Expert Advice from the CEO (3)

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Westlaw Round Table Group continues a monthly review of notable recent expert witness news & links from around the internet...
Pursuing truth in puzzles of evidence
1/18/2012, Washington Times
An Interview with Dr. Herbert Leon MacDonell forensic scientist.
Florida expert witness standards bill advances through House
1/1/12, News Service of Florida
Bill HB 243 seeks to replace a decades-old stanrd that judges use in determining whether to allow expert testimony. Supporters say the bill would make Florida's standards similar to what are considered in federal courts and help prevent expert testimony that is sometimes described as "junk science."
District Court Holds "It is an Abuse of Discretion to Permit a Witness to Testify as an Expert on the Issue of Non-infringement or Invalidity Unless that Witness is Qualified as an Expert in the Pertinent Art"
1/5/12, patentlawyerblog.com
Two potential experts in Degelman Industries Ltd. v. Pro-Tech Welding and Fabrication, Inc. case were precluded because neither was an expert in the particular subject matter of the patents.
What Should an Expert Witness Look for in an Attorney or Law Firm
1/2/12, duiexpertwitness.wordpress.com
5 things about the person who hires you to be an expert which can make the difference between a healthy relationship and a disaster...

Westlaw Round Table Group continues a monthly review of notable recent expert witness news & links from around the internet...
Credit Reporting Expert Witness: Experience or Research... Which is Better?
11/10/11, creditexpertwitness.com
A credit expert witness ruminates about the criteria attorneys use to hire experts.
Serving as an Expert Witness an Eye Opener on Litigation
My Deposition as a Securities Expert Witness
Participating as an Expert Witness at a Securities Trial
11/8/11, Ernest Badway, Fox Rothchild
A series of blog postings from a lawyer & securities expert serving as an expert witness, including preparing for trial, being deposed, and testifying in court.
Once upon a time I was an expert witness...
11/7/11, Fire Wife Katie
Usually, we want folks to consider being an expert witness, but this is an interesting story about why it might not be right for you!
Expert Witness Testimony Not Limited to Expert Report Content
11/4/11, blogs.findlaw.com
Expert witness testimony is not limited to just the content of the expert report, says First Circuit Court of Appeals.
The Biggest Mistake by Expert Witnesses: They Use the Wrong Benchmarks to Calculate Damages
11/3/11, Marks Paneth & Shron
To estimate losses and lost enterprise value, expert witnesses make unjustified assumptions and often rely on financial valuation metrics that don't reflect business reality. The result: cases are lost and experts are excluded on Daubert Challenges.
"Experience"-based expertise may not be enough for a Medical expert witness
11/3/11, Westlaw Insider

As an expert, it is essential that you stay informed about current litigation trends which may affect your role as an expert witness. Following is a discussion of some notable cases from 2011, all of which have direct implications on expert witnesses or were greatly impacted by the contribution of expert witnesses.
1. Sherwin-Williams Co. v. Gaines
The Mississippi Supreme Court reversed a $7 million verdict in favor of the Plaintiff, who alleged her son had been poisoned by lead while living in a residence painted with product supplied by Sherwin-Williams. The jury found in favor of the Plaintiff, but Sherwin-Williams filed a Motion for Judgment Notwithstanding the Verdict, asking the court to enter a judgment in its favor despite the jury's verdict. In granting Sherwin-Williams' motion, the Mississippi Supreme Court concluded that Plaintiff's experts relied on speculation and contradicted themselves and each other. "This opinion was not based on some epidemiological study calculating the likelihood of elevated blood levels based on the levels of paint in the home. Neither was it based on Trellvion's medical records. The basis for [the experts'] causation testimony -- that Trellvion was ingesting and being poisoned by lead the entire time he lived in the house -- was mere speculation and inadmissible." Because Plaintiff relied on these experts to prove causation, the Court found there was insufficient proof of causation and reversed the jury's verdict.
