Expert Witnessing and Scientific Testimony - Surviving in The Courtroom

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Title Page
Kenneth S. Cohen
Expert Witnessing
and
Scientific Testimony
N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N•N
Surviving in the Courtroom
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Library of Congress Cataloging-in-Publication Data
Cohen, Kenneth S.
Expert witnessing and scientific testimony : surviving in the courtroom /
Kenneth S. Cohen.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-1-4200-5503-0 (alk. paper)
ISBN-10: 1-4200-5504-6 (alk. paper)
1. Evidence, Expert--United States. 2. Trial practice--United States. I. Title.
KF8961.C64 2007
347.73’67--dc22 2007006638
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Table of Contents
Preface............................................................................................................... ix
Acknowledgments ............................................................................................ xi
About the Author........................................................................................... xiii
1 Involvement in a Legal Action .............................. 1

Welcome to the World of Litigation! .............................................................. 1
How Did I Get Into This? ................................................................................ 2
I’m Not an Expert or a Witness....................................................................... 2
When Recognizing Errors and Omissions Is Your Job .................................. 3
Expert Witnessing ............................................................................................. 4
The Who ............................................................................................................ 7
The What and Where........................................................................................ 7
The When .......................................................................................................... 8
The How ............................................................................................................ 8
Witnesses’ Backgrounds ................................................................................... 9
2 Negligence ............................................................. 11
The Legal Definition of Negligence............................................................... 11
Professional Negligence .................................................................................. 11
Statutory Negligence....................................................................................... 13
Ignorance of the Law Is No Excuse............................................................... 14
3 Rules of Evidence and Codes of Civil

Procedure............................................................... 15
What You Need to Know................................................................................ 15
The Hearsay Rule ............................................................................................ 15
The Chain of Custody .................................................................................... 16
Hazardous Materials ....................................................................................... 17
Nondestructive Testing ................................................................................... 18
The Rape Evidence Collection Kit................................................................. 19
iii
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iv Expert Witnessing and Scientific Testimony
4 The Body of Scientific Literature ......................... 21

Libraries Are for Dinosaurs ........................................................................... 21
And Then There Was MEDLARS .................................................................. 22
CD-ROMS: Making Progress......................................................................... 22
The Internet .................................................................................................... 22
Too Much Information! ................................................................................. 23
5 Foundation Equals Persuasion.............................. 25

The Use of Demonstratives............................................................................ 25
The Weight of Testimony ............................................................................... 25
The Foundation of Knowledge ...................................................................... 27
Demonstratives ............................................................................................... 28
Models .................................................................................................... 28
Audiovisual Aids .................................................................................... 32
The Exponential Decay Curve ....................................................................... 33
Electron Microscopy....................................................................................... 33
6 The Expert Witness .............................................. 37

Who Qualifies? ................................................................................................ 37
Believing in Yourself ....................................................................................... 38
Witness Preparation........................................................................................ 39
The Invisible Expert........................................................................................ 40
The Truth Only Comes Out One Way .......................................................... 41
Now That I’m an Expert, What’s Next? ........................................................ 42
Who Do You Work For, the Defense or the Plaintiff? ................................. 43
7 Speaking the Language of Lawyers ...................... 45

Legal Language 101......................................................................................... 45
The Discovery Process .................................................................................... 45
Interrogatory Responses........................................................................ 46
Responsiveness to the Question..................................................................... 47
Anticipating Questions................................................................................... 48
Who ........................................................................................................ 48
What ....................................................................................................... 48
When....................................................................................................... 48
Where...................................................................................................... 49
Why......................................................................................................... 49
Attorney–Client Privilege ............................................................................... 50
Don’t Speak “Legalese” ................................................................................... 50
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Table of Contents v
8 To Do the Courtroom Dance, First Learn

the Steps................................................................ 51
Step 1: The Deposition................................................................................... 51
Step 2: The Mandatory Settlement Conference and the Motion
for Summary Judgment ............................................................................... 52
Step 3: The Trial.............................................................................................. 53
Jury Selection ......................................................................................... 53
Testifying ................................................................................................ 53
The Verdict ............................................................................................. 54
9 Skeletons in Your Closet ...................................... 57

Digging Up the Past........................................................................................ 57
Pretext: When the Line Is Crossed ................................................................ 58
Fee Questions .................................................................................................. 58
Finding a Few Skeletons Yourself .................................................................. 59
The Résumé: One of Your Best and Worst Tools ......................................... 59
Skeletons in Unlikely Places ........................................................................... 59
The Rehabilitation of an Expert Witness...................................................... 60
10 Impeachment Is Not Just for Presidents! ............ 63

The First Few Minutes of Cross-Examination ............................................. 63
Toward the End of Cross-Examination......................................................... 64
Don’t Underestimate the Jury........................................................................ 65
Impeachment .................................................................................................. 65
Recognizing Where Questions Are Leading ........................................ 65
A Justified Contradiction ...................................................................... 66
11 Criminal, Civil, and Workers’ Compensation

Cases ..................................................................... 67
Criminal Cases ............................................................................................... 67
Civil Cases ....................................................................................................... 68
Workers’ Compensation Cases....................................................................... 69
12 Toxic Torts in Retrospect..................................... 73

An Introduction to Toxic Torts...................................................................... 73
Medical Misdiagnosis ..................................................................................... 74
Compensation: It’s Not Just for Work Anymore.......................................... 75
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vi Expert Witnessing and Scientific Testimony
13 One Case Is Tragic; Two or More Cases Are

an Epidemic ........................................................... 77
Epidemiology .................................................................................................. 77
The Birth of a Lawsuit.................................................................................... 77
Prevention ....................................................................................................... 78
Risk .................................................................................................................. 78
The Dual Role of the Court........................................................................... 79
14 Professional Liability ............................................ 81

Even the Best Practitioners Can Be Sued!..................................................... 81
Professional Liability Insurance..................................................................... 82
Indemnification............................................................................................... 83
Multistate Operations............................................................................ 84
Hold-Harmless Agreements ........................................................................... 84
“Going Barefoot” with Limited Financial Assets.......................................... 85
Actionable Events and Activities.................................................................... 85
Scientific Accuracy, Completeness, and Documentation............................. 86
15 Out of the Ordinary: Investigations, Cases,

and Trials .............................................................. 89
The Abalone’s Revenge ................................................................................... 89
When and Where Did She Die?..................................................................... 91
Peepshow Problems ........................................................................................ 91
Fried Chicken Maggots................................................................................... 92
The Musician’s Exposure to Asbestos............................................................ 93
A Double Shotgun Death in the Back Country ........................................... 94
Glitch Number 1.................................................................................... 95
Glitch Number 2.................................................................................... 95
Dr. Tyndall, I Presume? .................................................................................. 96
Is That My Pubic Hair? .................................................................................. 97
Redwood Blues................................................................................................ 98
The Bull-Riding Roofer .................................................................................. 99
Don’t Shake My Hand .................................................................................. 101
The Lethality of Human Poop..................................................................... 102
Lipoid Pneumonia Doesn’t Mean “Fat Lungs”........................................... 103
16 Do You Charge for Your Testimony? No,

I Charge for My Time!........................................ 105
The Fee Structure.......................................................................................... 105
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Table of Contents vii
Contracts, Retention, and Consulting Agreements........................... 106

Retention .............................................................................................. 106
Hourly Fees .......................................................................................... 107
Unique Billing Situations .................................................................... 108
Fee Bases............................................................................................... 108
The Declaration of Fees ...................................................................... 109
Billing Practices.................................................................................... 109
Collecting Your Fees ............................................................................ 110
Pro Bono Work ............................................................................................. 110
Workers’ Compensation Reports ................................................................. 110
Travel and Other Expenses........................................................................... 111
Cancellation Fees .......................................................................................... 111
Privacy versus Disclosure ............................................................................. 112
17 Expert Witnesses: The Good, the Bad, and

the Ugly............................................................... 113
Trial Basics..................................................................................................... 114
The Good ...................................................................................................... 114
The Bad ......................................................................................................... 119
The Ugly ........................................................................................................ 132
Closing Argument......................................................................................... 137
18 Closing Arguments ............................................. 139

Potholes in the Road to Expert Witnessing ................................................ 142
Conclusions ................................................................................................... 142
Notes ............................................................................. 145
Litigation Glossary ....................................................... 151
Appendix A: California Code of Civil Procedure,

Section 2034 .................................................................. 159
Appendix B: Actual Case Report Examples ................. 169

B1: Gunderson v. A. W. Chesterton ............................................................... 169
B2: Moore v. American Honda ...................................................................... 171
B3: Horton v. Harwick Chemical Corporation ............................................. 178
B4: Willmar Poultry Company v. Carus Chemical Company ...................... 193
Appendix C: Forms and Other Data ............................ 203

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viii Expert Witnessing and Scientific Testimony
Appendix D: The Curriculum Vitae ............................ 217

D1: Curriculum Vitae of Kenneth S. Cohen............................................... 217
D2: Curriculum Vitae of Christopher E. Andreas...................................... 227
Index.............................................................................. 253
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Preface
I’ve been battered, I’ve been flattered, I’ve been bruised, I’ve been embar-
rassed, I’ve been bloodied, I’ve been thanked, I’ve been cajoled, I’ve been
attacked, I’ve been befriended, I’ve been accused of acting, I’ve been called
a charlatan, I’ve been called sneaky, I’ve been called a whore, but I’ve con-
tinued to survive as a paid expert witness.
Thirty years’ experience in both part-time and full-time litigation-support
activity has convinced me of the need to write this book. I’ve also run an
active safety and industrial hygiene consulting practice that actually prompted
the writing of this collection of helpful hints and observations. Also, this book
can serve as a guide for those who are inadvertently dragged into the legal
system or are professional expert witnesses. Although the preponderance of
examples is drawn from an expert witness practice heavily weighted by asbes-
tos cases, the information is applicable to other types of cases.
Involvement in legal issues, either as a percipient witness or expert wit-
ness,1 has many virtues, and just as many negative aspects. These can only
be learned by being involved and facing the challenges posed in actual cases
that involve you, or into which you become entangled. Each new case can
pose a learning experience regardless of how often the circumstance or inci-
dent has been examined previously. Finding and excavating that “smoking
gun” piece of evidence after tedious hours of case review brings satisfaction
far beyond any fees or hourly wage earned. Examining the actions—or inac-
tion—of both professionals and nonprofessionals in residential, commercial,
or industrial environments often serves as a lesson of what not to do in your
own activities.
The negative aspects aren’t the same for all those who have to be involved
in litigation or engage in expert-witness work. A key aspect of being a witness
is that you are fair game during cross-examination questioning. In a major
case, when suing for “big dollar” amounts, you can expect to have your life
history opened up like a road map, with all the detours and potholes pointed
out vividly to the jury. Cross-examination is grueling to some, an enjoyable
session of repartee to others. The tedium of long hours in deposition, during
which your fundamental beliefs are attacked to a point of abstraction, can
put off many professionals and nonprofessionals alike who would otherwise
ix
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x Expert Witnessing and Scientific Testimony
be excellent witnesses for either side of a complex litigation. A physician I

know who was tangentially involved in a medical-malpractice case referred
to his experience as “having an enema tube inserted in one ear and my brains
washed out of the other.”
The primary role of the expert witness is to make clear and simple, to
the trier of fact, a complex technical or scientific issue that would be normally
beyond their expected understanding. The primary role of a percipient wit-
ness is to tell the truth!
I’ve attempted to make this primer to the world of litigation an exercise
in enjoyable reading, spiced with actual cases, experiences, and pitfalls so that
some of the tension of not knowing will be dispersed. I hope it serves to
educate and clarify the mysteries of litigation for any of you who are willingly
or unwillingly drawn into it. If my weak attempts at humor fail to elicit even
a modicum of mirth, keep on going, as the other material is worth reading.
Although I make numerous efforts to explain the legal environment, I
am not an attorney, nor do I profess any legal skill beyond that which I have
acquired through osmosis in my years of trial and deposition witnessing.
This book is not intended to be a legal textbook nor to replace the advice of
local counsel regarding any applicable statutes or procedures that may apply
to you. The background I bring to the following observations and recom-
mendations is solely from battling the legal wars for many years—in some
cases losing, but most often winning. When you run with horses or swim
with fish, you don’t instantly become one, but you do eventually learn how
they move!
Throughout this book there will be legal or scientific words and phrases
that may be somewhat foreign to you and may need an explanation. Please
use the litigation glossary and/or notes at the back of the book to ferret out
these unknowns.
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Acknowledgments
I would like to acknowledge and thank the following contributors whose

comments, encouragement, and work have made this book what it is.
First and foremost, I thank my wife Karen for her patience, prompting,
endurance, and love, which have helped me to continue along the arduous
path of writing toward a finished manuscript.
Thanks are also due to Christopher Andreas, Esq., for his chapter herein
on the expert witnesses he has faced in a successful and active trial practice
on asbestos toxic torts. Examples of his trial successes can be found in Appen-
dix D.
I thank my daughter Cara Cohen Haberman, M.D.; my friend Jane Vil-
larreal; and my sister Charlotte Meyers for their editorial patience in their
reviews of the first draft of this book, and a special thanks goes to Colleen
Mallen for her work on the polishing of my spelling and grammatical faux pas.
I owe my thanks to Mel Hovell, Ph.D.; Keith Liker, Esq.; and Enrique
Medina, CIH, for their editorial skills, and the constructive criticism and
encouragement that helped to prepare this guide for others who follow in my
footsteps as a litigation witness or the subject of a lawsuit. And last, but not
least, I thank the many other friends and relatives who read bits and pieces
of the manuscript and offered constructive as well as critical commentary.
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About the Author
Kenneth S. Cohen was born in 1937 and was raised and educated primarily
in the Los Angeles, CA area before joining the U.S. Navy in 1959. The Navy
sent him to pharmacy school, after which he worked as a dispensing and
manufacturing pharmacist at San Diego’s Balboa Naval Hospital for two and
one half years. After being honorably discharged in 1963, he returned to San
Diego State University to complete a bachelor’s of science in microbiology
in 1965. He entered a two-year master’s program in biology, completed all
the course work, did the required research, and wrote several drafts of a
thesis, but had to withdraw before completing the degree due to work and
family necessity. He sought closure on his education by seeking an off-
campus degree, nine years later, from California Western University and was
awarded the Ph.D. in occupational health in 1976.
He participated in clinical-pathology research work for the National
Cancer Institute at the San Diego Zoo, followed by starting his own micro-
biological media and clinical chemical reagent manufacturing business. He
subsequently developed an active 30-year-long consulting practice in the field
of industrial safety and health. He has held numerous paramedical licenses
with the state of California, registration as a California professional engineer
in safety, and certification in the comprehensive practice of industrial hygiene
from the American Board of Industrial Hygiene. He is semiretired from a
30-plus-year active practice of industrial safety and health and currently only
performs litigation support work.
His last employment, and subsequent pensioned retirement, was with
the state of California (Cal/OSHA) in 1998. He has been court qualified since
1974 as an expert witness in jurisdictions across the United States and has
given testimony in nearly 1000 depositions and more than 500 court trials
in jurisdictions scattered around the United States.
He is married and resides in the suburbs of San Diego County with his
wife, and enjoys his four children and five grandchildren.
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Involvement in a
Legal Action 1
Welcome to the World of Litigation!

What went wrong, or what did I do wrong? Why is there a lawsuit, and why
am I being involved or sued? Why would I be called upon to be a witness in
this or any other legal matter? Did I see something special that others didn’t,
or do I know something unique to this action? Do I know something about
the disputed issue that I’m not aware of, but others are? These are all questions
that run wildly through your mind when, on an otherwise calm Friday night,
at home around 9:30 in the evening, the door bell rings, and a somewhat
burly looking man is unrecognized through the peephole in the front door
and is holding an official-looking sheaf of papers on a clipboard while sport-
ing an even more official-looking sheriff ’s badge pinned to his chest. He
identifies himself as an off-duty sheriff, “and I have something for you!” You
cautiously open the door, and he hands you the papers and says, “You’ve
been served; have a good evening!”
The night is young, but who can you call at ten o’clock on a Friday
evening? You attempt to read what is contained on the papers, but all you
see is YOU ARE COMMANDED TO APPEAR. The knot in your stomach
begins to tighten, and your involvement in the litigation process has begun.
You know a few attorneys, some as friends and a few in a professional sense,
but you’re not sure that one would be willing or able to offer suggestions as
you approach the witching hour of midnight. You barely sleep that night,
and the balance of the restless weekend is flawed by making lists for what
actions will be taken the coming Monday morning. Welcome to the world
of litigation!
1
2 Expert Witnessing and Scientific Testimony
The emotional response to receipt of a subpoena will change over time

if you’re not a percipient witness but are planning on a career as an expert
witness. Eventually it will just become a rare but foreseeable indication of a
forthcoming deposition or trial. It always surprises the local process servers
when we greet them with a smile and a thank you.
A lawsuit can have meager beginnings, and yet blossom into something
so engulfing as to have a life of its own. Once entangled in this web, any help
laid out in the following chapters can hopefully serve as a flotation ring to
your drowning self-confidence and partially fend off the legal demons who
plague your dreams.
How Did I Get Into This?

To begin, let us explore how things can and will go wrong, potentially getting
you into this elevated state of litigation anxiety. You believe you are a rea-
sonably normal person with general awareness and conscience regarding the
conditions at work, play, and home. Could you have missed something you
should have seen that was interpreted to mean you were negligent in your
duty to someone or something? Could you have sold or recommended some-
thing that failed and caused injury or damage to someone? Could you have
failed to respond or make a call for help for someone in need, such that your
omission would have made a major difference in their health or welfare? Or
are you merely someone trained and experienced in a special area of expertise
that would aid in the understanding of a complex incident that is now the
subject of litigation?
We live in an ever-increasingly litigious world, surrounded by self-inter-
ests vying for a piece of us and some degree of retribution, and often we are
totally unaware of what we could have, or should have, done differently. This
fire is fanned by a burgeoning population of lawyers, cranked out of the law-
school machine, in ratios of lawyer-to-population numbers beyond our
imagination. We also train, study, and work in jobs that often give us a unique
perspective on how something might have been done better, safer, or with
the avoidance of the subject consequences. If so, we may be sought out to
testify in the ever-intimidating environment of the courtroom.
I’m Not an Expert or a Witness

When performing your normal job—say, as a scientist, professional, or super-
visor directed to perform routine audits of someone else’s job, for whichever
side of an issue you are working on—one of your primary tasks may be
defined as a duty to anticipate, recognize, evaluate, document, advise, and
Involvement in a Legal Action 3
potentially control errors, processes, or omissions that might cause harm or

injury to another. These conditions could be due to obvious or occult hazards,
of your own design or the expectations of others. These hazards can lurk in
a residential location, an industrial setting, or the general environment. When
you function reasonably and do your job properly, you fulfill your designated
and compensated “duty” but also an implied duty to protect your fellow
workers, society, and the environment from reasonably foreseeable risk and
hazard that are readily obvious or deviously occult.
When Recognizing Errors and Omissions Is Your Job

As you do your job and conduct your life, you typically absorb training and
experience, and find yourself repeatedly called upon to express opinions on
various situations or conditions. You cite your education, training, and expe-
rience, which should have prepared and alerted you to any conditions that
potentially or actually could pose a threat to someone or to the environment.
You may not consider yourself to be an “expert,” as the humble person you
believe yourself to be, but others may not view you so lightly. The impact of
this expert challenge is intensified in the workplace environment, where lies
a statutory assumption of a safe and healthful workplace. But where you live
and play can also carry obligations requiring moral duties established by
society. Statutory regulations governing safety and health in the workplace
have existed since the late 1930s and will be discussed in subsequent chapters
in more detail.
For example, if you are an employer or in a supervisory position acting
as an agent of the employer and you allow workers to cut furniture parts on
unguarded table saws that handily remove worker fingers, you may be found
negligent by breaching a recognized duty to assure those workers of a safe
workplace free of potential injury. You may also be statutorily negligent by
allowing those workers to perform their duties in noncompliance with stat-
utory worker-safety laws. When and if an amputation takes place by that
unforgiving table saw, you will find yourself answering the door and accepting
papers accusing you of numerous and heinous acts.
Let’s say you have met an associate for lunch at a posh downtown res-
taurant, and during dessert you observe a waiter being attacked by an irate
customer, and then you quietly continue finishing dessert. Two years later,
the Friday-night subpoena calls you to deposition as a witness in an assault
case being brought in superior court. You think back and wonder how anyone
knew you were even there. It later becomes clear that the waiter collected all
the credit-card receipts from the time of the attack and assumed all were
witnesses to the incident. We seldom are aware of the trail of bread crumbs
we leave during the course and interactions of our lives.
Expert Witnessing
As a recognized professional in your area of practice, you may desire to serve
as an expert witness in those cases where your training and experience can
make a difference. It should also be noted that expert witnesses do not work
for free in most cases. It is somewhat of a surprise to academics, when they
enter the world of litigation, to discover that their compensation as witnesses
far exceeds their university salaries. (Fee structures are discussed in more
detail in chapter 17). When the decision is made to offer yourself to legal
community, or when you are sought out by a lawyer who is in need of your
services, the following chapters should prepare you for your perilous but
rewarding journey.
It serves well to remember that the expert witness is expected to be, and
should always be, an objective party to the lawsuit and never function as an
advocate for one side or the other. It becomes immediately transparent to
the judge and jury, as well as everyone else within earshot, when the witness
so wants to drive home his point as to begin arguing with cross-examining
counsel; you are there to explain complicated scientific issues, not to influ-
ence the listener with your fervor! This concept of objectivity becomes
clouded when your expertise is being paid for by the company you work for
and owe your allegiance to. If you’ve been a trusted employee of XYZ Man-
ufacturing for the last 30 years and are now receiving pension benefits, why
would you jeopardize this relationship by revealing the company’s dirty little
secrets? Be careful how you are defined and who is looked upon as your
“mentor.” One of the advantages of being an independent consultant is the
separation of allegiance from objectivity. Beware of your personal biases
which may follow you!
As an expert witness you can be requested to evaluate potential problems,
defects, deficiencies, or errors. This can only be accomplished when you are
able to fully appreciate a process, product, or system. Any system or product
with potentially damaging defects, deficiencies, errors, or omissions that
could cause harm may only become understood by you as a professional or
nonprofessional when armed with a thorough overview of the process or
practice under investigation. If asked to opine on a case of pustular dermatitis
in dairy workers, or multiple finger amputations at a manufacturing opera-
tion, it is incumbent on you as the investigator to either know or become
familiar with the processes involved. You are obligated to study these process
steps and interactions prior to beginning your survey, or postpone the assign-
ment prior to potentially missing the target due to your own lack of under-
standing of specific conditions. Process means, simply, that when investigating
a dairy or machining operation, you should understand the various aspects
and components of that operation. When your actions are viewed through
the clarity of 20-20 hindsight, it may become instantly obvious that you may
have undertaken the survey (1) having never seen a dairy or even a cow up
close; (2) hoping to learn the machinery operation on the site but with no
prior understanding of point-of-operation guarding; or (3) there are any
combination of excuses that will leave you less than prepared. In order to
make a jury understand the process that a dairy worker goes through, you
must first understand it yourself. For some this can be the fun or the not-
so-fun part of being an expert witness: the undertaking of an investigation.
Investigating a dairy farm may mean getting eye-to-eye with an udder or
putting on your boots to sludge through piles of cow manure.
With the assumption that you do come to the witness stand with all the
preparation required for a competent evaluation of the process and opinions
formulated on the issues you’ve been asked to address, you should first seek
to establish what the designated process of the dairy or factory is, and if it is
being operated as designed. What errors or omissions may have given rise to
the pustular dermatitis or finger amputation that would have been avoided
if the process was performed as designed or as it should have been designed?
These questions typically form the basis of your evaluation, opinions, and
projected control methodology.
The same inquiry process is involved when retrospectively evaluating a
damage claim that has risen to the intensity of a legal action. The major
difference, and primary difficulty of litigation support work, is that you no
longer have a real-time opportunity to collect evidence and gather facts as
they occur. Most ongoing cases that may require the litigation expertise of
the scientist, safety, or health professional have occurred months to years in
the past, and the gathering of accurate information depends on time-weak-
ened memories, missing or partially intact evidence, or an organization’s
documentation-retention policy that has long since expired. A finding that
all company records have been purged is not uncommon when litigating
past injuries. If you are the one called upon to relate the actual conditions
of the event in question, as you were present at the time of the injury, the
same time-weakened memory problems may apply to your own recollec-
tions as well.
When presented with the challenge of litigation involvement, or second-
arily working on a case in which you believe you are informed enough to
offer a level of help, you have passed the first hurdle! Open and frank dis-
cussions with legal counsel who involves or hires you regarding the case facts
and your honest assessment of your ability to claim expertise in the area in
question is a primary responsibility before agreeing to or taking on a litigation
assignment. Credibility is your most important asset, and bluffing your way
partially through a case, only to be found out later that your background
and experience were insufficient and misleading to either party, will be an
embarrassment and rebuke that may involve monetary sanctions or end your
expert-witness career forever.
All right, you are committed to the case; the attorney has assessed your
scope of involvement or credentials and feels you have what it takes to
successfully approach the project. The next thing you know, a 20-pound,
overnight-express box appears at your door filled with company records,
deposition transcripts, medical reports, or other documents that “look legal”
but have very little meaning to you at this point. Luckily, you will find a letter
from your attorney/client that outlines the nature of your involvement in the
case, and what questions you are expected to answer. This “yellow brick road”
is, you hope, the tool that will guide you through the maze of paper and
focus your attention on the most critical issues at hand. This case, for exam-
ple, might involve a crushed hand and finger amputation on a transit-mix-
concrete truck driver incurred while he was inspecting the condition of his
rotating-drum load. A pleasant surprise is finding a bundle of photos in the
box, taken at the accident scene by a field investigator of the “allegedly
unaltered” subject truck shortly after the accident. Now your retrospective
accident investigation can begin. You have the photos, the sworn deposition
of the driver describing the circumstances surrounding the accident, an engi-
neering report of the truck manufacturer’s “person most knowledgeable,” 1
the treating surgeon’s contemporaneous history of the accident taken from
the driver in the emergency room, and the deposition testimony of two
coworker witnesses. You now have everything you needed to start a “virtual”
safety survey in the comfort of your own office, with the ability to seek out
any design or procedural errors, design omissions, and statutory infractions
that may apply and that were, “more likely than not,” complicit in causing
the accident.2 The same tasks that you would set out to perform for an
assignment on something happening currently can be done in litigation
retrospectively by merely applying the scientific method to the historical
records provided.3 This concept of 20-20 hindsight has a modicum of advan-
tage over real-time investigations. This is in part due to the distractions of
real-time care for the injured party as well as any personal biases in the
circumstances or nature of your involvement with the situation. Many
employers are predisposed toward blaming the injured worker because she
caused the accident by doing something she should not have done. This is
contradicted in a safety-emphasizing environment by protective safety rules
and procedures designed to prevent just those kinds of accidents. The reality
of a manufacturing company in today’s competitive market is that manage-
ment often emphasizes work productivity over workplace safety. However,
when an accident does occur, management frequently completes a safety
evaluation, laced with denial of responsibility, that points to the safety pro-
cedures the worker overlooked (even if they were overlooked due to unavail-
ability) and thus blame is placed on the worker. When you are actually a
party to an action, it is often difficult to remain objective or separate yourself
from the reality of what should be done from what is being done. This is a
far easier task when done in retrospect.
The Who
Learn to identify the players. These include the victim, witnesses, supervisor,
design engineers, owners or landlords, outside influencing parties, and
governmental agents. Make an outline list of everyone who may have some
degree of participation in or influence over the subject incident. Detail the
role that each could have or did have in the culmination of the incident or
associated injury process. In the language of the industrial-safety profes-
sional, this is called a job-safety analysis and is often used to characterize
all of the various risk involvements that workers had, have, or will have
during their employment.
One personal practice I have adopted is the taking of computerized notes
as I read documents in a case. I call these my case notes, which are my personal
reading highlights or reading milestones. They are presented to my attorney-
client so that they may be served on the opposing side prior to giving dep-
osition testimony. I seldom put a handwritten note in the case file as I
generally forget where I wrote the note and for what purpose it was intended.
(I also have difficulty reading my own horrible handwriting.) Writing com-
puter-generated case notes is a simple task with a computer word processor
that has an “outline” mode: After completion of notes, the program will
number the items in a descending hierarchy that can be “keyword” searched
for ease of retrieval later on.
The What and Where

