stabilization, lateral body movement, or other active chassis, suspension, or steering devices. The human input may be overridden, for a brief period of time, when electronic stabilization systems control quick impulses to various brakes, effect throttle position or power dynamics, and have active steering to restore an out-of-control vehicle to a straight ahead position. A yaw velocity and roll velocity sensor may institute proactive inputs to an electronic control system that completely overrides human input where the driver’s reaction time is inadequate to meet the needs. There are numerous peer accepted tech- nical terms that can be used. There are numerous technical devices that can assist in maintaining vehicle stability or act as automatic driver support systems. They serve to recognize problems inherent in those human characteristics important to safe vehicle handling. In short, describing the interactions between driver, the vehicle, and the roadway can be very complex, confusing, and difficult. They may be the subject of both the human factors specialist and the vehicle dynamics engineer acting in a cooperative fashion.
Complexity is often the result of the use of precise terminology that is appropriate where brevity of communication between peers is desirable or for those in research where exact replication is important.
However, it may be just bureaucratic clutter or dress up that is unnecessary. The question is always what purpose does the complexity serve and how can it be truthfully simplified for a lay audience such as a jury? The university professor is often seen as a person who converts the complex into something that can be understood and retained by a select group of motivated students. But, the background of those students is homogenous and elevated compared to jurors.
Lawyers in their pre-trial preparation gather, analyze, and determine the implications of a considerable body of evidence. As they study the evidence they attempt to narrow issues, condense the key facts, select among the witnesses, and emphasize certain evidence. It is a process of gradual simplification, not unknown among other professional disciplines.
A treating physician may be obligated to inform and to explain to the patient something about the diagnosis of a disease, the treatment options, the prognosis, and the various risks. The physician must simplify the complexities, tailor the discussion to the needs and inherent level of understanding of the patients, and secure actual informed consent where necessary. A reasonably direct and honest approach requires simplification and truth for effective communication to the recipient, if there is to be mutual trust created or affirmed. The proponent of any discipline must engender personal trust if there is to be reliance on the analysis and opinion in a complex subject area.
Jury instructions are of particular importance to an expert witness, since they are the operative guide- lines for the trier-of-fact (usually a jury). These are the landmarks around which all of the testimony is oriented (i.e., there must be relevancy as to the contested issues of fact in the case before the court). There have been attempts to simplify the complex legal language of some jury instructions into “plain English”
instructions. The advocacy aspects of a trial, such as final argument, permits the lawyer to use plain English to explain the meaning of the admitted evidence.
Thus, the simplification of complexities is a continual ongoing process for all those involved in the litigation process. It may not appear to be simplification with numerous and lengthy depositions, many motions and declarations, and endless discovery in the form of interrogatories and requests for production or admission that may or may not be seen by the expert witness, consultant, coordinator, or remote employee. But, after any search for possible evidence, the simplification process must take place for all those involved. The court may impose strict limits as to time, both for preparation and in-court testimony.
before his deposition is taken. A written report may or may not be required that states all opinions and the basis for those opinions. An early oral report to the retaining attorney may be helpful for him in pre- paring or responding to interrogatories, the production of documents, and requests for admission. It is not wise to hold back information on key issues for use at trial or to somehow attempt to supplement or revise statements made at depositions or in reports. Thus, full and timely disclosure of all opinions should be made before the deadlines and the start of the trial.
3.4.2 Organized Files
All documents should be carefully organized so that deposition or trial questions can be quickly answered. Three ring binders may be used for reference material that supports or justifies expert opinions. If a publication is from a peer reviewed journal, there may be a form of presumption that it would not have been published if it did not meet high standards, was not peer acceptable, or was not trustworthy. Voluminous records may be impressive, but only if they are easily accessed. Causation is often the prime reason for supporting documentation. The analysis should be focused and efficient, but the expert should understand other aspects of the case to assure compatability and the respect of the jury. The testimony that follows should be direct and to the point. Communication may be enhanced by unconditional opinions, demonstrative evidence, and quickly available references.
