In this episode…
During our discussion over the role of experts, David remarks, “Sometimes the cases are complicated, multi-pronged, and different experts have different responsibilities.” The conversation recounts the importance of attorneys ensuring experts understand the depth and breadth of their role.
Additionally, David spoke about the importance of maintaining expertise, questioning the engaging attorney, and mock examinations. He advises, “Mock cross-examination is very helpful so that you know what’s coming at you from the blind side.”
Note: Transcript has been lightly edited for clarity.
Host: Noah Bolmer, Round Table Group
Guest: Professor David Rockstraw: Ph.D, Professor Emeritus at New Mexico State University
Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Balmer, and I am joined today by Dr. David Rockstraw. He is a Ph.D. Chemical Engineer and a Professor Emeritus at New Mexico State University. He is a sought-after expert in Chemical Engineering and has served in dozens of actions and as a consultant on various topics. Dr. Rockstraw, thank you for joining me today.
Professor David Rockstraw: Thanks for having me, Noah. Please call me David as we go forward.
Noah Bolmer: All right, David, it is. Let’s jump into it. You have been on the Chemical Engineering path since your undergraduate at Purdue. Tell me a little bit about your background. Has chemical engineering always been a passion for years?
Professor David Rockstraw: I have a passion for cleaning up the mess I grew up in. I grew up in Gary, Indiana, where my father was a steel mill worker. It is a relatively polluted area of the country. Chemical Engineering was a natural extension of my desire to live in a clean environment.
Noah Bolmer: That is a lovely story. How is Gary these days? Has it gotten any better?
Professor David Rockstraw: I visited my mom last week. It is still not a place I wish to live. Let’s put it that way.
Noah Bolmer: Sure, understood. You have also been an educator for over 25 years, so you moved to an education path. You worked for DuPont and several other companies, then moved into education. Tell me a little bit more about this.
Professor David Rockstraw: I finished my Ph.D. at the University of Oklahoma in 1989 and immediately went to work in the industry. I started with Ethel Corporation in Orangeburg, South Carolina, spent a year there, and then joined DuPont Conoco in Ponca City. Oklahoma. I had an excellent job and a great experience in the industry, but I found it exhausting. I was traveling, doing plant startups everywhere, so the move to academia was more of a lifestyle decision to spend more time with my family.
Noah Bolmer: I understand. You worked for these companies for the better part of a decade. How did you turn all that robust experience into a career as an expert? It looks like you have been engaged dozens of times as an expert. What was your first call? How did it all begin?
Professor David Rockstraw: I did not realize that the world of expert witnessing existed. I was in my second year as an assistant professor at New Mexico State University when I started. The expectations of a tenure-track faculty member are demanding. I spent time at the office and then the lab. The thing I liked about it is I went home every evening. I saw my family and was not sequestered in a hotel somewhere. It was early evening, around 6:00 P.M. I was working on lectures, writing proposals, and trying to get things done in my office, and an older gentleman walked in and invited himself into my office. He said,” Do you have a moment?” I said, “Sure.” He sat down and started asking me about an explosion in a chemical plant in northern New Mexico. With my background at DuPont, I understood something about chemical processing and answered his questions. He spent an hour explaining and going through a question and answer, and I focused on what I was trying to do. I guess I was thinking, when is this guy going to leave? I have things I need to get done. After our conversation, he said, “Would you be willing to say these things in a court of law.” That took me off guard because, as I noted, I did not know what expert witnessing was at the time. I first thought this was a community service request and that my wife would want me to do this community service. I said, “Sure, I guess I will.” We parted ways at that point. I went home, and I explained to my wife. She said, “Well, you did a good thing. You are doing community service, and that is great. A few days later, he contacted me and asked me how much I charge and that was the point where I had a clue that this was a job.
Noah Bolmer: You thought you were going to be doing it for free.
Professor David Rockstraw: I thought it was community service. I called my brother-in-law, who was a lawyer in California to get his input on it. He explained to me what it was I had committed to doing. That was 1997 and it has been a few years now since I got started.
Noah Bolmer: How did that become the expert witness juggernaut that you are in now? Did they recommend you to the next person, or did you seek it yourself?