You should next gather all of the physical conditions that may have existed
at the time of the incident. Consider the room, the space, the compartment,
the area, the building, the climate, and the geography. Paint a mental picture
of the dimensions, access/egress, characteristics, and mechanical processes
or systems involved. Finally search for any other physical parameters that
may complicate or exonerate the causal elements of your reconstruction. A
classic example for the need of this data is that the aerodynamics of a dust
aerosol are greatly affected by humidity. If a dust sampling were taken on a
very humid or rainy day, there would be little question that the results would
have been misleadingly understated. This would be of particular importance
if the monitoring site was located in a region that had only five to ten days
of rain per year. Attention to small detail can serve you well.
The When
Timing is everything, particularly when retrospectively assessing conditions
and control of an incident. You should establish an exact time and date of
the incident, to the best level of precision available. Were any governmental
statutory or consensus regulations in effect, or pending, at the time of the
incident that would play a role in how the incident should have been con-
trolled? A major factor that can influence the outcome of a litigation is the
question of how long before the incident the accused defendant knew—or
should have known—better. One of the simplest ways to establish that stat-
utory law or consensus standards were in effect (and thus violated) is by
citing that they had been in effect for, say, 40-plus years before the incident
(as in the case of the California Safety Orders), or other government regu-
lations. The American National Standards Institute or American Society of
Mechanical Engineers standards are consensus requirements that have been
around for many years.
A direct example exists in the areas of asbestos and toxic-substance tort
litigation. In California and in many other states, laws have been on the books
regulating hazardous materials in the workplace. California’s General Indus-
try Safety Orders have identified asbestos and other chemicals or physical
agents as hazardous materials since the early 1940s and listed maximum
allowable concentrations of asbestos in workroom air at five million particles
per cubic foot (MPPCF).4 This regulation puts employers and others on
notice that compliance with these orders requires some degree of monitoring
in the workplace to validate being below the five-MPPCF level of exposure.
Absent such testing, a breach of statutory law may often be per se evidence
of negligence on the part of the employer.5 This can also place manufacturers,
distributors, sellers, and retailers of asbestos-containing materials on notice
that reasonable prudence and potential liability protection dictates they also
test their products in the hands of the “reasonably foreseeable user” to verify
that handling or working with them does not lead to the release of respirable
asbestos-fiber bundles in excess of the five-MPPCF limit.
The How
By all witness accounts, or in the absence of direct witness verification, how
did the incident take place? When no case-specific witness testimony is
available, you may have to rely on personal training or experience that can
contribute to the knowledge base in support of your opinions. Court or jury

opinions are rendered as judgments, which are dependant on evidence and
expert opinions given at deposition or trial. Only a court-qualified expert
witness, under rules of legal procedure, is allowed to render or express
“opinions.” The opinions of an expert witness are given based upon a high
degree of scientific, medical, or technical certainty and on the training,
education, or experience of the expert. The expert witness is therefore
allowed to use, as a foundation for his opinions, all of the acknowledged
facts of the case, sworn testimony or interrogatory responses, or anything
from the expert’s prior experience or studies. One additional aspect of what
an expert can rely on is hearsay. When the custom and practice of an expert
involves questioning, interviewing, or interrogating individuals as part of a
fact-gathering professional practice, that type of information can be used
as foundation for opinions.
Prior to an asbestos trial, if given the opportunity to talk with the plaintiff
and discuss the actual circumstances of his work, I can then use the infor-
mation from that conversation as the basis for some of my opinions. Such
information is not always available, however, due to the fact that many of
the cases that come to trial no longer have a living plaintiff as the subject of
the lawsuit.
Case materials being reviewed may also contain reports of other experts
who have evaluated your own or their own aspects of the incident and
tendered their opinions for all to read as well. Many trials involving highly
technical issues are often referred to as “battles of the experts.” All of the
above pieces of evidence must be distilled to a point of focus called causation.6
When the cause is examined and defined, the “trier of fact” (either the judge
or jury) can then determine liability and render a decision or judgment in
the form of monetary damages or other appropriate orders in favor of the
prevailing parties.
Witnesses’ Backgrounds
This process of evaluation and distillation of evidentiary materials comes
both from the experiences of percipient witnesses and the detailed work of
expert witnesses. This evidence can directly affect the outcome of a litigation
verdict and subsequent judgment by the court. The best that any witness can
hope to do is tell the truth about her specific aspect of the case in a manner
that will aid her client and do so in a manner that allows those in judgment
to make sense of the testimony. The background and experience that the
expert brings to the case often means the difference between victory and
defeat. As with asbestos cases, the abandoned use of asbestos-containing
materials leads to fewer and fewer individuals who have experience with such
products or materials and can later become the experts for a future genera-
tion. The long latency period for the induction of asbestos-disease projects
trial dates far into the future. In the field of industrial hygiene, many of the
newer university graduates have historical knowledge of asbestos but may
never have seen examples of such knowledge outside of the classroom.
If after hearing all the pluses and minuses of expert witnessing you still
desire to enter or continue in this stimulating and ever-changing field, the
balance of this book is dedicated to you. Read on through the numerous
potholes in the road of what I consider a very successful expert-witness
practice of more than 30 years.
Negligence
2
The Legal Definition of Negligence
Most legal issues surround the concept of one party or the other acting in a
manner that can only be described as negligent. Negligence can result in all
types of accidents causing physical and/or property damage, but can also
include business errors and miscalculations such as sloppy engineering cal-
culations. There are many forms of negligence—professional, legal, and as
many types as there are professions. I’m sure that I, as a nonlawyer, am not
aware of even a fraction of the types of potential negligence that can be
alleged, but I will mention the two that are most often encountered in
professional litigation involvement or support.
A simple lay definition of negligence in the legal arena is “you knew, or
should have known, what was correct to prevent or avoid the harm or damage
created by inaction or omission and failed to do so.” A more accurate legal
definition is “the violation of a legal duty that one person owes to another to
care for the safety of that person or that person’s property.” As a nonlawyer (“I’m
not actually a lawyer, I only play one on television!”) the following are the forms
of negligence upon which I have been called to testify as an expert witness.
Professional Negligence
A professional is an individual, who by virtue of training, education, affili-
ation, or experience, holds himself out to be uniquely skilled in his ability
to perform specialized tasks reserved for that profession. It is worth noting
that someone may be functioning as a professional but may be unaware that
he is governed by the rules of his adopted profession. Malpractice by a
professional can be based on negligence, misconduct, lack of ordinary skill,
11
or breach of duty in the performance of a professional service and thus

results in loss or injury. In a malpractice lawsuit the plaintiff must usually
demonstrate failure by the professional to perform according to the field’s
accepted standards. Physicians, lawyers, accountants, architects, industrial
hygienists, and safety engineers have increasingly been subject to malpractice
suits in this country, thus leading to a dramatic increase in malpractice-
insurance rates.1
The applicable standard of care by which a scientific professional is gen-
erally judged is what’s known more accurately as the standard of care in the
professional community of other professionals. If a surgeon performs an
operation on a patient’s infected left leg but amputates the right leg instead,
a court would need to hear from another surgeon that such a practice was
not up to the standard of care in the community of surgeons. If a plant-safety
engineer allows workers to breathe silica dust while sandblasting in an unpro-
tected manner, this too will be judged against what would be the standard
of care in the community of safety-engineering professionals.
Suing doctors may have a direct financial benefit due to the levels of
malpractice insurance they carry, but suing company safety and health pro-
fessionals can serve a different purpose. If an attorney desires information
that only an “insider” to the company might reveal, who better to extract
that information from than the plant safety and health professional as a party
to the lawsuit? The safety and health professional, more likely than not, knows
where all the skeletons are buried. When you sue the company safety and
health person individually for professional negligence, you indirectly sue the
company under the recognized legal doctrine of respondeat superior.2 When
being sued, the cry from the lowly employee is, “Why sue me? My car is old,
my house is mortgaged to the hilt, and my retirement is borrowed against.
After all, you can’t get blood out of stone!” The cunning lawyer, twirling his
waxed mustache, might say, “Tell me all you know about the company’s safety
practices, and I’ll dismiss the lawsuit!” (It’s not that this scenario would ever
actually happen, but it’s reasonable to consider the possibility!)
Lawyers even get sued! I served as an expert in two legal malpractice cases
alleging negligence on the part of attorneys who failed to perform their “duty”
to their clients. In these cases the attorneys, who were the professionals, were
being held to the standard of the bar of the state in which they practiced law.
In both cases the attorneys were accused of being negligent by virtue of their
failing to appropriately serve their clients in a reasonable manner.
One case was an industrial-amputation accident where the statute of
limitation was allowed to expire,3 and the attorney had not followed through
with all of the paperwork needed to file the case with the court in a timely
manner. This was essentially a “slam dunk” case that was misplaced under
piles of other cases and never brought to trial. When the underlying case
Negligence 13
went to trial as a legal-malpractice action, it was won, and the malpractice

judgment was entered against the attorney and in favor of the lawyer’s client,
the plaintiff.
The trying of the underlying case is undertaken as if it were an active
lawsuit, but against “phantom” defendants who are not represented in the
action. This type of trial is very atypical in both appearance and the rules
that are followed due to the absence of real, participating defendants. In
these situations it is often very easy to obtain discovery information from
the phantom defendants, as they have very little to lose in the event of a
plaintiff ’s verdict.
The other case was an oil mist case in which a workers’ compensation
attorney reviewed the case and said there was not merit in taking it to civil
court. The worker subsequently developed more severe pulmonary-disease
complications and brought an action against the workers-compensation
attorney. The basis of this lawsuit was that the workers’ compensation award
could in no way cover the enormous medical costs of his medical condition.
The disease he had, lipoid pneumonia, was a result of the tool he used at
work, which by design sprayed oil mist into his breathing zone while also
lubricating the tool. The manufacturer of the tool gladly provided discovery
information, as it was not the subject of the lawsuit.
Statutory Negligence
Simply put, if someone or some entity violates or had violated a regulatory
statute, ordinance, or law, this violation can serve as evidence of negligence
per se, or statutory negligence.4 Negligence of this sort can arise from a vio-
lation of a statute that creates a public or private duty by declaring that certain
requirements must be followed or that certain acts must not be performed.
By enacting such a law, the legislature has determined the appropriate stan-
dard of care to which an individual’s conduct must conform; thus, conduct
that violates the requirements of such a statute usually constitutes negligence.
An example of this would be a building-code requirement to build a house
with vapor barriers between the concrete slab and the floor. If the contractor
builds the house without the vapor barrier, and there is water intrusion that
fosters toxic-mold growth, the injury and illness caused to occupants would
be considered statutory negligence because it constitutes a violation of the
building code.
Professional organizations can also create standards of care that are duties
of obligation to all professionals within that category. Lawyers have a duty
not to unreasonably abandon a client. Physicians have a duty to keep patient
privacy information secure. Engineers have a duty to make their calculations
in bound field notebooks that are thus permanent records. These are often
considered consensus standards generated by professional organizations and
in many cases are adopted by governmental bodies and incorporated into law.
In California, the General Industry Safety Orders have existed since the
early 1940s, and have had statutory requirement for approximately 400
hazardous substances, including asbestos. If, in the 1950s, a company knew
that its employees were working with asbestos-containing materials and
made no attempt to monitor whether exposures exceeded the then five
million particles per cubic foot (MPPCF) regulatory-mandated standard, 5
a serious and willful action could today be brought by an asbestos-exposed
and diseased worker of that employer in workers’ compensation court and
in so doing could bring a doubling of the award under the statutory-negli-
gence provision. This published governmental standard can also be used in
civil actions by establishing when it should have been known that a material
was hazardous.
Ignorance of the Law Is No Excuse

We’ve all lived with the phrase “ignorance of the law is no excuse,” yet not
everyone has the desire or ability to keep up with all of the statutory or
contractual requirements of running a business, living in a neighborhood,
or even belonging to a homeowner’s association. Many laws exist on the
books that are never prosecuted. In some jurisdictions spitting on the street
is a crime, yet few citizens are jailed for these offenses. The expert witness
will often find herself embroiled in the “When should they have known?”
debate based on when a rule, regulation, or published warning appeared in
the general stream of information available to the accused—which is not as
straightforward as it seems. The extent of one’s personal library resources
can be a determinant in your value to the attorney-client when the negligence
dragon raises its many Gorgonlike heads!
Rules of Evidence
and Codes of
Civil Procedure
3
What You Need to Know

This chapter will be short because the complex rules of evidence and codes
of civil procedure are necessary for the attorneys to know, but only guide
you as needed. What follow here, then, are some key concepts. Any rules or
codes that apply to your involvement in a case will more likely than not be
spelled out in case documents or provided to you by your lawyer or client.
If they are not, and you do not follow these rules, your testimony at trial may
be foreshortened or, at worst, may be stricken from the record! Good com-
munications between lawyer and expert witness can’t be stressed enough,
regardless of either’s level of trial experience.
The judge in the courtroom is king or queen of all that he or she surveys!
With few exceptions, the progression of a legal case, from inception to verdict,
will follow the strict guidelines of rules and codes set down over years of legal
conflict. These rules and codes have evolved over years of court decisions
coming down, in part, from English common law and through the American
court system.
The Hearsay Rule

One important rule that particularly applies differently to the percipient and
the expert witness is called the hearsay rule. Generally, a percipient witness
tells what she actually knows about a case based upon firsthand knowledge
of events, and no more. She may not give opinions nor conjecture regarding
15
a hypothetical set of conditions. However, the court often allows an expert

to testify about issues that may not be personally known by them, as an
exception to the hearsay rule. Hearsay is basically secondhand information.
This allows the expert to rely upon scientific articles, discussions with col-
leagues on the subject, testimony read in preparation for testimony in the
case, and similar pieces of information not personally known to the expert.
The origin of the hearsay rule arose out of English common law and the
case of Sir Walter Raleigh being tried for treason against the crown. His guilt
was predicated upon testimony that someone else heard him saying that he
would slit the king’s throat. This rule in essence banned hearsay testimony
because it was not the direct and personal knowledge of the witness, as it
was based on out-of-court statements overheard by someone else who then
used those unreliable statements as a basis to try and convict Sir Walter
Raleigh of treason.
The section of the California Code of Civil Procedure related to expert
witnesses (§2034) appears in Appendix A in order to offer some insight as
to the complexity of these codes. These codes are ever-evolving due to court
rulings and appellate decisions challenging prior rules or decisions. Lawyers’
shelves are virtually wallpapered with rows of books covering the rules and
codes applying solely to their area of legal specialty.
One example of what happens when rules of evidence are not followed
is the case of a novitiate trial attorney who was trying his first asbestos case
in San Francisco Superior Court. (This attorney had settled close to 200 cases
without ever going to trial; this was his first trial ever, and it showed!) I was
faced with the task of giving industrial-hygiene testimony regarding the
plaintiff ’s exposure to asbestos-containing materials. Prior to trial, the attor-
ney told me, “You should throw some slides together as an introduction to
asbestos for the jury.” I did that by taking slides from a variety of commercial
presentations on asbestos. The day of the trial the slides were projected on a
screen, one by one, and each was objected to on the basis of hearsay! Every
objection by opposing counsel was sustained, and I went home with almost
no testimony given and my attorney-client with much egg on his face. The
attorney failed to lay appropriate evidentiary foundation as to who took the
slides and how their validity was identified, so the hearsay objections were
sustained by the court.
The Chain of Custody

A rule of evidence that is particularly important to experts relates to the
handling of physical evidence. During the course of an investigation or case
evaluation, you may be asked to examine an item that has a pivotal role in
Rules of Evidence and Codes of Civil Procedure 17
the case. Examples might be a weapon, photos taken at an accident scene, a

metal part alleged to be fatigued and cracking, or an aluminum stepladder
that collapsed under the weight of an injured man. When these items come
to you, they should be accompanied by a form called a “chain of custody”
document (for an example, see Appendix C). This form should contain the
item description, the time and date of release for all prior custodians of that
item, and a time and date of release to you through a certified courier who
transported the item in a manner that would not alter its state or condition
(i.e., a box, container, wrapping, etc.).
If the originality or condition of the subject item is questioned, each and
every signatory in the chain of custody will be called to testify or give dec-
laration as to the integrity of the item while in their custody. This becomes
far more important when the evidentiary item is alleged to have been tam-
pered with. Therefore, it is important for an expert witnesses to maintain
some form of evidence locker at his or her place of business that is secure
from any outside access. For this reason, I have for years maintained not only
a locked cabinet where evidence is stored, but a secure building with limited
personnel access and a monitored security system on the building. These
levels of protection have served me well when challenged in the courtroom
with the question, “And how do you know that this electrical switch has not
been altered or changed prior to our expert examining it?” I merely restate
my precautionary measures related to chain of custody, and the substantive
testimony continues!
An evidentiary procedure I learned while doing criminal-litigation sup-
port work was to sign or initial any piece of evidence that went through
my possession. I place my initials on the item itself, when it is possible to
find an inconspicuous and nonrelevant location on the item, and on the
packaging that may contain the item. When the item is not one that would
allow for direct markings, I have used tags, stickers, or similar attachment
devices that identify my handling of the object. Simple outer packaging for
small objects are heavy-thickness, locking freezer bags of varying sizes. Once
bagged these objects can be sealed with strapping tape to ensure the con-
tent’s integrity. This allows transparency as well as the ability to mark it for
future identification.
Hazardous Materials
Items that are of a hazardous nature are generally frowned upon when
brought into the courtroom in an unprotected fashion. This is particularly
true with items such as weapons, samples of bodily tissue, or hazardous
materials such as asbestos. When bringing a representative sample of asbestos
into the courtroom, in order to illustrate some property to the jury, I will
typically double-bag the item so as to provide a minimum of two redundant
layers of protection in the inadvertent chance of the outer layer opening.
In one courtroom presentation, I was asked to describe a Lucite cylinder
that contained a section of thermal asbestos pipe covering. When I picked up
the seemingly well-sealed cylinder, I noticed a small amount of white powder
collecting around the bottom of the 3-foot-long container. As I held it up for
the jury to see, the powder appeared to migrate to the end of the cylinder,
which did not appear completely sealed to me. I motioned to the questioning
attorney to approach the stand and told him of my concern. He requested a
recess, which was granted by the court, and the cylinder was removed to an
anteroom to be resealed. The trial continued, and a potential exposure was
averted. Make sure that any hazardous material used for in-court demonstra-
tive purposes is well-sealed or double-bagged. An ounce of prevention is
worth a full day of explanation saved—or another lawsuit avoided.
Nondestructive Testing
On occasion, a critical piece of evidence examined by one expert will be
requested by an expert on the opposing side. The retesting may be just
examination, or it may be some form of analysis. The testing parameters are
usually cleared through the court, in the form of opposing motions, as to
how and when the tests are to be conducted. One issue that usually pops up
is whether or not the testing can consume a portion of the actual item. This
type of testing is called destructive in that some of the actual item is consumed
by the test procedure. When the testing can be done without altering the
condition of the evidence it is described as nondestructive testing. Depending
on the evidence item in question, gray areas arise that typically end up in
the court requiring a hearing to learn more of what the testing entails.
An example of the type of controversy that can develop once came with
the examination of a consumer hair dryer alleged to contain an asbestos
insulating sleeve. The hair dryer had to be disassembled in order to examine
and test the composition of its heat shield. Counsel for the manufacturer
argued that disassembly and reassembly would alter the original condition
of the unit and should therefore be prohibited. Counsel for the asbestos-
injured hairdresser argued that it was critical for the jury to appreciate the
construction of the hair dryer and how the asbestos could be freely released
into the breathing zone of the plaintiff. The court proceeded to cut the
hairdryer in half to allow for disassembly and photography, but there was no
destructive sampling of the asbestos heat shield. Sometimes you win, some-
times you lose; and sometimes it comes out a draw!
Rules of Evidence and Codes of Civil Procedure 19
The Rape Evidence Collection Kit

Collecting rape evidence often presents barriers that are totally unexpected,
even in the most sophisticated hospital settings. In the early part of my
litigation career, my services were elicited by a rape victims’ advocacy group.
The group was losing the battle for successful prosecutions due to the absence
of evidence to link the victim to the alleged perpetrator. (This was in the
early 1970s, long before DNA testing rapidly changed the complexion of
rape prosecutions.)
The circumstances of the volunteer group’s frustration was the absolute
refusal of physicians to collect any form of evidence from the victim. Having
worked in a number of hospitals and knowing a large number of physicians
in the San Diego community, I found this allegation difficult to accept when
posed by the members of the group. In order to prove this to myself, I asked
to accompany one of the counselors and a rape victim on a visit to the local
emergency room (ER). The group had already established a policy of advising
victims not to shower or otherwise destroy what evidence might residually
exist from their attackers. Upon arrival at the ER, the patient/victim was
escorted to an examining area and placed on a gurney with a curtain drawn
around her for privacy. I sat outside while the counselor and the patient/vic-
tim waited. After a full hour, the counselor came out to tell me that a
procession of nurses had been by to say that the doctors were still too busy
to examine her!
Being both curious and concerned about the delay on this otherwise
quiet weekday evening in the ER, I approached the nurses’ station, where
several doctors and nurses were chatting. As soon as a pause in the conver-
sation developed, I asked one of the nurses what the delay was and when we
could expect to have the victim seen. One of the physicians, overhearing the
conversation, turned to me and said, “She may never be seen by me, as I’ll
be damned if I’ll get subpoenaed for court and cross-examined for five dollars
an hour!” Upon leaving the nurses’ station, I noted that the nurse who was
periodically consoling our victim, having heard what the doctor said, was in
tears. After seeing her and hearing from the doctor, I thought there must be
a better way!
After a few days of discussions with several of the officers in the police
department’s rape-victims unit, a sitting judge, several prosecutors, and a
defense attorney, I realized that the current level of technology demanded
evidence collection in a way that any nurse or other medical-staff personnel
could implement it. Specific items collected from the victim’s body would
then be usable in a court environment. To this end I designed and constructed
a disposable rape-evidence-collection kit that was distributed to several local
ERs with instructions on evidence-sample collection and chain of custody.
With the introduction of all the sample containers, special forceps, and
evidence labels, the kit became an easy way for a nurse to collect all needed
evidence from the woman’s body. This could be passed, with proper chain
of custody, to a police detective and officially be used at time of trial. The kit
would aid in collecting semen, hair, blood, and other body fluids that might
be used as evidence.
The concept caught on after being accepted by nurses, doctors, and police
personnel, and soon a major first-aid manufacturer began producing a com-
mercial version of the kit and distributed it throughout the United States.
From meager beginnings great ideas can grow!
The Body of
Scientific Literature 4
Libraries Are for Dinosaurs

In the beginning, there were libraries. When I first began to practice safety and
health in the mid-1960s, public, university, or company libraries seldom col-
lected works that dealt specifically with the fields of safety and industrial
hygiene, due to the fact that their general interest was low and the breadth and
range of publications was so small that shelf space was seldom allocated to
these orphan sciences. At best, they were located in the areas of major science
such as engineering, chemistry, and physics, or in small, personal collections,
held closely and dearly by practitioners. The primary references were available
only to the educated few. Some of these classics included, but were not limited
to, Industrial Dust (1936), The Chemistry of Industrial Toxicology (1950), Indus-
trial Hygiene and Toxicology (1958), The Diseases of Occupations (1962), Fun-
damentals of Industrial Hygiene (1971), The Accident Prevention Manual for
Industrial Operations (1974),1 among a few other dusty volumes.
With the creation of the U.S. Occupational Safety and Health Adminis-
tration (OSHA) in 1970,2 a virtual explosion of commercial publications
began to appear on a wide array of industrial-safety and health topics. Gov-
ernmental publications began spewing out of the National Institute of Occu-
pational Safety and Health (NIOSH), covering most of the chemicals and
physical agents regulated by OSHA. The NIOSH “criteria” documents became
the accepted authoritative reference for safety and health professionals, cov-
ering the approximately 400 industrial toxicants regulated under permissible
exposure limits for hazardous materials under OSHA.
The medical and scientific literature began to bloom, with papers related
to accident and exposure conditions studied by a wide range and scope of
21
investigators. Information from these typically academic reference sources

was not available to most field safety and health professionals; if there was
a unique exposure incident in your workplace, it would seldom become
known beyond the perimeter of your plant’s property. The only means
generally available for communication were local conferences and meetings
of colleagues or others in the field with whom one could discuss and share
this information.
And Then There Was MEDLARS

Searching the medical or scientific literature in the early 1970s required
spending hours in the library or asking a local librarian to make a direct
topic search over a slow and expensive phone-modem terminal through the
U.S. National Library of Medicine’s Medical Literature Analysis and Retrieval
System, or MEDLARS. If you were fortunate enough to communicate enough
relevant keywords to the librarian, and he understood what you were looking
for, you might get back a small bit of appropriate data. In my experience,
during those developmental years, the librarian-generated data was useful
only a small fraction of the time! As a result, out of desperation for obtaining
the needed data, I felt I needed to become a MEDLARS searcher myself.
Becoming a MEDLARS searcher was not a simple task. In order to obtain
a password to the National Library of Medicine, I first had to attend a two-
week course at the University of California–Los Angeles, primarily for librar-
ians. It also necessitated purchasing a special terminal that would connect
through a TELNET (teletype network) data-transmission system to the
library. Search time was calculated in minutes, or fractions thereof, and was
added to the TELNET charge, which was based on time used.
CD-ROMS: Making Progress

The inconvenience of the elaborate MEDLARS system was, thankfully, soon
replaced with relatively the same databases on CD-ROM, first published by
the Canadian Center for Occupational Health and Safety in 1978. These, too,
were somewhat costly, but afforded the luxury of untimed and limitless
searches in the convenience of one’s own office.
The Internet
With the advent of the Internet, the drudgery of a literature search was a
thing of the past. Today, extensive data are available with the click of a
The Body of Scientific Literature 23
computer mouse. Most safety and health databases are open and readily
available to any user. Additionally, numerous search engines are also capable
of setting forth an array of pertinent articles or postings by merely using a
few key words.
Regardless of how you get the data, without them a major piece of the
puzzle might be missing. The downside of not having sought the data, or of
not at least knowing what data is available, can come back to haunt you
should your counterpart on the opposition’s side be waiting in the shadows
to blindside you at trial with a revelation or two!
Too Much Information!

