3.3.1 Business Records
It may be wise for a participant in the legal process (such as an expert witness) to carefully segregate business records, pertaining to litigation, from other business or personal records. This includes financial records that document payments made for expert witness services that might be subpoenaed in some legal jurisdiction. It includes a list of lawsuits maintained by case name and number, the court and location, the attorneys, the subject matter, and the result if known. This information may be required to be produced in some cases in many jurisdictions. Any documents that are relied upon in formulating an expert opinion should be identified and retained until the lawsuit is fully resolved. A list of personal publications should be maintained along with an updated resume covering past education, employment, patents, awards and honors, seminars attended, or other continuing education.
3.3.2 Description of the Discipline
It may be desirable to formulate a short and simple statement that describes your occupational discipline as you perceive it. Those involved in the legal process may not have heard about the discipline in specifics or may have misconceptions generated by other incorrect, improper, or superficial use. The written state- ment could include the purpose or objective of the discipline, the typical qualifications of its prac- titioners, its standard methods or procedures, relevant college curricula and textbooks, the date of its founding, its relative size and sophistication, and examples of its accomplishments. Its general acceptance by other disciplines, where there is professional interaction, may be important for a judge acting as a gate- keeper and attempting to assess its substantive value and reliability. This statement should be consistent with similar statements published by relevant professional organizations, peer certification boards, and state licensing boards.
3.3.3 The Failure of Daubert
There have been many lawsuits where the Daubert doctrine (Daubert, 1993) was strictly applied and expert witness testimony was excluded as “unreliable.” The expert’s opinions must be based onsufficient factsor data, the testimony must be based on the product of reliable principles andmethods, and the application to the facts of the case must be consideredreliable(Rule 702).
If a judge is assigned the role of gatekeeper, it is assumed that the judge is sufficiently knowledgeable to perform that function as it relates to many technical, engineering, scientific, and medical specialties. This is often an unfair, unwise, and burdensome role. For example, one judge stated that a designated expert, a neuropsychologist, was just a technician who applied electrodes to the skull of a patient. The judge as a gatekeeper, decided that the neuropsychologist could not discuss brain injury in front of the jury. Yet, this highly qualified individual had performed extensive neurospychological testing on that patient, provided treatment, and did his own brain mapping (EEG). His work was in conjunction with a neurologist (MD) who deferred to the neuropsychologist in the precise aspects of the closed head injury. The judge misunderstood the actual function and credibility of the expert witness.
Similarly, the presumed testimony of an expert may be the subject of a motion to strike (to exclude that testimony from consideration or prevent it, in whole or in part, to be given to a jury). Thus, the potential expert witness should consider how to convince a judge as well as a jury as to the objectives, methods, substance, “reliability,” general acceptability, and role of the discipline. This is in addition to providing an adequate foundation (justification) for the individual expert’s testimony and opinions. The weight given the testimony, by a jury, is dependent upon the believability of the data or assertations, the personal credibility of the witness, the judge’s admonitions, if any, and how the opinions are used during the advocacy of final argument.
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There is always the possibility of having a double translation; that is, to first convince the judge, in his language, of the “reliability” of the proferred testimony and, then, convince a jury in the “everyday language” that they understand. There is always the question of inequality, that different judges in the same courthouse may have different standards as to the acceptability of evidence.
However, in most courts, the ultimate question is whether the expert witness testimony will help the trier of fact (judge or jury) understand the evidence or to determine a fact. Qualifications of the expert generally go to the weight of the evidence presented, not to its admissibility (Campbell, 2001; Goodstein, 2000).
The issue for the expert witness is to determine whether the judge favors information helpful to the jury or whether the judge may be excessively strict and politically motivated. The lawyer who retains the expert should be able to indicate, from past rulings, whether the judge will be zealous in applying Daubert or its progeny. Daubert applies to all federal courts and is of considerable interest in many state courts.
Daubert is considered a failure, by many scientists and engineers, because it has erected barriers to what they believe is valid and relevant information that may not be familiar to the evidentiary gatekeeper.
They may believe that efficient judicial administration may conflict with facilitating the delivery of per- tinent or illuminating information to the jury. If just one key expert has his testimony curtailed or excluded, it may torpedo or signal the end of the plaintiff ’s or defense’s case. In fact, it may be quick judicial resolution of a case based on what seems to be a legal technicality unrelated to the merit of the claim or defense.
