Since its debut in June, 2011, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has become one of the most often cited Supreme Court decisions in federal courts.  The Dukes decision is singularly responsible for the demise of numerous class action cases and has even led to the decertification of classes in at least two different federal courts.  More importantly, at least one federal court has applied the Dukes reasoning in a non-workplace class action case.  In the Dukes opinion, Justice Scalia, in his characteristic fashion, took direct aim at the Plaintiffs' expert, and, in fact, concluded that the Court could "safely disregard" anything the expert had to say.

To date, Dukes is the largest civil rights class action suit in U.S. history. The named Plaintiffs, who represented 1.5 million members of the proposed class, were three Wal-Mart employees who alleged Wal-Mart discriminated against them on the basis of their sex by denying them equal pay or promotions. The Ninth Circuit certified the proposed class, a necessary step for the suit to continue as a class action, and Wal-Mart appealed this decision to the Supreme Court. To obtain class certification, the Plaintiffs must show that they are appropriate representatives of the class. Among other things, the Plaintiffs must demonstrate that there are "questions of law or fact common to the class," a requirement referred to as commonality. In Dukes, Justice Scalia noted that the "crux of this case is commonality." To satisfy the element of commonality, Plaintiffs must show "significant proof" that Wal-Mart "operated under a general policy of discrimination."

The Plaintiffs' expert in Dukes relied on a method called "social framework analysis", which examines an employer's policies and practices and evaluates these policies against what social science research has established as factors that generally lead to bias. Social framework analysis has been a popular method for plaintiffs to try to establish a ''common'' policy or practice in workplace discrimination suits.

The Plaintiffs' expert testified that Wal-Mart has a "strong corporate culture" that makes it "vulnerable" to gender bias.  He went on to testify, however, that he could not "determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart."  In holding that the expert's testimony was "worlds away from significant proof" that Wal-Mart operated under a general policy of discrimination and could not effectively speak to the issue of commonality, Scalia concluded it was safe to disregard the expert's testimony.  Notably, although the Court did not definitively rule on the issue, it indicated that even at the class certification phase, an expert's testimony must satisfy Daubert to be admitted.

How does the Dukes opinion affect an expert testifying in a workplace discrimination class action suit?  First, class certification will be harder to obtain in workplace discrimination suits.  Furthermore, the Supreme Court's conclusion that the Dukes Plaintiffs failed to establish a general policy of discrimination suggests that future plaintiffs will no longer be able to rely solely on the social framework method to establish significant proof that an employer operated under a general policy of discrimination. Instead, a plaintiff must introduce evidence, through expert testimony, showing how such bias actually impacted the workplace, not just that it was vulnerable to bias.

Recent revisions to the Federal Rules of Civil Procedure--effective December 1, 2010--raise important issues for litigators working with experts.  Perhaps most important is new Rule 26(a)(2)(C), which clarifies the need for additional specification in disclosing "expert" witnesses who might previously have remained undisclosed.

The Rules generally require (and have required) that retained experts and even company employees who routinely testify as experts need to prepare and disclose comprehensive pretrial reports, so that opposing counsel could review those reports and depose the experts intelligently about their opinions.  However, this category historically excluded company employees who did not routinely testify as experts.  The revision dictates that going forward such company employees must at least provide a summary of their expected testimony.  Treating physicians were another group of witnesses who sometimes fell through the cracks that this revision aims to close.

You can read the full analysis by noted authors Damian Capozzola and Walter R. Lancaster, on our client blog. 

The Appellate Division of the Superior Court of New Jersey has ruled that an expert should not be required to reveal details about his income from testifying as an expert witness. In doing so, the court re-affirmed a prior holding that an expert's business records, files and 1099s should only be provided under "the most unusual or compelling circumstances." This ruling derives from testimony in Gensollen v. Pareja,  No. A-0401010T3, (N.J.A.D. 11/19/10).

John Day, an attorney in Nashville, TN, writes a useful analysis of this ruling, which you can read in full here. 

Many economists are claiming that the U.S. economy is recovering, if unevenly. Corporate profits are up. The Dow Jones index has been rising steadily for a year, (at this writing) and is at 2008 levels. Credit is becoming more available, albeit slowly. The NAHB notes 2010 housing starts are up 6% from 2009. And, according to a NABE  report, more companies are hiring employees again. But has that trend extended to expert witnesses? Are law firms hiring more expert witnesses?

The short answer is yes, but like all such economic analysis, the complete answer is more complicated.

2010 was, by most accounts, a rather flat year for the legal industry overall. But a closer look at the expert witness industry shows that the use of experts in 2010 was up from 2009, by almost 6%.  The interesting development, however, was not the steady increase in the number of experts hired but rather when they were hired within the lifetime of the case and how they were utilized.