One of the most frequent questions asked of an expert witness is, “On what
basis or foundational material do you base your opinions?” Here is where
the material extracted from the medical or scientific literature rises up to
support your opinion, concept, theory, or conclusions. The data need not
be new, nor be an earthshaking discovery; it just needs to be the type of
data that reasonable professionals in your field would rely upon to make
similar conclusions. There is also a range of data sources available that can
add or subtract weight that a jury might apply to the credibility of your
opinion. Peer review, which is commonly exercises in scholarly journals, is
a well-established process in the sciences. In litigation it is used as a means
of weeding out legal opinion presentations with major credibility gaps and
opinions which do not contribute or add to the body of science referenced.
A challenge of peer review validation might come in the form of a question
such as: Where in the scientific literature has anyone in your field expressed
a similar opinion? Another factor in the acceptability of a published article
is the publication in which it appears: An article published in the New
England Journal of Medicine will always have substantially more weight than
an article that appears in the National Enquirer!
The more data you accumulate on the subjects in which you profess
expertise, the better able you are to help your client and educate those who
will make a judgment in the case. With the current technology for electron-
ically archiving articles and written materials, voluminous library space is no
longer a necessity; I currently use Adobe Acrobat software, which creates
compacted electronic files of high-quality resolution that cannot be tampered
with. An additional advantage of the electronic archive is the ability to key-
word search the document for a phrase, name, or sentence, which saves you
from rereading many pages to extract a single set of facts. When key articles
are necessary and can be anticipated before testimony, you may want actual
hard copies in the hands of your attorney. If the number of articles becomes
unwieldy, I will bring my entire reference collection on a small but powerful
laptop computer that fits in my briefcase. This scanned and indexed library
has pulled my bacon out of the fire on more than one occasion. Be sure that
any reference you decide to use is able to be properly cited and dated so that
case-specific reference can be validated. Oftentimes articles copied from the
older literature may degrade in legibility and completeness. Repeated pho-
tocopying can clip off journal identification and dating, and this may prove
embarrassing during your testimony.
Aside from articles retrieved from the literature, you may also have a
small, personal library of texts upon which you may rely for fundamental
concepts. In trial, I am often assaulted with the challenges of basic terms of
chemistry and physics that were learned early on in my undergraduate career.
One example, which will forever be emblazed in my mind as an attack on
my use of the English language, was during cross-examination in a trial on
an asbestos-exposure case. I was asked, “Where in the medical or scientific
literature has any other industrial hygienist used the term aerodynamically
active as it relates to the dispersion of asbestos fibers?” After recovering from
the shock of being challenged on words I thought were common industrial-
hygiene vernacular, I cited a fundamental industrial-hygiene text for aerody-
namically and referenced many industrial-hygiene peers who employed a
standard Webster’s dictionary for a definition of the word active. The attorney
who asked the question was not pleased, but the courtroom was filled with
a collective chuckle.
With the literal explosion of information available on the Internet, the
prudent expert should exercise caution in selecting articles or bits of infor-
mation that may be less than credible. Internet search engines are blind to
article value or truth and concentrate primarily on keywords, regardless of
the pattern of their association. Only you can judge which article or infor-
mation sources should be integrated into your testimony. One example of a
reputable source of information is generally the monthly or quarterly journals
that your field publishes. Use discretion, and weigh your reference quality
before opposing counsel does it for you in cross-examination!
One offshoot of this explosion of information resources is the opportunity
for opposing counsel to harass you, or attempt to harass you, with a subpoena
duces tecum demanding that you produce everything you’ve ever written or
had published, videotaped, photographed, read, or commented on in your
professional lifetime. What I’ve just said may seem unreasonably vague and
overly broad, which it most often is, but they can still demand! Get with your
attorney-client to either quash or severely limit this demand for production.
When efforts to reduce the scope of the request have been denied, the issue
has been taken before a judge to arbitrate the reasonableness of the request.
I have been through this many times and have yet to be forced to produce my
library of many thousand volumes and electronic reference files.
Foundation Equals
Persuasion 5
The Use of Demonstratives

Over the past 20 years of testifying in asbestos litigation, I have developed a
number of teaching tools to explain the complex nature of asbestos to a jury.
In addition to electron-microscope images, I’ve used a series of pasta models
as fair and accurate representations of what I see when I look at asbestos
through the microscope. The actual similarities are striking when shown and
recognized by scientists with knowledge of asbestos, but when I began using
the noodle models, opposing counsel vigorously objected. Now that my
noodles have passed the hurdles of many judicial reviews, there is hardly a
trial objection to be heard. The exception to this is the occasional novitiate
lawyer who feels the need to again challenge my noodle models and is rapidly
silenced by the judge, who declares, “I’ve seen his noodles, and they’re okay!”
Part of the role of an expert witness is to explain complex concepts to a
jury consisting of individuals of different academic backgrounds and intel-
lectual abilities. As I start preparing for testimony, I ask my attorney-client
for the average educational backgrounds of the jurors. A good analogy to
giving testimony with a jury present is teaching a subject to a class—except
I keep in mind that during my testimony, jurors may not understand every-
thing that I say and are, of course, unable to ask questions.
The Weight of Testimony

In any legal action, foundation equals persuasion, and each of the two oppos-
ing sides attempts to persuade the trier of fact (the judge or jury) that its
25
position is the correct one. In order to accomplish this, the pans on the scales
of justice must be weighed down with persuasive expert- and percipient-
witness testimony that tips the balance. Each side orchestrates a parade of
witnesses, including both percipients and experts, that will present their
pieces of the evidentiary pie for the jury to weigh and then accept or reject.
The weight given to testimony by the jury or judge depends on the quality
and credibility of the evidence presented.
In the case of an expert witness, the weight of her evidence depends
heavily on the foundational support established prior to an opinion being
given. The questioning attorney, through a series of steplike progressions,
establishes what is the basis for that opinion. An example would be as follows:
Questioning Attorney: Do you have training and experience in

the aerodynamics and physical properties of asbestos?
Expert Witness: Yes, sir, I have studied the aerosol properties of

asbestos in specialized courses from the National Institute of Oc-
cupational Safety and Health, I have field tested industrial envi-
ronments for released asbestos aerosols, and I have an extensive
library covering this area.
Q: Can you describe some of the scholarly works you’ve reviewed

in this regard?
EW: Textbooks that deal specifically with aerodynamics of asbestos

would include Drinker and Hatch, Industrial Dusts, 1936; William
Hinds, Aerosol Technology, 1982; and a number of air-pollution
texts that encompass this subject.
Q: Can you tell us what field or laboratory studies you’ve per-

formed in this area?
EW: I have collected literally thousands of air samples in asbes-

tos-contaminated environments to evaluate the distribution,
flow, and settling of suspended asbestos-fiber bundles. In the
laboratory, I have used environmental chambers to simulate the
release and migration properties of asbestos from asbestos-con-
taining products.
Q: Your Honor, I would offer Dr. Cohen as an expert in the field

of asbestos aerodynamics and physical properties.
Foundation Equals Persuasion 27
Articles, books, training, and field experience all are foundation for the
subsequent testimony and opinions the expert will give. If opposing counsel
feels the above foundation is insufficient, he or she will make an objection
or motion as soon as the expert begins to opine, such as, “Your Honor, this
testimony lacks foundation!”
The judge can either sustain or overrule the objection at this point. The
witness will either be required to give additional foundation to support his
or her ability to offer such opinions as an expert or will go on to opine as
previously asked.
The Foundation of Knowledge

A firm appreciation of the scientific and medical literature (as discussed in
Chapter 4) in your field of specialty is extremely important. Laying a foun-
dation of knowledge based upon the world’s knowledge in the field is very
persuasive and will convince the judge that you qualify as an expert witness.
Once you know the area you will be asked about, reinforcing your founda-
tional materials with key articles or book excerpts will make life so much
easier on the witness stand. The physician being sued in a misdiagnosis case
brings to court five leading articles supporting his medical decision(s), and
the reasons therefore, as well as the treatment direction he took. The engineer
being sued for design failure of building support brings to court his engi-
neering log book; his drawings, which were countersigned by another engi-
neer; his pages of calculations; and his postaccident investigation report
showing photographs of construction defects that deviated from his design.
The safety manager who is accused of negligence and malpractice when a
laborer’s toes have been amputated by a jackhammer brings to court memos
and documentation that management refused to accept or implement; imple-
mentation of her recommendations for steel-toed safety shoes were, due to
cost controls, ignored. The examples could be endless, but in essence we
establish expertise and cover our backsides with a mountain of documenta-
tion, records, and support from the literature.
The witness with the most impressive mountain of foundational mate-
rials often becomes the tipping point upon which a jury casts its verdict.
Documentation in your everyday activities can mean the difference between
litigation survival and defeat. Who would you, as an individual juror, believe
most readily—the accused engineer who designed the roof that collapsed,
who wrote his calculations on scraps of paper that can no longer be found,
or the engineer who kept a detailed engineering notebook that is produced
for all to see? I believe the latter example wins every time.
Demonstratives
Like the old saying, “A picture is worth a thousand words,” it is critical to
have appropriate show-and-tell exhibits to help the jury or the judge under-
stand a complex issue. Pictures, models, drawings, or any other forms of
descriptive explanation will go a long way in convincing the trier of fact that
the situation did happen in the way you described it, and that you have a
credible understanding of the issue to frame it in terms that are not parochial
to your science or skill.
Models
In the area of asbestos litigation, the element of concern is a subvisual micro-
scopic entity that poses many descriptive problems to a layperson’s under-
standing. Bringing microscopes into the courtroom is far from practical, and
often pictures leave much to be desired. I realized this conundrum and
discovered that I could duplicate what I saw under the microscope with
common, dry household pasta. The microscopic “asbestos fiber bundle” is
fairly and accurately represented in the courtroom by a 1-inch-diameter
bundle of spaghetti glued together with white carpenter’s glue (see Figure
5.1). From this model, I can describe both the appearance and orientation
of the bundle and can also discuss its crystalline fracture pattern of cleavage.1
Similarly, I can use curly rice noodles to illustrate the low-power appearance
of serpentine asbestos, and broken shards of spaghetti to describe the linear
elements of amphibole asbestos (see Figures 5.2 and 5.3).
Figure 5.1 This representation of a microscopic asbestos-fiber bundle was cre-

ated by using white carpenter’s glue and a 1-inch-diameter bundle of spaghetti.
Figure 5.2 Here, curly rice noodles are used to illustrate the low-power appear-
ance of serpentine asbestos.
Figure 5.3 In this illustration, broken shards of spaghetti are used to demon-
strate the linear elements of amphibole asbestos.
The issue of encapsulation is another difficult concept to understand on

the microscopic level, so I found another use for spaghetti: a latex-
paint–dipped spaghetti bundle helps me explain how the exterior surface can
be coated but the interior may remain unaffected (see Figure 5.4). So that I
do not have to worry about contaminating a courtroom with asbestos, I have
sealed an actual specimen of serpentine-chrysotile-asbestos rock in a vial that
can be passed around the jury box to illustrate the fibrous elements trapped
in the surface of the rock and in veins (see Figure 5.5). The last physical
exhibit I use in asbestos trials is an industrial-hygiene monitoring cassette
(see Figure 5.6). This plastic structure holds a fine-porosity membrane filter
that is used to trap and collect microscopic asbestos fibers floating in the air
of a worker’s breathing zone. When the sampled filter membrane is viewed
under an electron microscope, the size relationship of these microscopic
Figure 5.4 This latex-dipped spaghetti is used by the author to demonstrate

how coating does not affect the interior.
asbestos fibers in air becomes a point of appreciation for the jury. In my

experience, these simple items viewed together build an understanding in
the jurors’ minds of a microscopic world of suspended particles in air that
they are incapable of visualizing with the naked eye.
In another trial, involving a case of an amputation of three fingers during
a home-shop woodworking procedure, it would have been impractical and
unethical to run another human hand through the machine to illustrate the
nature of the accident. At the request of the attorney-client, I was to come
up with some means to illustrate the defective machine-guarding design
with the credibility demanded for proper demonstrative evidence. The
experimental design, for a videotape reenactment, was to create a surrogate
arm and hand that would be able to orient the subject’s woodworking piece
in such a manner that the defective guard could be shown to fail as it did
in the accident.
The hand was re-created with a latex surgeon’s glove. Hot dogs were
inserted into the fingers of the glove to create the appearance of a human
hand. Articulation of the finger joints, to give the appearance of a functioning
hand, was accomplished by the insertion of a one-eighth-inch-diameter
wooden shish-ka-bob skewers through the center of each hot dog. The
wooden skewers were fractured at the approximate location of each knuckle
to give added realism and function as the “hand’s” grip. The glove was affixed
to a length of broom handle that could be held off-camera, and was covered
with the sleeve of a man’s shirt.
With the videotape rolling, the thickness planer—with factory-installed
“defectively designed” mutton-chop spring guard—was energized and
Figure 5.5 An actual specimen of serpentine-chrysotile-asbestos rock was

sealed in a vial to illustrate the fibrous elements trapped in the surface of the rock.
Figure 5.6 In this illustration, the author used the fine-porosity membrane
filter of an industrial-hygiene monitoring cassette to demonstrate the microscopic
world of suspended particles in air that cannot be visualized with the naked eye.
allowed to come up to rated speed. The “hand” began to push a block of

wood over the planer blades and easily opened the guard to allow entry.
As the block passed by the guard, followed by the “hand,” the guard
remained open as it had when the homeowner followed the same path.
Needless to say, the area was dramatically sprayed by hundreds of hot dog
particles, as the “hand” had each finger planed off in turn. The whole
operation took merely seconds, as did the writing of a settlement check!
(It was suggested by one of the lab personnel that catsup be squirted into
the fingers of the glove prior to starting the experiment, but other investi-
gators who were present felt that this step would take the demonstration
to the extreme and with it a subsequent loss of credibility that was both
undesired and unintended.)
Audiovisual Aids
In one case of ergonomic injury, a 110-pound female refinery-maintenance
worker developed bilateral carpal tunnel syndrome while using a 1-inch
square-drive socket-impact wrench to tighten vessel-door bolt closures.
When first brought into the case, I had never experienced the magnitude of
what a 1-inch impact-driver device would be with regard to weight and size.
In my use and experience, impact socket wrenches typically range from 1/4-
to 1/2-inch square drives, and could be handled easily by most people. When
the exemplar wrench arrived by courier and was placed on my doorstep, I
could barely lift it and rapidly began to understand the dilemma of the
injured worker.
The wrench weighed almost 40 pounds and was more than 2 feet in
length. With common-sized industrial air tools, most small compressors can
drive them at ±100 pounds per square inch (psi). The tool in question not
only refused to function at 100 psi, but required an air reserve far beyond
that of most small industrial-compressor units. We soon learned that a high-
volume and high-pressure diesel-operated compressor, similar to that which
would be used by a street-repair crew operating jackhammers, was the only
tool strong enough to power our test experiment.
The bolts tightened by our injured worker were described in her depo-
sition as being 2 inches in diameter, an appreciable size demanding a wrench
of the size involved. Her job, several times each day, was to loosen or tighten
a series of 30 such bolts holding a vessel closure in place. To create an actual
simulation environment to test drive this huge wrench, we welded together
an 8-by-10-inch I-beam, 5 feet in length, to a 3-foot-square section of 1/2-
inch steel plate for a base. Holes, to accommodate the test bolts, were drilled
along one edge of the I-beam at 6-inch increments from 2 feet to 4 feet above
floor level. The wrench was wired with piezoelectric transducers to measure
the handle force required to stabilize a worker’s grip on the tool.
A 200-pound, 6-foot-tall construction worker was hired to operate the

tool while we ran a video camera and measured the force of the tool. From
the measured force of the wrench’s torque and vibration, as well as the
grimacing expression on the subject’s face, it was not difficult to convince
a jury as to the nature of the injury. When conducting these and other
litigation simulations, the safety of the participants must always be upper-
most in your consideration—the experiment cannot injure the experi-
menter! An asbestos test, for example, must be conducted in a sealed and
protected environment so as not to contaminate the test area or the inves-
tigators. If the safety of the experiment is not made obvious, it becomes fair
game for cross-examination.
These are but a few of the examples of demonstratives that I have used
in litigation that may illustrate a point clearly for anyone to understand. Use
your imagination, and don’t be afraid to assemble the available facts in a
visual model. Some jurors learn by hearing, some by seeing, and most learn
best when both seeing and hearing are combined to prove a point. The
benefits will be self-evident.
The Exponential Decay Curve

Some concepts that are fundamental to your science may be difficult to
comprehend by anyone outside your field. One such concept that I fre-
quently use in trial is the exponential decay curve (see Figure 5.7). The curve
is used to illustrate how background levels of asbestos accumulate within a
space after a number of releases. It also serves to explain the persistence of
background-asbestos residuals over long periods of time, as the curve
becomes asymptotic.2 This same type of illustration can be used to illustrate
to the jury and educate them about a number of other issues such as
radiation half-life and tidal human-lung residuals. It is a simple curve with
powerful implications.
Electron Microscopy
When dealing with materials too small to be appreciated by the naked eye,
the casual observer may not fully appreciate size relationships of the substance
in question. Photo microscopy at any level of magnification, from the simple
dissecting microscope at 20x–100x to the electron microscope at
1000x–100,000x, can portray the smallest of objects clearly and is a very
powerful demonstrative tool. Two illustrations of this commanding tool are
shown in Figures 5.8 and 5.9, which demonstrate airborne asbestos-fiber
bundles collected on the surface of a sampling filter membrane. Figure 5.8,
Simulation of an Exponential Decay

1.2
1.0
0.8 Subsequent releases from use,

Asymptotic area of the
maintenance and removal.
Intensity f/cc
curve that parallels the

baseline.
0.6
0.4
Primary release
0.2
at installation
0.0
−1 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32
Time (hours)
Figure 5.7 This exponential decay curve illustrates how background levels of
asbestos accumulate within a space after a number of releases.
taken at 2000x, allows the jury to appreciate the actual size of asbestos-fiber
bundles that would be considered breathable by persons in such an environ-
ment. Figure 5.9, taken at 5000x, allows the jury to understand the crystalline
fiber bundle’s morphology and susceptibility to longitudinal cleavage, pro-
ducing many more entities than the singularly appearing fiber bundle pic-
tured would suggest to the casual viewer at lower magnification.
In addition to the visual impact of these two photo micrographs, the
calibration marks in the lower left-hand corner of each image allow a better
understanding of scientific measurements as they relate to the fiber-bundle
size. The small measurement tool (resembling a football goal post) in the
calibration imprint indicates 1 micrometer or micron. Verbally explaining that
this distance represents one 25,000th of an inch puts the minute size of an
asbestos-fiber bundle in perspective for the jury. A further emphasis can be
made that the human red-blood cell averages 5 micrometers in diameter and
allows the jury to focus on just how tiny these harmful particles are. And we
all know that a picture generally is worth—or outweighs—a thousand words!
As a father of four children, my decisions were often called into question.
“Because I said so” is an answer my children were frequently forced to accept.
In trial, “Because I said so, and I’m the expert” would be continually chal-
lenged and more likely than not thrown out by the judge. Demonstratives,
in conjunction with a solid base of the scientific literature, will make your
testimony difficult, if not impossible, to refute!
Figure 5.8 Photo microscopy is a powerful tool when used to illustrate objects
too small to be seen by the naked eye. In this figure, airborne asbestos-fiber
bundles collected on the surface of a sampling filter are demonstrated.
Figure 5.9 Taken at 5000×, this example enables the jury to understand the
crystalline fiber bundle's morphology and susceptibility to longitudinal cleavage.
The Expert Witness

6
Who Qualifies?
In any legal proceeding, those responsible for making judgments depend on
evidence presented by both sides. This evidence may be physical objects or
documents, which speak for themselves, or can be testimony of live or vid-
eotaped witnesses. The acceptability of this evidence is filtered through the
court, and if acceptable, is incorporated into the judicial record.
Parties to a legal matter, or percipient witnesses, can testify on any areas
deemed by the court to be applicable to their status in the case. They cannot
give opinions on matters beyond their own personal knowledge. If you wit-
ness a robbery at the local convenience store, you may be asked to testify at
the trial of the alleged perpetrator of the crime. The limits of your testimony
will be exclusively to what you know, what you saw, what you heard, and the
conditions of the environment that you experienced at the time of the rob-
bery. Take the same scenario, the convenience-store robbery, and expand the
hypothetical to having a customer wounded by the robber. There could be
a totally different and separate legal action brought by the customer against
the store owner. In this second case, the action would not be criminal but
rather a civil action brought against the store owner for not providing ade-
quate premises safeguards. The case would pivot on which—if any—safe-
guards or precautions the store owner took to protect the premises from
customer injury. This falls to the purview of an expert witness qualified in
this area by virtue of training and experience. This consumer safety and
security testimony comes from an “expert witness” and bears with it some
unique privilege. The expert witness becomes qualified in specific areas that
cannot be supported by the physical evidence or testimony of laypersons.
37
This is generally in a technical or scientific area of information that is assumed

beyond the normal appreciation of either the judge or jury.
An expert witness, at the time of a trial, is actually qualified by the court
and must be requalified each and every time that person comes to a subse-
quent trial for the offering of expert opinion. This qualification by each trial
judge takes place regardless of how many previous times the same individual
has been court-qualified before or in other jurisdictions. Other witnesses, or
experts who may be called as percipient witnesses, can testify without being
qualified by the court, but only as to their personal knowledge or observed
information related to the matter at hand.
The trier of fact (i.e., the judge alone, or the judge and jury) hears
preliminary testimony from the proposed expert, elicited by the attorney
presenting the case, as to the expert’s knowledge, experience, and training
that demonstrate he knows more about his subject or field than does the
average layperson. The qualifications of the expert can be challenged by
opposing counsel, who will also be allowed to cross-examine the expert on
any area of her background, training, education, or experience. The judge
then will rule on that witness’s acceptability as an expert in this specific case.
This challenge to a witness’s expertise can be in front of the jury or elsewhere.
This is a critical issue to be understood by science-oriented professionals,
as most medical, scientific, or engineering professionals would generally be
embarrassed or dismayed at calling themselves “experts.” A necessary real-
ization, required by working expert witnesses, is that they do know more
about their particular field than just about any other person who may be on
a lay jury. This is an important task to overcome if one is to succeed in the
area of litigation support.
Believing in Yourself
An example of how confidence building can be learned by prospective wit-
nesses is illustrated by a litigation-support consultation I undertook in the
Midwest in the mid-1980s. It was a consultation assignment to a large gov-
ernmental-medical agency on an asbestos contamination of one of its hos-
pital buildings. I was asked to review the industrial-hygiene work done by
agency personnel at the subject facility. During my site visit, I noted that the
agency employed extremely competent and well-trained safety and hygiene
personnel at the subject location. They performed their routine professional
duties with regard to auditing the performance of a misguided asbestos-
abatement contractor handling a building-contamination project. This audit
was to ensure that the contractor’s handling of the asbestos-contamination
project was at a high level of care equal to, or higher than, the standard of
The Expert Witness 39
care normally exercised in the asbestos-abatement community. I was

informed that the agency was in the process of suing the contractor for
mishandling the asbestos contamination, and the agency safety and hygiene
personnel were to be witnesses in the trial. These individuals were under-
standably apprehensive of the upcoming legal procedure, as they had never
given any deposition testimony nor set foot in a courtroom prior to the
upcoming testimony to be offered in court.
It soon became apparent, by request of the government’s attorney, that
my primary task was to prepare these two witnesses for some approachable
level of coherent testimony during their upcoming depositions and subse-
quent testimony at trial. To achieve this goal, I arranged to conduct a mock
deposition proceeding, with me acting as opposing counsel and asking prob-
ing technical questions that could potentially undermine even a seasoned
veteran of the “trial wars.” After each series of questions, I pointed out
problem areas and attempted to redirect the staff members’ thinking to what
they knew best about the case, pointing out every instance in which they
knew more than I did about the technical aspects of the case when I repre-
sented myself as the pseudo-lawyer and were definitely expert in the answers
they gave. At no time did I feed them answers—I only brought out what they
already knew. The “happily ever after” of this experience resulted from what
were now two very confident safety and health professionals, being qualified
as expert witnesses by the court, who subsequently presented a factual basis
for the agency prevailing in the matter.
Witness Preparation
Witness preparation is critical in all legal cases. This doesn’t mean the
testimony is changed or biased in any way, only that the person giving the
testimony is a bit more familiar with what the conditions of the legal playing
field will be prior to being asked to score a touchdown. At the risk of
seeming redundant, let me stress that the legal arena is complex and intim-
idating, and those who participate generally speak in tongues. It is not
uncommon for some attorneys to take advantage of that intimidation factor
when questioning witnesses of their own or when cross-examining those
on the other side. Advantage is gained if the attorney can get an opposing
witness to say things that are not representative of what he believes to be
correct, or things that cause the witness to lose credibility when speaking.
The skilled trial lawyer will try to take advantage of any aspect of a witness’s
demeanor or lack of conviction when testifying. This is why the more
experienced witnesses seem to have an easier time dealing with the rigors
of cross-examination.
Each situation is unique. The role I served as an expert witness in pre-

paring the witnesses in the situation discussed above is different from how
an attorney prepares a witness for testimony. An attorney will prepare a
witness for testimony by going over facts and also the questions that will
most likely be posed during direct questioning and during cross-examina-
tion. My role is to help these professionals realize that in the eyes of the
judicial system they are in fact experts. Oftentimes, people may not consider
themselves experts, and I must then bolster their confidence and help them
realize that they are, in fact, expert witnesses in their subject matter.
The Invisible Expert

Another aspect of expert witnessing that is often overlooked until its effects
are used against you is the use of the invisible expert, a person who is engaged
to audit, review, or prepare questions that can be used to challenge other
experts. The invisible expert witness can often exert some influence, but is
seldom seen and seldom actually testifies. I have often looked out over the
courtroom gallery while giving testimony and seen a “nonlawyerly” person
wildly taking notes with every word I utter. More likely than not, he is
someone of similar background to mine, hoping to catch a mistake or a point
that cross-examination can use to refute my testimony.
The invisible expert is often suspected but seldom proven. He may be
lurking in the shadows in order to supply the attorney with questions and
information. In deposition, the invisible expert can be detected in the style
of the questioning the lead attorney is using. This becomes all too obvious
when a series of attorney questions are posed that are clearly beyond her own
scientific or technical knowledge. These questions are specifically directed at
discovering how much you the expert witness know about the technical
aspects of your testimony. The main thing to keep in mind is that you know,
or should know, far more about your area of technical expertise than does
the questioning attorney. When the questioning becomes highly technical,
one way to defuse the obvious attempt to challenge you is to raise the
technical level a notch or two. Answer the question in such a technical and
detailed manner that only another expert in your field would be able to carry
the line of questioning further. At other times, when recognizing that the
opposing counsel is employing an invisible expert, I’ve made comments such
as, “Those are wonderful questions; are you also a safety and health profes-
sional, as well as an attorney?”
You may also be asked to be the invisible expert as either general-litigation
support or for challenging question preparation for an opposing witness. If
you are asked to be an invisible expert, a point to keep in mind is that the
attorney you are working for wants your best evaluation and opinion even
if it appears to be contrary to the client’s interests. Try to keep in mind that
the attorney who hires you is the captain of the ship, and you are but one of
those at the oars who propel the ship to its goal. If your interpretation or
perception of an opposing witness is that she walks on water, it may be crucial
in deciding that the case should be settled instead of pursuing it to trial. On
the other hand, you may discover major chinks in the opposing expert’s
armor that may empower your side to push for better settlement negotiations.
From a position of strength, your client may then achieve a more favorable
settlement offer or verdict.
The Truth Only Comes Out One Way

Much of what experts do or say can be a double-edged sword. I’ve always
considered the testimony of an expert witness somewhat like a small, locked
treasure box. The attorneys on both sides have a ring of identical keys,
forged during the discovery process, and each has the opportunity to find
the correct key and open the treasure box. Once open, your testimony can
potentially help or hinder either side. I’ve overheard trial attorneys and
judges say that the sign of a truly good expert witness is that—if someone
enters the courtroom while he is testifying—it should not be obvious which
side he is working for. I can think of many occasions when I was brought
in on one side, and opposing counsel attempted to turn me into a witness
for their side. The truth only comes out one way, regardless of who pays
the bill!
Another double-edged sword is scientific testing or sample analysis.
Always be aware of the fact, and advise your attorney-client that the outcome
of testing may do more harm than good. If a solvent sample used at a
workplace is alleged to be associated with a plaintiff ’s leukemia, you may be
asked to test the solvent for leukemogenic components. Some points to keep
in mind to consider and discuss with your client before agreeing to do the
testing might be:
Is the available sample an accurate representative of that which the plain-

tiff used during her work experience?
Has a valid chain of custody (see Chapter 2) been maintained to assure
the court that no adulteration has altered the testing outcome?
Is your attorney-client aware of the consequences of the test results being
negative?
Has the formulation of the solvent been changed over the course of the
employee’s work experience?
This simple act of communication can be the difference between a win

and a loss at time of trial. When testing is done early on in a case, it can
afford your client with a major directional clue on going forward from a
position of strength or settling quickly. If you perform the test and it provides
a negative result, the testing is nonetheless discoverable if you are to be used
as a witness. This alone may be your undoing with regard to further use or
activities in this case. An old adage I learned during my first days out of
college working as a medical technologist testing blood samples at a local
hospital was, “I’m happy to do your blood test, but I can’t guarantee you’ll
pass the Wasserman.” (For those of you not old enough to remember, the
Wasserman was the first blood test for syphilis.) The principle remains the
same: I’m happy to do your testing, but can’t guarantee how it will come out.
Just like testimony, analytical testing comes out only one way. It is important
to keep in mind that if I have had discussions with my attorney-client regard-
ing whether or not to perform a certain test, and I am asked by opposing
counsel about it during testimony, I must reveal our conversation.
An important caution to any expert witness is don’t embellish or exag-
gerate facts, opinions, and/or date, as doing so turns the expert witness into
an advocate, and that’s the attorney’s job. When an expert witnesses fall into
an advocate role, he will lose whatever credibility he had previously achieved.
This usually takes place during the heat of cross-examination, and the out-
come can be disastrous to the expert. This is another aspect of the prime
directive. Witnesses who come to court with recognized advocacy positions
or entrenched biases are usually ferreted out and exposed for what they are
by skilled trial attorneys who face them. Examples of this type of testimony
can be seen in Chapter 16.
Now That I’m an Expert, What’s Next?

