Hiring and Managing Outside Experts in Catastrophic Injury and Damages Cases

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1 2017 CLM Annual Conference March 29 31, 2017 Nashville, TN Hiring and Managing Outside Experts in Catastrophic Injury and Damages Cases I. What type of case do we have? It is critical to fully assess the case assigned and what type of experts will be needed. Is this a small car accident case or a large exposure catastrophic explosion? Early assessment of the case and evaluation of the experts needed, vetting the experts and hiring the best experts can make all the difference in a case. A. Initial assessment of the case. The initial assessment of a case should include an evaluation of the facts, issues and investigation needs. What type of case are we dealing with? Is it a catastrophic fire/explosion, significant product failure in a commercial structure or some other type of catastrophic incident? Our focus in this section will be to highlight that initial assessment and determine if the case is significant. Most of the discussion will focus on liability experts. 1. Discuss types of cases and the need for experts. In a small car accident matter or slip and fall case, the likelihood of needing more than one liability expert are relatively small. Some of those cases are tried without a liability expert at all. The cases with the high dollar values, either though significant injury or major property damage, need more attention. The two cases we will briefly introduce you to below will be used in the rest of the presentation to illustrate the types of cases where significant attention must be given to the assessment of the case, retention and managing of experts. Some of the early assessment will be made by the in-house insurance adjusters or by outside counsel. Either way, there is not necessarily a dollar figure or injury by itself that alone makes a case rise to the level of needing significant attention with regard Page 1 of 6

2 to liability expert retention. Three things to consider though: (1) dollar value (damages/injuries); (2) complexity of issues; and (3) investigation/testimonial needs. The two cases that we will outline below are based on real cases some of the panelists have worked on. We will use these cases as discussion points and for examples of what you can expect to encounter in these types of cases. 2. Case study complex explosion-injury/damages case-west, TX explosion at a fertilizer plant in West, TX. 15 dead individuals (mostly firefighters), over 100 injuries and allegations of nearly $500 million in damages. Fire in plant that led to an explosion likely fueled by ammonium nitrate (AN). Dozens of potential parties, dozens of attorneys, scene preservation issues, federal and state authorities involved, environmental concerns and security issues. Discuss adherence to NFPA 921 regarding investigation, preservation of evidence and hiring of independent site manager. First full party scene exam had nearly 150 lawyers and experts. Consider issues related to access, protocols and experts needed. 3. Case study complex product/damages case. A natural gas explosion on a water heater line leveled a home with five people inside and caused damage to several surrounding homes. The explosion was so powerful that it lifted the house off its foundation and sent it crashing back down into a pile of rubble. The same company supplied the hot water heater and the various components, including the valve that allegedly failed. II. What type of expert do we need? Identifying what type of expert(s) you need in a specific case can be challenging and must be done with not only an eye towards a proper and thorough investigation but also done to prepare the case for trial. A. Evaluation of case needs. Evaluation of the needs of a case is critical to the process of hiring the right expert(s). Assessing the nature of the incident (car accident, fire, oil spill, product failure, etc.) will help you decide what type of expert you may need. Typically you will need some type of origin and cause expert (discuss two cases above) or in other smaller cases perhaps an accident reconstruction expert. Regardless, evaluating what your case needs for experts should be done as soon as possible and often times in consolation with your in-house or outside counsel. Page 2 of 6

3 B. Picking the right experts. Picking the right expert can be tough. Often times, an in-house counsel, investigative unit or outside counsel have go-to firms for specific types of cases. When that is not the case, using referrals and interviewing the experts is the best way to determine if they are the right fit for the case. 1. Skills needed. Skills are different than expertise, which will be discussed below. An electrical engineer s expertise is electrical systems. But what kind of skills does he or she possess when it comes to an actual scene or lab exam? Is the expert a good scene manager? Is the origin and cause investigator a great interviewer? These are skills, which do not necessarily equate to a specific expertise. Finding an expert with the skills needed for a specific case or scene is important. As an example, does your expert like getting down in the mud and muck and pull out gas piping? Or, is he or she the kind of expert that prefers to sit in the car checking s while the other experts do the work. 2. Expertise needed. What type of expertise do you need? Is the fire the result of an electrical malfunction or lightning strike? Does the product failure appear to be material or something else? These types of questions need to be asked to find the right skills needed while investigating the incident. Also look for experts that may be able to handle several functions at once. An IAAI-CFI or CFEI mechanical engineer can perform origin and cause investigations at a fire scene and may also be able to handle mechanical components of furnaces, valves and regulators on scene. A metallurgist with materials experience may be able to examine components built with both metal and other substances. Keep experts on your short list that can do several things at an examination-it will likely save you time and money. (Example: OK investigation two experts for plaintiffs-one for defendants!) 3. Location considerations. Page 3 of 6