3.4.3 Criticism
Some lawyers like to encourage one expert to criticize another for some perceived mistakes, some viola- tions of rules, some possible misapplications or misinterpretations, or for omissions or failures to meet some standard of conduct. For example, the questions might start as follows “what would you have done under the same circumstances” (a hypothetical question) or “what should be done to achieve a reliable and fair opinion or conclusion” (a general proposition or standard of care). The lawyer might believe that his case is strengthened by discrediting the opponent’s expert. The expert may believe that his profession could be harmed by accusations of sloppy work or deceptive tests. The experts may differ only because each formulates an opinion on different set of facts, each gives different weight to some key facts, or one lets advocacy influence his perception. The cardinal rule is for the experts to stay within and conform to the code of ethics of their profession. Civility should be paramount, despite the actions of others. There may be ethical rules that encourage a challenge to improper, invalid, or immoral testing, an insufficient or inappropriate basis for conclusions and opinions, and illegal or unethical practices.
3.4.4 Records Requested from Expert Witnesses
At the time of deposition notice, the retained or designated expert may be requested to bring certain specified documents to the deposition. Some requests are minimal, some reasonable, and some are unconscionably burdensome. The retaining lawyer may be able to provide advice as to how to respond to the request, may want to review the records in advance of the deposition, or may be able to provide some documents for production at deposition. It would simplify matters if, at an early stage, prospective experts would gradually add to a computer disk a list of personal publications, academic and employment history, and cases on which testimony has been given. A similar disk could be developed for particular subject areas; for example, a list of all warning references, reaction time refer- ences, or visibility references that might be relied upon, depending on the questions asked in various cases. A few updated disks could convert the burdensome to the minor task of making a copy of the appropriate disk. The following example of a rather comprehensive, perhaps overbroad, list of records suggests that early prior planning is advisable.
1. A current curriculum vitae (i.e., a detailedbiographicalstatement).
2. Eachreportprepared by you with respect to this case, including draft copies submitted to others for review or comments.
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3. All photographs in your possession pertaining to the accident, the accident scene, or the specified equipment and its component parts, including any associated products involved in the accident.
4. The entire contents of your file with respect to the subject lawsuit, including all documents received from counsel or any of their representatives and any documents, which you have com- piled independent of counsel.
5. True and correct copies of any and allproduct analysesand derivative charts, diagrams, reports, computer disks, computer programs, and journal articles in your possession upon which you relied or will rely in forming your opinions.
6. True and correct copies of all videotapes, audio recordings, computer disks, and photographs of anytestingonthe productinvolved in this case.
7. Allcorrespondences, which were prepared, signed, sent, received, drafted, or delivered by you to any other person, which pertains to or refers to your involvement in this litigation matter.
8. Any and all reports, memoranda, graphs, drawings, work papers, calculations, images, photo- graphs, moving pictures, video tapes, computer disks, and correspondences in your possession concerning thetestingdone on anysimilaror identical products, which provide information that supports any of your opinions.
9. Any and all reports, memoranda, graphs, drawings, work papers, calculations, images, photo- graphs, moving pictures, videotapes, computer disks, and correspondences in your possession concerningtesting doneon any productother thanthe product in this case that provides infor- mation regarding any of your opinions.
10. A listing of anyother lawsuits in which you have testified as an expert, either at trial or by deposition, within the preceding 5 yr.
11. All references, articles, publications, presentations, books, book chapters, lecture materials, and other documents relating to any publication authored, program attended, or any presentation in which you (the deponent) participated, which in any way relates or refers to the subject matter and opinions that you (the deponent) may offer, or the area of your expertise as an expert in this lawsuit.
12. Allbillings, fee agreements, time records, financial statements, contracts involving fees and costs, and all correspondence and other documents relating to your retention (the deponent) and those, which show time and charges incurred by you (the deponent) in connection with your activities in this lawsuit.