All right: You know the rules, you have a bit of self-confidence, you have a
professional expertise that has some relevance to current areas of litigation;
so what do you do next? Marketing yourself as an expert witness can follow
many paths that can lead to future success or failure. The first legal case you
do is often beyond your control. You are happily following your profession
without any consideration of becoming involved in legal issues. Out there in
the wide world there is an attorney who has a case that cries out for expert-
witness testimony that only you can provide. You get a phone call, and the
next thing you know, you are an expert witness. From that point on, your
growth as an expert typically depends on how good a job you do and if your
side of the case wins. If both outcomes are positive, word will spread. Certain
publishing companies make their living following cases and writing reviews
so that other attorneys can find the right witness for similar cases. If your
cases keep winning, so do you!
Another form of marketing is joining an expert-witness registry. There
are companies that serve the legal community solely in gathering stables of
experts in all variation of fields. They do this for a fee, which is paid by the
attorney who needs a person of expertise. You can be listed in books or
electronic databases that are marketed to law firms and attorneys throughout
the United States. This type of marketing brings into focus one of the down-
sides of being associated with litigation, which is the aversion you will expe-
rience from your normal or prior clients who now wonder if you will
appropriately protect the proprietary information learned while in their
employ. It works both ways: The more experience you gather, the more
valuable you are, but once you’ve testified against a prior client, you may not
get another consulting job within that industry.
Who Do You Work For, the Defense or the Plaintiff?

In a similar vein to the tightrope you must walk between opposing client
interests, as an expert witness you will eventually gravitate to either the
defense’s or plaintiff ’s side of an issue. I can easily say that at almost every
deposition or trial I’m involved in I’m asked what percentage of cases I have
taken on for the defense versus the plaintiff. Over the course of my expert-
witnessing career I have taken on about 20 percent defense cases and 80
percent plaintiff cases. I don’t try to go one way or the other, but the testimony
and opinions I offer generally point to one side or the other. There is a
modicum of credibility elicited when you are able to say you work both sides
of an issue. As I’ve said so many times, the truth only comes out one way!
It is worth repeating that while lawyers are advocates, expert witnesses
should never be. Attorneys have but one goal in any legal matter. That goal
is to advocate for their client and win the case. The means they pursue are
various but clearly defined to the ends they desire to attain. Never underes-
timate the cunningness of a skilled trial attorney, or the smile and gracious-
ness extended to you before you testify; later, with you trapped in the witness
box, that same lawyer could turn into Attila the Hun. The mystery of the
legal profession becomes even more challenging to understand when two
attorneys, who almost came to blows before the judge, leave the courtroom
and chat about the next morning’s tennis match they are planning. Go figure.
Speaking the
Language of Lawyers 7
Legal Language 101
Have you ever been challenged to read a contract, written by attorneys, and
couldn’t even get past the first paragraph? You read the words over and over
and still have no clue what has been asked of you or the other parties to the
contract. This is not an uncommon occurrence in our ever-increasingly
litigious world. Not withstanding the fact that most attorneys appear to be
speaking the English language, much of what they say seems unintelligible
to most nonlawyers. This technocracy ploy is similar to the cryptic, Latin-
based, technical terminology used by physicians. You may hear familiar words
spoken and still not understand what is said! For this reason, some degree
of preparation is crucial to successfully navigating the rough and unpredict-
able seas of litigation.
The Discovery Process
All of the actions taken by a party to a lawsuit and their attorneys to obtain
information before trial through demands for production of documents,
depositions of parties and potential witnesses, written interrogatories (ques-
tions and answers written under oath), written requests for admissions of
fact, examination of the scene, and the petitions and motions employed to
enforce discovery rights are collectively called the discovery process. This is
very much like the children’s card game Fish but played for much higher
stakes. The theory of the discovery process is that all parties will go to trial
45
with as much knowledge as possible and that neither party should be able
to keep secrets from the other (except for constitutional protection against
self-incrimination). Often much of the fight between the two sides in a suit
takes place during the discovery period. When it is discovered that one side
or the other has been withholding information, you may hear the accusation
that someone has been “hiding the ball.”
As an expert witness in the case, you will most likely be given a great
deal of discovery material to review. The eventual opinion testimony you will
offer at deposition or time of trial will be made up of two portions: (1) case-
specific testimony, and (2) generic testimony from your background, train-
ing, and experience. Whether formally tasked or not, you will examine the
discovery materials in light of your expertise and establish your foundation
for giving case-specific testimony. A skilled trial attorney will generally give
you only those items of discovery that are necessary to your testimony. In
the case of Smith v. Metal Manufacturing, Mr. Smith was deposed for 14 days;
one of the days was his direct testimony, and 13 days were cross-examination
by several defendants. If you are working for the plaintiff, you will be given
the deposition volume of the day of direct testimony and possibly relevant
excerpts from the cross-examination testimony. If you are working for one
of the defense lawyers, you will only be given that portion of the testimony
that is relevant to the defendant in question. In the defense posture, you may
also be asked to focus on another defendant’s area of involvement, as your
attorney-client is interested in shifting the blame from his or her client onto
another defendant’s area of exposure.
Interrogatory Responses
Interrogatory responses are sets of questions that go back and forth between
plaintiff and defense counsel to find out facts that are critical to the devel-
opment of their case. The questions go to the opposing counsel but are
answered and sworn to by the parties in the case or by their attorneys. Reading
these interrogatory questions and answers can be difficult for the expert
witness, as they are worded in “legalese,” which is not familiar to most people.
A sample of this questioning tug-of-war is as shown below and taken directly
from an actual case file questioning an employer:
INTERROGATORY NO. 2:
State the date of first employment with YOU, and the dates and
titles of each job position the person verifying these interrogatories
has held while employed by YOU.
Speaking the Language of Lawyers 47
ANSWER:
February 1, 2001. Legal Assistant, Assistant Secretary and Records

Custodian.
This language means little to me, in spite of the years I’ve been asked to
read interrogatories, and may have little or no relevance to my testimony. I
will “skim” this type of discovery document and look for things that I feel
are related to the case. As you read the discovery document provided to you,
your note taking is most efficiently done directly on the computer as you
read. The case notes example in Appendix C will guide you through the types
of highlights I record. Some essentials for your case notes would be the title
of the document (as listed in the caption), the number of total pages, and
the date the document was signed or dated. These three points often become
deposition challenges as to whether or not the documents reviewed are the
exact same ones held by opposing counsel.
Responsiveness to the Question

Most lawyers will attempt to direct or groom even the most experienced
percipient or expert witnesses prior to deposition or trial testimony. The
more prestigious or financially rewarding the case, the more extensive and
time-consuming is the preparation prior to the giving of pivotal testimony.
A frequently expressed desire—often a request or even a demand—on the
part of both defense’s and plaintiff ’s lawyers is that you limit your testimony
to the specific response required to answer a question. In deposition or trial,
it is called being responsive to the question. More simply, this means that if
the question calls for a yes or no answer, that’s all that you should say. Saying
more will often elicit the evil eye or a kick under the table. Many questions
will be specifically worded in such a manner that the only reasonable answer
is yes or no. If the question is not worded in that manner, you are generally
free to ramble on with a narrative until someone stops you. Narrative answers
to questions are generally frowned upon, by opposing counsel and the court,
but can be gotten away with if you first answer responsively with a yes or no
and then request of the attorney or the court that you might need to explain
that answer. Generally, the explanation is permitted and can be used to clarify
a possibly misleading question that has been answered with just a yes or no
reply and that might confuse your opinion. If the explanation is disallowed,
your attorney can probably rehabilitate your testimony in redirect question-
ing and cover the issues that were precluded during cross-examination.
Anticipating Questions
It doesn’t take many depositions or trial experiences for the expert witness
to begin to understand and even anticipate what lawyers are going to do and
say. The who, what, when, where, and why deposition questions are considered
easy to deal with, but on occasion these same questions are setting you up
for a totally different line of impeachment questioning that only surfaces at
time of trial.
Who
Who you are is probed and explored to establish the details of your back-
ground and credentials, and also to offer a detailed palette of comparisons
from that of the expert on the other side. This paints a scenario of questions
to undermine what expertise you profess. When you sit in deposition and
hear questions asked that were obviously written by someone knowledgeable
in your field, you need to answer with care and respond as if these questions
were posed in trial. Remember that the “invisible witness” (discussed in
Chapter 6) can lurk in many unsuspecting places.
What
What your role is anticipated to be, in this particular case, is a critical area
of pursuit by the other side due to the exclusion of testimony that was not
discovered during your deposition. Questions that are frequently asked are,
“What were you asked to do in this case?” or “Are these all the opinions you
intend to offer at time of trial?” These are asked in order to limit your ability
to testify on subjects beyond what the inquisitor has asked. A reasonable
response would be to indicate that these are your general opinions and you
cannot anticipate what might be asked either in direct questioning or cross-
examination, nor what the subject of a posed hypothetical question might
be. This leaves your attorney with the opportunity to go beyond the questions
posed by the opposition’s deposition inquiry.
When
When you were first contacted for a case can be important. Were you a last-
minute addition, or have you been working on this case for some time? This
is where your case file and the record keeping you do can be crucial. For each
case, there must be only one file into which everything related to that case
is contained. Your case file should include time sheets, billing records, e-mail,
letters of communication and record transfer, any notes made by you related
to anything in the case, and any research or articles you will be relying on
when you testify. In today’s world of advanced technology, you may also have
Speaking the Language of Lawyers 49
an additional source of file information contained on your computer. I typ-

ically copy everything electronically related to a case onto a CD that I burn
specifically for full disclosure at time of deposition.
Where
Where is often dealt with in industrial cases in which an injured worker has
traveled from job to job at differing locations. In order to establish the
relevance of your opinions to specific jobsite locations, you may be asked if
you have ever personally been at, or performed survey inspections at, the
various jobsite locations visited by the worker-plaintiff. Take your time;
review your notes and any documentation that provides you with the work
locations, and answer yes or no to any coincidental matching of your past
consultations and the plaintiff ’s experiences. If you’ve been blessed with a
long and varied work or consulting career that spans a wide range of loca-
tions, you might be able to lend firsthand knowledge and experience to the
body of evidence due to having actually experienced the location that is the
focus of the litigation.
Why
Why the accident, incident, or exposure took place is the jackpot question!
This is where you get to share your opinions as to the circumstances leading
up to the condition or injury that is the subject of this lawsuit, the manner
in which the injury occurred, what could have or should have been done to
avoid or prevent the injury, and what, if any, regulatory statutes were violated
in the course of the injury.
Case-specific questions and testimony generally come at the end of
either side’s questioning. These are the case-related facts and opinions that
go to the end point of your testimony. State what you know of the case facts
and evidence, respond with your opinions, and conclude with an affirmative
response as to what overall concept you wish to leave with the judge and
jury. I often advise attorneys who use me at a trial that their knowledge of
the case is far greater than mine, as is their memory. Whenever possible,
suggest that case-specific questions be posed in the form of a hypothetical.
The hypothetical question asks you to assume certain facts: “I want you to
assume that fact 1, fact 2, and fact 3 are specific to Mr. Smith. Do you have
an opinion, to a reasonable degree of scientific certainty, as to whether or
not Mr. Smith was exposed to asbestos during the course of his work at
XYZ Refinery?”
Take care at this point, when asked if you have an opinion, that the only
responsive reply is yes or no. After the yes or no response, you will generally
be asked to present your opinion; at that time you can generally expound to
your heart’s content.
Attorney–Client Privilege
A very important facet of expert-witness testimony, which you may only
learn by accident, is that anything you say or discuss with the attorney who
hires you is discoverable! The protection of attorney–client privilege does not
extend to expert witnesses. If the attorney is new to litigation, inexperienced,
or semiconscious, you may need to remind him of the discoverability of long-
winded discussions on legal theory, and that you don’t need to know this
information in order to perform your work.
Another point to remember is that anything you bring into the court-
room is fair game for examination. If you did not bring your file, you cannot
be ordered to submit it to the opposing attorney. If the judge can be convinced
that you are hiding something in your briefcase, she can order you to turn
it over to counsel for examination. Bring to the court only what you abso-
lutely need for your testimony, and nothing more. This type of embarrass-
ment has actually befallen me in trial, and this was a hard-earned lesson. It
obviously could have been worse if, at the hotel, a pair of dirty underwear
had been inadvertently stuffed into my briefcase and forgotten until this
moment of truth.
Don’t Speak “Legalese”

After 30 years of working for lawyers, I have gained a great deal of experience
and knowledge about both the law and the practice of law. It would be easy
to slip into a routine of being what is never affectionately referred to as a
“legal smartass.” I don’t intentionally, and will not accidentally, act like a
lawyer or speak like a lawyer in the course of doing work as an expert witness.
Yet, I sometimes find myself wishing I could make an objection to a question
I’ve been asked at deposition, but must wait for the defending attorney to
wake up and challenge an obviously improper question.
Expert witnesses who become advocates over time are short-lived in the
business of litigation. Becoming a zealot for a cause you believe in is surely
a death knell for a continuing and bountiful expert-witness practice. Know-
ing the facts, the literature, and the details of the case that pertain to you are
enough to do your job properly. Don’t try to be a lawyer if you are not one!
To Do the
Courtroom Dance,
First Learn the Steps
8
Step 1: The Deposition

In several of the preceding chapters, I have alluded to the deposition process.
This is the process of learning which dance steps will initially be brought
forth by either the plaintiff ’s or the defendant’s counsel. The deposition is
an informal setting in which questions are asked of a witness, and the answers
given have the force and effect that they would if given in a court of law. A
certified court reporter is present and takes down everything that is said. The
attorneys present make their objections to what they consider any inappro-
priate questions. The only difference is that, unlike at the time of the trial,
no judge is present to rule on the objections. In some jurisdictions, deposi-
tions are taken over the phone, with all parties in separate locations from
one another during a conference call. This is allowed by court order and
agreed upon, with the attorneys involved by stipulation.1
If you are a witness for the defense, your deposition will generally be
taken by the plaintiff ’s attorney. Conversely, if you are a witness for the
plaintiff, you will generally be deposed by the defense attorney. On occasion,
the attorney who hires you will be asking you questions when doing what is
called a perpetuation deposition if you will be unavailable for trial.2 At the
start of the deposition, the court reporter will swear you in by administering
an oath to tell the truth and nothing but the truth.3 Historically, the oath
was sworn by placing a hand on a holy book and pledging to tell the truth. 4
This custom has essentially disappeared from the modern deposition or
courtroom except where seen in the movies or on television.
51
Prior to the start of the deposition, a witness will be given an estimate

of the time that is to be allotted for the session. An expert deposition can
range from under an hour to many days. It has been my experience that the
skill of the deposing counsel can be quickly judged by all present when the
questioning pattern avoids redundancy and is specific and to the point. In
some cases the prolonging of a deposition and extending a trial date can be
a form of strategy.
I recall a case where a worker was exposed to benzene, a powerful and
well-known organic solvent and leukemogenic agent, in a chemical plant and
later developed leukemia. She was a single person with no living immediate
family nor next of kin. If this case did not go to trial before she died, the case
would, in essence, disappear. I was the industrial-hygiene expert in the plain-
tiff ’s case and was redeposed on numerous dates, one month apart, until,
sadly, the woman died and the case in fact disappeared. So much for the
dance strategy of the deposition.
Step 2: The Mandatory Settlement Conference and the

Motion for Summary Judgment
Once all witnesses are deposed and a trial date is set by the court, the two
sides eventually go to a series of mandatory settlement conferences. These
conference sessions, before a trial judge, are designed to expedite the pro-
cess and encourage settling a case before the cost and effort of a trial are
expended. Without settlement, and with a trial date growing near, a new
onslaught of paperwork is submitted to the court in the form of motions.
One form of motion that may involve an expert is a motion for summary
judgment (MSJ). The MSJ is typically brought by the defendant in a case
and essentially declares that the plaintiff does not have a sufficiently strong
case to take to trial, and that the defendant should be dismissed. If this
motion is granted by the court, the case is over. The plaintiff can oppose
this motion, and the basis upon which it is offered, with the aid of a
declaration signed by fact or expert witnesses who can contest the MSJ and
suggest to the court that the case has a triable issue that must be heard by
the jury. If you are asked to prepare, input, or sign such a declaration, take
care to ensure that it clearly, truthfully, and exactly conveys your opinions,
as it is signed under penalty of perjury. 5 An important consideration in
preparing or signing a declaration is to maintain an accurate file of each
point of reference the declaration says you read or reviewed. This may entail
copying portions of text references or articles pertinent to the subject of
the declaration.
To Do the Courtroom Dance, First Learn the Steps 53
Step 3: The Trial
Jury Selection
The trial begins with all motions and posturing put behind us, and a panel
of potential jurors is led into the courtroom. An interrogation process, called
voir dire,6 begins to determine the suitability of jurors to sit in judgment of
this case. Once the jury is seated, the trial can begin.7 Both sides typically
elect to make an opening statement that provides the jury with a synoptic
picture of the case to be presented. At this point the plaintiff ’s counsel begins
with its “case in chief,” and a number of percipient witnesses are brought
before the jury to lay out the facts of the case. Then, at some point in this
series of witnesses, it is your turn to testify: It’s show-and-tell time!
Testifying
The attorney who brought you to this point is asked by the court to call his
next witness. Your name is called (and formally so), and you step out of the
gallery and into the well of the court.8 You are asked to pause before entering
the witness box, at which time the court clerk will administer the oath. You
take your seat with an appropriate degree of trepidation. The degree to which
you will experience this typical form of anxiety is generally related to the
number of cases you have been involved with in the past. When asked how
to reduce this anxiety, my best advise to novitiate percipient or expert wit-
nesses is, once again, to simply tell the truth! If you consistently tell the truth,
you never have to remember what you said the time before, and will never
expose yourself to impeachment or have to concern yourself much with the
aforementioned anxiety.9
If your anticipated testimony is at all controversial, opposing counsel may
request the court to hold a hearing on the expertise and credentials you have
that qualify you as a witness or as an expert. This may be done formally or
informally, depending on the decision of the court. Formal hearings, often
referred to as challenges to the credibility of the science and basis of your
opinions, are called Daubert-Kumho hearings.10 The informal procedure is
held in camera (which simply means “in the judge’s chamber” in lawyer-speak)
and involves the same players as the formal hearing: the judge, the attorneys,
and the witness. The court can rule that either the science is unacceptable or
it can go to the jury to decide based upon the weight of the evidence.
You have now passed that hurdle, and your attorney begins the question-
and-answer process of qualifying you as an expert before the court. This
actually may be a duplication of what might have gone on during a prior
Daubert-Kumho hearing, but now it is in the presence of the jury. When
finished, the attorney addresses the court by offering you as an expert in the
fields of X,Y, and Z. The court then asks of the defense, “Do you wish to voir
dire the witness?” If the defense says yes, this will typically take place in front
of the jury, but is again often reminiscent of the previous Daubert-Kumho
hearing done out of the presence of the jury.
The court will then inform the jury that you are now qualified as an
expert. If not, you will be sent home without testifying because you failed to
qualify. But let us be positive and assume you have been accepted by the
court, and your testimonial career has been launched!
Your attorney begins a line of questioning to introduce your opinions
and conclusions to the jury. This is called direct examination. When com-
pleted, the attorney will say something like, “Your Honor, no further ques-
tions, I pass the witness.” Now it is the defense’s turn, and this is called cross-
examination. Cross-examination, by rules of evidence, can only delve into
issues introduced in direct examination. During both direct and cross-exam-
inations, the other attorney may stand and raise objections as to the form of
the question, relevance, foundation, or any other legal challenges upon which
the court must rule. During the cross-examination, if an issue is broached
that was not part of the direct testimony, the plaintiff ’s counsel may use the
objection, “This goes beyond the scope of direct.”
This back-and-forth dance, now a continuing series of redirect and
recontinuing cross-examinations, can go on as long as the court allows, but
must follow an inverted-pyramid model toward fewer and fewer questions,
as the scope narrows with each succeeding exchange. (In one jurisdiction,
Multnoma County, OR, some trial judges allow only one cross-examination
and a single redirect examination.) When no further questions are forthcom-
ing from either side, the court asks of all parties, “Can this witness be
excused?” You now can safely go home to arduously review your testimony
for possible errors or omissions that are now part of your permanent record
and will follow you the rest of your testimonial life.
The Verdict
The outcome of the trial, and the role your testimony played in the decision,
may or may not become known to you. This depends on the attorneys and
their courtesy in giving you some feedback about the quality of the job you
did. In some major cases, juries are polled as to their reaction to the witnesses
they heard. If you are really lucky, your attorney may have taken this action
and provided you with dynamic feedback on what, in the jury’s eyes, you did
right and wrong. If you are not so lucky, you’ll just have to proceed on to
the next case and trial, do the best you can, and continue to simply tell the
truth. A synoptic distillation of the feedback typically given in cases to which
I’ve been made privy is as follows:
To Do the Courtroom Dance, First Learn the Steps 55
Beating up on a witness (or expert witness) in cross-examination tends

to make the jury sympathetic to that witness. A common practice by attorneys
is, when they can’t attack what an expert says, they attack the expert person-
ally. This usually backfires on those who try it.
Teaching, rather than preaching, is appreciated by the jury.
Don’t speak down to the jury; they’re smarter than you think.
Arrogance is not appreciated, and it stops the jury from listening to the facts.
When the jury is polled, their general feelings are related, and on occasion
they identify one or two witnesses who stick out in their minds. If you are
privy to what they have to say, try to learn from it and adapt your future
approaches toward testimony!
Skeletons in
Your Closet 9
Digging Up the Past

A common adage heard in legal circles is, “When you’re plagued by devils,
commit an old sin, and they become bored and go away. When you’re plagued
by angels, pray an old prayer and they become bored and leave.” I’ve seen ploys
to impeach me, attempts to refute me, efforts to shame me, actions to embar-
rass me, and yet I seem to have survived the many slings and arrows of outra-
geous legal misconduct. Longevity, in the litigation business, is its own laurel!
My school records have been subpoenaed, from the last college course I
took all the way back to Sandbox 101 in my earliest days in elementary school.
My trash cans have been searched for mistakenly discarded treasures or scraps
of information that might prove controversial when presented at trial. I truly
believe that opposing counsel even knows whom I dated for my senior-high-
school prom and what my date ordered for dinner that evening, even though
I’ve long since forgotten.
I seriously doubt that any practicing professional or lay witness can claim
to have the unimpeachable background of Mother Teresa. Yet, when exam-
ined under the critical focus of the litigation microscope, our most highly
camouflaged and forgotten historical blemishes may appear to glare at us in
the brightly lit mirror of the courtroom. William Dyson, 1 in a guest editorial
in the American Industrial Hygiene Association’s journal The Synergist, has
written, “As an expert witness your life becomes an open book. You must be
willing to accept this fact.”2
It is generally accepted that in litigation circles, if they cannot fault what
you say, their only recourse is then to fault you. That becomes all the more
true as you serve as a litigation witness or persist as an expert witness over
57
the years. Major monetary verdicts attributed to your testimony only intensify
the opposition’s fervor. Having lasted more than 30 years as an expert, and
having contributed to some degree to multimillion-dollar verdicts, I have
had every aspect of my life dissected beyond the realm of the imagination.
Pretext: When the Line Is Crossed

