In this episode…
Our guest, Dr. John Steinberg, is an expert in two distinct areas, internal medicine and pyrotechnics. These contrasting practice areas have led to a very unique perspective as an expert witness, and a range of professional experiences.
On this episode, Michelle Loux interviews Dr. Steinberg, exploring impactful lessons from his career having testified for a range of clients. Michelle and Dr. Steinberg also discuss his case preparation process, as he works between 5-20 cases per year.
Note: Transcript has been lightly edited for clarity.
Host: Michelle Loux, Assistant Project Manager, Round Table Group
Guest: Dr. John Steinberg, MD, Internal Medicine, and Pyrotechnics Expert Witness
Announcer: This episode is brought to you by Round Table Group the Experts on Experts®. We have been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.
Michelle Loux: Thank you for joining me, Dr. Steinberg, on Discussions at the Round Table, our podcast about expert witnesses and all things expert witness related. If you could give me a little bit of background on your area of expertise, I believe you have two, correct?
Dr. John Steinberg: I do. I am a physician. I am a trained internist with board certification in addiction medicine and therefore on the medical side I get asked to be a forensic expert in many cases that have drug or alcohol issues, criminal matters such as DUI, custody issues about fitness as custodial, work-related issues with drugs and alcohol, medical malpractice in terms of wrongful death or proper management and use of controlled substances, alcohol factors in behavioral issues, et cetera. So, that is one area of medical expertise. I have done a few in the general medical realm where my expertise is in Internal Medicine, which covers metabolic disease, non-interventional cardiovascular disease, high blood pressure, heart attacks, cholesterol, diabetes, and conditions like that.
My other area of expertise is in explosives and pyrotechnics. The background there is about 30 years ago, I became a professional firework display operator, joined an association called the Pyrotechnics Guild International, became president, participated in the National Fire Protection Association code writing process was tapped by the ATF, the Bureau of Alcohol, Tobacco, Firearms, and Explosives to be a civilian contractor trainer for ATF special agents who are certified explosive specialists, which I did for eight years. I also taught a few classes over 10 years, from 2005 to 2015 for the New York City Police Department bomb squad. I continue to do bomb squad training. I did one for the Iowa State police on August 3rd of this year. I also participate in display operator training. I have written a textbook. I participate in code writing. In the state of Maryland. I am the person in the Fire Marshall’s office who writes our licensing examinations, and the tests that you take if you want to be a professional display operator. So, on the one side, it is chemistry, explosives, and pyrotechnics rules, codes, and regulations.
On the other side, medical related, particularly where addictions, drugs, and alcohol issues are involved. They are two separate careers, both involving my work as a forensic expert. I was asked at deposition once by an attorney, he said, “Why don’t you put them together?” I said, “Because they are completely separate.” He said, “Well, you could put them together.” I said, “No, it does not work like that.” He goes, “Why?” I said, “The explosives guys asked, ‘Why would a doctor want to do this?’ The medical people ask, ‘What, are you freaking crazy?’”
Michelle Loux: What was the first matter you testified on or were retained as an expert witness? Was it medical or pyrotechnics?
Dr. John Steinberg: That is a great story, Michelle, my first foray into the forensic expertise field people asked, “Well, how do you get into that?” Basically, you have to prove your bona fide days. You have to be expert enough that someone calls you up and asks for an opinion and my first forensic expert case in explosives and pyrotechnics. I had done a few in the medical field over the years, but in pyrotechnics, the first case was a call from an insurance attorney in New York, and the case was Nisio versus Faulkner 1996. She said, “We have a case where our insured was doing consumer fireworks during a party at his house. A 17-year-old guest who was injured and burned by one of the fireworks was suing the homeowner. Can you help us in this defense?” The role of a forensic expert, as we stated in our pre podcast discussion, is not to determine credit. That is for the judge or the jury, it is not to litigate the case that is for the attorney. The role of a forensic expert has two dimensions. One is to be technically expert. To tell the retaining attorney what happened. Specifically, are there any breaches of statutes, codes or regulations? What happened and how is there a breach of a stand? The second role of the retained forensic expert is an interpretation and offering opinion in trial. Everyone else is limited to testifying to facts.
The role of the forensic expert is highly privileged because the forensic expert is allowed to offer an opinion which is introduced as evidence. The opinion cannot be just completely out of thin air. You are required to substantiate it, but only the forensic expert is allowed to testify to opinion. If substantiated, where everyone else testifies to, I saw, I heard, I did facts only.
