EXPERT WITNESS TESTIMONY

Civil Matters:

Dr. Pape has testified in State and Federal Courts on a wide range of issues relating to clinical, analytical, and forensic toxicology. He has also consulted regarding risk assessment, reliability of laboratory testing, and pre-trial evaluation of expert testimony. Over the last 10 years, he has testified at trial in approximately 50 civil cases.

Criminal Matters:

While most of Dr. Pape’s work involves civil litigation, he does accept some cases that include review, consultation, and potential testimony in criminal matters. The discussions of topics relating to criminal charges on this website and in Pape & Associates Newsletters are intended to assist attorneys considering technical and scientific issues. The information provided does not necessarily reflect Dr. Pape’s opinions or his prior testimony.
 

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CASE CONSULTATION: Even without testimony, an experienced liquor liability expert can assist legal counsel. Consider the following example case-assignments:

• Appraisal of the qualifications-reputation-and-record of other available experts, their charges, and case-assignments

• Evaluation of potential expert testimony and anticipation of cross-examination with special emphasis on at least six case-specific issues:

  • Alcohol Concentration Test Results

  • Total Alcohol Consumption

  • BAC at the Time of Last Service

  • Reported Appearance-Behavior-Demeanor

  • Expected Effects Based on BAC

  • Witness Testimony

• Strategic options including expert deposition and/or voir dire, trial exhibits, and cross- examination.

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CASE CONSULTATION
An Illustration: Toxic Tort
 

Fact: The pharmacologist’s written report regarding the effects of marijuana seemed a little contrived but scientifically defensible … and he was very well qualified … and he was an experienced expert witness. His “problem” was found on the Internet:

Fact: An Internet search for the doctor’s name found over 100 references. Yes … you’re right … he was a member of the Board of Directors of NORML, the National Organization for the Reform of Marijuana Laws. He was clearly associated with the group’s political, social, legislative, and scientific positions.

Case: Dr. X … Sauna Man

The plaintiff’s case was relatively strong: She had been in excellent health; she had no history of allergy or immunologic deficiency; her acute chemical exposure due to a misapplication of a solvent-pesticide aerosol was well documented; and her acute-care medical records were consistent with chemical intoxication. The experts disagreed regarding her alleged residual immunologic deficiencies, multiple chemical sensitivities, treatment recommendations, and long-term prognosis.

Treatment became a big issue: The plaintiff’s treating physician insisted on a clean house, a chemical-free diet, and heat treatments. Defense counsel geared-up for trial including the cross-examination of the plaintiff’s expert, a “clinical ecologist”. The defense expert searched the Internet. Based on the findings, defense counsel settled on a code-name for the expert: Sauna Man.

Sauna Man was chosen as a code name for the expert because of his prior medical opinions regarding clinical ecology and chemical detoxification including the use of heat treatments and water fasts. Unfortunately for the expert, his case-specific prescription of therapeutic saunas contributed to putting him in hot water.
 

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LITERATURE REVIEW & RELATED SERVICES

Finding – Retrieving – Reviewing – Explaining – Applying 

Scientific Reports

Given the case-specific facts and legal issues, Dr. Pape will search-recover-review-and-summarize relevant scientific literature and illustrate the application of scientific studies to case analysis, the formulation-presentation-defense of case opinions, and the appropriate cross-examination of an expert witness

The consultation process is much more than providing written materials and answering questions.  The goal is to add to your competence, confidence, and presentation of case-relevant scientific issues … including your ability to    effectively control the cross-examination of an expert witness.

Call Dr. Pape to discuss your case and a potential assignment.

Example Literature Reviews:

Alcohol and Cycling Accident

A comparative analysis of alcohol in fatal and nonfatal bicycling injuries.

Bicycling is the leading cause of recreational injury, resulting in more than half a million emergency department visits and about 900 deaths each year in the United States. The fatal cases were more likely than the nonfatal cases to have positive BACs (30% vs. 16%, p < 0.01) and to be legally intoxicated (i.e., BACs > or = 0.10%) (22% vs. 13%, p < 0.01). For both fatal and nonfatal cases, intoxication was more prevalent among victims who were male, aged 20 to 39 years, or who were injured at nighttime (7:00 PM to 6:59 AM). Bicyclists who died at the scene were four times as likely as those who died at hospitals to be legally intoxicated (35% vs. 9%, p < 0.02). Given a serious bicycling injury, intoxication was associated with significantly increased likelihood of fatality, with an adjusted odds ratio of 2.8 (95% confidence interval, 1.3 to 6.3).

Alcohol – Fatigue - MVA

Low levels of alcohol impair driving simulator performance and reduce perception of crash risk in partially sleep deprived subjects.