A major computer manufacturer’s chief executive officer was recently accused
of allegedly hiring private investigators to pretext members of its board of
directors.3 This pretexting was designed to gather personal information that
might be used to the CEO’s advantage. In my own career, private investigators
employed by asbestos-litigation defense firms approached faculty members
that I had taught with at the San Diego State University Graduate School of
Public Health, inquiring surreptitously about any anecdotal comments my
colleagues might have had about me. Should my fellow faculty members been
foolish enough to comply, this information would have surely been used to
challenge me in court at a later date.
The Gramm-Leach-Bliley Act was originally enacted by the Federal Secu-
rities and Exchange Commission to protect consumers against a number of
potential security issues and was updated in 1976 and 1999 to include fraud-
ulent attempts to gain private financial data from consumers. 4 Expansions
of the scope applied to pretexting came to include other privacy data related
to all citizens. For this and other legal reasons, the one area of exception to
revealing personal data on the witness stand that still remains is your personal
financial records and income.
Fee Questions
You can be asked income questions that are relevant to your testimony as an
expert, if that is your role, but even this area is limited. You can be asked
what you charge by the hour, day, or case. You can be asked what percentage
of your income is derived from litigation work. As a lay witness, you can be
asked if you are being paid for your testimony. It is generally understood that
an expert witness is being paid for his efforts. I have repeatedly been asked
the question in cross-examination, “Mr. Cohen, are you being paid for your
testimony?” To this question I answer, “No, sir, I’m not being paid for my
testimony. Rather, I’m being paid for the time I spend on the case.”
There are no hidden secrets about a lay or expert witness that the other
side can’t unearth. They will use all fashion of resource materials from the
Internet to family Bible records. Again, as always, the remedy is tell the truth,
and diffuse any scandalous morsels you think may harm you during the
Skeletons in Your Closet 59
course of your direct examination. Let your own attorney bring out the fact
that you got a D in first-year college chemistry, or that you flunked Sandbox
101 in kindergarten. The jury is far more likely to accept the truth and go
on to the substance of your testimony if you bring it up and treat it as
mundane. Everyone has a bit of chaff mixed in with their wheat—even
members of the jury—and admitting to a point of vulnerability may just
elicit support from jurors who have experienced similar embarrassments.
Finding a Few Skeletons Yourself

Searching for skeletons can also be a tool for your side. Doing a bit of personal
investigating of witnesses or experts on the other side can be more rewarding
than you might expect. In past cases, I have found construction experts who
never were licensed contractors as they claimed, and industrial hygienists
who claimed certification but never had it, and only after a bit of sleuthing
were these conditions exposed.
The Résumé: One of Your Best and Worst Tools

If you are serving as an expert witness, the résumé or curriculum vitae that
you send to your client at the start of an assignment should be as accurate
and professionally written as possible. During the course of a professional
career, a number of superceded past résumés may be lurking to haunt you.
One important consideration is that each iteration of your résumé should
have a revision date clearly printed as the last item on the final page. This
allows you, and anyone else examining the document, to have a clear under-
standing of when the data was written and the limits of its accuracy.
Numerous treatises have been written, and are available at any library,
on how to correctly assemble your own historical data for a variety of pur-
poses. As you begin to build a working career you try to include every possible
advantageous milestone in your life. As you mature in your position, this
becomes less necessary and the résumé begins to shrink as you become
slightly more modest. To the disadvantage of the mature expert witness, this
shrinkage of well-intended bravado may provide the meat for extensive cross-
examination of your qualifications.
Skeletons in Unlikely Places

Sometimes, the dirt dug up to use against you comes from the strangest
places. The first and only time I have had a deposition take place in my home
was when an Alabama state magistrate ordered it due to the fact that my only
business address was that of my home. It took place in my den, which was
only a 10-by-15-foot room. Without a sufficient number of chairs to accom-
modate the people present, some had to sit on the floor. I gave the best chair
to the court reporter—if you want an accurate transcript, never mess with
the reporter!—and my 90-pound Doberman was also in attendance. The
deposition ran less than two hours and was adjourned for the day. The next
day the deposition was continued at a local hotel.
What I didn’t realize was that during the short home deposition, one
attorney was asking questions while the other attorney was scouring the room
for trivia to be used against me. Three months later, in a New Jersey trial
while I was giving testimony, an unrelated attorney from another firm and
during another case asked the question, “Mr. Cohen, do you have signs on
your office wall?” After recovering my composure, and responding to several
leading questions, I found myself embarrassed before the jury by the
reminder of a gag gift of a sign my teenage daughter had purchased as a
family joke and which hung over my wife’s desk. In her innocence, my
daughter had no idea what the implications of the sign that she bought for
her daddy might be. The sign read, “If you can’t dazzle them with brilliance,
baffle them with bullshit.” When the jury stopped laughing, I left the court-
room with a lump in my throat. The moral of this story is never have a
deposition in your home or office! A court reporter’s conference room, a neutral
location, or a hotel room is the only way to protect your privacy from prying
eyes whose only moral criteria is winning at any cost!
The Rehabilitation of an Expert Witness

Whether in deposition or during trial testimony it is always possible to
misspeak or respond incorrectly to a question you have been asked by either
side’s attorney. When this occurs, it is generally the responsibility of the
attorney who engaged you to attempt some form of repair or rehabilitation
of your testimony by asking questions that will clarify or reorient the direc-
tion of your opinion. The deciding factor is usually your attorney’s perception
of the testimonial problem and getting you to respond to it in an appropriate
manner. This can be done by asking you the same question as the offending
one and giving you the opportunity to explain your answer. Another way to
attack the issue is to pose a series of clarifying questions that more accurately
reflect your true opinions. This is why the procedures redirect, re-cross, re-
re-direct, and so on, can go on until the truth is made known.
During your initial conversations with the case attorney or client, you
should make clear any potential potholes in the highway of your career (if
Skeletons in Your Closet 61
any exist that you can recall) and to ask if she is comfortable with them. If
brought up in cross-examination, the rehabilitation process is begun with
what was hopefully a predetermined strategy of clarification of your blem-
ishes. The ball is then in the attorney’s court to handle your small vices in
order to reap your great virtues!
Impeachment Is Not
Just for Presidents! 10
The First Few Minutes of Cross-Examination

When most people consider the process of impeachment, their thoughts are
directed toward politicians committing heinous acts while in office. In liti-
gation, impeachment is the process by which a witness is discredited, or his
testimony is compromised by demonstrating a contradiction in evidence or
opinion. Simply put, impeachment is showing that a witness is not telling
the truth or does not have the knowledge to have testified as he did.
The most difficult job is trying to impeach the testimony of a witness
who is testifying for the first time. The first-time witness carries no baggage
testimony from which to draw upon. Impeachment can only be done by
ensnaring the witness in a web of convoluted questions that cause him to
deviate from his original position. A simple illustration of this might be:
Q: Mr. Smith, I just want to make sure I understand your testi-

mony; you’re telling this jury that the defendant had bright green
eyes?
A: Yes, they were bright green, and I’m sure of it!
Q: Can you tell us what shade of green? Was it forest green or

emerald green, or just light green?
A: It was emerald green.
63
Toward the End of Cross-Examination

The cross-examining attorney will continue with seemingly unrelated ques-
tions until he has set up his snare, and then he will pounce as follows:
Q: You’ve already described the defendant shooting the victim, in

excellent detail. Can you also tell us what the weather was like that
evening?
A: It was cold and hazy, as I recall.
Q: A cold mist, the bone-chilling kind?
A: Yes, that’s a good way to describe it.
Q: And how far from the barrel of the gun were you when you
heard the shot?
A: About three car lengths, maybe four; I’m not really sure of the
exact footage.
Q: Could you estimate for the jury what the length of a car would
be, just approximately?
A: I’d estimate about twenty feet.
Q: So then, three or four car lengths would represent about sixty

to eighty feet? Is that correct?
A: Yes, I’d say that’s about right.
Q: Now, I’ll estimate that the depth of this courtroom is about

forty feet. Would you agree with that?
A: Yes, that seems about right.
Q: And you can see the bailiff standing in the back of the court-
room, don’t you?
A: Yes, I see him quite clearly.
Q: Can you tell me the color of his hair?

Impeachment Is Not Just for Presidents! 65
A: Yes, it’s a straw blond color.
Q: You’re sure of that, aren’t you?
A: Yes, I’m sure, it’s a blond color. A straw blondish color.
Q: Now, will you please tell the jury what the color of the bailiff ’s
eyes are?
A: I can’t tell from here, I can’t see them that clearly.
Q: No further questions, your Honor!
Don’t Underestimate the Jury

Juries are smart and generally pay attention to the testimony of live witnesses. 1
The attorney in the question-and-answer session above has obviously set the
stage for the second phase of impeachment. He asks for the color detail of
his client’s eyes, knowing full well that the witness’s position at the crime
scene would make it impossible to determine eye color. In this example the
witness either believed he saw the eye color of the defendant or felt it would
embellish his testimony by being more exact. In either case, the impeachment
trap was set and sprung.
Impeachment
Recognizing Where Questions Are Leading
A clue that many experienced experts will recognize leading to a challenge
of impeachment is when the attorney asks, “Isn’t it true that … ?” This is
an absolute lead-in to a series of questions that will culminate with the
reading of prior testimony that is intended to contradict what has just been
said. I remember that while testifying in federal court in Hawaii, this “Isn’t
it true that … ?” question was asked about my opinion on asbestos-fiber
drift. During my response, the attorney went behind the defendant’s law-
yer’s table and returned to the questioning podium with a hand truck
stacked literally 3 feet high with flagged deposition or trial transcripts. The
rest of the hour was spent on a continuing series of “Isn’t it true that … ?”
questions and responses. To my relief, no impeachment took place, thanks
to the prime directive tell the truth. When you always and only tell the
truth, you never have to worry about contradicting yourself. It always comes
out the same.
A Justified Contradiction
Contradiction can be justified when the science of your profession changes.
If you are asked in the 1970s about the reality of wrist radios and your
testimony is that they do not exist except in comic strips, you are answering
correctly at that time. But if you are asked the same question in the year 2007,
the answer will not be the same; nonetheless, impeachment is not applicable.
Impeachment is evaluated by the judge and jury and impacts the weight
of your testimony. Mistakes that are honest and unintentional are often
overlooked when judged in the light of extensive, informative, and fact-laden
testimony. When making calculations, even those burned into your brain
from years of repetition, small errors in arithmetic or spelling can often seem
damaging when detailed on a chalkboard before an audience. But those are
the types of simple mistakes we can correct and live with!
Criminal, Civil, and

Workers’
Compensation Cases
11
Criminal Cases
My first venture into the world of expert-witness testifying came in the
criminal courts. The U.S. Navy sent me to pharmacy school, and I continued
as a manufacturing and dispensing pharmacist for them for about two-and-
a-half years after completing my education. This supplied me with a solid
grounding in toxicology and clinical drugs, which seemed like a natural entry
to serving as an expert both in clinical overdose and drug abuse. Once I
became known to the criminal defense bar I was asked to branch out into a
number of other areas where physical evidence was involved. Many of these
cases are discussed in greater detail in Chapter 15.
As a result of my entry into this new area of endeavor, I found myself in
dire need of additional training beyond my college classes. I enlisted the aid
of a highly qualified forensic analyst who was a supervisor at the local police
crime lab. With his mentoring, I began to accumulate the skill and experience
needed to do many of the criminal case analyses and examinations. Testifying
in these cases became one of the true challenges in my career due to the fact
that I found it intimidating to be standing up against government-trained
forensic analysts and medical coroners. I soon discovered they were human
and vulnerable, and, just like the rest of us, putting their pants on one leg at
a time.
I soon became disenchanted with the criminal justice system for two
main reasons. The first reason is that in San Diego County, where I reside,
attorneys and experts are paid for assigned defense work. Judges at that time
67
were issued books of coupon vouchers that were equivalent to demand notes
to any bank, drawn on the county’s funds. After each day of trial the judge
would tear out the number of coupons he or she felt you or the attorney who
hired you were worth. This was not what your normal billing rate would be,
but merely what was dancing around in the judge’s head as to your work and
worth. After several cases, this diminished payment policy seemed very
unfair, and I stopped taking defense work.
The second disincentive factor for doing criminal-defense work was the
attitude of the friends and relatives of the defendant on trial. I remember
one capital-murder case where the defendant was brought into the court-
room in shackles and handcuffs. At the start of the day, I was called to testify
when from out of the gallery one of the defendant’s scary friends came up
to me and said, “You better get our buddy off, ’cause we know where you
live!” From a philosophical point of view, this may be why many indigent or
low-income criminals do not get the benefit of highly qualified technical
experts, regardless of their guilt or innocence. They remain at the mercy of
low-paid civil-service bureaucrats who may already be tainted by the bias of
working for the prosecution. Guilt is often presumed—why else would the
police officer have arrested them?
Civil Cases
Two major venues exist in most jurisdictions for trying cases of monetary
damages or action judgments. These are the federal and state courts. Within
both court systems can be found civil or workers’ compensation trials and
many other administrative-law systems. To attempt to hold to the scope of
this book, I will exclude any discussions of most types of administrative-law
courts with the exception of occupational health and safety hearing courts
presided over by administrative-law judges. Such judges may be attorneys
who are either sitting pro tem to hear cases, such as Small Claims Court
judges, or are hired by an agency to hear all appeals to regulatory citations.1
Cases that are generically termed civil are typically differentiated from
criminal cases, which can involve incarceration. Civil cases usually involve
monetary damages or judicial orders to start or stop some action that is
petitioned to the court. The types of civil claims filed that typically involve
expert witnesses are many, but those generally related to the residential or
industrial workplace typically are: products liability claims in which a product
has caused damage or injury to a person or worker; premises liability claims
in which a person or worker enters the property not of his employer or his
ownership and is damaged or injured due to conditions at that location; or
wrongful death claims, in which damage or injury to a worker or person
Criminal, Civil, and Workers’ Compensation Cases 69
causes the death of that person and a claim is brought to court by an heir
(family member, etc.) of that worker.
Workers’ Compensation Cases

Workers’ compensation cases, on the other hand, consist of employee injuries
and employer conformance to legislation requiring the employer to furnish
a reasonably safe place to work, suitable equipment, rules and instructions
when they are reasonably necessary, and reasonably competent forepersons
and superintendents who effectively enforce the employer’s rules.
Under workers’ compensation law, the employer is both responsible and
liable for an employee’s acts of negligence, for the employer’s own gross
negligence, and for extraordinary risks of work. The workers’ compensation
court is, by statutory mandate, the exclusive remedy that an employee can
seek from their employer in redress for injuries or damages sustained while
on the job.2 The exclusive remedy of workers’ compensation precludes an
employee from suing her employer for on-the-job accidents or illnesses. In
most cases the employer is not liable for accidents occurring outside the place
of work or for those that have not arisen directly as a result of employment.
In both the civil and workers’ compensation courts, the testimony of an
expert witness may very well be identical, although the rules by which each
is conducted are very different. In the civil courtroom there is usually a judge,
a jury, a court reporter, court staff, and opposing attorneys. In the workers’
compensation courtroom there is an administrative-law judge but no jury,
a court reporter, occasionally staff, attorneys representing the employee, and
attorneys representing the various insurance companies that insured the
employer over the course of the employee’s work history.
In the workers’ compensation court the judge hears the evidence, makes
a decision, and writes that decision in the form of an order that is binding
on all parties. As in any lower-court decision, there is an appeal process, but
I’ve seldom seen it exercised.
An interesting aspect of the workers’ compensation case, at least when
involving a toxic exposure, is that the expert witness may actually be used
by both the applicant and the respondent parties. For the applicant (the
worker), the expert establishes the conditions of exposure, whereas for the
respondents (the employers), this becomes more complex due to the affixing
of when in the historical sequence of insurers the toxic exposure took place.
In the case of a cumulative-trauma agent, such as asbestos, the question
becomes that of when the last exposure may have been a contributing com-
ponent of the worker’s asbestos-related disease. The vying insurance compa-
nies then seek expert testimony that may show exposure during some other
insurer’s coverage period and therefore lessening the cost of payment for
their firms.
As an expert witness in the workers’ compensation arena you are gener-
ally asked to prepare a report. The report usually reflects questions posed by
either the applicant’s attorney or by the attorney representing a specific
insurer during a specific period of coverage. Typical questions posed in an
applicant request for report might be as follows:
1. Was Mr. Smith exposed to asbestos while employed by various em-

ployers from 1972 through approximately 1995? If so, please identify
and describe the nature of the exposure(s) that Mr. Smith had during
the period from 1972 through 1995.
2. Was Mr. Smith’s occupational exposure to asbestos between 1972 and
1995, while employed by various employers, significant enough to
have caused the development of the applicant’s asbestosis? If so, please
explain in detail.
3. Did the work practices of the employers as described in the materials
provided to you comply with the statutory mandates of the state’s
general industry safety orders that were in place during the applicant’s
various employments from 1972 through 1995? Please provide com-
plete details and how each employer complied with the safety regu-
lations. Specifically identify each employer by name and include the
dates of exposures as they pertain to each employer.
The report format can be in letter form, or more elaborate and extensive
when circumstances demand. Two points to keep in mind when preparing
this type of report are the caption and the materials reviewed. The caption is
the exact way the court addresses the claim and the case filing number:
John P. Smith v. Asbestos Engineering Corporation, et. al.
WCAB Case No. 0555555
The listing of materials reviewed should represent your complete file

including any additional references you relied upon in developing your opin-
ions. A typical listing might appear as follows:
Social Security Records of John Smith from 1964 through 1987, 1988
through 1995, and 1952 through 2001
Application for Adjudication of Claim
Verified Answers to Interrogatories Set One and Verification
Criminal, Civil, and Workers’ Compensation Cases 71
Supplemental Responses to Interrogatories, Sets One and Two, Consol-

idated and Verification
Samuel Waters, M.D., CT Scan Review dated October 17, 2003
Samuel Waters, M.D., CT Scan Review dated February 3, 2004
William Yates, M.D., Workers’ Comp Applicant Qualified Medical Exam
dated April 27, 2004
William Yates, M.D., Workers’ Comp Supplemental Review dated August
1, 2005
Samuel Waters, M.D., CT Scan Review dated December 1, 2005
Workers’ Compensation Deposition Transcripts of John Smith dated
November 14, 2005
Civil Deposition Transcripts of John Smith dated June 7, 2005, June 8,
2005, and June 9, 2005
The body of the remaining report can be designed at the discretion of

the investigator. The beginning outlines the questions to be answered; the
middle applies your training experience and research to the specific issues;
and the end represents your conclusions and opinions on the issues raised.
Simply written and laid out for the judge and attorneys to evaluate, it is a
statement of your case. Fully noting the basis for your opinion and conclu-
sions in your file, the report will also be available to refresh your memory at
the time of deposition or trial.
The work performed in criminal, civil, and workers’ compensation venues
remains essentially the same; it is only the rules you must follow that differ.
Toxic Torts in
Retrospect 12
An Introduction to Toxic Torts

The term toxic torts was first introduced to me with the work of attorney
Fred Baron of Tyler, TX, and his publication Handling Occupational Disease
Cases.1 This is a how-to-book for attorneys on what seemed to be an emerging
class of tort claims arising from worker exposures to industrial toxins. The
Tyler case was of special interest to me. One-third of approximately 900
asbestos-insulation workers at a thermal-insulation manufacturing plant
were either dead or were dying of asbestos-related diseases. In addition to
these workers, a second population of exposed workers was identified at the
local Tyler rose nurseries. It was discovered that a manufacturing plant sold
its empty burlap bags, which once contained the raw asbestos for their
thermal-insulation product, to the rose nurseries to wrap the “root balls” of
the roses they sold.
This toxic-tort litigation led the way for other industrial exposures that
were not related to an immediate onset of symptoms. The latency experienced
by asbestos victims demonstrated the concept of “cumulative trauma” agents
whose effects were seen months to years beyond the date of the last exposure.
Asbestos, although the focus of the Tyler cases, is but one of many such
hazardous agents found in the industrial workplace.
Since 1946 the American Conference of Governmental Industrial
Hygienists has published a list of more than 400 compounds, chemicals,
and physical agents with known toxic properties that are capable of causing
injury to an exposed worker. A virtual panoply of damage and injury toxic-
tort cases could arise from just these listed agents but for the fact that the
illnesses they cause often go virtually unrecognized by most physicians or
73
attorneys due to the lack of appropriate diagnoses and the implication of

industrial etiologic agents. Most workers are classically exposed to indus-
trial toxins and are not diagnosed within the accepted parameters of the
known paradigms and algorithms’ of the medical-school curriculum. They
are either treated symptomatically for an idiopathic disease or lumped
into a “dumping” diagnosis of natural diseases for which no causal agent
was apparent.
Medical Misdiagnosis
A long-recognized factor in this problem of medical misdiagnosis is the
failure of most primary-care physicians to take an adequate occupational
history. This consistent brevity or total absence of occupational history in
medical records continues to this day in spite of the fact that most people
spend a minimum of one-third of their adult life in a work environment. Of
the three common environments work, sleep, and recreation, work alone
poses the greatest quantity and exposure to potential to toxic agents. This
has become a far greater truism in the past 40 to 50 years of our industrial
evolution. Fifty years ago paints were primarily made from linseed oil and
pigment, and applied with a brush or roller device. Today paints include
sophisticated mixtures of polymeric resins, carcinogenic pigments, sensitiz-
ing epoxies and catalysts, and a wide variety of neurotoxin solvents, and they
are often not brush applied but sprayed into our breathing air for faster and
more economically sound application.
Another area that seems to elude physicians is that of household expo-
sure. The household exposure, brought home by the out-of-home working
family member, is seldom noted in the medical history of the patient. Again,
using asbestos as our example, the plant worker who is exposed brings the
contamination home on clothing, hair, and shoes. Family members who
travel in the family car, live in the contaminated home, and greet the
hardworking person with hugs can suffer an asbestos-related disease years
later with no memory of an exposure scenario. In the case of a worker
exposed to lead the same potential exists for contamination of the home.
The welts of a worker’s shoes are excellent collection systems for lead-
contaminated dust when that worker merely walks through contaminated
spaces. Wearing those same shoes home, to a house carpeted with a thick-
pile rug, dislodges that contaminated dust by the efficient cleaning action
of the carpet pile. Seldom does a pediatrician suspect a toddler patient of
crawling across that same carpet and inhaling lead-laden dust when he is
examining that patient for symptoms of lead encephalopathy. These are
toxic-tort lawsuits in the making!
Toxic Torts in Retrospect 75
Compensation: It’s Not Just for Work Anymore

Not to be totally outdone, our “play” environment is moving rapidly to catch
up to the work environment through the ever-increasing trend toward do-
it-yourself applications of the same products used in the industrial workplace.
A brief trip down the aisles of the local home-improvement center can reveal
the same chemical agents that are repeatedly indicted in exposure illnesses
and lawsuits. Even if an ingredient is generally considered to be “relatively
safe” it can still be used in a physiologically abusive manner and result in
severe bodily injury. Just such a case example is referred to in Chapter 15, in
which we will examine the story (among others) of a chemically induced
pneumonia in a woman striping a patio deck on her hands and knees with
ten gallons of acetone. The chemical was purchased as ten one-gallon cans
from her local home-improvement center after being told by the sales asso-
ciate how safely it would do the job.
For those of you with some degree of legal experience, it should be
increasingly obvious that the ingredients for a toxic-tort lawsuit are being
revealed. Shall we name the players in our legal tragedy? Number one is the
plaintiff, the woman who cleaned her wooden deck with the acetone who
survived but now suffers organic brain damage subsequent to the hypoxia
caused by the chemically induced pneumonia. Next comes the parade of
defendants. First comes the solvent producer, a major petroleum refiner;
then the repackager of the acetone into gallon cans sold to the center; and,
finally, the home-improvement center whose agent negligently acted in the
role of a safety professional and misled the purchaser as to the safety of her
intended actions.
Where in this example do we apply the efforts of the expert witness?
Having been hired by the plaintiff, the expert’s role is to foundationally
support each contention of causation or negligence within his area of exper-
tise. Against the petroleum refiner, the repackager, and the center he must
identify that the selling of an inherently dangerous material such as acetone
demands warnings to the reasonably foreseeable user, who can then avoid
those dangers. In this case, the most obvious warnings were related to the
flammability of the acetone, not the implications of human overexposure.
The center was further sanctioned for its blatant advertising in the print and
television media that its sales associates were “experts” in the areas of sales
they worked and would provide all the needed information to get the job
done right!
This example, and a mountain of others, repeats itself on a daily basis
throughout the United States in a wide range of sales arenas selling any
number of toxic agents having a similar impact potential on unsuspecting
buyers. When a product is manufactured, the manufacturer finds itself to be
the ultimate expert in that product, for who could know more than the
manufacturer does about the ingredients and its own manufacturing process?
When products are released onto the market there is an assumption of prior
research and testing to prove them effective and/or safe before release. It would
be shocking to learn just how many products are marketed with minimal
thought to their toxic ingredients and the dangers of overexposure and/or
misuse. The engineers and chemists who develop product formulas and appli-
cations seldom have the knowledge or inclination to look beyond the chemical
or physical compatibility of product ingredients. The chemist who uses 1,1,1-
trichloroethane solvent for an adhesive without knowing that this chemical
has well-known properties causing arrhythmias in the human heart that can
lead to cardiac arrest, or the engineer who adds asbestos to concrete as a
lubricant so the concrete can be pumped through hoses in a high-rise con-
struction, have created a toxic condition regardless of the advantage given to
the products manufactured. Innocent actions or design defect can be poten-
tially harmful to someone farther down on the chain of commerce.
One Case Is Tragic;

Two or More Cases
Are an Epidemic
13
Epidemiology
The branch of medicine that deals with the study of the causes, distribution,
and control of disease in populations is epidemiology. Epidemiologists study
populations at risk and attempt to gather large numbers of subjects in their
studies in order to keep their resultant findings relevant and statistically valid.
When large, statistically significant numbers of study participants are not
available or incorporated, the study is often considered flawed or is not an
accurate reflection of a cause-and-effect relationship. In many cases that come
before the courts, this level of absolute significance does not apply or has
little bearing on the outcome of a trial. As seen in numerous television
reenactments, the standard for proof in a criminal matter is that it be “beyond
resonable doubt.” The trial court in noncriminal (i.e., civil) cases uses a
preponderance of evidence standard. This standard only demands that the
subject condition is “more likely than not”—that is, that there is at least a
51 percent probability.
The Birth of a Lawsuit

When someone or something is damaged by another and some form of
retribution or recovery is necessary, a lawsuit is born. In some instances,
causes and effects are clear and self-evident. This might be the case of a
defectively installed rafter bracket that failed and caused a roof to collapse.
The mere demonstration of the bracket having been installed with two nails
77
when it should have had six would make for a very short trial if not a quick
settlement. Whereas in the case of a certified public accountant (CPA) with
no industrial-work experience and an asbestos-associated diagnosis of
mesothelioma, the picture is far less clear. What must be ferreted out of the
accountant’s past is where he may have been exposed and to what extent.
After learning he did his own automotive asbestos brake work, we now have
an exposure and only need to determine the nature and extent of exposure,
and damages.
In the first example, two nails versus six, it is easy to arrive at a reasonable
conclusion. If, for example, there were five nails instead of six we are closer
to a proper installation although not perfect and a great deal more evidence
and expert opinion is required to evaluate the extent of design necessity. In
the case of the CPA as asbestos victim, the situation is not so clear or explained
in such a quantitative manner. A great deal of epidemiology has been done
on asbestos disease in auto mechanics who do brake work as a profession,
but not on the “shade tree mechanic” like our CPA.
This is where the application of epidemiology becomes questionable, as
there have been no published studies of “shade tree mechanics” due to the
extreme variability of conditions in which the exposures take place. Ergo the
expert witness who considers the exposed individual, the procedures he
followed in doing the brake work, the environment in which it was done,
and the dose or exposure required to produce his disease 1 can conclude that
the exposure was substantial and a causal factor in the contraction of any
asbestos-related disease.
Prevention
In the prior course of my professional activities as a safety and industrial-
hygiene engineer, I generally did not wait for all the facts to come in before
taking preventive actions. As the title of this chapter implies, a preventive or
preemptive action is often required to stop the condition as soon as possible.
When dealing with people in small numbers in the workplace the loss and
suffering that can be potentially prevented is often delayed or ignored for
want of a major epidemiologic study involving gigantic numbers of workers.
Risk
The concept of risk and its relationship to benefit has long challenged the
safety and health professional community. When a governmental agency
publishes a regulation for control of a hazardous material, it often must run
the public-hearing gauntlet before it is released into law. With input from all
One Case Is Tragic; Two or More Cases Are an Epidemic 79
manner of special interests vying for their particular vested concerns, the
safety limits for the hazardous material bend under the pressure of political
compromise, as “no one can be expected to live risk free!” This unfortunate
reality of the governmental-regulatory process is never more true than with
asbestos. The medical and scientific literature as well as our industrial history
has shown that there is essentially no lowest level of asbestos exposure that
can guarantee protection from mesothelioma.2 In spite of this well-recog-
nized fact, the political exposure-level compromise still allows workers to
remain exposed at levels of 0.1 fibers per cubic centimeter of air. Unfortu-
nately, this is still a substantial exposure when judged by any standard, and
one that will not protect against mesothelioma!
The Dual Role of the Court

In the opinion of this writer, the law and the courts serve a very real purpose
in the arena of the safety and occupational-health profession I have practiced
for more than 30 years. That function is to alert and put on notice areas of
design defect and operational failure that only reveal themselves by the chance
happening of injured persons. Sometimes it is only the “squeaky wheel” that
receives the proper lubricant.
In an Orange County, CA, trial a salesman who shuffled beryllium oxide
semiconductor wafer sales samples in a company storage closet later developed
a severe beryllium-attributed disease. His diagnosis was considered unique
and devoid of supporting epidemiologic data due to his being the only non-
production person so afflicted. If not for the legal process of seeking some
remedy for his injury, the awareness of beryllium hazards in this aspect of the
electronics industry would have gone unnoticed. In this case only one expo-
sure scenario led to a greater awareness of the actual epidemic.
Professional Liability
14
We would all like to think of ourselves as professionals, but along with that
designation comes both an ethical and scientific obligation that even when
unspoken bears a high level of responsibility and behavior. By calling our-
selves professionals, we place ourselves in a position of being judged to a
higher standard of care than nonprofessionals who might practice some or
any portion of our professional activities with virtual impunity.
Even the Best Practitioners Can Be Sued!