Professor David Rockstraw: That was long ago, and I carried through with my commitment. I found that there were companies with databases that maintained the names and expertise of experts that did matching. I started putting my name into some of the databases. I thought this was fun, and I learned some new things. I had to do a little travel. I enjoyed the experience and put my name into some databases. Over the next 20 years, one or two jobs occurred every year. I continued to perform and learned many things during that time. When COVID hit, the nature of education changed. I loved my job as a New Mexico State University professor, but things changed with COVID. I was no longer interested in doing that. I was eligible for retirement, so my wife and I discussed and decided to go in a new direction. That became my focus from now on.
Noah Bolmer: That is so interesting. Fortunately, you are using a database like we use LinkedIn to put yourself out there with your experience and your skill set.
Professor David Rockstraw: I think Russ and the Round Table Group was one of the first. It was undoubtedly the first database to which I added my name.
Noah Bolmer: Then, here we are, coming full circle.
Professor David Rockstraw: It is it. It feels great.
Noah Bolmer: Let’s talk about some of the more interesting cases that you have worked on in the past. There is one thing I must ask you. I was reading the dozens of cases you sent me on which you were an expert. You have worked for the plaintiff and defendant on many cases where a residential fire is attributed to spontaneous combustion. It is just a component of currents. Do I need to worry about half my house exploding?
Professor David Rockstraw: No, it is a phenomenon that is associated with the application of the stained product. Some stained products oxidize and generate heat as they oxidize. If you do not handle the towels you use to apply the stain properly after the job, they could potentially combust.
Noah Bolmer: No kidding. If you put some varnish on something and do not let off gas, you get an exothermic reaction that burns your house down.
Professor David Rockstraw: If you look at products containing linseed oil, the instructions explain how to treat the rags you used to apply the linseed oil. They tell you to submerge the rags in a bucket of water and seal the top and take them out of the house. In the cases I have been involved in, the individuals applying the linseed oil did not follow those instructions. They left the rags inside in a heap, and that heap eventually led to the generation of heat, which caused them to combust.
Noah Bolmer: Do many of your work product liability cases work like that?
Professor David Rockstraw: I have done some of that, but most of the work that I am doing these days involves intellectual property, either patent infringement, patent validity, or trade secret theft. Those are the cases I prefer.
Noah Bolmer: How interesting. How are the cases different? As an expert, do you approach a product liability case different from an Intellectual Property case?
Professor David Rockstraw: IP cases are based strictly on science. Typically, you have a patent that defines the bounds of what is covered. You are working in a black and white area than with product liability or cases where someone is injured or loses their life.
Noah Bolmer: Sure. When you are on one of these cases and have to deal with the opposing counsel, are there any strategies you use? Are you well prepared for cross-examination?
Professor David Rockstraw: The best strategy you can have for cross-examination is preparation. There is no substitute for spending as much time as it takes to become familiar with the document set to understand how both sides approach the case. It will help you know how to answer the questions they will ask you. Your cross-examination can be contentious, and as an expert, you want to be calm and collected and not engage the opposing expert in any emotional interchange. Credibility and calmness seem to correlate, and as soon as you lose your calm, you lose your credibility with the arbitration panel or the jury. So, maintaining calm and a smile on your face is the best thing you can do.
Noah Bolmer: I am sure that sometimes you want to get heated with somebody saying something ridiculous, unscientific, or upsetting. What is your strategy for that? How do you maintain your composure and air of knowledge without erupting?
Professor David Rockstraw: I do not know that there is a strategy to it other than you have to sit in your chair and maintain that composure. I don’t get excited about things too often, so it is not particularly hard for me to do.
Noah Bolmer: That is good. I recognize that.
Professor David Rockstraw: As the opposing counsel loses his composure. It makes me even look more credible.
Noah Bolmer: Right. That is the case. Any other cases besides those related to spontaneous combustion? What are the cases? Any that had an interesting resolution or were interesting for an expert? What are the parts of the cases that you enjoy? What interesting things happen to people who have only done one or two or have not entered the expert witness field? What are some of the more interesting things that they have to look forward to?
