Selectingand usinganexpertwitness

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  • Selectingand usinganexpertwitness

    1. 1. Selecting and Using an Expert Witness Michael J. Slifka, P.E. Board Certified Diplomate The American Board of Forensic Examiners
    2. 2. Why Use An Expert Witness? <ul><li>In house technical capability/testimony of a housing manufacturer will always be viewed as biased and self serving by a jury . </li></ul>
    3. 3. Why Use An Expert Witness?.. continued <ul><li>In house technical capability/testimony needs to be properly focused and shaped to fit the particulars of the suit. </li></ul><ul><ul><li>The lead counsel will do this for the legal issues of the case </li></ul></ul><ul><ul><li>The lead counsel often will not have the technical knowledge to do this for the technical issues of the case </li></ul></ul><ul><ul><li>Often both the lead counsel and the in house technical staff will not be capable of providing the technical strategic vision for the case </li></ul></ul>
    4. 4. 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.
    5. 5. What are the typical suits occurring frequently in the Manufacturing Housing Industry ? <ul><li>Warranty issues (a/k/a “Leak & Squeak”) </li></ul><ul><li>H 2 HO (Formaldehyde) </li></ul><ul><li>Fire </li></ul><ul><li>Fire with injuries and/or deaths </li></ul><ul><li>Fire with injuries and/or deaths of young children </li></ul>
    6. 6. Warranty Issues <ul><li>Several ex-state/HBT “Inspectors” are now inspecting homes where buyers’ remorse is the prevailing issue . </li></ul>
    7. 7. Warranty Issues… continued <ul><li>They misrepresent findings as “major” safety issues </li></ul><ul><ul><li>e.g. A staple protruding from trim work at the top rear of a kitchen cabinet as a “imminent safety hazard” </li></ul></ul><ul><ul><li>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 </li></ul></ul>
    8. 8. Warranty Issues… continued <ul><li>Because the HUD standards still require “good workmanship”, any workmanship issues are equated to major safety issues </li></ul>
    9. 9. The Solution... <ul><li>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 </li></ul>
    10. 10. Formaldehyde <ul><li>Case law and experts well established </li></ul>
    11. 11. Fire <ul><li>Manufactured homes still are incorrectly presented as “fire traps” citing old biased literature and current NFPA data! </li></ul>
    12. 12. Fire… continued <ul><li>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) </li></ul>
    13. 13. Fire… continued <ul><ul><li>Staple through a wire </li></ul></ul><ul><ul><li>Staple nicking a wire </li></ul></ul><ul><ul><li>Wire being compressed during construction </li></ul></ul><ul><ul><li>Wire being bent during construction </li></ul></ul><ul><ul><li>Cheap electrical components being used </li></ul></ul><ul><ul><ul><li>e.g. “Back Wire”, or “Self Contained” devices (Brand name such as “Amp” and “Slater”) </li></ul></ul></ul>
    14. 14. Expert Familiarity with the manufacturing process can demonstrate the unlikely nature of wire damage <ul><li>Structural staples in roofs and walls use a staple gun </li></ul><ul><li>Electrical wires staples are hand driven or use a staple gun with an aiming device to assure the wire is encircled by the staple </li></ul>
    15. 15. <ul><li>Expert familiarity with NFPA 921, and peer reviewed research will show the previously cited “phantom” causes are not recognized as causes of fires </li></ul>
    16. 16. <ul><li>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 </li></ul>
    17. 17. <ul><li>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 </li></ul>
    18. 18. Fire with Injuries and/or Deaths <ul><li>These will always be high $ cases </li></ul><ul><li>Strategy will be driven by corporate liability insurance and “risk” as measured by both the lead counsel and the insurance carrier </li></ul>
    19. 19. Fire with Injuries and/or Deaths... continued <ul><li>Often, bad measurements of “risk” have been made due to lack of good technical guidance by an technical expert </li></ul><ul><li>Often, bad (expensive) settlements have been made due to lack of good technical guidance by a technical expert </li></ul>
    20. 20. Fire with Injuries and/or Deaths to Young Children <ul><li>Use extreme caution </li></ul><ul><li>All of above applies concerning large $ suits </li></ul><ul><li>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 </li></ul>
    21. 21. Choosing An Expert... <ul><li>Is the expert aware of Daubert, Kumho Tire, etc. </li></ul><ul><li>Will the expert succinctly list last 5 years of case work ? </li></ul>
    22. 22. Choosing An Expert continued … <ul><li>What are the experts credentials </li></ul><ul><ul><li>Are the credentials by degree, registration and examination? </li></ul></ul><ul><ul><li>Are the credentials only by hands on “experiences”, seminars, and short courses only? </li></ul></ul><ul><ul><li>Is the expert published? </li></ul></ul><ul><ul><li>Is it in peer reviewed literature? </li></ul></ul><ul><ul><li>Does the expert sit on standards writing committees responsible for the cutting edge technology development in the field he or she practices in? </li></ul></ul><ul><ul><li>Does the expert follow NFPA 921 </li></ul></ul>
    23. 23. The more “YES” answers to the above, the more likely the expert will fill your needs .

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