As a result of this assumed professionalism, we leave ourselves open to the
ever-prevalent question, “Did I perform my duty in the correct manner and
with the detail expected of a professional?” This question is most often raised
in the context of a lawsuit when preventable damages have been caused and
you were the most knowledgeable person involved and you either knew or
should have known what was wrong and how it should have been prevented
or corrected. You may perform your work with what you believe to be a
“flawless performance” and yet find that your client believes you have harmed
him or her as a result of your work or lack thereof. This can be the genesis
of a lawsuit against you for professional malpractice, regardless of the care
and precision of your work and communication with the client.
Avoidance of lawsuits has become a major factor in the routine of many
professional practices. Work is done with the consideration of avoiding any
actions or conditions that may engender the client’s disapproval and assign-
ment of blame for any and all evils that arise from or are even tangent to
your involvement in their affairs. If problems are likely due to the high risk
of the assignment, some professionals give clients advance warning of actions
that will be taken before they can proceed to lawsuit. Major nationwide
health-maintenance organizations, who, like other medical providers, are
81
plagued with real and imaginary malpractice lawsuits, require all member
patients to sign a contract demanding arbitration before instigating a lawsuit.
Variations on this theme exist in many professional circles for the same
reason: to avoid the justice system. In my previous professional consulting
practice, I passed on to clients the old adage, “If I do something good for
you, tell your friends. If I do something you don’t feel is right, tell me.” This
in no way protected me from potential lawsuits, which are always lurking
in the dark corners of professional practice, but it did set the stage for open
communication.
To indemnify ourselves against accusations and legal entanglement we
seek various levels of protection that we correctly or incorrectly assume will
isolate and defend us from those who wish to crush our professional careers
with their allegations. These protections include, but are not limited to, some
of the following: professional liability-insurance policies, indemnification
letters or contracts with our clients or employers, hold-harmless agreements
with colleagues on shared assignments, and “going barefoot” with diminished
personal assets. I will deal briefly with each of these and their failings, while
focusing primarily on the best professional liability protection of all: scientific
accuracy, completeness, and proper documentation.
Professional Liability Insurance

Over the past 30 years, several professional organizations have attempted to
obtain professional liability group insurance for their members, with varying
degrees of success. The success or failure of these efforts generally falls on
group size, premium costs, and coverage limitations. A number of safety and
health professionals contact their personal insurance agents only to find that
the only coverage available is as a medical professional, which we are not,
yet the agents cannot underwrite us in any other manner. This is apparently
due to insurance companies’ ignorance of what a safety and health practi-
tioner is or does, and the nearest category to dump us in is that of the lowest-
level medical professional, with premiums quoted at $4,000 per year back
in the 1980s.
Know what you are getting when you buy a professional liability-insur-
ance policy. Does it cover errors and omissions (and believe me, we all make
them on occasion), or does it just cover physical damage to property as a
result of action or inaction? Is it occurrence-based (OB) or claims-made
(CM) insurance? This difference can be critical depending on how long you
intend to remain in business. The OB policy covers anything that happens
during the policy period but not beyond that time; the CM policy covers
claims as long as the policy is in force. When you retire and stop paying
Professional Liability 83
premiums, all of the coverage from the time of being insured disappears!
Major price differences separate the OB and CM premiums. This explanation
is by no means exhaustive (nor am I in the insurance business to qualify the
accuracy of my statements), but I at least caution you to seek professional
advice before paying out large sums of money for policies that let you sleep
at night only until the subpoena comes knocking at the door.
Association group coverage, when offered, was experimentally tried by
insurance companies until they discovered the interested group was so small
that the profit motive could not sustain continuance. Another form of insur-
ance coverage was tried by companies employing single, or departments of,
safety and health professionals, attempting to bind them under existing pol-
icies for professional engineering liability. This practice most often failed due
to the inability to technically classify the safety and health professional as one
who belonged in the engineering category, or due to the absence of engineer-
ing credentials, which were a prerequisite to being covered by the company
policy. Newly available professional liability-policy coverage in the industrial
hygiene field has reflected specific areas of coverage and limits. In one case,
“mold” case involvement has a monetary cap which is 25 percent lower than
would be paid other professional acts. This is one good reason to take extra
care in choosing cases in which mold contamination is involved.
For those of you who do have a professional liability policy, obtained
either privately or from an organization, take the time to read the fine print.
Policies have limits, both declared and undeclared. The declared limits
include defense and payment of damages; the undeclared limits reflect the
level of aggressiveness with which the insurance company’s attorney fights
for your interests or the best interests of the company. You may still face
losses, regardless of the outcome of the case. Time and money spent in
fighting a lawsuit can often outweigh what an insurance policy will pay in
hard dollars. I strongly recommend obtaining a personal attorney, even if the
insurance company provides one, to insure that someone is actually looking
out for your own best interests.
Indemnification
Indemnification letters, clauses, or contracts provided by clients or employers
are nothing more than contractual agreements to protect or defend us. In
the event that damages result from our professional works that were not
caused by our own errors of omission or negligence, and an associated lawsuit
still names us as a contributory party, we will then be defended.
Two problems exist with this level of protection: (1) if either party
defaults, the contract must be litigated on a secondary level to the original
accusations of professional liability, which can be very costly to the solo

practitioner; and (2) you must still defend your actions and performance as
being of the highest standard of care and best available science. Of these two,
litigation is the easier, though it requires good legal counsel and lots of money.
Who holds the advantage in this relationship, you or the well-heeled client
or employer? The defense of your own actions and performance—and this
will bear repeating throughout this chapter—is far more difficult to prove.
Let us say you are performing a routine survey for which the client is only
paying for a two-hour visit to the facility, but nowhere in your report does
it indicate the caveat that all and every operation was not seen by you, and
your report only covers the delineated portion of the operation able to be
observed during the time visit. Every aspect of your time at the site, the results
of your report, and your conclusions will be microscopically examined by
highly paid experts employed by the other side to take apart your training,
skill, ability, and professionalism without regard for the time limitation
imposed by the client. The only remedy for this type of conundrum is to
formally notify your client ahead of time, in writing, that time limitations
may restrict your abilities.
Multistate Operations
Be aware that operating in more than one state can prove embarrassing if
one state allows indemnification and liability waivers and another does not.
Your credentials may be nationally recognized, yet the state you are asked to
testify or work in has special statutes that regulate your practice. My best
advice is to do a bit of research prior to crossing state lines. If the information
is not available to you directly or on the Internet, request that your proposed
client find out what operational restrictions exist in his or her location.
Hold-Harmless Agreements
On many large jobs involving numerous subcontractors of which you are
just one, a project owner or general contractor will ask all subcontractors to
enter into a hold-harmless agreement. This essentially says, “I agree to not sue
you, if you agree not to sue me.” Unfortunately, skilled attorneys find no
difficulty in suing all involved in a damage-generating situation in order to
sort out those who are truly responsible by means of the discovery process.
The discovery process, as was described in more detail in Chapter 7, is a very
structured legal game through which one side asks the other if it has any
information on X,Y, or Z. The responding party agrees to produce these items
or denies their existence. In the process, some of the agreement signers may
willingly offer up “proof ” of your wrongdoing in order to release them from

further involvement.
“Going Barefoot” with Limited Financial Assets

“Going barefoot” means acting as a safety and health professional without
any insurance coverage and taking the chance that your actions will be free
of any misconduct or misinterpretations that might cause personal or prop-
erty damage. There are those among us who claim an entire career without
actionable repercussions. That may well be, but if the professional-liability
bug bites, it can cut short all the amazing successes you have already accom-
plished, ruin an expert witness career, and leave you deeply in debt and
psychologically scarred.
Actionable Events and Activities

One example of a situation that, rightly or wrongly, results in a professional-
liability action against a certified industrial hygienist (CIH) is as follows.
A lawyer in a large metropolitan city contacts the CIH to review an
upcoming asbestos-damages claim brought against a property owner/land-
lord who has rented an apartment to a couple with a very large and very
valuable art collection that they have displayed in their apartment. It has
come to the renters’ attention that the “acoustical, cottage-cheese-like”
sprayed ceiling is beginning to deteriorate and delaminate. Dust and debris
begin to accumulate on the horizontal surfaces of their artwork, and this
dust was subsequently determined to contain substantial quantities of asbes-
tos. The tenants vacate the premises fearing for their health, leaving their art
behind, and file suit against the landlord.
The CIH is asked to determine the condition of the apartment, which
has been closed and sealed, in order to testify at trial regarding the validity
of the claims. During the course of the inspection, the CIH and an associate,
using all professionally recommended monitoring and personal-protection
practices, conduct air sampling for asbestos in the apartment. The results
demonstrate substantial levels of asbestos in the air and validate the claim of
asbestos accumulation on many horizontal surfaces.
Readying for trial, and after giving deposition testimony regarding the
condition of the apartment, the CIH is served with a cross-complaint lawsuit
alleging that he and his associate were the cause of the asbestos release in the
apartment and that he will be held liable for any and all damages resulting
from any actions brought against the landlord. It is also made clear to the
CIH’s attorney-client that the suit will be dropped if the CIH is withdrawn
from the case.
The CIH is “barefoot” and otherwise devoid of any applicable insurance
or legal representation. An existing in-force personal liability-insurance pol-
icy carried for years by the CIH is challenged, and the insurer is asked to
cover legal expenses. The request is denied, as the fine print reveals that
“professional liability” is a specific exclusion. To that end, the CIH hires an
attorney, at a personal cash outlay of more than $8,000, to see the case to
summary judgment and dismissal as “frivolous.” This result comes only after
the court reviews exacting documentation of the survey, photos, and sam-
pling procedures. Money is not the issue here, but the mental scars of having
to prove the facts that you have considered the fundamentals of your pro-
fession are. The scars of being professionally challenged cut deep and never
really go away!
Scientific Accuracy, Completeness, and Documentation

We all try to be as accurate as our knowledge and equipment will allow, and
when we can’t do the complete job as asked, we cover our legal behinds with
as much paper and contract language as the client will bear. The one aspect
of this equation that most often goes awry is the paucity of documentation
we bring to our profession.
One of my first consulting assignments was for a major manufacturing
corporation based in the Midwest, with plants all over the country. My first
meeting with corporate management was a short presentation to the engi-
neering staff on occupational safety and health. When I entered the posh
conference room I was immediately struck by the scene before me. There sat
20 engineers and managers, each with a quadrille-ruled notebook sitting in
front of him. Every concept and requirement of a newly designed safety-and-
health program to be instituted in the corporation was being dutifully
recorded. My curiosity caused me to ask one of the senior engineers if this
note taking was common to this corporation or part of the general prepara-
tion of each engineer. His response was that engineers hired out of college
knew that their engineering notebook was critical to solving problems and
eliminating errors. I subsequently learned, when I was teaching at a local
university’s school of engineering, that this was a curriculum requirement:
d-o-c-u-m-e-n-t-a-t-i-o-n! Was this also the case for training safety-and-
health engineering professionals? I’m afraid not, from my experience. Chem-
ists do it, engineers do it, lawyers and doctors do it, but others who call
themselves professionals do not do it and find that proving their profession-
alism without detailed documentation always results in losses in the end.
An attorney friend of mine once offered me this gem of trial wisdom:

“If an opponent produces some data or evidence regarding the circumstances
of my claim against him, I may have to work like heck to refute or contradict
that evidence. But if he has no data or evidence, I can say anything I want
about the claim against him!” Make sure your field notes are complete, and
exhaust all possibilities that can or will go wrong. Who, what, when, why, and
where are just the beginning. The more you document with pen and camera,
the stronger your defense of your professional actions.
The final consideration of professionalism is the ability to understand
when your work and data are confidential and/or proprietary. Information
and company-background data may be critical to a patented or secret process
or constitute a protected trade secret. Always ask your client what level of
confidentiality must be observed. When consulting in a legal matter, you may
be given paperwork to review that bears the inscription, “Confidential Data:
Sealed by Court Order.” This data is to be reviewed for the subject case and
no other. If you break this confidence, you may be found liable for any
damage caused by your breach of trust.
Out of the Ordinary:

Investigations, Cases,
and Trials
15
In the 1970s, my wife and I owned and operated a human/veterinary clinical-

pathology and environmental-testing laboratory, from which I consulted in
the areas of analytical and forensic investigations.1 The array of case types
varied from the simple inquiry of a mother wanting to know if the small sack
of white powder hidden under her son’s underwear drawer was an illegal
drug to complex causation questions in homicide investigations. As this lab
was somewhat unique in having the chemical and field-personnel expertise
to examine a wide array of situations, we got the attention that other “testing”
labs could not elicit. That was the beginning of many years, and many
different or bizarre cases, that came through our doors looking for answers.
The purpose of dragging you through this string of unusual cases is to
clarify that expert-witness needs come in a wide range of flavors. If you have
spent your entire career focused on one topic of study, such as lead, or
asbestos, or tobacco smoke, you may end up testifying in only that area. On
the other hand, if you are a generalist, such as a physician or a safety-
mechanical-civil or electrical engineer, you may be contacted to serve as an
expert witness in areas as diverse as you routinely encounter in every day’s
work. The following examples, from my 30 years of forensic involvement,
illustrate how varied your challenges may be.
The Abalone’s Revenge

The very first case that actually took me to trial was about an abalone diver
who worked off the coast of San Diego and suffered an injury while engaged
in harvesting from the ocean bottom. The day of the injury he had been in
89
the water when he became nauseated and began vomiting in his mask, and
this caused him to surface unexpectedly. He was supplied air from a “hookah”
rig, which was an air compressor, connected to a gasoline engine, floating
on a rubber-tube platform. Connected to the compressor was 50 feet of
rubber hose that led to the diver’s face mask.
His diving companion, who was on the surface in a boat, pulled him out
of the water and headed for shore. The two experienced divers considered
this to be an unfortunate but random event. When the symptomatology
continued for several days, the involved diver sought medical treatment.
Hospitalization and testing revealed elevated carboxyhemoglobin levels,
lipoid pneumonia, and subsequent organic brain damage attributed to car-
bon monoxide/lipoid-induced hypoxia. The diver eventually brought his case
to an attorney, and a claim was filed against the compressor manufacturer
and the gasoline-engine manufacturer for medical and punitive damages on
the theory of “product liability.”2
Three years after the case was brought to court, and several months before
a trial date, I was retained by the plaintiff as an expert in safety and industrial
hygiene related to the quality of air produced by the manufacturer-defen-
dants’ products. Upon examination of the hookah rig it became immediately
apparent that the proximity of the compressor’s air intake to the motor
exhaust was close enough to allow carbon monoxide exhaust to enter the
compressed air intake and be delivered to the diver. In addition, it was noted
that the compressor was oil lubricated and sealed, producing a fine aerosol
of oil mist into the air stream. Together, these two agents combined to choke
off the diver’s supply of oxygen at a molecular level. The carbon monoxide’s
binding to the diver’s red-blood cells prevented their taking up oxygen and
distributing it to the body, and the oil-mist droplets being collected by the
“garbage collecting cells” (macrophages) that “wallpaper” the alveolar air-
cell compartments of the lungs prevented oxygen absorption.
Without sufficient oxygen, the first organ of the body to suffer is the
brain. Hypoxic brain damage is well-documented in the medical literature
and generally leads to some degree of “organic brain damage” syndrome. The
symptoms most often detected in those affected are headaches and short-
term memory loss, all of which our diver had well witnessed.
The witness brought in by the defendant compressor manufacturer was
a U.S. Navy medical doctor directly involved with diving medicine. While
validating the patient’s medical conditions, he contested the existence of the
lipoid pneumonia but felt the carbon monoxide was the sole cause of the
hypoxia. Upon a well-coached cross-examination by plaintiff ’s counsel, the
doctor readily acknowledged the literature on lipoid pneumonia but said
that he never personally encountered it either in medical school or in 20
years of practice.
Out of the Ordinary: Investigations, Cases, and Trials 91
The jury found for the plaintiff, and awarded $300,000, which in the
1970s was considered a large sum.
When and Where Did She Die?

I was once contacted by the San Diego District Attorney’s office regarding
somewhat unusual circumstances related to a recent homicide case with
transborder implications. A woman was kidnapped, transported across the
Mexican border in the trunk of a car, and in Tijuana was dumped over the
wall of a dam. To establish jurisdictional responsibility it became necessary
to determine which side of the border she died on, that of the United States
or of Mexico. It was theorized that she may have been dead before entering
Mexico due to vehicle-exhaust leaks into the trunk. This would have kept the
jurisdiction in the United States, as only her body would have then been
disposed of in Mexican territory.
To this end I was retained to plumb the subject vehicle with carbon-
monoxide measuring equipment and recording devices acceptable to the
court. After the vehicle was outfitted with an infrared calibrated spectrometer
and chart recorder, I was driven from the woman’s place of abduction and
across the border by two San Diego Police detectives. At the end of our
leisurely drive, I examined the recordings of carbon-monoxide levels mea-
sured in the trunk. To everyone’s surprise, the readings were close to ambient,
and far below what would be considered lethal! It was now up to Mexican
authorities to prosecute for the woman’s death due to the sudden impact of
her body at the base of the dam.
Peepshow Problems
During the redevelopment years of San Diego’s downtown district in the
early 1980s, the city council passed a number of ordinances that would help
purge the seedier elements from an area of downtown that had classically
been a haven for lonely sailors and the homeless. One such ordinance directly
impacted the growing number of adult bookstores and “peepshows.” 3 The
ordinance required that all “theater” businesses comply with the National
Fire Protection Association’s Life Safety Code relating to minimum egress
illumination for theaters.4 The standard called for a minimum light level of
5 foot-candles in order to aid in exiting during an emergency.
The attorney representing the owner of several of these establishments
called to request my services in establishing that his business was operating
within the parameters of the new ordinance. This most unusual request
required using a calibrated light meter and crawling around the walkway that
surrounded the “customer booths” and led to exit doors, measuring how
much illumination was available. Notwithstanding a preconceived opinion
that such environments would generally be kept at the lowest light level
possible to facilitate the peepshow ambiance, I was surprised to learn that
5 foot-candles was not very much light, and that the booths were actually in
compliance. My report to the attorney was welcomed and presented to the
council, which then apparently made the case disappear! I later learned that
the ordinance was reversed on some legal or constitutional grounds, which
I never fully understood.
Fried Chicken Maggots

Late one weekend evening I received a phone call on my emergency-only
phone line from an attorney who wanted me to rush to the local emergency
room to meet his clients, who were being treated for myiasis.5 Upon my
arrival at the hospital I found a young family of five, consisting of the father,
mother, and three children who had just had their stomachs pumped and
were in varying stages of recovery.
Upon questioning the father I learned that the family had had an outing
at a local park after purchasing a container of fried chicken from a local fast-
food establishment. After eating, the children went off to play while the
parents lingered over their meal. While finishing the last morsels of meat
from a drumstick, the mother noticed what appeared to be something crawl-
ing on the bone. It turned out to be a maggot-type larva, and it was not
alone! Panic stricken, the family left the park and rushed to the local ER
where our story began. Fortunately, from an evidentiary standpoint, they
were smart enough to bring the remaining uneaten chicken with them.
My assignment was to investigate the nature of the infestation and deter-
mine if the origin of the larvae was based upon accidental contamination or
gross negligence from selling unprotected foodstuff. I was also asked to
contact the fast-food establishment and notify them of their potential distri-
bution of tainted food to others. Upon calling the store manager, I was at
first shocked to hear his attempt to defuse the issue with comedy by saying,
“We don’t charge extra for the added protein!” It was obvious this manager
had never been trained in corporate “damage control” in spite of the store
being part of a national franchise. I obviously included his statements in my
investigational notes.
I received the chicken container, with appropriate chain of custody pro-
cedures,6 for removal to our laboratory and further examination. It was soon
discovered, by careful dissection, that the remaining leg portions of chicken
were similarly infested. As a result of a mental archaeological expedition into

my past studies of biology, I quickly became aware that my “evidence” might
soon fly away due to its transition from maggots to adult flies. Detailed
photographic documentation was, as always, undertaken and then a cheese-
cloth netting was secured over the mouth of the container to retain any adults
of the species that might emerge.
The primary question, which would be debated in the lawsuit, was
whether the food was allowed to remain exposed to flies long enough for
eggs to be laid and hatched, or whether live larvae were deposited on the
cooked chicken. This could only be determined by speciation of the adult
flies. Of the two main species of domestic flies found in the United States,
one lays eggs, and the other nurtures its eggs in the adult fly body and lays
live larvae on a food source to allow them to mature. Identifying one fly
species from another, unfortunately, required the additional expertise of
an entomologist, who came to the case as an additional expert witness. The
entomologist, after examining the adult flies, concluded that the larvae
were laid live, suggesting that the fast-food store’s sanitation was not the
best but also that it didn’t leave the food unattended for overly long periods
of time.
The forgoing circumstances highlight a very important point for expert
witnessing: don’t go beyond your comfort area of expertise! If you are not an
entomologist, find one if needed for the investigation. If not, suggest it to
the attorney in charge of the case. If you try to be all things to all people,
those who are working equally hard against your case will surely find it out
and hold it against you before a jury.
Pleased to some degree with my report, the attorney and the corporate-
franchise people arrived at a mutually agreeable settlement, and everyone in
the plaintiff ’s family fully recovered!
The Musician’s Exposure to Asbestos

Of all the occupationally acquired diseases, asbestos-associated disease has
probably been one of the most studied and reported in the medical and lay
literature. The worst form of asbestos-related disease is a tumor of the lining
of the thoracic or abdominal cavity called mesothelioma. Mesothelioma was
once thought to be somewhat rare in occurrence, but unquestionably attrib-
uted to some exposure to asbestos regardless of the extent of the exposure.
A case was brought to me of a 55-year-old musician who had been playing
guitar since his teenage years. His upbringing and education in a rural south-
ern community appeared to be free of any known source of asbestos con-
tamination. He moved to the West Coast, bringing only a few pieces of
clothing and his musical instruments to further his musical career, and had
done no other type of work save survival employment in a wide variety of
fast-food establishments.
His treating physician, aware of the complications associated with this type
of disease and its associated medical costs, suggested the patient look into some
legal advice in recovering some of his costs. His chosen legal firm was one I
had worked on other asbestos cases for, and they called me to assist in deter-
mining the origins of their client’s exposure. After a brief survey of the plaintiff’s
lifestyle and history, the only piece of potential evidence that might contain
asbestos was an electronic guitar amplifier manufactured by a well-known
company. The amplifier consisted of a speaker enclosure with the electronics
mounted inside and external controls at the top of the enclosure.
The vintage of the amplifier was my first clue that we may have identified
the etiologic agent, as it was about 30 years old and powered by vacuum
tubes. For those of you who do not remember the era of electronics before
transistors and semiconductors, electronic devices were operated using glass
vacuum tubes with heated filaments that caused a flow of electrons within a
glass envelope. Some of these tubes would generate a great deal of heat, and
the wooden amplifier enclosure required some protection to avoid a fire.
Upon opening the enclosure and examining the placement of the amplifier
component, I discovered a loosely woven asbestos-paper barrier shielding all
sides of the heated-tube locations. It was concluded that the vibration and
movement of the speaker cone (caused by the rhythm of the music) had
acted as a pneumatic piston, driving the available asbestos-fiber bundles off
the paper surface, out through the vent ports of the cabinet enclosure, and
into the waiting lungs of the musician.
The lesson of this experience is that asbestos was used ubiquitously in a
wide variety of applications for more than 60 years. It was incorporated into
many products from thermal steam insulation and cords for electric irons to
decorative flocking on Christmas trees. The many valuable, rocklike proper-
ties of asbestos have now been overshadowed by the illnesses that breathing
its dust has produced. When looking at a person suffering from an asbestos-
related disease, the causative agent most likely can be found by that person’s
association with a product that required those rocklike properties to perform
as intended. If you look hard enough, you will find the source of someone’s
asbestos exposure in some aspect of his or her life history!
A Double Shotgun Death in the Back Country

Early in my forensic career I did some forensic investigations in criminal cases.
I was retained by a criminal defense attorney to help defend a man accused
of a double shotgun homicide in the back country of San Diego County. At

first, the case appeared to be somewhat straightforward, but as it unfolded,
there were many unanswered questions that raised the “shadow of doubt” as
to the completeness of the evidence against the defendant. My adversaries in
this case would be the police and sheriff ’s crime-lab technicians and internal
investigators from the district attorney’s office. I was directed by my client,
the attorney, to hopefully find some glitches in the prosecutor’s case that would
be helpful at trial. At my disposal were crime-scene photos, coroner’s reports,
witness statements, and the criminal indictment.
Glitch Number 1
I noticed in one of the photos that, after allegedly fatally shooting two men
with 12-gauge rifled shotgun slugs,7 the perpetrator had apparently plunged
the shotgun barrel into a mound of dirt in a butt-up position. As it was only
one month before trial, I had the attorney request the impounded gun be
released to me for examination from the court’s property room. When the
gun was picked up it was wrapped in plastic and identified with an investi-
gator’s signature. Back in the laboratory, a detailed inspection of the shotgun
barrel revealed an intact plug of dirt still lodged in the barrel. This would
stand as evidentiary proof that the gun, although in the possession of the
prosecution for months, had neither been examined nor tested for ballistic
comparison with the slugs found in the bodies.
Glitch Number 2
The coroner’s report listed a time of death but did not support this conclusion
with foundational evidence. Under normal procedure, a medical examiner
will establish time of death by one of several means. Signs of “livor mortis”
were not noted;8 external air temperature at the time of examination was not
noted. The final flaw of omission was that no deep-body temperature mea-
surements were made. Classically, criminal-forensic studies have shown a
linear progression of body-temperature depression from the last moment of
life to equilibration with external temperatures. This enables a medical exam-
iner to establish a time-of-death range based upon comparing deep-body
temperature and external air temperature and calculating backward. Absent
this data collection, any assumption of when the murder took place would
be mere speculation.
With these two case “flaws” in mind the case was brought to trial. Testi-
mony was brisk from most percipient witnesses, and then it was my turn to
appear for trial. Upon entering the courtroom, I had my first chance to see
and meet the defendant I was asked to help. As an objective scientist I was
expected to look beyond his appearance, although he bore a definite resem-
blance to Charles Manson. I took the stand, made my points regarding the
lack of gun-related evidence, and was about to opine on the coroner’s report
when objections came from the district attorney, who said, “Mr. Cohen is
not an M.D., and therefore cannot give medical testimony!” As defense coun-
sel had come prepared for this situation, I was requalified based on my
paramedical background and clinical training, and this convinced the court
to allow me to testify.
Dr. Tyndall, I Presume?