2. Guinn v. CRST Van Expedited, Inc., et al.
A federal District Court judge in the Western District of Oklahoma allowed an adverse party to use the opposing party's expert witness at trial, reiterating that an expert witness does not belong to a party but is there to assist the Court and jury. The Plaintiff filed this wrongful death action asserting a products liability theory. Plaintiff initially retained an expert in the trucking industry and listed him as a testifying expert. The expert prepared and submitted his report and was deposed by the Defendant. Both parties filed pre-trial reports and listed the expert as a potential trial witness. Both parties later filed amended pre-trial reports; however, only the Defendant identified the expert as a potential trial witness in its amended report. In holding that the Defendant could use the expert's testimony in its own case, the Court noted that the Defendant could not retain a trucking industry expert without delaying the trial, and Plaintiff did not omit the expert until she filed the amended pretrial report. The Court ruled that the expert's testimony was to be presented by reading portions of his deposition at trial and prohibited any mention that Plaintiff initially retained him. The Court further allowed the Plaintiff to call the expert as a live witness to combat any possible prejudice.
3. SEC v. Lisa C. Berry
The United States District Court for the Northern District of California slashed the hourly rates of two experts (an economist and an accountant), finding the fees to be unreasonably high. The underlying litigation had reached the expert discovery phase, and a disagreement arose regarding who would pay expert witness fees incurred at a deposition. In ruling that the SEC should pay the expert fees as the party seeking discovery, the Court took issue with the reasonableness of the fees. While the experts' education, training and experience were impressive, the Court found their rates were considerably higher than those of other comparable experts (including other experts involved in the same case), and, more importantly, were even higher than recent fees the same experts had previously charged. Specifically, the Court noted that one expert had served as an expert for the SEC less than ten years ago and was paid approximately $600 per hour, while the other expert testified on behalf of the SEC in 2007 and was paid approximately $500 per hour. The Court saw no justification for the significant increase in fees when the levels of expertise, education, and training were the same, as was the complexity of the cases. As a result, the Court reduced one expert's fee from $950 to $750 per hour and the other expert's fee from $1,600 to $800 per hour.
4. Rosenfeld v. Oceania Cruises, Inc.
The Eleventh Circuit reversed the ruling of a federal district court, which had prohibited the Plaintiff from presenting expert testimony, and remanded the case for a new trial. Plaintiff slipped and fell while on a ship and suffered injuries. She sued the operator of the ship and submitted the testimony of a floor-safety specialist expert. The district court precluded the expert's testimony, holding that Plaintiff "has not established that the proposed liability expert will provide helpful analysis to the Court in understanding a matter of scientific, technical or specialized expertise. Instead, the liability expert intends to testify that the floor where plaintiff fell is unreasonably safe for its intended use. Such conclusions are properly left for the Court or jury to decide." The case proceeded to trial, and the jury returned a verdict in favor of the Defendant. In overturning the district court, the Eleventh Circuit noted "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence ... Quite the contrary, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Further, since the jury was not allowed to consider expert testimony about whether the slip resistance of the flooring posed a danger to passengers aboard the ship, it could not have found in Plaintiff's favor with regard to her main negligence theory. Accordingly, the district court's decision to exclude the expert's testimony was not harmless error, and the Plaintiff was entitled to a new trial.
5. Amanda Knox
If ever there was a case highlighting the importance of experts, the Amanda Knox case is it. Knox's murder conviction was almost entirely based on DNA evidence. Knox and her former boyfriend and co-Defendant denied their guilt and asked for an independent review of the DNA evidence. Too little DNA evidence remained for experts to retest, so independent experts were engaged to assess the accuracy of the original testing. These forensic experts were able to show that the DNA evidence used to convict Knox was unreliable and, quite probably, contaminated. Experts also showed that DNA testing fell below international standards, and the genetic profile of the victim was unreliable and could not be attributed with certainty. Additionally, international procedures for inspection were not followed. One exhibit, the bra clasp of the victim, was not even tested until 46 days after the crime "in a context that was highly suggestive of ambient contamination." Based on the findings of these experts, Knox and her co-Defendant are now free and back in the United States.

There were many newsworthy cases this year in which experts were heavily involved. Large verdicts were returned in intellectual property, patent infringement and products liability cases. Part I of this article discusses five of this year's largest verdicts from a monetary perspective. Part II will round out the discussion with the top 10 verdicts of the year, at least so far.