We have found that clients are retaining experts earlier on in the case life cycle. We also see experts being consulted earlier and more frequently as part of the case strategy development process, once retained. This has several implications for experts, including longer relationships with clients and their cases and the concurrent longer time commitments needed of the expert. In addition, we are seeing periods of down time between early case consultations and demand for reports, depositions, and court appearances.

There might be two causes for these developments. First, attorneys (and their clients) are becoming much more cost conscious. By hiring an expert early on, attorneys are spreading out the expert cost over time, and they might also limit costs as well by more efficiently planning their strategy based on the expert's early assessments. This latter point is supported by the trend towards settlement of cases. Second, we have repeatedly heard from our attorney clients that they want to find the best experts earlier, in case they don't settle and need to go to trial.

Last year WRTG saw a significant increase in retained experts over 2009, and based on quarterly trending data we predict an even more significant increase in 2011, as our clients come to WRTG earlier and more often for their expert witness search and referral needs.

Updating your profile with WRTG is the best way to ensure we can connect you with the right clients and the right cases in 2011.

For other trends in the expert witness industry, check out more postings on our expert witness blog.

Recently, we surveyed our Biomedical Engineering experts, asking them questions about their field. The last question we asked was: "What questions should we be asking that we are not?". We got a huge response of suggested questions! Here are some of them. if you have others to add, please feel free to post them.

Q: What specific classical discipline do you most closely ally with?

Q: What is your experience in the clinical application of medical technologies (in hospitals and other health care facilities)?

Q: What experience do you have in professional education (as an indication of knowledge, recognition, and contribution to the profession)?

Q: What is your involvement in and contributions to professional associations?

Q: Have you been involved in writing patents before and if so in how many?

Q: What is the primary means by which a medical device can be legally introduced into the United States market?

Q: What is the most standardized method of testing spinal implants that has been accepted?

Q: How do we incorporate the field of genomics in bioengineering?

Recently, we surveyed our insurance experts, asking them questions about their field. The last question we asked was: "What questions should we be asking that we are not?". We got a huge response of suggested questions! Here are some of them. if you have others to add, please feel free to post!

Q: What are the main ideas of Principles-Based Reserving?

Q: What is the fair value of liabilities and its effect on management of financial institutions?

Q: How do you determine whether a policy is underfunded?

Q: How do you analyze the internal assumptions in the asset share statement?

Q: What internal assumptions has the carrier made that has contributed to the underfunding problems?

Q: What is the profit model needed to make money in the field of health insurance?

Q: Please define "custom and practice" as it relates to your experience in the industry.

Q: Describe the most substantial or interesting contribution you have made as an expert witness.

Q: What is the difference between SOC and Beat Practices?

Q: What new products do you see being developed by the insurance industry to solve the problems of this court case going forward?

Q: When and by whom were you designated a general adjuster?

Q: What course work was required of you following basic claims school?

Q: Have you been challenged as unqualified to testify under the Daubert rule? If so, what was the result of that or those challenge(s)?

Q: How many professional insurance designations do you have and what are they?

Q: Have you ever provided training and education to insurance producers and their staffs and in what areas?

Q: What contributions have you made to enhance professionalism in the insurance industry in the past five years?

We recently surveyed our electrical engineering experts, asking them a dozen or so questions about their field. The last question we asked was: "What questions should we be asking that we are not?". The response was huge! Here are some of them. if you have others to add, please feel free to post!

Q: Have you served as an arbitrator in your field?
Q: How are you preparing your employees for the emerging smart grid electric power industry?
Q: What certification do you hold and how long have you been doing energy audits?
Q: How can carbon dioxide emissions be curtailed dramatically in the future?
Q: What percentage of wind power can be generated in an electrical grid system before it becomes unstable due to erratic generation and how can power demand be met when wind is not available?
Q: If there is a sensitive electronic circuit that is in close proximity to conductors carrying heavy currents, and terminals operating at high voltage, what design steps should be taken to mitigate the effects of these?
Q: Have you designed any novel display device and if so what is the novelty?
Q: How recently have you been involved in designing or commercializing products?
Q: What do your peers consider you in your field?
Q: Have you ever worked in finding the cause of failure of optical communications network? If so, how would you distinguish between human-caused failure from pure technical failure?
Q: What do you think is the Next Big Thing?
Q: What kind hardware and software design languages you are familiar with?
Q: Have you reviewed and mapped patents to existing international standards?
Q: Have you been awarded any US patents in EE related fields?
Q: Regardless of degrees, licensing, or certifications, how many systems have you personally connected up, tested, commissioned, and brought on line?
Q: Besides patent infringement cases, to what other types of case do you contribute?
Q: What is the number of product for which was lead designer on products being manufactured and in use?
Q: What personal resources do you have for measuring, testing and evaluating designs?
Q: What courses have you taught at the University level?
Q: Describe an instance where you were able to explain complex concepts to a jury.

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.
 

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