In 1984, I began actively participating in asbestos litigation as an expert
witness. My principal role in these cases was to make clear to the trier of fact
(generally a lay jury) the technical aspects of asbestos exposure to a worker.
In those early days, the primary defense for some of the asbestos manufac-
turers was, “Our product doesn’t release any asbestos, therefore there was no
exposure.” Having studied and tested a large number of industrial and ship-
board environments, I instinctively felt this was incorrect, but was at a loss
as to how to demonstrate this release without contaminating a courtroom.
During the mid 1970s, I had spent some time in the British Isles lecturing
on industrial-hygiene techniques and procedures to safety engineers and
occupational hygienists. As is all too often true, a teacher also learns from
his students, and several of the class attendees shared with me some of their
procedures, which were essentially unused in the United States. One of the
students, a hygienist from Her Majesty’s Factory Inspectorate,9 described a
procedure used to evaluate the need for dust monitoring in a factory envi-
ronment. He explained how two inspectors would ask for a subject building
to be darkened for the test. They would then stand apart from each other
and pass a high-intensity flashlight back and forth at eye level. If the air was
then visibly dust laden, and the factory employed materials that were regu-
lated as to the maximum dust concentration allowed, they would have to
return and perform quantitative dust measurements.
The visual principle employed was known as the Tyndall effect, first
described by one Dr. John Tyndall in the late 1800s. It is basically a light-
scattering phenomenon that allows one to visualize subvisible particles in
the air that could not otherwise be seen with the naked eye. Examples of this
Tyndall phenomenon would be the motes of dust that can only be seen in a
beam of sunlight coming through a window or the dust in a movie theater’s
air that can only be seen in the intense beam of the projector.
After having learned this new tool in my classes in England, I began
applying the principle whenever I taught students about toxic dusts. The
model I used was a simple rubbing of the skin during a lecture session and
tasking the students to visualize what was generally known to be a shedding

of superficial skin cells common to all persons. In normal classroom light no
student could see the falling cells. After darkening the classroom and turning
on the projector beam, the same rubbing of skin on the back of my hand
revealed a shower of visible particles only within the beam of the projector.
The first trial using this technique was one against an asbestos-based
packing-material manufacturer. The defendant’s strategy was to convince the
court that no asbestos was released from its product during anticipated
routine use. After subjecting its product in the laboratory to conditions
simulating “normal use,” the segment of packing material was placed in a
sealed environmental chamber and handled in the beam of an intense colli-
mated lamp. The experiment was videotaped, and the shower of particles
was captured for posterity!
I was called to court, in rebuttal,10 to present this new evidence as a
challenge to the claim that the product did not release asbestos into the air.
So as not to prejudice the jury until the court had an opportunity to rule on
the admissibility of the evidence, the videotape was shown only in the judge’s
chambers. The judge was clearly surprised at being able to see what had been
only alluded to in prior evidence. He turned to the opposing counsel and
said in the most sarcastic tone I’ve heard from a judge, “And you represented
to this court that your product would not release asbestos?”
The video was played to the jury in tandem with my testimony explain-
ing what was being visualized. After a short period of deliberation the jury
came back with a $350,000 verdict, and my videotape-production career
was launched. After that trial, literally dozens of other asbestos-containing
products were tested in the Tyndall chamber. Other industrial hygienists
and material scientists have duplicated this technique and have used it in
trials throughout the United States. Dr. Tyndall has had a rebirth in the
scientific world!
Is That My Pubic Hair?

In the early days of my criminal forensic experience, I developed a kit for
collecting rape evidence from a victim.11 As a result, I was contacted by a
criminal defense attorney who asked me to work on a case of alleged incest
between a grandfather and his young granddaughter. The case was being
charged by the local district attorney and child-protective-services unit. The
child was examined after the grandfather’s arrest, and it was determined that
there had been vaginal penetration and tearing. During this examination,
within her labial folds was found what appeared to be a pubic hair, which
on an 8-year-old girl would have been close to impossible.
In the early 1970s, DNA testing had not yet found its application in crim-
inalistics. Even if a root ball was present on the hair shaft, the only available
test methodology was to make a comparison of the hair scale pattern and that
of one taken from the accused. Getting a court order to pluck the evidence was
unnecessary, as we were trying to exonerate the attorney’s client. A visit to the
county jail revealed a sad old man who appeared in total denial and dismay.
Explaining what I needed from him was an effort beyond what my hourly fee
demanded. Remembering that I was responsible for the chain of custody, I
personally extracted several samples to be analyzed back at the laboratory.
The procedure for this analysis (as I was yet to hone my skills on the
scanning electron microscope) was to make a translucent cast of the suspect
and evidentiary hairs onto millimeter-thick Lucite sheets. The hairs were
sandwiched between the Lucite and a microscope slide and gently heated to
allow the Lucite to cast around the shaft of the hair and imprint the scale
pattern. After completion of the hair preparations, I examined them under
a comparison dual microscope and was surprised to find they were almost
a perfect match. My report was not what the attorney desired to hear, but it
made his efforts toward a plea bargain much more rapid!
Redwood Blues
With the coming of the winter rains, a 36-year-old woman decided to protect
her beautiful wooden patio deck against the elements. She proceeded to the
local home-improvement center to purchase a “sealer” for her deck. The sales
associate recommended a top-of-the-line product that he guaranteed would
do the job. She took the sealer home, applied it according to the manufac-
turer’s directions, and believed that after it dried the deck would weather any
storm without worry. She waited one day after the application, and the deck
still wasn’t dry. She waited two days, four days, a week and the deck was still
sticky and not able to be walked upon.
She returned to the center and found the same young salesman who sold
her the sealer. His five-minute analysis suggested that the sealer she used was
incompatible with the previous coating used on the deck. He then sold her
10 one-gallon cans of pure acetone, which he warranted would be the quickest
means of removing the sticky, nondrying sealer. The woman obediently took
the acetone home and proceeded to scrub the 1500-square-foot deck on her
hands and knees with containers of acetone. She had to pause occasionally,
as the vapors of acetone were so thick that they made her a bit woozy.
Than night she slept well and woke up with a bit of shortness of breath.
As the day progressed, her difficulty with breathing got worse, and by week’s
end it was so severe she finally went to the doctor. After the doctor listened
to her chest, she was immediately admitted to the hospital with a diagnosis
of noninfectious pneumonia. A week of hospitalization, diagnostic testing,
and medication, and she was released to her husband’s care and concern.
Her mental functions left something to be desired. She was readmitted to
the hospital and was under the care of a neurologist, with a diagnosis of
organic brain damage with short-term memory loss, subsequent to the
hypoxia of pneumonia. In layperson terms, the acetone irritated the lung to
the point it wept into itself, cutting off her oxygen supply to the brain.
The suit that followed required an expert to explain how “one of the
safest solvents” could cause such a problem, and whether anyone had ade-
quately warned her of any danger. Acetone is a reasonably safe solvent when
used with appropriate precautions, with one of the highest allowable air-
health concentrations permitted in a worker’s breathing zone. The warning
on the can addressed two issues, the extreme flammability and the health
effects related to vapor intoxication. A detailed analysis of the labeling inad-
equacy came first, and second was developing an understanding of how such
a massive exposure occurred. As a trial date approached and deposition
testimony revealed what would be presented at time of trial, the solvent
manufacturing and packaging defendants scurried to make settlement offers
that rapidly resolved their part of the case.
The last remaining defendant, the home center and its sales associate,
who were named as a party to the action, stated their defense: “Those who
use a do-it-yourself product are sophisticated users and should have known
the risks!” This theory was quickly dispelled with a showing of the center’s
advertising copy stating, “If you don’t know, we’ll help you through it!” The
primary rationale for suing the associate was to invoke the recognized legal
doctrine of respondeat superior, “let the master answer.” Again, in lay terms,
it suggests that any actions of the associate are under the control and direction
of the center management, and the center was negligent as it either knew, or
should have known, what its associate was recommending and how safe those
recommendations were!
The Bull-Riding Roofer

A large apartment complex was being reroofed with asphalt over the course
of several weeks due to the staggered topography of the three-story-high
multistructured buildings. Each section of the complex had a flat roof surface
covered with large gravel over the built-up asphalt base and with no parapet
at the roof edge other than a 4-inch shoulder. In order to reroof the building
the commercial roofing company would have to remove the gravel from the
asphalt surface prior to applying another layer that would seal the roof against
weather elements. The tool the company used was a device that looked like
a gas-powered lawnmower on steroids. The blade’s circular motion over the
gravel would dislodge the rocks from the adhering asphalt while the operator
hung on like he was wrestling a bucking bronco.
The accident occurred during the course of work when a gravel-removal
worker was running the machine at the edge of the roof. He was jostled off
his footing, over the side of the building, and onto a sidewalk three stories
below. The eventual lawsuit, brought by the neurologically damaged and
paralyzed worker, was against the homeowners’ association and the manu-
facturer of the gravel-removing machine. The main purpose of my involve-
ment as an expert witness was to deal with the adequacy of any warnings
regarding the use of the machine and the issues of premises safety pertaining
to the building owners. The warning issue was hardly an effort, as the oper-
ator’s manual and any labels on the machine totally ignored the issue of
vibratory action and use at the edge of the roof. The premises safety issue
was a bit more complicated.
In my role as a professional safety engineer, I opined that the building
should have been built with a full parapet to protect a variety of workers
who were required to do maintenance on the building’s rooftop units. Dur-
ing my cross-examination by the building owner’s lawyer, at the end of a
full day of testimony, the judge suggested a recess until the next morning.
The lawyer begged for one final question, a question he knew he could leave
in the minds of the jury before the recess; the judge agreed. The question
directed to me was, “When should the building owners have known of the
need for a parapet, and when was this need first published in the literature?”
As the courtroom cleared I was left with this question and all night to come
up with a suitable answer.
That night I was without a clue as to when or where a requirement was
first described or if it had ever been described previously. The idea of a
parapet was just good common safety sense on my part, and now I had to
prove to the court that there was actually some foundation for my reasoning.
While taking a break in my frantic search through the safety literature in my
library, I began to browse through a pile of new computer-software programs
collecting on my desk that I would be reviewing for a computer column I
was writing. The first program I put into the CD drive was called The Word.
It was a keyword-searchable version of the King James Bible. On a lark, I
typed in roof and safety, and up sprung Deuteronomy 22:8, which answered
my prayer: “When thou buildest a new house, then thou shalt make a bat-
tlement for thy roof, that thou bring not blood upon thy house, if any man
fall from thence.”
The next morning, when the court reconvened, my cross-examination
continued with the attorney repeating the same question he had asked the
evening before. I calmly answered, “The first publication of the need for a
parapet was when the Book of Deuteronomy was written.” With his mouth
hanging open, I read the passage to the jury and sat quietly to a hushed
courtroom. The settlement amount in our favor was very large!
Don’t Shake My Hand

Infectious hepatitis can be transferred by hand-to-mouth contact, and most
frequently occurs as the result of humans shedding the virus in their stool
and subsequent poor bathroom habits and hand washing. I was contacted
by an attorney who represented a mining operation in the Central Valley of
California. The mining operation was essentially stopped due to an outbreak
of hepatitis in the workforce, and eight cases of workers’ compensation claims
had been filed for medically documented incidents of the disease.
After flying and then driving into the desolate California foothills I found
the entrance road to the mine. Pushing my rental car stealthily up a winding
mountain dirt road, I came upon a mining operation that looked like it was
held together with baling wire and chewing gum. The buildings were covered
with very fine dust, as were the parked vehicles scattered around the build-
ings. I saw no designated office entrance, so I began looking for some sign
of supervisory personnel with whom I could connect. This was easier said
than done, as everyone I met was equally covered with dust; obviously there
was no hierarchical discrimination. When I finally found and greeted the
foreman he took me on a tour of the mining operation.
The substance being strip-mined, diatomaceous earth granules, was
brought to the site in huge dump trucks. The material was dumped in hopper
bins, sorted as to size of granules, and bagged for retail sales. At first, I thought
my assignment was misdirected and I’d forgotten to bring all of my silica-
monitoring equipment. But alas, my task was seeking out the potential source
of hepatitis, and so I turned a blind eye to the omnipresent dust carrying
what I imagined to be an inordinately high silica content based on the geology
of the area. My primary role in this case was to advise the attorney on the
merit of the hepatitis claims and what possible route of infection might have
been avoided by his clients.
My first clue that this would be a very short consultation was my intro-
duction to the company restroom. When I asked to see the employees’
restroom facilities, the foreman indicated there was only one restroom and
it was both unisex and nondiscriminatory between management and the
labor force. In fact, when I finally was shown the restroom location, it was
nothing more than a “porta-potty” located between two buildings. Upon
closer examination, the inside of the porta-potty was nothing more than a
platform seat over a barrel of chemicals. My immediate response was to ask

the foreman where people washed their hands, and he pointed to a freestand-
ing inverted 5-gallon bottled-water dispenser. He gladly demonstrated his
dexterity in washing one hand while depressing the faucet button, and then
switching hands to deal with the unwashed hand.
Some cases are easier to solve than others! Hepatitis is obviously passed
from hand to hand when bad toilet habits cannot be controled with proper
sanitation. Further inquiry of the foreman also identified that the bottled
water was the only source of water on the property. My recommendations
were swift and to the point: multiple porta-potties with water, sinks, and
soap built into the units, sufficient in number to accommodate the workforce.
Eventually, the company would need to introduce a water tower and imported
supply to sustain an otherwise profitable operation. I left the property after
debriefing the foreman and telephoning a report in to my client. I still
remember the look on the foreman’s face as I drove away from the facility
having refused to shake his hand!
The Lethality of Human Poop

We all know, unless we’re totally oblivious to our surroundings or lack of the
sense of smell, that human excrement has a unique pungent property. The
aroma we detect is directly related to the microbial decomposition of the
things we eat. The two major gases produced in this fermentation process
are methane and hydrogen sulfide. Methane burns and in high concentrations
will violently explode, but hydrogen-sulfide gas is actually the more danger-
ous of the two from a health standpoint. Fecal matter contains sulfur mole-
cules that are processed by the microbial populations in the excrement, and
produce the gaseous by-product hydrogen sulfide, which is commonly rec-
ognized in low concentrations as the smell of rotten eggs. In higher, lethal
concentrations, the gas paralyzes the olfactory senses and can generally kill
as it goes undetected.
I was called into this case by an attorney representing the parents of a
young man who was killed on the job while servicing equipment at a Mid-
western city’s solid-waste treatment plant. The company he worked for did
maintenance work on mechanical systems of various sorts for municipalities
throughout the state. One morning, he was assigned to unblock an under-
ground bar-screen operation, which filtered out solids from the waste stream.
This operation was built into a subterranean cement vault through which
flowed the effluent stream of partially digested excrement. After entering the
vault and working for a few minutes he was overcome by the hydrogen-sulfide
gas and died. The cause of death, attributed by the medical examiner, was
hydrogen-sulfide poisoning.
My task was to determine the source and concentration of the hydrogen-

sulfide gas and, more important, what the city should have done to safeguard
the premises and warn contractor personnel of the lethal hazards. During
the investigation, I noted that the interior of the vault was riddled with pock
marks in the concrete. The corrosive action of hydrogen sulfide on concrete
is well-known to chemists and those in the industrial-hygiene field, and this
explains the appearance of the vault’s interior. I also found no evidence of
monitoring equipment or sensors that could alarm if concentrations were
raised to adverse health-effect levels. My job was made even easier due to the
absence of any warning signs or posted cautions about the lethal gas potential
of a process that has, as its major component, fermenting excrement!
The wastewater industry is well aware of the potential danger from the
generation of hydrogen sulfide, as is clearly warned in their publications.
Occupational health and safety laws clearly have statutes dealing with what
concentrations are prohibited under the law. Yet, no one in the city nor the
management of the plant operation took an affirmative role in preventing
conditions that could lead to a death such as had befallen our client’s son.
During the trial the testimony was focused on showing that the premises
were defectively designed and thus directly responsible for the lethal condi-
tions under which the city asked contractor employees to work. Even the
most hazardous and defectively designed conditions can be worked safely if
sufficient and effective warnings exist to prepare workers for personal pro-
tection and isolation mechanisms of control. The city was held to have been
negligent in the maintenance of their premises.
Lipoid Pneumonia Doesn’t Mean “Fat Lungs”

It has been said that those who do not learn from history are doomed to
repeat it. This is dramatically true in the field of occupational health and
safety. The lessons of years passed do not seem to be handed down with the
technology they follow, and this is particularly true of the processes used in
today’s industrial world. I still remember my father’s workshop, with a greasy
old oilcan that would make any number of tools work smoother and quieter
with just a drop or two of its contents. Today we have aerosol cans that
speedily apply all forms of lubricants, from liquid lithium grease to synthetic
penetrating oils. Some of the spray goes onto its intended target, and some
of it is inhaled by uncautious users during application. Once inhaled, the
tiny aerosol droplets of oil are easily distributed into the depths of our lungs.
When the microscopic oil droplets are comfortably situated in a warm and
cushioned air sac, our lungs begin to resent their presence and send their
garbage-collection cells (macrophages) to gobble them up and take them
away. The tragedy of this scenario is that with too many of these microscopic
droplets in the lung, the army of macrophages is so large that they wallpaper
the walls of the air sack and cut off the flow of oxygen to our blood stream.
This condition is called lipoid pneumonia.
Lipoid pneumonia is no new kid on the block. It has been known down
through the years in candlemaking, tallow rendering, painting, metalworking
and other occupations that spray or splash oils into workers’ breathing zones.
It is also one of the most misdiagnosed diseases in medicine because physi-
cians are taught that pneumonia is a condition of the lung filling up with
fluid. The rapid diagnosis is by X-ray, through which the infiltrators can be
visualized as foreign to the lung. In contrast, when macrophages fill in they
are invisible on an X-ray because they are normal to the lungs.
I became involved in a case involving a massive outbreak of lipoid pneu-
monia in patients who were misdiagnosed with everything from the flu to
bronchitis. These workers were all involved in cleanup of a major oil spill in
Alaska. Huge contracts were doled out to firms who would clean the water-
ways of the oil sludge and residue in order to resurrect the fragile environ-
ment. Hundreds of workers were brought up from the lower 48 states to fight
the mighty battle. Crews worked with steam-equipped boats and hoses to
spray the oil off the rocks and shoreline with a heated force necessary to
soften the crude-oil sludge. The combination of steam and pressure created
a saturated oil mist for all to breathe with little or no respiratory protection.
Lipoid pneumonia ran rampant, as was revealed during the litigation dis-
covery process. The lead plaintiff suffered not only from lipoid pneumonia
but also from subsequent organic brain damage caused by a diminished
supply of oxygen to the brain.
How difficult can it be for sophisticated oil company medical personnel
and supervising industrial-hygiene contractors to recognize that spraying oil
in the breathing zone of workers will result in lipoid pneumonia? It is my
guess—though I really shouldn’t speculate—that they failed to heed the
lessons of the past, and the multimillion-dollar verdict proved that they are
doomed to repeat it.
Enough of my war stories. I could go on for double this number of
pages, with my 30 years in the business, but you are probably already asleep.
As an expert witness you will never know the diversity of situations you are
asked to explore until the phone rings and an attorney says, “I think I need
your help.” If nothing else, they will make great bedtime stories to tell the
grandkids.
Do You Charge for

Your Testimony?
No, I Charge for
My Time!
16
The Fee Structure

When testifying, the primary responsibility of any expert witness is to listen
carefully to each and every question and to respond to the question with a
full and complete answer and nothing more. Regardless of what some people
think, listening, when done carefully, takes a lot of work—and that work,
like any other, deserves payment. I can’t count the number of times I’ve been
asked the question, “Do you charge for your testimony?” This question is
usually an attempt to make you look like a paid gunslinger whose testimony
can be bought. And, of course, the appropriate response is, “No, I charge for
my time, not my testimony!”
Fees are sometimes a touchy subject, which makes the jury aware of just
how costly the legal system is to them as individuals and society in general.
I’ve often pondered about how the jury would interpret the fee structures
charged by experts in light of the typical salaries earned by most jurors. These
fears are apparently unfounded, as most media-savvy jurors are very knowl-
edgeable about professional salaries and litigation costs. In addition, as the
trial progresses, this same question about fees will be asked of the expert
witnesses on both sides and responded to under penalty of perjury. Again,
the truth is the truth, and what you are paid is a matter of the court record.
Fees are normally broken down into three main categories: (1) fees for
case retention, (2) hourly rates, and (3) fees for special projects or investiga-
tions. When I began to do expert witness work in the early 1970s, I stumbled
105
over fee and collection issues a number of times until I was lucky enough to
be coached by an older, more seasoned criminal-forensics expert. He sug-
gested developing a “case retention” policy, an “hourly” rate for consultation
or investigation, and rates for any special projects or literature research that
might be done on behalf of a client. This helps to smooth over the hurdles
of accounting and slow-paying clients.
Contracts, Retention, and Consulting Agreements

Some litigation consultants require elaborate contracts, while others work
on a handshake basis. Whatever your comfort level you should have an
appreciation for the plusses and minuses of each form of doing business. At
the beginning of my consulting and litigation-support practice I used a
consulting agreement that spanned two pages of tiny print and all conceivable
contingencies. I’ve placed a generic version of that old consulting agreement
in Appendix C that you can freely copy or modify if you desire to use such
a document. You may want to lift a paragraph or two for inclusion in a
document you already use or adapt the whole agreement to your individual
needs. This agreement was written by a lawyer and covered more things than
even I fully understood. I haven’t used it in the last 15 years.
Currently, I only have three fee scales: (1) retention fees, (2) deposition
fees, and (3) trial fees plus expenses. This doesn’t require contract language;
I can easily relate it over the phone and if needed for some third-party payer’s
bookkeeping I can write a one-page, two-paragraph letter to cover it all. Let
the punishment fit the crime!
Retention
A retainer is a prepaid amount agreed upon to retain someone’s services. In
the case of the expert witness it covers the time spent on any submitted
materials to be read and it becomes the contractual relationship between you
and your client in the specific, captioned case in question. The amount of
reading to be covered by the retainer fee should be delineated prior to any
commitment to accept the case. It is my policy that for the single-case retainer
I will read one or two volumes of deposition, opposing expert medical and/or
scientific reports, and any legal documents that contain relevant information
to my testimony. A retainer-reading caution that should be considered by
any prospective expert-witness candidate is the format of the material to be
read. Depositions come in either “full page” or “condensed” versions, and
the condensed, small-type copies are much more difficult to read because
four normal pages are condensed onto a single 8.5" × 11" piece of paper.
Another area bearing discussion is the size of the deposition. I have, in the
past, been told that only the plaintiff ’s direct videotaped deposition was being
Do You Charge for Your Testimony? No, I Charge for My Time! 107
sent. When I received the material I discovered, however, that there were 11
volumes of condensed deposition, each containing 200 or 300 pages. This
goes beyond the retainer commitment and if the entire set of volumes must
be read, an hourly charge is added and billed. I have also received, in elec-
tronic format, close to a gigabyte of data that represented everything in the
client’s electronic file system—far more than I could use or was willing to
read for the retainer fee stated. Communication with your client is both
demanded and appreciated; if you don’t take advantage of it, you will regret
not doing so!
It is important to note that on occasion your attorney-client will send
you original documents to review. This should be discouraged whenever
possible due to the potential for losing or damaging irreplaceable materials.
If you do end up with originals, review them with the caution appropriate
to these court documents and return them via a traceable courier-delivery
service as soon as possible.
Upon completion of the reading, the retainer funds are exhausted, and
all additional assignments are charged separately. If additional reading of
deposition materials is required, you should inform your client that the
“meter will be running” at your hourly rate. Another aspect and advantage
of the case retainer is that contractually your client now has your permission
to “disclose” you on the court-required expert-witness designation, which is
shared with the opposing counsel.
Another aspect of retention can be conflict prevention. In some cases
you may be retained in a case not for your expertise but to keep you from
being used by the other side. This can be discussed overtly or be done without
your knowledge. An indication of this pseudo-retention is when a check
arrives without materials or direction for the work that is desired. When this
situation arises, you may still be called by the opposing counsel as a hostile
witness at time of trial.
Hourly Fees
It has been my experience that hourly fees should reflect the specific case and
exact nature of the work being performed. The hourly rate for deposition is
based upon the number of hours, or any part of an hour, consumed by the
moving party.1 In some cases, there may be deposition or trial preparation
time which will be billed as a separate line item on your invoice. If at all
possible—and this is generally considered a reasonable request—ask for a
semiquantitative time commitment for a deposition session. This will allow
both you and the various participants at the deposition to allocate and block
the time. When informed that approximately two hours is needed for dep-
osition, I block two hours of my time and expect to be compensated for the
time used. If then the deposition goes for one-and-a-half hours, the attorney
taking the “lead” in the deposition pays for the full two hours. If it only lasts
one hour, then only one hour is paid. This, of course, is not possible during
trial, as the ebb and flow of testimony and procedural tasks will then dictate
the pace.
Many jurisdictions will have local rules or codified fee considerations
that you should know before going into the field of expert witnessing. You
can see in Appendix A, the California Evidence Code on Expert Witnesses,
that fees and payments are strictly regulated. An expert’s fee must be paid at
the time of the deposition or within five working days. In the event of the
deposition being held telephonically (as is permitted in some jurisdictions)
you are entitled to your first hour’s fee prior to the day of the deposition. In
the area of California workers’ compensation cases, expert fees are limited
to $200 per hour by statute. Unlike time-and-charges billing in civil-court
actions, experts in workers’ compensation cases will charge for separate prep-
aration time in addition to hourly deposition or hearing fees.
Unique Billing Situations