1. Pacesetter, Inc. v. Nervicon Co. Ltd., April 22, 2011
A Los Angeles County jury concluded that a former employee of Pacesetter, Inc., a division of St. Jude Medical, Inc., stole the company's trade secrets relating to medical equipment such as pacemakers and defibrillators. The former employee used that information in his newly formed Chinese business, Nervicon. The jury ordered the former employee to pay $1.47 billion and Nervicon to pay $868 million for a whopping total of $2.3 billion. Interestingly, the final award was actually more than St. Jude initially sought. The jury felt that St. Jude's damages expert was too conservative in his estimation of damages.
2. E.I. du Pont de Nemours and Co. v. Kolon, September 14, 2011
Jurors in a federal court in the Eastern District of Virginia (Richmond) returned what is believed to be the largest verdict in an intellectual property case in Virginia, finding that Kolon wrongfully obtained DuPont's proprietary information regarding its production of Kevlar by hiring some of the company's former engineers and marketers. Forensics experts were heavily involved in this case, which culminated in a verdict in favor of Dupont for $919.9 million.
3. Asahi Kasei Pharma Corp. v. Actelion, Ltd., April 29, 2011
Experts in the field of economic damages played a large part in the $550 million dollar verdict returned by a California jury in favor of Asahi. Both Asahi and Actelion are pharmaceutical companies. Asahi developed a new drug, Fasudil, for the treatment of pulmonary arterial hypertension ("PAH"), and entered into a license agreement with a third party, CoTherix, for marketing of the drug. Asahi sued Actelion, alleging that Actelion purchased CoTherix, then induced CoTherix to breach its license agreement with Asahi in order to halt work on Fasudil and protect profits for Actelion's competing product, Tracleer, which, prior to Fasudil, was the only drug on the market to treat PAH. The court later granted Actelion's motion to offset some of the award and reduced the damages by $70.4 million.
4. Allison, et al. v. Exxon Mobil Corp., June 29, 2011
Plaintiffs were awarded $495 million against Exxon in this Maryland case. Plaintiffs, property owners in Jacksonville, Maryland, sued Exxon, asserting a negligence claim after Exxon leaked 26,000 gallons of gasoline leak into the drinking water aquifer. As a result of Exxon's negligence, Plaintiffs claim they have suffered a decrease in property values, emotional distress, and the need for medical monitoring for themselves and their children. Exxon admitted liability, but came out with guns blazing on the issue of damages, presenting the testimony of numerous experts. Plaintiffs' damages expert was convincing enough to secure a multi-million dollar judgment in their favor.
5. Saffran v. Johnson & Johnson, January 28, 2011
A doctor was awarded $482 million in this patent infringement suit from the Eastern District of Texas. Dr. Saffran claimed that he was issued a patent on a medical device that combined a drug and a polymer in order to help deliver medication directly to damaged heart tissue. Saffran claimed that Johnson & Johnson developed a stent that infringed upon his patent, causing him to suffer monetary losses. Saffran sought an injunction and damages in the form of a reasonable royalty to adequately compensate him for the alleged infringement. Both sides presented expert testimony on the royalty question, as well as an expert cardiologist, chemist, chemical engineer, cell biologist, and pharmacologist. In the end, the jury in this federal case agreed with Dr. Saffran and concluded that Johnson & Johnson had infringed on the patent.

Westlaw Round Table Group begins a monthly review of notable recent expert witness news & links from around the internet...
Rule 701 vs. 702 in Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co.
10/25/11, Complex Litigation Blog
How to treat the opinions of experts who appear in courts as fact witnesses.
The Impact of Wal-Mart Stores, Inc. v. Dukes on Expert Witness Testimony
10/12/11, Round Table Group
One of the biggest cases of 2011 also has consequences for expert witness testimony.
Judge caps fees for indigent murder defendant who wanted to hire pathologist from the Casey Anthony trial
10/7/11, Dayton Daily News
County argued that, given its budgetary problems, it should not be put in a position to pay the fee schedule requested by an expensive expert.
What to do about an expert witness client who isn't paying their bills?
10/6/11, creditexpertwitness.com
A very thoughtful article about the expert witness collections process -- an especially important topic in this economy -- from a credit expert.
Best expert witness has credentials, credibility & charisma
10/5/11, San Antonio Business Journal
This San Antonio Business Journal article explores the role of expert witnesses, and what makes a good expert witness.
Which business valuation certification is best for expert witnesses?