3.3.4 Junk Science
The expert witness should expect, during deposition or trial, to receive some incisive questioning about key research or testing that was performed by the expert or that the expert relied upon in formulating an opinion or conclusion. The purpose is to undercut the justification so that the opinion falls, becomes somewhat questionable, or uncertain to some degree. The inevitable opposing lawyer’s interpretation will be that the conclusions are not supported by the data, there are serious questions about flawed meth- odology, and that it appears to be junk science. The expert witness should respond in a civil manner, citing other supporting data and peer investigators, also indicating that the findings are not unexpected given the logic of contemporary science or engineering, and should give the reasons why the findings are to be considered truthful and accurate in comparison with other studies. The junk science allegation may provoke an uncalm defensive personal reaction, just as inferences regarding possible violations of pro- fessional ethics may upset the witness, but this may be the intent of the opposing advocate. While truthful statements should be admitted and not argued, the expert is an expert and should hold firm and strong where justified.
3.3.5 Differential Diagnosis
Under Daubert, proffered scientific testimony must be relevant and reliable. It is reliable if the principles and methodology are grounded in the methods of science. The factors to be considered are whether the theory or technique can betested, have been subjected to peer review andpublication, whether there is an error rate, and whether the theory or technique isgenerally acceptedin the scientific community. The issue might be whether the expert opinion was developed for purposes of testimony or was developed from research conductedindependentof litigation. The research may not have been published because it is too recent, too specific, or of too limited interest. One universally accepted “scientific” method of estab- lishing root cause is differential diagnosis or differential etiology. It is the systematic elimination of likely causes until the most probable cause remains isolated and cannot be excluded or ruled out. For example, a comprehensive list of hypotheses that might explain a finding is compiled, then a process of elimination occurs with an explanation why each alternative cause was ruled-in or ruled-out. Precise information may not be available or necessary to provide a basis for an expert’s opinion (Clausen, 2003).
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3.3.6 Root Cause
There are various forms of technical or engineering analyses that are very similar to the differential diag- nosis method used by scientists. One generally accepted and utilized method is root cause analysis. It is a step-by-step procedure that is defined, rigorous, detailed, standardized, and repeatable.
During attempts to identify and correct problems by normal trouble shooting methods, it was found that proximate causes were being identified rather than the inherent deeper true causes or root causes.
Correction of only the superficial proximate causes often resulted in the reoccurrence of the problem. To get to a more fundamental understanding of cause, the questioner keeps asking why did the proximate cause occur, why did the intermediate cause occur, and so on. The widely used Kepner-Tregoe Method- ology (Kepner, 1965) requires that at least five rounds of asking why may be necessary to reach the root cause (The Five Whys Technique). Such techniques are considered organizational procedures for the expression of logic and the completeness of an inquiry.
One example of a root cause technique is to bring together a group of skilled persons (Root Cause Team). Then, have them evaluate whatever evidence is available pertaining to an undesired event from their own perspectives and knowledge bases (what happened). Then, have them attempt to determine as many different causes of the event as possible, however remote (the whys). Through discussions with knowledgeable people, all noncontributing causes are gradually eliminated until only the most likely contributory causes remain. At that point, a process or flow diagram and a failure mode or fault tree may be constructed for clarification, assurance, and verified isolation of the true root cause.
There is an8D process(The Eight Disciplines of Problem Solving), widely utilized in the automotive industry, that extends the rootcauseproblem-solving to a formal plan to implement the recommended changes. It is directed at the “owner” of the problem, calls for both emergency and permanent corrective action, reviews the priority of the problem, determines whether the problem is inherent in the process or is somehow unique, and insures that there is a true team consensus in the implementation process.
Another example is accident investigation and accident reconstruction, if following clearly established procedures such as those contained in a published Collision Investigation Manual. The manual may list report headings and subheadings, the content in each section, where and how measurements are to be taken (such as pacing, steel tape, rollmeter, or laser), the facts, the parties, the equipment, the tools, the scene, the time, the place, the weather, evidence collected, witness statements, conclusions, and so on. Investigation is evidence gathering. The reconstruction may be even more detailed, if necessary, to recreate the specific elements of the story or to reconstruct the overall event. The words used in the nar- rative may be specified to assure common and correct communication. The inferences, assumptions, and logic that are required should be indicated, explained, and their foundation basis mentioned.
Other potentially credible and valuable methodologies include system safety analyses (fault tree) and reliability engineering (failure mode and effect) or some derivative, tailored, or supplemental application that has general peer approval and usage. The human factors investigation and reconstruction may use detailed task analysis, perhaps combined or interpreted with other extrinsic (independent) research find- ings in support of an opinion, conclusion, recommendation, or proffered testimony.