Professor David Rockstraw: I enjoy the cases that put me in the laboratory, put my hands on devices, and have me doing research. I worked on a case involving a company named Ingevity for a patent involving the product for removing fuel vapors from the air before discharging them from the gas tank. As the day’s temperature goes up and down, the pressure in the gas tank goes up and down. An activated carbon filter vents the gasoline vapors and prevents them from entering the atmosphere. In this particular litigation, the plaintiff in jeopardy owned the patent on this specific device. The device will perform in the following way, given these distinct characteristics. For a significant portion of that case, my job involved opening up several of these devices and separating the activated carbon material from within the devices. I would use a Dremel to open these large plastic containers, collect the activated carbon, and send it off for analysis. I collected the data and wrote a report. It is almost like writing a Ph.D. dissertation. You collect the data and write a report based on that data. I enjoy those hands-on cases. I had just returned from two weeks up in Gurnee, where I was doing the same thing. I was out in a plant collecting data for use in the litigation. That is where my passion lies in doing hands-on work.
Noah Bolmer: You get to do what you have been training for as an expert witness. That is what makes it fun. The part that you enjoy.
Professor David Rockstraw: You mentioned the spontaneous combustion cases. I physically secured the product accused of causing spontaneous combustion. I applied it to some rags and put them in a heap in the center of my garage. I put a thermocouple in to demonstrate the heat rise caused by that product if you did not treat the rags properly.
Noah Bolmer: You mentioned the reports that you have to make. What about that? What are your strategies for ensuring the reports have everything they need and nothing superfluous to the facts or the case? What is your report writing strategy?
Professor David Rockstraw: Your interaction with the attorneys and counsel becomes very critical because you want to understand your role as an expert in the case clearly. Sometimes cases are complicated and multi-pronged. Different experts have different responsibilities, and you need to know what it is that you are there to testify on. You then rely on counsel to explain the legal status of the case to you. What are the laws that are applied? What bounds do I need to express my opinions so report writing is pretty cut and dry? You have got an introduction. You talk about your background and provide your opinions and the support and format used. What goes into the report is guided by what the attorneys attempt to prove or disprove in the case.
Noah Bolmer: You have worked with many attorneys, so dozens of attorneys have prepared you. What are the things that work? What are the things that do not work? How can an attorney best prepare their expert witness?
Professor David Rockstraw: The cases that I have been most comfortable in are where we spend large amounts of time and getting sequestered in a conference room with an attorney for days to prepare is the best. Not only do you practice for your direct examination, but the questions and answers that you and the attorney will go through during the direct exam. Then you can perform mock cross-examinations where you talk about the questions the opposing Counsel will ask you and how you should answer them to ensure we preserve our case. Doing mock cross-examination is very helpful so you know what is coming at you from the blind side. What does not work is short online prep sessions. The pandemic forced us into them. We would have an hour to two-hour Zoom session, and then they would say OK, study this for a few hours. It is not the same as being locked in the conference room with Counsel, where they are there to answer questions. As you are reviewing content, you say what about this? Having someone there for that immediate feedback is helpful.
Noah Bolmer: When you are engaged in different states and countries, you need to stay on top of current topics related to your field. You have worked in Canada or worked for a Canadian outfit. You have to know science and Chemical Engineering. Is there a different body of knowledge that you have to study for each case quickly, or do you feel that your expertise is such that you know the answers to the questions they will ask?
Professor David Rockstraw: I have broad expertise and background based on where I have come in life, so I am well-positioned to get started on many of these cases. Just like anything else, there are areas where I need to improve my skills and climb a learning curve. I have become good at teaching myself complicated material quickly by finding the appropriate resources. I spend many hours at the library.
Noah Bolmer: Before we wrap up, I want to talk to you about one thing: time management. How do you manage your time? All of the experts that I have interviewed have lots of stuff going on concurrently. You also do consulting and education. Do you use any specific tool, software, or anything like that?