9/28/11, Business Valuation Law News
Is there a particular certification or degree which is best for someone wanting to be a financial expert witness?
Expert witness immunity abolished in UK
9/27/11, McParland Finn Ltd.
Expert witnesses in the UK have historically been immune to claims of negligence arising out of evidence prepared for the purposes of and in connection with legal proceedings, but a recent Supreme Court decision changes that.
Do We Treat Our Juries Like children?
9/27/11, Huffington Post
Do courts severely restrict important -- even life-saving -- testimony, for fear that lay jurors won't know what to do with it?
Experts: Don't Rely on Your Client's Conclusions!
9/27/11, expertwitnessguru.com
Expert witness testimony must be based on scientific and reliable methodology and not on the assumptions of attorney or client.
Capped & Low Fees Deter Expert Witnesses from working on legally aided cases
September 2011, UK Register of Expert Witnesses
A summary of changes to the UK legal aid program limiting how much expert witnesses in various fields can charge. This article also lists how much experts on legal aid cases can be paid in common fields if they're in London or elsewhere.
Federal Rule of Civil Procedure 26 & Expert Disqualification 9/22/11, Advise & Consult, Inc.
A good summary of Federal Rule of Civil Procedure 26 which provides the general guidelines used in the discovery process, including usage of experts.
4 Mistakes Lawyers Make with Expert Witnesses
9/7/11, Lawyerist
Be wary of these mistakes lawyers frequently make with their expert witnesses.
Financial pros add 'expert witness' to resumes
9/6/11, Crain's New York Business
Small, midsize firms encourage employees to get specialized training to help in winning clients.

I am one of several folks who gets to represent Westlaw Round Table Group at the Andrews Asbestos Litigation Conference in New Orleans October 28th and 29th, and I am very much looking forward to it. I interviewed Kenneth Bradley, Sr Attorney Editor and conference organizer, about the conference, and what to expect. Here is his interview.
What are the usual attendees like?
Most of our attendees are lawyers who are active in asbestos litigation and many of those are trial lawyers, but some represent clients and never go to trial, especially those who represent companies that usually settle the lawsuits filed against them. Insurance companies often send representatives, since as you probably know, they have a lot to say about how lawsuits against their clients will be managed. Some of the defendant companies themselves send in-house counsel.
How has the conference changed since its inception? Have there been trends?
The issues in asbestos litigation, as far as liability, have been pretty well settled for sometime know. The conference usually focuses on teaching skills for being successful in lawsuits, from both the plaintiffs' and defendants' perspectives. Experts who can share the latest studies in medicine and industrial hygiene are big draws.
What do you enjoy most about the conference?
My professional satisfaction from planning and attending the conference is the chance to interact with the people most active in the litigation that Westlaw Journal: Asbestos covers. It leads to better coverage for my subscribers because of the contacts I make who turn into sources for developments in litigation.
Is there something specific about the upcoming conference you want to highlight?
This conference includes a presentation on an issue that has been weighing heavily on defendants and insurers. That is the imminent change in Medicare secondary payer reporting. Congress has shifted the burden for reporting settlements and damages paid to Medicare beneficiaries to the payers and many companies say they are having a difficult time figuring out just how the government expects them to comply with the requirements. There are steep fines involved for non-compliance.
We will also have a presentation from an attorney who this year successfully secured a $200 million judgment for his client against CertainTeed. He said it may be the biggest award in an asbestos case in California and people will be watching to see how it plays out on appeal.
What role do experts play at the conference?
Very often experts are on the faculty, for example, the speaker who will address the Medicare reporting requirements. But we've also had experts in medicine, science, industrial hygiene and actuarial issues related to determining parameters for damages awards.We've even had presentations on how to find and work with expert witnesses.
People who attend the conference who have expertise in these areas will have the opportunity to network with trial lawyers who are always looking to recruit new experts who can assist them in successfully prosecuting or defending asbestos lawsuits.
The Andrews Asbestos Litigation Conference is October 28th and 29th this year. You can more full details here.

An Arkansas appellate court has affirmed a directed verdict in favor of a
local obstetrician/gynecologist after finding that a New York expert's
ignorance about Hot Springs, Ark and the medical services there,
prevented him from establishing local standard of care. This brings up
two fascinating points.