Mean blood alcohol concentration on the alcohol night was 0.035 +/- 0.015 g/dL. Compared with conditions during partial sleep deprivation alone, subjects had more microsleeps, impaired driving simulator performance, and poorer ability to predict crash risk in the combined partial sleep deprivation and alcohol condition. Women predicted crash risk more accurately than did men in the partial sleep deprivation condition, but neither men nor women predicted the risk accurately in the sleep deprivation plus alcohol condition. CONCLUSIONS: Alcohol at legal blood alcohol concentrations appears to increase sleepiness and impair performance and the detection of crash risk following partial sleep deprivation. When partially sleep deprived, women appear to be either more perceptive of increased crash risk or more willing to admit to their driving limitations than are men. Alcohol eliminated this behavioral difference.

Drugs – Impairment – MVA

Psychoactive substance use and the risk of motor vehicle accidents.

The main outcome measures were odds ratios (OR) for injury crash associated with single or multiple use of several drugs by drivers. The risk for road trauma was increased for single use of benzodiazepines (adjusted OR 5.1 (95% Cl: 1.8-14.0)) and alcohol (blood alcohol concentrations of 0.50-0.79 g/l, adjusted OR 5.5 (95% Cl: 1.3-23.2) and >or=0.8 g/l, adjusted OR 15.5 (95% Cl: 7.1-33.9)). High relative risks were estimated for drivers using combinations of drugs (adjusted OR 6.1 (95% Cl: 2.6-14.1)) and those using a combination of drugs and alcohol (OR 112.2 (95% Cl: 14.1-892)).

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EXAMPLE APPROACHES TO THE EXAMINATION OF AN ADVERSARIAL EXPERT

Case-decisions regarding deposition, voir dire, and cross-examination at trial

Case-evaluation and case-strategy are two important considerations when an attorney is deciding if-when-how to examine an adversarial expert. When considering these and other case-specific options, counsel will usually benefit from a discussion with an experienced liquor liability expert.

Expert deposition
There are at least three good reasons to consider deposing an expert:

• You know little or nothing about the expert’s approach to case-analysis and his/her ability to defend the approach taken, case-assumptions, case-calculations including BAC and TAC, and knowledge of and/or reliance on scientific studies.
• You want to establish the nature, scope, and limits of the expert’s case-analysis as presented in a written report and/or you want to “marry” the expert to a flaw in the case-analysis or written report.
• You want to settle the case and hope to indirectly affect the negotiations by diminishing the perceived impact of the expert’s testimony.

When should the expert be deposed? As a general rule, as late as possible ... after you have obtained a detailed report or exhausted all related attempts to define the expert’s opinions and/or anticipate the expert’s testimony as well as the expert’s reaction to deposition questions.

Voir dire
A voir dire is an under-utilized technique. While you might be hesitant to disclose your approach to cross-examination at a pre-trial deposition, you should be much less concerned when conducting a voir dire.

• What’s in his file?
• What’s not there?
• What has he done?
• What has he charged?
• What does he know?
• How does he react?

Compared to a discovery deposition, a well-devised voir dire can have a much greater impact. The expert is usually not able to effectively rehabilitate his/her lack of case-specific knowledge or approach to case-analysis: “Isn’t it true that when I questioned you about 20 minutes ago, you were not able to …?

Cross-examination
The effectiveness of your examination is based in large part on your preparation, your anticipation of the content of expert’s testimony, the expert’s usual behavior, your confidence, the use of control techniques, and a goal of providing the members of the jury with both information and explanation.

Does your cross-examination of the expert reflect a consistent case-strategy that includes ways to effectively present information about the witness’s … ?

• Qualifications
• Knowledge of case-specific facts
• Focus (i.e. what he did and did not do)
• Implicit and explicit assumptions
• Disregard for case-relevant factors
• Gaps in testimony re relevant issues
• Accuracy when describing the case analysis

Do you visualize and then construct a cross-examination that is organized, understandable, easy to follow, relevant, to the point, interesting-informative-and-illustrative, and persuasive?

Are you able to control the expert?
Are you familiar with the scientific literature, the expert’s implicit or unspoken assumptions, and the expert’s usual appearance-behavior-demeanor … such that you can confidently and effectively use techniques to control the expert? Are you able to effectively use different types of questions to control both the flow of the examination and the expert’s response to the particular question?

• Isn’t it true that …
• Are you able to …
• Are you familiar with …
• Why didn’t you tell the members of the jury …
• Have you ever published anything in …
• Did you …

Are you able to follow-up?

• Isn’t that because …
• Would you agree with a statement that …
• Let’s review …

Do you practice and test your trial skills?
Think through example outlines of case-specific questions-and-answers, your reaction to potential adverse answers, techniques you can use to maintain or regain control of the witness and/or focus on your strategic “home-base”, follow-up questions and/or illustrations, checklists used to ensure that you have provided the jury with necessary information, and a strong closing.

 

Elements Key to an Effective Cross-examination

Preparation - Anticipation - Knowledge - Control

Science based examination and case evidence
Examination of an expert witness should be based on generally accepted scientific principles, relevant scientific studies, and the case evidence or reasonable hypotheticals.
 

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