Professor David Rockstraw: I use a calendar to schedule things. When you start a new case, I want two items from the attorney immediately. I want a copy of the complaint to understand the legal basis for the lawsuit. I also want the court scheduling order to know when reports are due, when depositions must be done and when the trial is supposed to start, so I can add those things to my calendar. I have only been doing this as my primary form of employment for two years, so I am still figuring things out. Not all cases work at full speed all the time. Fortunately, with all the cases I am juggling, when one case needs my time, the other seems to hibernate for a while. I still hope they do not all start hitting me simultaneously, but when they do, I get up early, work late, and give up riding my bike.
Noah Bolmer: Do you ever have an issue working across time zones where you need to talk to somebody at 3 or 4 AM?
Professor David Rockstraw: It happens often, yes.
Noah Bolmer: All right. I will not take up any more of your time, David, but thank you for joining me today on Discussions at the Round Table. Is there anything else you would like to add for attorneys or future expert witnesses that are listening?
Professor David Rockstraw: For future expert witnesses, when you take on your first matter, spend a lot of time asking questions. There is much to know about the legal process you do not learn as a scientist during your formal education. The more you know, the better you are going to be. The one thing to remember is that your job is to find the truth, not to advocate for the client you represent. That subtlety and understanding that when you are in a deposition, your job is not to educate opposing Counsel. It is to answer their questions. You do not want to get carried away with your responses. You want to give the minimum answer to answer Counsel’s question. Those are some of the little things, but much more is to be learned about the process. Use Counsel as a teacher to help you learn more as you go forward.
Noah Bolmer: Wise words. Thanks for joining me today on Discussions at the Round Table, David.
Professor David Rockstraw: Thanks for having me.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Professor David Rockstraw, is a Professor Emeritus at New Mexico State University and a Ph.D. chemical engineer who has been the Robert Davis Distinguished Professor. He is a sought-after expert in chemical engineering, forensics, IP and trade secrets, and chemical safety, among numerous other fields. He has testified in over 65 past and current legal engagements and over 30 expert consulting engagements.
Chemicals are specific substances that possess a constant chemical composition, as well as characteristic properties, and chemicals experts are often retained to lend their expertise to cases that involve chemical engineering, materials safety, environmental issues, product development, and more. Our chemicals expert witnesses are scholars and researchers from prestigious universities as well as industry professionals who have experience in federal, industrial, and academic laboratories, have consulted with major and small companies worldwide, and have testified as expert witnesses.
Our engineering expert witnesses include scholars from major universities and industry professionals who are prolific authors and inventors, many of whom hold multiple patents in their respective fields.
Every 24 seconds a fire department responds to a fire somewhere in the United States. From January 2021 to early October 2021, there were 47,201 wildfires. About 6.5 million acres burned so far in 2021. Fire is the combustion where fuel or other material is ignited and with oxygen gives off light, heat and flames.
Material Science studies the properties of solid materials and how those properties are influenced by a material’s construction and structure. By understanding the sources of properties, materials can be selected or designated for a large selection of applications from structural steels to computer microchips.
In June 2018, The United States Patent Office issued its ten millionth patent using its current numbering system, which began with the Patent Act of 1836. It took 155 years (1836-1991) for the Patent Office to issue its first five million patents, but only twenty-seven years to issue the next five million. There were over 308,000 patents issued in 2018 alone.
In 2016, an estimated 7 million trademark registration applications were filed globally, which was a 16.4 percent increase over 2015. Three times more applications were filed in 2016 than in 2001!
A trademark is a word, name, symbol, or design, or any combination that is used commercially to identify and differentiate goods from one company or seller from those of another manufacturer. Trademarks can be protected by filing a trademark registration application with the United States Patent and Trademark Office and paying a registration fee. The registering of a trademark provides a company with exclusive rights to their trademark and reinforces their legal position during litigation. Our trademark expert witnesses and consultants have a broad range of experience in areas such as trademark infringement, Lanham Act, trademark dilution, false statements, false advertising, marketing, brand confusion and damages, among many others. They include scholars from major universities and professionals who have worked in advertising for Ketchum Communications, Mattel, McDonald’s, and various Fortune 500 companies; practiced law with the Federal Trade Commission; and written a number of books and articles for academic journals.