First, I was immediately struck by the
issue that the standards of care actually vary: Shouldn't there be
pretty much one standard of care? And one must wonder just what is the
difference between medical care standards in Hot Springs, Arkansas and
Rochester, New York. I am not criticizing either locale, just wondering
why/how that could be/should be different.
Second, it occurred
to me that the plaintiff might have made a critical error in hiring an
expert from a (geographically and culturally) distant locale. At Westlaw Round Table Group,
one of the expert witness search parameters we often are requested to
satisfy is geographical proximity. Choosing where your expert comes from
is a critical aspect of the expert selection process, but especially so
when determining local standards of care.
In my years working
with clients and experts, I have found there are basically two trains of
thought when clients feel that geography is important in finding an
expert witness. Either they deliberately want an 'out of towner' with
some perceived prestige or lack of conflict, or the deliberately want
someone local, who might share an accent, or a set of cultural
communication traits.
But in cases where local standards of care
is the issue, (at least in Hot Springs, Arkansas) apparently local
experts are better.
Westlaw Round Table Group has experts in both Rochester, NY and Hot Springs, AR.
The complete analysis of this case can be found here, and was published in the V7/I#4 March 2010 Westlaw Journal Expert and Scientific Evidence.

This posting was written by Jodine Mayberry and published in the V7/I#4 March 2010 Westlaw Journal Expert and Scientific Evidence.
A worker at a hazardous-materials disposal plant,
permanently brain damaged from exposure to hydrogen sulfide gas, lost his
product liability suit because none of his experts was qualified to testify
about the chemical's dispersal characteristics, the 8th U.S. Circuit Court of
Appeals has ruled.
Barrett et al. v.
Rhodia Inc., No. 09-3115, 2010 WL 2025366 (8th Cir. May 24, 2010).
Plaintiff Dave Barrett was unable to show causation even though another worker, Craig Wheeland, who was on a platform 14 feet above him and much closer to the allegedly defective chemical, died during the same incident.
Wheeland's family reached a confidential settlement with defendant manufacturer Rhodia Inc.'s predecessor in interest, Rhone-Poulenc Inc., in a separate lawsuit. Wheeland v. Rhone-Poulenc, No. 04-05018, case dismissed (D. Neb. 2007).
The chemical at issue is phosphorus pentasulfide, known as
P2S5, a dust used in hazardous waste disposal that turns into hydrogen sulfide
gas when it comes into contact with moisture, including the water in human
lungs.
The 8th Circuit held that Barrett was unable to prove that
P2S5 manufactured, packaged and shipped by Rhodia had turned into hydrogen
sulfide gas in the container and, when Wheeland released it, drifted down to
Barrett in a sufficient quantity to cause him to black out and suffer brain
damage.
Rhodia put forward an alternative theory that P2S5 dust had dropped down a chute to where Barrett was working without protective clothing, and he breathed it in, causing it to turn to gas in his lungs.
If Barrett were able to prove that the dust had turned into
gas in the container, he could have continued his product liability case
against Rhodia for manufacturing a defective container and failure to warn, the
opinion said.
Barrett and Wheeland were working at the plant owned and
operated by Clean Harbors Environmental Services in Kimball, Neb., June 27,
2003, when the incident occurred.
Wheeland was on an open third-floor platform and was wearing
protective clothing and breathing apparatus, the opinion said. His job was to load the contents of a drum of
P2S5 into a chute to transport it to the first floor.
Barrett, on a second-floor platform, was to open the chute
to allow the chemical to drop down to the first floor.
When Barrett opened the chute, he passed out and two other
workers on the second floor helped him outside.
Wheeland was later found dead on the third-floor platform, according to
the opinion.
Clean Harbors hired an independent environmental company to
investigate, and it found hydrogen sulfide gas in the headspace of the unopened
drums of P2S5.
The investigators concluded that the drum opened by Wheeland had a maximum hydrogen sulfide concentration of 5,500 parts per million, which would have been lethal. But they also found that the gas dispersed quickly, dropping to a maximum of 120 ppm at a distance of 12 feet from the drum, which would have been minimally harmful, the opinion says.
Clean Harbors and Barrett, who was left with severe permanent dementia, sued Rhodia in the U.S. District Court for the District of Nebraska.
