Selectingand usinganexpertwitness
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Selectingand usinganexpertwitness Selectingand usinganexpertwitness Document Transcript

  • Selecting and Using an Expert Witness Michael J. Slifka, P.E. Board Certified Diplomate The American Board of Forensic Examiners
  • Why Use An Expert Witness?
    • In house technical capability/testimony of a housing manufacturer will always be viewed as biased and self serving by a jury .
  • Why Use An Expert Witness?.. continued
    • In house technical capability/testimony needs to be properly focused and shaped to fit the particulars of the suit.
      • The lead counsel will do this for the legal issues of the case
      • The lead counsel often will not have the technical knowledge to do this for the technical issues of the case
      • Often both the lead counsel and the in house technical staff will not be capable of providing the technical strategic vision for the case
  • The best approach is a lead counsel strong on the legal issues working with an expert witness to help shape the strategic technical issues that a case centers on.
  • What are the typical suits occurring frequently in the Manufacturing Housing Industry ?
    • Warranty issues (a/k/a “Leak & Squeak”)
    • H 2 HO (Formaldehyde)
    • Fire
    • Fire with injuries and/or deaths
    • Fire with injuries and/or deaths of young children
  • Warranty Issues
    • Several ex-state/HBT “Inspectors” are now inspecting homes where buyers’ remorse is the prevailing issue .
  • Warranty Issues… continued
    • They misrepresent findings as “major” safety issues
      • e.g. A staple protruding from trim work at the top rear of a kitchen cabinet as a “imminent safety hazard”
      • e.g. Using a wooden yard stick pressed against a wall and sliding a dollar bill behind the yard stick to “prove” a wall is seriously out of plumb in order to prove that the home was seriously damaged in movement and will soon fall down
  • Warranty Issues… continued
    • Because the HUD standards still require “good workmanship”, any workmanship issues are equated to major safety issues
  • The Solution...
    • An Expert Witness intimately familiar with the HUD Standard, HBT/HUD inspection protocol (“CCI Book”) and with HUD interpretations on both what are and are not “major” safety issues and what are and are not code violations
  • Formaldehyde
    • Case law and experts well established
  • Fire
    • Manufactured homes still are incorrectly presented as “fire traps” citing old biased literature and current NFPA data!
  • Fire… continued
    • When no cause can be found for a fire the following “phantom” causes are almost always assumed by inexperienced fire investigators (who believe it is their duty to always find a “cause” for a fire)
  • Fire… continued
      • Staple through a wire
      • Staple nicking a wire
      • Wire being compressed during construction
      • Wire being bent during construction
      • Cheap electrical components being used
        • e.g. “Back Wire”, or “Self Contained” devices (Brand name such as “Amp” and “Slater”)
  • Expert Familiarity with the manufacturing process can demonstrate the unlikely nature of wire damage
    • Structural staples in roofs and walls use a staple gun
    • Electrical wires staples are hand driven or use a staple gun with an aiming device to assure the wire is encircled by the staple
    • Expert familiarity with NFPA 921, and peer reviewed research will show the previously cited “phantom” causes are not recognized as causes of fires
    • Expert familiarity with NEC and electrical component listing protocol will show that “cheap” electrical devices are tested to meet the same stringent over current tests as all other electrical equipment
    • A Qualified, Registered Fire/Forensics Expert always is needed to challenge the often amaturish, non peer reviewed fire investigation performed by the “local” fire investigator
  • Fire with Injuries and/or Deaths
    • These will always be high $ cases
    • Strategy will be driven by corporate liability insurance and “risk” as measured by both the lead counsel and the insurance carrier
  • Fire with Injuries and/or Deaths... continued
    • Often, bad measurements of “risk” have been made due to lack of good technical guidance by an technical expert
    • Often, bad (expensive) settlements have been made due to lack of good technical guidance by a technical expert
  • Fire with Injuries and/or Deaths to Young Children
    • Use extreme caution
    • All of above applies concerning large $ suits
    • It can be appropriate contrary to prevailing legal wisdom (if the facts support) to show that the fire causative issues were due to the actions of the children
  • Choosing An Expert...
    • Is the expert aware of Daubert, Kumho Tire, etc.
    • Will the expert succinctly list last 5 years of case work ?
  • Choosing An Expert continued …
    • What are the experts credentials
      • Are the credentials by degree, registration and examination?
      • Are the credentials only by hands on “experiences”, seminars, and short courses only?
      • Is the expert published?
      • Is it in peer reviewed literature?
      • Does the expert sit on standards writing committees responsible for the cutting edge technology development in the field he or she practices in?
      • Does the expert follow NFPA 921
  • The more “YES” answers to the above, the more likely the expert will fill your needs .