Expert Witness Blog
Practical guidance for expert witnesses — testimony, report writing, depositions, fees and building a successful practice.
March 11, 2020
Notes of Expert Witnesses Protected: FRCP 26(b)(4)(C)
By Steven Babitsky, Esq. The US District Court D. New Mexico dealt with an attempt to force the production of the expert witness’s notes in discovery. The court, citing FRCP 26(b)(4)(C) found these notes to be protected from discovery. The court stated: Rule 26(b)(4)(C) protects “communications between a party’s attorney and any witness required to provide a report [ ],
Read moreMarch 6, 2020
Life Care Planner – Need for Physician Review
The U.S. District Court, W.D. Virginia dealt with a federal tort claims act case – a podiatrist, Bonk, treated the plaintiff with surgery for an injured ankle which resulted in an amputation of the leg below the knee. The U.S. hired Wirt, a registered nurse and certified life care planner to rebut the plaintiff’s physician life care plan. The plaintiff
Read moreMarch 3, 2020
The Defense Bar Urges Tightening Daubert Rule Enforcement
By Steven Babitsky, Esq. The defense organization Lawyers for Civil Justice has urged that the advisory committee on evidence rules and its subcommittee on rule 702 amendments the “reform” of a Daubert Enforcement. Specifically, this powerful and influential group called for the following: We urge you to move forward with an amendment to rule 702 that would remedy the inconsistency
Read moreFebruary 28, 2020
Life Care Plan: No Medical Exam
Steven Babitsky Esq. The United States District Court, W.D. Kentucky dealt with the plaintiff, Schall, who was in a motorcycle accident and rendered a paraplegic. Here there was a battle of life care planner experts. There was an attempt to exclude the testimony of Dr. Castillo, an assistant professor of neurosurgery PM&R Division of University of Louisville. Dr. Castillo intended
Read moreFebruary 20, 2020
Casting Doubt on Psychological Expert’s Competence and Methodology
Steven Babitsky, Esq. How do trial attorneys attack psychologists and psychiatrists during cross-examination? They are being trained to concentrate on the expert’s competence and methodology. Attorney Renee Welze Livingston writes in the January 2020 issue of For the Defense: How Methodical Investigation Can Cast Doubt on a Psychological Expert’s Competence and Methodology. This revealing article makes many recommendations, including: Thoroughly
Read moreJanuary 31, 2020
Expert Fee Arrangements Must be Disclosed
The U.S, District court S.D. Florida dealt with the issue of whether fee arrangements between an expert witness and counsel must be disclosed during discovery. The expert was a loss consultant and was provided with a 10% prelitigation fee for his services. The court ordered the production of the agreement and stated: First, the Court finds that the agreement at
Read moreJanuary 28, 2020
The Biggest Mistakes Lawyers Make in Preparing Their Expert Witness for Deposition
Steven Babitsky, Esq. Introduction Many cases rise and fall based on how your expert witness does at their deposition. Here are some of the biggest mistakes lawyers make when preparing their expert witness. Failure to Ask the Expert Witness What They Are Concerned About Most expert witnesses, even the most experienced ones, have issues that they are worried about coming
Read moreJanuary 27, 2020
Daubert: Mechanical Engineer on Fire
The Nebraska Supreme Court dealt with a fire that broke out in the basement of a pub in Plattsmouth, Nebraska. A chiropractic group alleged that the negligent maintenance of equipment located in the basement of the pub caused the fire. The plaintiff offered the testimony of Duane Wolf, a mechanical engineer, with a background in fire and explosions investigations. The
Read moreDecember 24, 2019
How Expert Witnesses Can Improve Their Deposition Testimony
Steven Babitsky, Esq. One of the keys to success for an expert witness is the ability to excel when testifying at their depositions. There are many ways experts can improve their deposition testimony: Read books on the subject.[1] Attend training specifically dealing with delivering excellent deposition testimony.[2] Learn from experience at their depositions. Have Your Deposition Transcript Critiqued One of
Read moreDecember 2, 2019
The Pyramid Problem at Forensic Accounting Firms
Nadine Nasser Donovan, Esq. Steven Babitsky, Esq. What is the pyramid problem? Many forensic accounting firms whose employees act as expert witnesses suffer from a serious “pyramid problem.” This is a term we at SEAK Inc. use to describe a company which has many accountants performing expert witness work, yet just a select few at the top of the
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