So, here we go with the case. I said, “Well, you send me a retainer check.” You do not want to do work until you have been retained and of course the first thing you want to do is get answers to questions before you do anything with an attorney. Who are the parties? Are there any conflicts? And we can do that in a follow up, but what does it mean to be conflicted out of a case? We will talk about that later. If there is no conflict, send me my retainer agreement and a check to retain me in the case file. She said to check the retainer agreement and the case file. I called her up and I said, “You do not have anything to worry about.” She said, “How do you know that?” I said, “Because the boy was not burned by fireworks. He had burns over his left ear that were full thickness skin burns down to the subdermal fat that required skin grafting. “She said, “Is that an opinion?” I said, “No. In this case that is a fact. He was not burned by fireworks.” She said, “How do you know that?” I said, “You have the same pictures I have.” I should pull him out. Look at him. Do you see she was?” “No,” I said. “His hair is intact over his left ear. There are only two ways you can get a full thickness skin and leave the hair intact. One is a hot liquid. You got scolded. The other is a hot surface. A water heater and heating blanket. The boy fell asleep on a heating blanket or he knocked a pot of scalding water on himself and fell asleep. In the morning he woke up and was burned. His mother looks at him and said, ‘Oh my God!’ At the hospital, a graft, but the hair is intact. It is impossible for flaming projectile from a firework to streak by his ear and burn the skin full thickness with a flame while leaving the hair intact.” They wanted $325,000. [I told the attorney] “You can go back to them and say, ‘We are not paying you anything?” She went back. The case was withdrawn. The plaintiff’s attorney did not want to invest anymore time and effort into it.
The funny part was, she said, “Well, you did not have to do any work. Could you send us our retainer check back.” I said, “The work I did is saving you $325,000 or some portion thereof. So, it did not take much work only 20 years of understanding medicine and fireworks.” Then she said, “If you send us our check back and we like what you did, we might use you again.” I said, “Have you ever had a fireworks case before?” She said, “No.” I Said, “You know what? They are pretty rare. I will skip the repeat business. I am not sending your money back.”
Michelle Loux: Do you find that you have to prepare, or do you set up differently as an expert witness when you are testifying on behalf of the government versus regular clients? Do you find there is a difference?
Dr. John Steinberg: I have only testified on behalf of the government in a criminal matter twice. Once was a medical issue in the State of Maryland, where I worked with the state attorney and the prosecution of a physician. It was a drugs-for-sex case. I have a bizarre sense of humor, I admit it, but the state’s attorney called me up. He said, “Dr. Steinberg, would you be willing to testify on behalf of the prosecution against the physician?” I was raised by lawyers, so I said, “What is the physician alleged to have done?” He said with indignation, “He was trading drugs for sex.” I paused a little bit and said, “You mean you cannot do that?” There was this long silence on the other end of the phone. I could see him thinking “What, do they all do this!?” I said, “I am kidding you. I would be willing to look at the file.” Oh, boy was that a lesson.
In your initial things about podcasts, [you asked] what did you learn that you did not know then, that you know now? Here is what I learned in the case of Maryland vs. Lebson. The assistant state’s attorney said, “Look, in the prosecution, we are going to have you testify whether these prescriptions were medically indicated or not for controlled substances. We only need a few hours.” So, it is a Monday when we are in court, and I go through the prescriptions and there is no medical indication. No documentation, no disease being treated, no diagnosis, and I am done. I did what they asked me to do. Then I learned about cross-examination. After Monday morning, Dr. Lebson’s attorney said, “Dr. Steinberg, was this a prescription?” “What about this one?” There are thousands of these things. Twenty-six respondents complained and there are thousands of prescriptions, and he is tying me up on the stand Monday afternoon. I want to be there today, so we go back to court on Tuesday and privately I am talking to [assistant state attorney] and [ask him to] tell me about this. Here is the lesson for forensic experts, we are in a lower-level trial court and the way it works is you have a constitutional right to confront your accuser. The attorney for the doctor was saying, “You can end this at any time. I understand we are taking you out of your office. You only planned to be here one day. If you need to go back to your practice, you can go back.” The technicality is if I do not do a complete cross-examination, they had no hope of winning a trial, but what they wanted to do strategically was to win on appeal. I was the state’s expert and if they are not allowed to complete the cross-examination then on appeal, all of my testimony is stricken. The appellate court does not try the case. They only read the record of the trial court, and if there is no expert testimony that these were not medically justified prescriptions, they would win on appeal. You look at these things as you go along. I cheerfully complied with Tuesday and Wednesday. Privately, I was not happy, but on the stand always maintain a cheerful demeanor. I mean no joking around. You have to be serious, but pleasant. Be civil. Do not let anyone get under your skin. The minute you are angry, you have lost. So, just relax. What I did was I slowed down the attorney. He would ask, “What about this prescription?” I said, “Let me see the record.” Just give me your general opinion. I would say, “Sir, my career and reputation are at stake. I want you to have the full opportunity to conduct this defense. Let’s look at the actual record.” I was slowing him down Monday afternoon, all day, Tuesday, and all-day Wednesday. We go into Thursday now. Meanwhile, Dr. Lebson is paying this guy hundreds of dollars an hour and there is no end in sight. It was in March, and he said, “You know, doctor, we are on our third day of cross-examination if you must return to your practice, you can. We would be happy to excuse you.” I said, “Sir. This is a sure process. I do not care if we are here into April when the crocuses are blooming. I want Dr. Lebson to have the opportunity for a thorough defense. I am happy to postpone and obtain coverage for my practice as long as you need. We can go into April if you want.” We broke for lunch, came back for the afternoon and they rested their case.