3.3.7 Cognitive Impairment
Lawyers and jurors may believe that it is reasonable to expect that the human factors expert, as a specialist in human behavior, should be able to recognize human cognitive deficits and those beha- vioral functions adversely effected by brain injury. Such human performance impairments may be a causal or contributing factor in an analysis of an undesired incident or an accident involving personal injury, property damage, or process interruption. It is reasonable that the human factors specialist should be aware of such conditions and include term in his analysis? The key word is recognition, not the precise diagnosis of a licensed neuropsychologist or neurologist. The human factors specialist may detect impairment, but must rely on others for court testimony establishing the particular cogni- tive impairment.
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Some of the symptoms indicative of specific brain injury include memory problems (forgetfulness in personal and occupational activities), problems in vigilance (maintenance of selective attention), poor divided attention (on concurrent tasks), distractibility (from a perceptual set), speed and accuracy of information organization and processing, and personality changes such as episodic hyperirritability, aggressive outbursts, mood swings, emotional blunting, and socially inappropriate behavior. There are many possible symptoms of deviant behavior (from some norm), good tests to assess various mental functions, various combinations of localized and general brain insults or damage, generally accepted diagnostic categories, and many treatment modalities. Similarly, over-the-counter and prescribed medi- cations affect the brain and may produce undesired behavioral side effects that may or may not contrib- ute to a human factors problem in a particular situation (Price, 1988).
The critical question may be whether or not the cognitive impairment existed before, during, or after a particular event. Conversely, did the impairment result from an accident in which there was head impact, some sudden acceleration or deceleration, or an unusual head rotation? Was there a head concussion (loss of consciousness), a medical diagnosis of a closed head injury, or an unusual change in work performance?
This suggests that the human factors specialist should be on the alert for unusual behavior, if appro- priate, consult with other team members of different specialties, and where available review available documentation including medical records. The opposing counsel may do likewise and ask the expert per- tinent questions at depositions or at trial.
3.3.8 Complexity
An expert may find that it is fairly easy to discuss complex issues in complex language. The expert may be familiar with the concepts, symbols, equations, and specialized definitions of terminology used within the specialty. It may be far more difficult to simplify, be direct, avoid unconditional qualifications that add ambiguity and uncertainty, and reduce the key concepts to demonstrable analogies and graphic rep- resentations. The expert should effectively communicate with the jurors, judges, and lawyers at a reason- able cost in terms of time, money, and effort. Remember that rather complex issues are resolved every day by judges determining the applicable law and by jurors deciding the factual issues. If the system did not work, it would have been modified or replaced a long time ago. What this means is that it is up to the expert to translate complex issues, in his specialty, to a form that can be understood by the average lay- person (juror) who can rise to the occasion. If they can decide narrow issues in neurosurgery, nuclear engineering, chemical processing, patent infringement, cost accounting, and pharmacology, it suggests that they are able to learn, understand, and decide in a relatively short time, under judicial guidance, if there is effective communication of the complexities of a specialty. Look up, do not look down on the jurors or others in the legal system. Establish an equality-based rapport with all those in the legal system who are functioning under time limitations, cost restraints, and often high stress levels. They are exercising considerable personal responsibility, so should the expert as a member of the litigation team who still exercises the independent discretion of a professional.
An example of complexity is the human input (control) as it effects vehicle dynamics. The input may be accomplished by attempting to achieve a desired vehicle direction by steering wheel movements (rate of movement and excursion angle limits), by depressing the throttle (force, position, and resulting vehicle acceleration or deceleration), and braking (when, how much, and as effected by weather and road con- ditions). Is the human input modified by perceptions that the lateral stability of the vehicle is approaching its limits (requiring a precautionary input) or has it exceeded its limits (requiring corrective action for an out-of-control vehicle)? Has there been a panic reaction by the driver with excessive, untimely, insufficient, or inappropriate steering maneuvers? Can the driver be expected to exert a timely and effective human input, given the handling characteristics of the vehicle? Steer angle changes may be monitored to prevent overshoot, excessive lateral acceleration, and dampen system oscillations in steady-state cornering maneuvers. The human input may be modified with active steering (transient steering torque under auto- matic control) where the steering ratio varies with vehicle speed (Triggs, 1988). The suspension may modify steering response if there is air suspension or variable torque anti-sway bars. There may be roll 3-8 Fundamentals and Assessment Tools for Occupational Ergonomics
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.