These large and middle sized firms have dozens, hundreds or even thousands of CPA’s, CFE’s CIRA’s working on forensic issues. What they do not have is experienced forensic expert witnesses who can testify at depositions, hearings and trials. The pyramid consists of a few, usually less

January 22, 2014

The 5 Biggest Reasons Expert Witnesses Don’t Get Paid

The 5 Biggest Reasons Expert Witnesses Don’t Get Paid Steven Babitsky, Esq. As a consultant to expert witnesses, I receive calls about assistance in deposition and trial preparation, report writing, Daubert issues, etc. However, by far the most frequent issue expert witnesses call about is their failure to be paid promptly and in full by retaining counsel. Here are the

January 20, 2014

Oncologist Expert Witness: Need to Rule Out Alternative Causes

An expert witness testifying on causation should directly deal with the issue of alternative causes. The US Court of Appeals (7th Circuit) in Schultz v. Akzo Nobel Paints, LLC, 721 F. 3d 426 dealt with a painter who developed acute myeloid leukemia (AML) and later died. The lower court granted a motion for summary judgment for the defense striking the

January 20, 2014

Dual Capacity Expert Witness

When a witness testifies as to both facts and expert opinions, the court will treat him as a dual capacity expert. The court, in US v. Tucker, 714 F. 3d 1006 – Court of Appeals, 7th Circuit 2013 dealt with an appeal of a drug conviction. The court upheld the conviction finding that a properly structured direct examination can assist

January 20, 2014

How much privacy do expert witnesses have when testifying at trial?

The US Court of Appeals in US v. Ignasiak, 667 F. 3d 1217 – Court of Appeals, 11th Circuit 2012 reversed the conviction of a physician for health care fraud (dispensing controlled substances.) The court found that the government improperly withheld crucial information about a medical expert who “regularly” testified for the government. The court stated: To briefly provide background,