13. Allmedical recordsevaluations, neuropsychological tests, consult reports, raw data, x-rays, CT scans, MRIs, EEGs, SPEC scans, electrodiagnostic findings, and all other files, documents, and reports relied upon or used by you (the deponent) in connection with your activities in this lawsuit, arbitration, or mediation.
14. A list of all cases or projects in which you participated as anadvisor, consultant, or employee that related to the design and development of this product, function, service, or system.
15. The names, occupational designations, and addresses of each and every person from whominfor- mationwas obtained that could be utilized by you in this case.
16. A list of all meetings, conferences, or discussionswith other expertsretained in this matter, and pertaining to this case, including dates, locations, and the names of those involved.
17. A list of written or oralstatementsof all witnesses that pertain in any way to this litigation seen or reviewed by you, including a copy of each statement and any notes or reviews made by you of the statements.
18. A list of all witnessesinterviewed, questioned, heard, or observed that pertain to the accident, the scene of the accident, or the products, objects, or materials involved in the accident or injury- causing event.
19. All maps, diagrams, sketches, measurements, and material analyses, related to the injury-causing event that were made by you or directed by you, which may serve as foundation or demonstrative evidence supporting your opinions in this case.
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3.4.5 Fees
The fees to be charged for professional services should be reasonable under the circumstances. The fees may vary widely for consultation, analysis, evaluation, travel, deposition time, trial appearances, prep- aration of demonstrative evidence, the assistance of associates or other professionals, and administrative support services. There should be a printed and up-to-date fee schedule that is applicable to all kinds of work. It should not differ for various projects or parties. It is important that the expectations of both the retaining party and the expert or consultant be clearly known. The expectations include what is to be achieved within the agreed time and cost estimates. There should be approval of any extraordinary expenditures such as those for special research, laboratory testing, and special exhibits. Equality of performance on different projects or cases suggest the need for budgeting sufficient calendar time and avoiding schedule conflicts, since a crowded or disorganized schedule could disrupt the schedules of other participants. The knowledge of the project or case schedule is important to avoid last minute efforts and shortcomings in preparation; for example, “I did not know of that or thought of it” in the middle of court testimony. In essence, the timely and cost-effective performance should meet or exceed the comparable accomplishments of peers within the specialty.
The fees should not be excessive. High fees do not suggest that there will be a high level of performance.
Experts are evaluated on past performance and reputation. The past is prologue. Some of the very best and well-known consultants and experts charge rather moderate fees, divide the costs of travel among several projects, and share test costs that can be applied to multiple projects. It is the total final cost that is important, not the hourly rate. Excessive fees may suggest “purchased testimony” and possible ethical problems.
It is generally assumed that the expert is already familiar and prepared, in a general sense, with the content of the specialty that is applicable to the project. But, time should be allocated to learn recent developments in the field, to refine what may be said about possible conflicts on key issues, and to prepare a list of supporting publications. In other words, an informed estimate of the overall cost should be made. This is to avoid insufficient preparation that could result in court testimony that is mis- taken or inadequate, since a trial error can be costly and irremediable. Poor advice given during an urgent effort to correct a liability problem, within a company, could have serious consequences in terms of mon- etary costs and human lives. In essence, there may be a fleeting window of opportunity, in a competitive enterprise, for informed relevant information, rather than “old hat” opinions. Some specialists do choose the path of least effort with conceptions of consultant-only project aspirations, but most projects related to litigation are an intellectual challenge requiring “best efforts.” Never underestimate what is known about your specialty by those in other disciplines, so provide something exceptional for the purchasers of your services.
Retainers also should be reasonable under the circumstances. Before charging any fees, there should be full disclosure of any possible conflicts-of-interest and of any potential problems that could render the professional services impaired, useless, void, or excludable. If problems arise during the job performance, they should be disclosed early enough to permit repair or replacement of the expert. Do not wait until after there is a formal disclosure of experts in litigation, since after naming the expert witnesses they may not be replaceable and a big hole could be left in the trial presentation. It is advantageous to have every- thing that relates to fees and your professional activities in writing, in anticipation of fee disputes, but such writings should be reviewed by legal counsel for meaning, effect, legality, and possible interpretation by other parties. Care is required where money motivates action by others.