Michelle Loux: They are done.
Dr. John Steinberg: With my cross-examination complete, they said, “No further questions or just this cross-examination is complete.” It is in the books. Dr. Lebson lost the trial. There was no successful appeal. We are done.
The government in criminal cases want to use sworn agents, ATF agents, FBI agents, sheriff’s deputies, police officers, the crime lab, tax, etc. They very rarely use civilians. Sometimes in civil litigation, the Department of Labor, Occupational Safety and Health Administration (OSHA) will reach out, but they have in the fireworks, particular experts they like working with. There was a criminal case of manslaughter case involving a fatality at a firework show where a crew member was killed. I worked for San Bernardino County. The prosecutor, the district attorney, did not have a pyrotechnic explosives expert company to testify in this area. So, they reached out to me, I reviewed the case, and agreed to testify for them. In California, every jurisdiction is different, you will learn. In Pennsylvania, they do not depose experts, you stand on your report. California has basically what they call a preliminary hearing. It is exactly like a trial without the jury, but you are in front of a judge, there is a direct examination, cross-examination, and you give testimony. These two licensed operators had been grossly negligent, and you wanted criminal standards. The standard for manslaughter is that the action was so negligent that a reasonable person could have foreseen that death would result. The two wanted to plead to reckless endangerment, a lesser criminal charge, or something else. The state wanted the idea that you killed somebody, manslaughter to be the charge. I testified at the preliminary hearing, and they pled guilty to manslaughter and that was the end of that case.
Then I went back and changed in NFPA 1123 code to make it clear even to the most limited person why what you did was wrong. It was a case where a child, Willie Calabrese, was killed. I changed the code and it took me 3 years to do it. I called it Willie’s Law, wrote the code, and I provided a copy of that 1123 edition for [mom] Janice Calabrese so that this is not going to happen again. Those are my limited experiences being a government witness in a criminal trial. Usually, in criminal matters, you are going to be retained by the defense. The government is going to use its employees, as I discussed in civil cases, they often have a fixed pool of experts they use. I have testified for state, federal, criminal, civil, etc.
Here are two things to ask. First, “Who do you testify for?” You do not want to get pigeonholed it can happen to you. For instance, sometimes in the fireworks world, insurance companies would say, “If you did a case against us. If you were ever a plaintiff case, we do not want to use you for defense.” I had an inquiry for a case in Georgia. I was perfectly confident, and happy to take the defense case, and the client said, “Our carrier will not let us use you because they say you are conflicted by having done a plaintiff’s case against a client insured by this carrier.” That was a surprise and then they pigeonholed me. My work in civil matters in the Med Malpractice side is 70% defense & 30% plaintiffs. In fireworks and explosives, it is about 60% defense and 40% plaintiffs. You do not want to get pigeonholed exclusively on one side or the other.
One of my sons asked me, “What are your favorite cases?” I said, “My favorite cases are where I have something useful to do,” The defense calls me and I say, “Okay, from my read, the plaintiff’s theory is not substantiated, but you are going to need an expert to help you defend.” Or a plaintiff case where, yes, an injury was done. Here I see the breach of code, but you are going to need an expert to help you. My least favorite cases are those where we wrap it up and are done. Where the defense retains me and I say, “Look, here is the breach of standard. The sooner and less expensively resolved this, the better. But if you want to argue, you can argue, but I am going to tell you what happened. Yes, the plaintiff’s theory of causation alleging a breach, not just a breach of code, but a breach that was proximately and causally related to the injury and can be established with certainty. Thank you. We are done.”