4 Where a case is venued can affect where you bring experts from. I always think you should hire the best expert available. However, there are times where your location can be a factor in who you hire. Some rural jurisdictions can be very insular and juries can be wary of individuals outside of their area. For instance, an origin and cause expert from New York City may not be the best hire for a case in rural Alabama. Location can also be a factor with regard to the cost of hiring a specific expert. Flying an expert to Florida from Oregon, even if he is the best, may be too costly, especially if that expert needs to come back several times. Retention of local experts can avoid issues with regard to licensing issues as well. For instance, most states license engineers. It typically is best to hire an expert that has the right credentials in the state he or she is going to testify in. In some instances, an engineer can apply for a license in the new state or other experts can bring their credentials up to speed if needed. III. Managing experts. Managing experts from initial hiring through scene/lab exams and into depositions and testimony can be a challenge. Keeping costs down can also be an issue if a lot of investigation needs to be done, but the case may not be worth that expense. Getting and keeping the right experts is important. Protecting their opinions can be critical. Also, knowing when to use an expert, bury an expert or firing an expert needs to be done thoughtfully. Here are a few tips to guide us through the last section. A. Scene exams/lab exams. Hiring experts that have experience investigating an accident, fire scene or product failure is critical to a proper evaluation of the case and to position your defense. Any type of accident scene, from a large explosion case to a product failure, can be dynamic. There are a lot of things happening at these scenes and the expert you hire needs to be ready for anything. At both scene and lab exam, I prefer to hire an expert that will take control of the examination. Even if there is another entity that has control of the scene or artifacts, I want my experts to be aggressive and investigate the scene as they see fit. For instance, in a gas explosion case, it is critical to test the appliance in place (NFPA 921). This should be done before the appliance or gas piping is moved. This allows us to determine a leak source on scene. An expert hired in that type of case needs to be aware of that issue and should object to anything that would disturb the evidence or hinder their examination. Page 4 of 6

5 Lab exams can also be tricky. Finding the right lab to do all of the work you need done can be a challenge. In a water valve failure case for instance, you may need to perform microscopic examinations of the valve and component parts, use a scanning electron microscope for a precise view of the failure or perform other metallurgical tests. Making sure you have the right expert in place and finding the right lab can save time and money. B. Continued evaluation of case needs/right expert. Evaluate the work your experts are performing by looking at their photos, verbal reports, written reports and opinions. Be sure as the case is progressing that their opinions are consistent with your theory of the case and if they are not, what needs to change in your evaluation or continued retention of the expert. Communication with your experts on the case should be done fairly regular basis. Nothing is worse than for an expert to find out a week before his report is due that he or she needs to start working on it. You also do not want to be in a situation at the last minute where your thoughts/theories on the case do not jive with your expert. C. Problems with experts, hiring and firing. The selection of an expert is a decision that should be made jointly amongst the attorney, client and liability carrier. Depending on the case, the client or carrier may have national counsel who are also involved. Larger clients may have experts they prefer to endorse for certain areas of testimony. However, there are several problems which could arise in terms of formal expert retention. First, depending on the type of case, the insurer may have utilized the assistance of an expert/consultant prior to attorney involvement. Two such examples are cause and origin experts in first-party actions involving arson, and remediation consultants in environmental cases. In these instances, counsel may be bound to opinions formed prior to litigation, and work product/attorney client privilege protection could be compromised In every situation, the expert s potential relationship to the community and the respective level of expertise in a particular field is paramount. Parties should explore all options prior to formally endorsing an expert for testimony. The main question which should be addressed is the relative value of the testimony. Do the prospective opinions advance the narrative of your case? Does the testimony concede too may points to the other side? Does the presence of an expert give credibility to your opponent s arguments? There may also be times you need to bury an expert whose opinions are either simply unhelpful or wrong. You should consider how this is done and make it clear why Page 5 of 6

6 you are not calling a certain expert. Communicate clearly why you are not calling him or her to testify. You may also be faced with firing an expert. There could be a variety of reasons to fire an expert, but what you must consider is will you ever need to use them again and what is the likelihood that you will run into them again in another case. This happens more than you think. D. Trial preparation. Trial preparation begins with positioning the opinions of your expert for admission into evidence. First, ensure your expert has complied with the proper disclosures as commonly identified FRCP 26 (E)(2). Second, the expert should prepare a complete statement of all opinions the witness will express and the basis and reasons for them. That should include: 1. The facts or data considered by the witness in forming them; 2. Any exhibits that will be used to summarize or support them; 3. The witness's qualifications, including a list of all publications authored in the previous 10 years; 4. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and 5. A statement of the compensation to be paid for the study and testimony in the case. While an expert must identify each opinion he/she has, it is also imperative that the expert fully discloses all information he/she has relied upon in coming to those opinions. This can place counsel in a difficult situation, as it is often the attorney that selected the documentation for expert consideration. It is also good practice to have the expert identify what information he/she considered, but rejected. Properly identifying opinions and the basis thereof is the best method for Daubert challenges. At trial the expert should be adequately prepared to provide a concise, understandable narrative with respect to opinions. Counsel should not bog the jury down with esoteric and obtuse information and clutter. Page 6 of 6