3.4.6 Personal Opinion Testimony
Some state court judges distinguish between science-based testimony and personal opinion testimony. It is the scientific type testimony, with its deductive reasoning (from general to specifics) that has resulted in the erection of judicial limitations on that type of opinion testimony (Frye, 1923; Daubert, 1993). The attempt is to limit where there is new, novel, experimental, or exotic testimony that might be misleading 3-12 Fundamentals and Assessment Tools for Occupational Ergonomics
to a jury (Davis, 2001). Limitations exist where testimony is based on scientific principles, formulas, dis- coveries, or procedures developed by others (Rickgauer, 2001).
There is another form of testimony, based on inductive reasoning (from particulars to the whole) (Holy Cross, 2001). This includes pure opinion based on the expert’s own training, experiences, obser- vations, and research (Ronnie Jones, 2003). For example, tire expert opinion may not be scientific testimony (Kumho, 1999).
The logic involved may be a derivative of both hearsay and speculation objections. There is more credi- bility when opinions are based on direct personal knowledge. There is less credibility when expert opinions may involve some speculation in just applying someone else’s results, beliefs, procedures, and conclusions. A juror might not be able to distinguish between the weight that should be given to direct knowledge as opposed to indirect knowledge, so the judge acts to balance the scales and assure that only competent testimony reaches the jury.
3.4.7 Proffered Testimony 3.4.7.1 The Most Common Scenario
The vast majority of litigated cases involve expert testimony in which the expert witness’s basic qualifica- tions are quickly established and the expert testimony in court is generally unimpeded (with few objec- tions and restrictions). In general, the testimony must be relevant (a tendency to prove or disprove, in some way, the veracity of one or more of the basic issues contested by one or more of the parties). It should be in a form acceptable to the court. Experts are generally held in high regard, depending on the scope and depth of their qualifications, their publications, their occupational history, and any honors they have received that have some connection with the issues of the case before the court.
They may be given special privileges such as utilization of otherwise hearsay or objectionable evidence if that is the practice of their profession. They may be permitted to draw conclusions, whereas the lay witness may be restricted to what they personally observed, heard, felt, or did.
3.4.7.2 The Defined Purposes of the Testimony
In complex or vigorously contested lawsuits, each segment of the expert’s testimony may be related to a defined objective. There may be pretrial or in-trial hearings, before the trial judge, to determine the expert’s qualifications and the admissibility of the proffered testimony. Such hearings may go far beyond proof of general fault or its absence. It may focus on whether the proof relates to claims of a productdefector an unsafecondition, inferences of knowledge ornoticeof a dangerous situation, the causesof an accident, a failure toremedyorwarn, evidence of mandated or secretrecalls, records of prior accidents that are substantially similar and not too remote, historical statistics on reasonable human behavior under the circumstances, or the absence of prudent or due care. The judge may admit evidence on one objective and deny it on other objectives.
For example, is there sound evidence, based on adequate foundation, concerning the specific (in this case) tire failure? Does the proffered evidence relate directly to the tiredefect(an unexpected steel belt- from-belt peel or tire failure)? Does it relate tocausation(wedge cracking and circumferential belt edge failure due to the fatigue reversion of the skim stock holding the belts together)? Does it relate to pre- dictable human driver reactions to unexpected tire failure? Was a recall, customer notification program, or safety improvement program campaign necessary, timely, or sufficient? The trial judge may go further on specific issues, to determine whether or not an opinion is justified or consists of mere speculation. As a general rule, if the testimony is admissible, it is credibility that effects the weight given to the testimony by the trier of fact.
3.4.7.3 Conflict in Governing Law
There may be a conflict as to which case precedents govern the admissibility of expert testimony. In California, in 2004, there were two different appellate decisions (Roberti, 2003; Jennings, 2003). One case stated that an expert witness “does not possess a carte blanche to express any opinion within the
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