Here is a funny story. I had a plaintiff [attorney] call me, he wanted to retain me, and I said, “No. It was not defective fireworks. It was operator error.” This fellow breached safe operating procedure. He did it to himself. There is nothing defective. He thought the fire prematurely ignited. A few months later, this attorney had reached out to another expert, and who does not like to do forensic work. He sent the attorney back to me and said, “You ought to call Dr. Steinberg. He knows how to do this forensic stuff.” To the referring expert copying the attorney, I said, “Mr. So and So has already discussed the case with me, and he would like to find an expert with a different perspective.”
In the pyro explosives world, there is a small pool of people who are truly competent and willing to do forensic work. Many people can be experts, but many people find it is not to their liking. It is never a serial system. It can get a little testy. Many people like to say, “This is what happened,” but they do not want to undergo 3 hours of withering cross-examination. I just sat through a three- and half-hour deposition by opposing counsel last Wednesday and we were civil and cordial. But you are going to be held to justify what it is you are testifying about. You are not going to get a free pass. The other side is going to come at you hammer and tongue. They are going to try and impeach your credibility. When you are contacted as a forensic expert, the first thing you do is go, “Who are the parties? If you have a prior relationship in one of two areas with any of the parties, you have a conflict. For instance, if you have an ongoing business relationship with a fireworks company that is being sued and they want me to defend them, and I am an ongoing consultant for their training or procedures, I have a relationship with them that could be construed as biasing my opinion.
Another conflict is if anything, confidential has been divulged to you. I will not look at anything or let you talk about the case until you have retained me. A plaintiff’s lawyer could call me and say, “Look at this file and tell me what you think.” I look at it, then the defense calls and you say, “I would rather help you. I think you have got the better case, but now I have a conflict because I have seen privileged communication. I have discussed the details of the case and I have formed an opinion. “You do not want to be conflicts, so the first thing you establish before you tell me anything under your name, who are the parties in litigation, OK, if I don’t see any conflicts there, what’s the nature of the allegation if there are no conflicts and I’m competent? If you want to retain me, you can ask general questions, [such as], “What kind of cases have you done?” What is your expertise?” You do not look at any case materials or give any opinions until you have established that you have been retained.
Michelle Loux: If you are given very limited time to prepare for a case, do you have a system in place?
Dr. John Steinberg: I have had a fairly quiet year, which has been nice and relaxing. Generally, I am retained for 5 to 20 cases per year. I have anywhere from 10 to 25 active cases at any one time. Active just means they have not been resolved. When things get busy, I take a 5 x 8 card. I write the case caption, the name of each case, and the most immediate deadline expert report due by the deposition date. It is like being an air traffic controller where I have all these cases and I make sure I keep them queued in the proper order and land them all. Concerning urgent deadlines, as I told you, I just got retained in a case where they have to disclose experts by Monday, October 3rd and today is Monday, September 26th. You will learn all these terms. “What does disclosure mean?” That means all they have to do is say this is my expert, so the other side can check you out, research you, or whatever. You do not have to read any materials. You do not have to have an opinion. You will find there are deadlines for the disclosure of experts, which means you retain them for the preparation of a report. You have to review the case file for completing testimony at the deposition. That is what is called a scheduling order that is issued by the judge in negotiation with the litigants. When you are retained, you must ask, “Are any deadlines? I need to know if are there any scheduling weather constraints that will affect me?” You can ask about the size of the case. I got a call in a fireworks case and was retained by check and agreement in a case file on Friday. I reviewed and had a report written by Sunday, completed, and disclosed on Monday. I do not like working like that. In my retainer agreement, I have a clause that says if you require me to work over a weekend, or a holiday, or produce a work product in less than 21 days, a 50% premium to the established rate will apply. So, as I tell my kids, “What is your comfort factor?” My wife, Joyce, who passed away in 2017, once asked me when I was reading depositions, “Is that interesting?” I said, “Sweetheart, for $6 a minute, I will read the phone book.”
Michelle Loux: Right.
Dr. John Steinberg: So, what you do is you establish your worth. “Hey, what are you worth?” “What is the market?” Then the other is “Okay. You want it when?” There is a pain factor there, but if you give me a 50% increase in the rate. The pain is worth it and these are the kind of things you learn by doing it. My first expert case did not have that protection in there, but I added it for subsequent retainer agreements. There are some clauses in my retainer agreements, which I tell the people are defensive. I do not have to exercise them. I just told the attorney. Retain me today. I do not refund unused funds. That is a quirk for me. It is not necessarily standard, but I will work with you, so you do not leave a lot on the table. I work from a 10- hour retainer and I work against the retainer. Then you replenish it. If you tell me, you are getting ready to wrap up the case and if you have retained me and I have been through one retainer, maybe replenishment 10 hours at a time. 20 hours and I think we are about done. All right, I could agree if you have established some credibility with me. Then hold off from replenishing the retainer and just bill you for the hours actually worked. There are times with insurance carriers doing defense work where they will not do a retainer. They will only let you invoice for hours worked and then it is your call. It is a forensic expert. Do you want to work or not? I have learned over the years. Mostly, I get my way 85% of the time, but if you want to do this you have got to be a little bit relaxed. If the attorney does not have control when you are dealing with an insurer and doing defense work. Then you are going to have to live with the carrier’s requirements.