The plaintiffs recruited four experts: Dr. Gerti Janns, a toxicologist and allergist; Dr. Terry Himes, Barrett's treating physician; Anne Taylor, a clinical psychologist, and Edward Ziegler, a safety engineer.
After a hearing to determine if the experts were qualified, the District Court held that while they were qualified to testify in some areas, none of the four was an expert on the rate of hydrogen sulfide gas dispersal.
Thus, none could offer proof that 500 to 700 ppm of the gas had drifted down from the opened drum and caused Barrett's injury. Exposure in that range would have been sufficient to cause Barrett's injuries, his experts said.
While the experts could prove general causation -- that hydrogen sulfide gas could cause the injuries Barrett suffered -- they could not prove specific causation -- that sufficient accumulated gas had drifted down and affected Barrett, the court said.
Without any experts to prove specific causation, the District Court dismissed the suit against Rhodia. The plaintiffs appealed, but the 8th Circuit affirmed the lower court judgment in its entirety.
Opinion: 2010 WL 2025366

This posting appears in the March 2010 Vl7, Issue 4, of Westlaw Journal expert and Scientific Evidence.
Ark. Appeals Court: Expert Did Not Show Local Standard of Care
An Arkansas appellate court has affirmed a directed verdict in favor of an obstetrician/gynecologist after finding a New York expert's ignorance about Hot Springs, Ark., and the medical services available there prevented him from establishing the local standard of care.
Shaffer et al. v. Yang, No. CA 09-568, 2010 WL 374191 (Ark. Ct. App. Feb. 3, 2010).
Johnny Mack Shaffer, whose wife died following surgery by Dr. Leo Yang to remove a pelvic mass, filed suit in the Garland County Circuit Court.
Shaffer alleged Yang tore his wife's bladder and perforated her bowel several times, leading to her death, the opinion says.
Shaffer retained the services of Dr. Derek J. Tenhoopen, an ob/gyn practicing in Rochester, N.Y.
Tenhoopen testified at trial that all obstetrics/gynecology physicians in the United States are held to the same standard, the opinion says.
He said Yang should have performed more preoperative testing, should have taken a more detailed history and should not have attempted to perform the procedure laparoscopically.
When questioned by Yang about his knowledge of Hot Springs, where the surgery took place, and its medical community, Tenhoopen admitted that he did not know anything about the city.
He said he was unfamiliar with the physicians, medical community and services available; that he did not know how many ob/gyns or general surgeons practiced in Hot Springs; and that he had no idea how many hospitals were located there.
The trial court ruled that Tenhoopen was not qualified to testify as to the local standard of care in Hot Springs since he admitted he knew nothing about the area and its medical services.
The trial judge granted a directed verdict in favor of Yang. Shaffer appealed.
Arkansas law recognizes that in a medical malpractice action, the "local standard of care" must be established either by expert testimony from a medical care provider who is engaged in the same specialty in the locality where the defendant practices or "by analogy through proof of the standard of care in similar localities."
However, to describe the standard of care in similar localities, the "expert must have sufficient relevant knowledge of the locality where the alleged negligence occurred in order to be able to identify localities that are similar," according to the opinion.
Tenhoopen "clearly lacked such knowledge," the appeals court said.
In affirming the lower court's action, the panel noted that testimony regarding a national standard of care is insufficient where the expert fails to demonstrate a familiarity with the locality where the alleged malpractice occurred. Wolford v. St. Paul Fire & Marine Ins. Co., 961 S. W.2d 743 (Ark. 1998).
Opinion: 2010 WL 374191

We're pleased to announce
that Round Table Group is now part of
Thomson Reuters, the leader in
providing intelligent information to businesses and professionals. Round Table Group will be aligned with the
Thomson Reuters litigation businesses and will complement the expert
witness content on Westlaw, the
preferred online legal research service for lawyers.
The combination of Westlaw's
expert witness content and Round Table Group's services will provide our
litigator customers with an enhanced service and a more comprehensive, integrated litigation solution, and will allow us to bring our consulting services to an expanded client base through Westlaw
We expect the transition to
go smoothly. Experts can continue to
turn to the Round Table Group's expert
services team and other business contacts for information and
service.
Both Round Table Group and Thomson Reuters are delighted by this new opportunity