Michelle Loux: Yes, that is true. Let’s end this with one last story or comment about your career as an expert witness. Are there any big learning or aha moments that stand out for you? Was there an enjoyable case you worked on?
Dr. John Steinberg: Not so much, but I will give you a technique I advise forensic experts to adopt and then a funny story of testimony at trial. All my life, the technique I advise forensic experts to adopt is when lawyers ask you a multi-part question, they like to say, “You would agree with me.” Whenever a lawyer says, “You would agree with me” restate it. Do not let them put words in your mouth, particularly during a deposition, where you are creating testimonial records for introduction at trial. When a lawyer asks you a multi-part question like, “Dr. Steinberg, you would agree with me, A and you would agree with me B. So, C, and if you say yes, you have locked in A&B. So, whenever a lawyer gives me a multi-part question I say, “Sir, you have asked me 3 questions. With respect to A, I do not agree. With respect to B, I do not agree. Here is why. But yes, on C.” That final thing that they ask you is bait because they know you will agree with it. There, I agree with you. Whenever you are asked a multi-part question, break it down into components. Whenever a lawyer says, “Well, you would agree with me on that.” If it is totally obvious and you are comfortable, then say yes. Do not let them put the words in your mouth that are created as your record. When you would say, “I agree,” instead, restate it with, “Well, I would phrase it as follows” and then what you want to testify to.
Here is the funny story. I am testifying in a workers compensation case in a rural area of Maryland. We call it our lower Eastern Shore and I am the big city assistant professor from the medical school. A guy was suing his employer. He was drinking beer and smoking marijuana when he drove the company truck off the road and got injured. He wanted a workman’s compensation claim. His blood alcohol level was .22. He was positive for marijuana and beers were rolling around in the truck. He cannot show the work but he was going to the resort town called Ocean City, MD. This poor attorney decides he wants to impeach, which means to cast doubt upon your testimony or credible answer. When they say, “What are you charged? “Have you ever been sued?” No matter how embarrassing the question is, you go over this with your retaining counsel prior and answer truthfully. He says, “How much are you being paid for your testimony?” You answer, “I am being compensated for my time” or, you just say, “Yes, I am being compensated for my time.” “How much do you bill?” At the time it was $300.00 an hour. He is like, “You’re a member, a civil jury not working for $8.00 an hour. You are a professor from the medical school up in Baltimore, MD and do you charge $300.00 an hour?” And then he says, “And you charge that rate from the minute you leave your office to the minute you return.” I am thinking to myself, who invented what we call the portal-to-portal billing? So, I simply said, “Yes sir.” Then he says, “How much longer do you think that will be?” And I said, “Right up until you stop asking me questions.” And Bam! One of the jurors cracked up laughing. The lesson here is whenever they are laughing at your opponent, you have won. I cannot believe he asked that. Even the judge had to stifle a chuckle. You have these moments but answer truthfully. They mean it when they say, “The whole truth and nothing but the truth,” do not fudge. Do not shade. You are not trying the case. They ask a question. Answer it completely, but do not go astray. Do not keep yakking, talking, and answering more. You are going to learn if you are a forensic expert to carefully understand the question and answer it truthfully, fully, and completely, but no more. It is the lawyer’s job to ask you the questions. You are also not allowed to give expositions. You cannot get up and preach. You can only respond to a question. If there is something you want to get in the record that has not been asked, the attorney who retained you on what is called redirect or recross will ask that question.
So anyways, Michelle, it has been a lot of fun doing this podcast with you. To all the future fellow forensic experts out there, if you like this work, I think you will enjoy it as long as you do not mind working a little bit far afield of the law and learning the rules of the game you are playing. It is an excellent component to put a feather in your cap to be ranked as an expert where people appreciate your ability to provide technical expertise. It helps two parties in an adversarial situation come to a fair and equitable conclusion.
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Dr. John Steinberg is an expert witness in internal medicine, pyrotechnics, accident investigation, and more. A native of Baltimore, Maryland, who graduated from the McDonogh School as a National Merit Honors Finalist. Dr. Steinberg maintains a practice in General Internal Medicine, with emphasis on addiction medicine.
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