Special projects or literature-research time pose special considerations, as
each task may vary with the nature of the case. It has always been my practice
to identify the potential cost of a project to the client prior to the project
commencing. Without this prior approval, fee collection often becomes a
lesson in minutia justification. If the subject of the study requires an inno-
vative design for an accident simulation as opposed to expert-witness
research hours in a biomedical library the time and costs will be more
extensive. These are the details the client needs to know and accept before
committing to the work. Attorneys typically bill for all increments of time
spent on a case, including telephone time. I have always offered all my past
and current clients full access to telephonic consultation without charge.
Some calls are brief, others go on for many minutes, but I consider my ability
to answer questions or offer direction as something of a marketing tool;
phone calls are free, other work is billed!
Fee Bases
Expert-witness fees typically reflect levels of experience, familiarity with
court testimony, and academic or professional credentials. Rates for medical
testimony vary from $250 per hour to $5,000 per day. Scientific testimony
varies from $75 per hour to $500 per hour, depending on the area of spe-
cialization. In the field of industrial hygiene and safety, fees generally go as
high as $400 per hour, but vary with the time period and conditions of the
economy. As this book ages, the above figures will vary, so network with
other expert witnesses to get a better and more current appreciation of

prevailing fee structures.
The Declaration of Fees

On occasion, an expert witness may be asked to prepare a declaration in
support of some motion, or an opposition to a motion, brought before the
court by your client or the opposing party. The preparation of a declaration
can involve a little or a great deal of effort on the part of the expert witness.
Your client, the attorney, may prepare a draft declaration for you to correct
and sign, or you may be asked to write the declaration from scratch. In either
case, if you expend the effort required to read, revise, write, and correct any
inaccuracies in the text, you deserve to charge a fee for this work. A point to
remember regarding declarations and their signing is to read them carefully
before you sign them. What you declare under penalty of perjury on paper
has the same effect as if you were testifying in trial!
Billing Practices
You cannot expect your client to pay a fee without some form of invoice
or letter of demand. When your work has stretched over several weeks
or months do not wait until the case is finished before billing. Timely
billing is always appreciated and generally elicits prompt payment. In
today’s era of computerized stationary generation it should be no problem
to formulate a one-page invoice template that can be filled in and then
presented to the client for payment. The invoice should include the
business name (what you call yourself or your company) and an address
where funds can be sent. In the ever-present IRS world in which we live,
you may also save time and avoid slow payment by indicating your tax
identification number. Without a tax ID number you will have to submit
your personal Social Security number, which I avoid doing whenever
possible. Obtaining a tax ID number is a simple, single-form request of
the Internal Revenue Service.
If the fee is governed by a statutory time for remittance, which is the case
in some jurisdictions, this should be your guide for following up with another
“past due” invoice. I generally allow five working days (as is statutory require-
ment in California) for deposition payment and one month on other fees
before beginning any action, and this is based upon my published terms. On
my invoice it indicates, “Fees are net 30 days, unpaid accounts will be charged
1% per month plus any collection costs.” This tends to expedite payment in
most cases. When on occasion it doesn’t, I end up going into a “collection
mode” to settle accounts.
Collecting Your Fees

On amounts under $7,500, the current jurisdictional limit in small-claims
court in California, I undertake my own collection strategy. The small-claims
court looks for certain procedures to have been tried prior to bringing an
action. These procedures include several attempts to effect collection by either
telephone or demand letter. My policy is to call twice and write one letter of
demand before filing in small-claims court. I have unfortunately had to sue
several attorneys in this way but have found it a reasonable and very rapid
way to bring about payment.
I have often been asked if I will work for attorneys who have been slow
to pay, and the answer is yes. Most lawyers and law firms are very busy and
your fees are just one small cog in their wheels of progress. Lost invoices or
other distractions can happen to anyone! One aspect of small-claims actions
is that very soon after being served with court subpoena papers, a check is
almost instantly forthcoming. I learned, after suing an attorney for the first
time, that when a judgment is issued by the court, it apparently goes on their
record and follows them until you acknowledge satisfaction of the judgment.
Pro Bono Work

A seldom-recognized aspect of professional life is the obligation to give back
to the community that has given you benefit in the past. This is true in law,
medicine, and other professions, and is called pro bono activity.2 I make it
clear to the clients that use me on a repeated basis that I am happy to take
on a pro bono case whenever the attorney is also extending herself in a pro
bono mode, and the opportunity does arise. I can only say from experience
that expert-witness work has been good to me over the years, and I believe
that one good deed deserves another!
Workers’ Compensation Reports

Unlike work in civil cases, the role of the expert witness in a workers’ com-
pensation case often requires a report to a workers’ compensation appeals
board or similar entity. When this report is generated it is a part of the retainer
fee and is not charged separately. The reason for this difference in fee struc-
ture is a diminished amount of review by the expert witness to address the
specific questions posed by the client. The expectations of the civil case may
encompass an entire life’s work history of exposures or a detailed reconstruc-
tion of a defective products failure. By contrast, in the average workers’
compensation case I am generally asked to evaluate only a single employer’s
potential for exposure or injury and assess whether the evidence reflects any
statutory negligence. This difference clearly separates the civil fee structure
from that applied to workers’ compensation.
Collecting workers’ compensation fees for deposition can be a particular
problem, as most attorneys who defend these cases work for a variety of
insurance companies. They will submit your bill to the insurance carrier, and
it may take weeks or months to receive payment. To manage these collections
I’ve begun using a petition for payment process sent directly to the presiding
judge of the appeals board for the venue of the case. Samples of the three
forms I use—a cover letter, a petition for payment, and an order for pay-
ment—can be found in Appendix C.
Travel and Other Expenses

Not all cases are venued in your own neighborhood. If you must travel to a
distant location and incur hotel, cab, flight, or any other expenses they are
charged to the client. I offer my client an array of variables with regard to
choice of accommodation. When a flight is necessary and I must travel on,
for example, a Tuesday to testify on Wednesday, I offer the client the option
of being charged for two consulting days plus travel-direct expenses or paying
one day and first-class airfare and per-diem expenses. As I slide into the
twilight of my expert-witness career, I need the evening of rest prior to trial
to equilibrate and be ready for a day of testimony. When I was younger, I
could take nighttime “red-eye” flights or arrive an hour or two before trial
and be ready to go. Today, however, the machinery is a bit more rusty than
it once was! When requested (though I find it seldom is) by a client, some
form of detail or listing of expense items will have to be submitted. Putting
together a quick spreadsheet template can simplify and expedite input of
items and amounts during a busy schedule.
Cancellation Fees
Your time is as valuable as that of any other professional, and you deserve to
be compensated for it. I consider that allotting time out of my day and busy
schedule is equivalent to performing work. The reason for this is that if I had
not committed time to the scheduled task, I could have done some other
gainful work. To that end, I’ve developed a cancellation policy. I make sure
that the client is fully aware of the policy and that charges will be billed if
the commitment is not completed. My cancellation policy states that no
charges will be billed for any trial or deposition appearance when 48-hour
advance notice of the cancellation is received. If a trial day is cancelled with

less than 48-hours’ notice, a trial fee is billed. If a deposition is cancelled with
less than 48-hours’ notice, one hour of deposition fee is charged.
A quagmire that you will want to avoid is the arrangement of contingency
fees. If your fee is based upon the outcome of the trial, it is hard to avoid the
inherent bias of wanting to win and therefore wanting to be paid. Contin-
gency fees have been structured (so I have been told) in one of two basic
ways: (1) there is a minimal fee charged for work and then a bonus expected
upon a successful outcome of the trial, or (2) by keeping track of your time,
and through charges at your customary rates, you will be paid in full if your
client wins; if not, fees will be negotiated.
I strongly advise against both types of contingency-fee structures, as they
turn you into an advocate for your side. Regardless of your trial demeanor
this will be obvious to everyone in the courtroom. My suggestion is to fairly
base your fees and only work for an advance retainer and no less than monthly
billing and payment for hourly work. Do not take on a case for which you
question your ability to do a good job, as your reputation is the most impor-
tant commodity you possess.
Privacy versus Disclosure

In trial on the witness stand, you will be asked many questions that are
designed to bolster or diminish your credibility in the eyes of the jury. One
area that is still reserved, on privacy grounds, is your annual income. You
can be asked what percentage of cases you do for plaintiffs versus defendants,
and what you charge for your time in trial and deposition. You can be asked
about the frequency of your litigation work, but not about how much you
earned from litigation support in the past year, or what your taxes were in
that year. The busier you are, the more cases you take on, the more rigorous
the opposition’s attack will be on your income as a result of litigation support.
The work of the expert witness is considered to be lucrative, challenging,
and frustrating. Your fee structure will evolve over time, and will continually
reflect the changes and growth of your ability, your past experience, and your
trial presence. Charge a fair amount for the work you do and your fee will
seldom be challenged. There’s and old Russian saying (roughly translated
from the wisdom of my dear departed father): “Pigs come out last!” Sustain-
ing my expert-witness practice over the past 30 years has resulted from
reasonable charges that were not the highest nor the lowest in my field. Of
course, what I consider reasonable might be characterized by others as “high
end,” but you get what you pay for!
Expert Witnesses:
The Good, the Bad,
and the Ugly
17
CHRISTOPHER E. ANDREAS
I am a plaintiff ’s attorney practicing in San Francisco, CA. During the past

10 years, I have tried in excess of 40 personal-injury cases to verdict. My
practice is focused on representing individuals suffering from asbestos dis-
ease. While settlement is always preferable, a trial by jury is frequently nec-
essary to achieve justice and full compensation for my clients.
The men and women I represent either worked in residential, commer-
cial, industrial, and maritime construction during the 1940s through the
1970s, or were family members with household exposure. They were unwit-
tingly exposed to hazardous levels of airborne asbestos while working with
or around asbestos-containing products. Invariably, this work was performed
without benefit of respiratory protection or the most rudimentary dust-
control measures. As a consequence of their past exposure to asbestos, rather
than enjoying retirement, my clients instead face incurable disease and pre-
mature death.
Unfortunately, many of the people I represent die prior to trial. Those
who do survive have courageously battled through unimaginable pain and
emotional distress to present their case to a jury. Quite literally, the trial will
be the final chapter in their lives. A favorable verdict means more than simply
winning; it means peace of mind for these men and women. A positive verdict
permits them to die with the knowledge that their loved ones will at least be
financially secure when they finally give up the good fight.
Against this backdrop, I cannot help but be acutely aware of what hangs
in the balance every time I step into the courtroom. The pressure to win is
tremendous. Losing is simply not an option.
113
Trial Basics
A trial is in many ways analogous to a theatrical production. The parties,
witnesses, judge, and even the court staff perform for an audience of jurors
who will ultimately render the penultimate critique. Just as a Broadway play
or musical cannot be staged until the director has assembled a capable cast
and crew, a trial cannot proceed until the trial lawyer has identified necessary
witnesses and prepared them to testify. The trial lawyer, like the director, can
ill afford awkward gaps once the curtain rises. A seamless presentation is an
absolute must, for there is no such thing as a “redo” when it comes to either
a trial or a Broadway production.
In a civil trial, the plaintiff bears the burden of proof. The plaintiff ’s
attorney must introduce evidence establishing that the facts giving rise to his
client’s legal claims are more likely to be true than not true. This burden of
proof is sometimes referred to as the preponderance of evidence standard. As
California’s jury instructions define it, “Evidence can come in many forms.
It can be testimony about what someone saw or heard or smelled. It can be
an exhibit admitted into evidence. It can be someone’s opinion.”
Testimony is typically provided by live witnesses at the trial. However, the
testimony of an ill, deceased, or otherwise absent witness may also be pre-
sented via deposition or prior trial testimony. Fact witnesses, also known as
percipient witnesses, testify about what they personally saw, heard, or smelled.
They are not, in most instances, permitted to express opinions while testifying.
In contrast, expert-witness testimony is almost always presented in the
form of an opinion. Expert witnesses rarely have personal knowledge of the
underlying facts in a case. This is not to say that an expert is free to disregard
the facts. Indeed, expert opinions are only permitted if they are rationally
based on the facts and derived from analytic methods that are generally
accepted by mainstream medicine and science. Percipient and expert witnesses
play pivotal roles in every trial, but in my cases the testimony of a credible,
well-qualified expert witness is frequently the deciding factor for many jurors.
In the following sections I will discuss some of my experiences with
expert witnesses, both positive and negative. Although the focus will be
largely on industrial-hygiene experts, I firmly believe that potential expert
witnesses from other scientific disciplines will also benefit from hearing about
the good, the bad, and the ugly.
The Good
What constitutes a “good” expert witness? This is not as easily answered as
you might think.
Expert Witnesses: The Good, the Bad, and the Ugly 115
Inevitably, conflicting expert opinions will be presented during the

course of a trial. It is, of course, the jury’s task to resolve such conflicts. Jurors
are instructed that they need not accept the opinion of an expert. Rather,
they can choose to believe all, part, or none of an expert’s testimony. An
expert’s qualifications, biases, demeanor, and methodology figure promi-
nently in such an assessment. It is therefore crucial that the trial attorney
select expert witnesses who are not only well-qualified to render the opinions
they impart to the jury but equally capable of withstanding the sometimes
withering attacks leveled against them by opposing counsel.
In my cases the jury must be educated about asbestos in order to appre-
ciate just how hazardous it was for my clients to work with and around it. I
rely on the expert testimony of an industrial hygienist to accomplish this
goal. There are very few industrial hygienists presently alive—much less
practicing—today who actively worked in the field when asbestos-containing
products were still being manufactured, distributed, and used in this country.
At first blush, this may not seem to be a critical distinction. After all, industrial
hygiene has recognized asbestos as a workplace hazard and trained its adher-
ents on the subject for many decades. However, I have learned that presenting
the opinions of an industrial hygienist with “real world” asbestos experience
can literally mean the difference between winning and losing at trial. Over
the years, I have retained the services of several well-qualified industrial
hygienists to testify at trial. In each instance, the choice was made on the
basis of their experience specific to asbestos.
My direct examination of an industrial hygienist begins with a thorough
discussion of his background, training, and experience. I pay particular atten-
tion to the work he has done on behalf of governmental agencies as well as
corporate clients involving asbestos-hazard identification and control. The
fact that my expert was previously retained outside of litigation by former
manufacturers and distributors of asbestos-containing products is not lost
on jurors.
Perhaps more important, the industrial-hygiene experts I retain are rec-
ognized by their peers as experts on the subject of asbestos. They have
authored book chapters and articles in peer-reviewed journals, and have been
consultants for regulatory agencies regarding the hazards of asbestos. Major
universities invite these experts to teach the next generation of industrial
hygienists, toxicologists, public-health professionals, and physicians about
asbestos so that they will be equipped to deal with the scourge of this latent
hazard in the future.
The following excerpt from a recent asbestos trial demonstrates how an
expert’s background and qualifications can and should be highlighted for
a jury.
Q: Are you presently employed?
A: Semiretired.
Q: From what occupation did you semiretire?
A: I retired from the state of California in 1998. I was with the

Division of Industrial Relations, a section called Cal/OSHA.
Q: And what was your position with Cal/OSHA when you retired
in 1998?
A: I was a safety and hygiene inspector, industrial hygiene and

safety inspector.
Q: Let me get you to define those terms up front if I might. I guess

we’ll start with safety. What is the role of a safety inspector?
A: A safety inspector deals with the industrial hazards that a work-

er might be exposed to that are readily observable; an unguarded
saw blade; a cord across a floor that somebody could trip on; some
sharp objects; et cetera.
Q: Were you, during the course of your career, licensed and cer-
tified in any way by the federal government or agencies within the
federal government?
A: Yes, sir. There were a number of certification programs which

were necessary. One happened to be an association with some-
thing called the AHERA program: A-H-E-R-A, Asbestos Hazard
Emergency Response Act, where the Environmental Protection
Agency decided to regulate asbestos in schools and to help prin-
cipals, administrators, and teachers to understand what construc-
tion materials may have been manufactured with asbestos that
they should be aware of.
Q: In particular, we asked you about some work that you’ve done.

You mentioned Cal/OSHA. Any other governmental agency that
you consulted for on the subject of asbestos?
A: I’ve done a great deal of consulting for the Navy. I helped the
Navy develop programs in asbestos with regard to shore-based
facilities. Because, just like any other construction site or factory,

the Navy has factories that incorporate asbestos into their build-
ings and into their processes. I also coauthored for the Navy Tech-
nical Manual on Asbestos that the Navy, I believe, is still using. And
that technical manual was on advising what the Navy calls their
maintenance department, it’s called the Public Works. In the Navy
Public Works program, people were instructed on how to deal
with asbestos, how to recognize it. And I actually was involved
with the Navy in bringing samples of material from bases all over
the world that the Navy had to analyze in my laboratory to see if
it had or did not have asbestos in it so that Public Works people
at those locations could know what precautions they would need
if they went out and worked in those areas.
Q: Have your publications appeared in peer-reviewed journals in

your area?
A: Yes, sir.
Q: And have you served as a peer reviewer for others’ work?
A: I have on occasion, yes, sir.
Q: For journals in your field?
A: Yes, sir.
Q: Let me ask you about whether or not you have taught over the
course of your career.
A: Yes, I have.
Q: In what areas?
A: Well, I’ve taught both at the seminar level for professionals as

well as the academic level in universities. I’ve taught—some of the
first teaching I did was at the medical school at the University of
California–San Diego. I taught a course called Industrial Toxicol-
ogy for Physicians. Industrial toxicology is merely a course on
industrial poisons, toxins, the things that would affect a worker.
And asbestos was obviously one of the major ones that I taught
as it related to particulate or lung inhalations. I also taught indus-
trial hygiene at National University, which is a private university

in San Diego. I taught at San Diego State. I was one of the founding
faculty at the Graduate School of Public Health at San Diego State
that opened in the early 1980s and taught industrial hygiene and
a number of other courses at San Diego State. I also taught at
UCSD, University of California–San Diego, at the School of En-
gineering. I taught industrial hygiene for hazardous-waste-man-
agement workers, persons who work dealing with hazardous-
waste management who also needed to know how to protect them-
selves and their workers against industrial toxins.
Q: Let me turn to consulting work now. Over the course of your

career, outside of what you told us about how you consulted for
the Navy and so forth, have you also consulted for private industry?
A: Yes, sir, I have.
Q: For how long have you done that?
A: Thirty years.
Q: Thirty years. Can you give us some sense of the types of com-
panies that you’ve—that have retained you to consult with them
on industrial hygienist and toxicology issues?
A: Certainly. I’ve consulted for companies that were involved in

asbestos manufacture and production: Garlock, W. R. Grace, Kerr-
McGee, Raymark, and other companies such as that who were
actually manufacturing asbestos products.
Q: You are here today to speak with the jury in a legal context.
Have you done that over the years?
A: I have worked in the area of what I call forensics, yes; legal

litigation support, since the mid- to late 1960s.
Q: And has it been all asbestos or other issues?
A: No, sir. What I’ve been able to do is apply the scientific theory
to cases that I’ve been asked to be involved in in the criminal area
in a number of things such as that. When I was with the Navy as
an enlisted person, the Navy sent me to pharmacy school, so I got
involved in a number of cases involving pharmaceuticals and drugs,

and that was part of the forensic work that I did, the criminal
forensics. I then left the criminal area and got into something called
product-liability litigation, where a product would fail, it would
hurt somebody, it would do something bad, and someone
would—an attorney would ask me to analyze that product to see
why it went wrong, what was defective about it. And I did that for
a number of years. And I started testifying in asbestos in approxi-
mately 1985—1984, 1985, as I was requested to talk about asbestos
as one of many industrial toxins that might affect workers.
Q: And in that regard, over the last 20 years or so, have you testified
for plaintiffs and defendants both?
A: Yes, sir.
While background and qualifications are critical, the good expert witness
must also present well to the jury. By that I mean that she must be able to
engage the jury, grab its attention, and make it understand frequently com-
plex—some might say less than stimulating—subject matter.
With that said, it is simply not possible for a trial attorney to prepare an
expert witness to be engaging or personable on the stand; either they are or
they are not. I have found that expert witnesses who have taught at the
undergraduate or graduate levels typically possess these intangible traits. It
translates into a delivery that is both easygoing and professional at the same
time. The good expert never talks down to a jury. She connects with jurors.
Of course, the type of case involved will dictate whether a given expert
witness is a good fit. If she possesses the requisite background, training, and
qualifications and is able to deliver competent, well-reasoned opinions in a way
that does not put the jury off, then you have what I would consider a good expert.
The good expert makes a trial attorney’s difficult job easier because he
has one less thing to worry about while juggling the many balls in the air
during a trial. On the other hand, a bad expert not only makes the trial
attorney’s job more difficult but presents the real threat of single-handedly
“sinking” the case.
The Bad
Just as it can be difficult to define what makes an expert witness good, it can
be equally difficult to identify with any degree of precision that which makes
an expert witness bad.
I can honestly say that I have been blessed with the opportunity to present
expert witnesses who fall into the good category. This assessment has been
echoed by jurors after trial. To the extent that I have encountered bad expert
witnesses it has been confined to the experts called by my adversaries.
The greatest tool in the trial attorney’s arsenal for exposing the bad expert
witness is cross-examination, either at deposition or trial. I have found that
“trial cross” is the most effective means of exposing bad expert witnesses. A
deposition attended only by attorneys and a court reporter is a poor substitute
for the dynamic atmosphere of a courtroom, where the witness must respond
to questions before a judge and jury. Whether they be percipient or expert,
the simple fact is that witnesses always feel more comfortable testifying at
deposition.
The bad expert typically is less qualified to speak on the subject, evinces
a clear bias, appears combative, and frequently is poorly prepared. While a
skillful attorney can highlight these weaknesses at deposition, the courtroom
is the venue best suited to exposing a bad expert.
While there are many examples I could cite, the following excerpt taken
from a deposition I took of a defense industrial-hygiene expert makes abun-
dantly clear the difference between a good and bad expert witness. By way
of background, this industrial-hygiene expert was produced by a Canadian
asbestos-mining company defendant that supplied raw asbestos fiber to the
manufacturer of the insulating cements that the plaintiff had mixed and
applied in the U.S. Navy during the 1950s. His sole task was to provide an
opinion or assessment regarding the relative significance of the plaintiff ’s
exposure to his client’s asbestos fiber.
Q: Who do you understand retained your services in this case?
A: The—the law firm of Wilson Elser.
Q: Do you have any understanding or appreciation as to who they

represent in this matter?
A: Um, I understand their client is Asbestos Corporation Limited.
Q: What do you know about Asbestos Corporation Limited?
A: Um, I was told that they, um, operated a chrysotile asbestos

mine, and—for a period of time—and that they were the exclusive
supplier of chrysotile fiber to Eagle Picher.
Q: And you say that you—as far as this information that you just
relayed about Asbestos Corporation Limited—that somebody told
you about that?
A: Yes.
Q: Who was that?
A: The opposing counsel.
Q: Now, other than that discussion with the opposing counsel, do

you have any other information about Asbestos Corporation Limited?
A: No.
Q: Do you know where their mine was located?
A: I don’t know exactly. I believe I was told in Canada, but I’m

not—
Q: Do you happen to know where in Canada?
A: Not a hundred percent sure.
Q: To the extent you’re at all sure, do you know where in Canada?
A: No.
Q: Have you ever visited an asbestos mine, sir?
A: I believe I have.
Q: Where?
A: In the central part of—of California.
Q: Which—what was the name of that mine?
A: I don’t recall.
Q: When did you visit that mine?

A: It’s been quite a number of years now. More than 15 would be

my estimate.
Q: What was your reason for visiting the mine?
A: I seem to recall that the—the mine was being closed at the

time, and they were converting it to an asbestos landfill.
Q: And what was your role?
A: That’s my recollection, at least. I’m not a hundred percent sure,

but I seem to recall—it’s been a number of years now.
Q: What was your role in visiting the mine?
A: I—as I recall, it was just to see the operation as it was being

set up. More of what I’ll refer to as kind of a marketing-type visit.
Q: What does that mean, a marketing-type visit?
A: I think that the mine wanted to, um, demonstrate that they
had, um, established certain procedures for handling asbestos
waste and—and they wanted individuals to, um, recommend use
of that mine.
Q: I guess my question at this point would be have you ever visited

an asbestos mine that was operating and producing asbestos?
A: No.
Q: I take it you’ve never visited an asbestos mine in Canada. Is

that fair?
A: Yes.
Q: Have you ever seen any products manufactured by Eagle Picher

your entire life?
A: I don’t know. I may have.
Q: Sitting here today, you can’t tell me that you have. Is that
correct?
A: That’s—I don’t know one way or the other.
Q: Have you ever observed insulation mud being mixed, and that
being insulation mud with asbestos?
A: Yes.
Q: When?
A: Um, numbers of times. It would be in the early ’70s.
Q: Okay. And what was the circumstance—what were the circum-

stances? In other words, why were you in a position to see that?
A: Um, I don’t recall. I have seen it both, asbestos- and nonasbes-

tos-containing insulating materials made.
Q: Okay. I’m focusing in on insulation mud at this point. Is it

your testimony, Mr. Smith,1 that you have personally witnessed
the mixing of asbestos-containing insulation mud? [Pause.] I’m
sorry, did you give an answer?
A: No. I’m not—I’m just trying to—when you say insulating mud,
can you please give me a definition of what you believe insulating
mud is and where it’s used so that I can—so I can better answer
your question?
Q: Well, you’re the expert here, so I’m going to ask you what is
your understanding of what insulating mud is.
A: Well, the term can be used in a number of ways, and that’s why
I need to know what you believe it to be, and then I can answer
the question.
Q: All right. So if I understand your testimony then, you were

simply told by somebody that what was being used was asbestos-
containing?
A: Yes.
Q: And do you recall where this was?
A: Yes.
Q: Where?
A: Um, it was at a—an aluminum smelter. I don’t recall the loca-

tion, though.
Q: Why were you there?
A: Um, I was there as an environmental-health specialist for the

company.
Q: What does that mean?
A: Pardon?
Q: What does environmental-health specialist mean?
A: That was my title at the time.
Q: All right. But could you define what that means for me? What
were you doing as an environmental-health specialist?
A: Um, I was evaluating the workplace for various types of exposures.
Q: So let me just ask this question as a foundational question:

When were you first certified as an industrial hygienist?
A: In 1980.
Q: All right. So this was in approximately 1974, about six years

before you were certified as an industrial hygienist?
A: Yes.
Q: And you say you were evaluating a workplace there at this

aluminum smelter for occupational exposures?
A: Yes.
Q: What specifically were you doing? Were you sampling the air?
A: I was not sampling. It was—you’re speaking of an occasion that

occurred more than 30 years ago, but it was probably nothing
more than a walk-through assessment at the time.
Q: So let me see if I can wrap this up. Is it accurate to state, Mr.

Smith, that you can’t recall an incident in your career where you
sampled the air while individuals were mixing and applying as-
bestos-containing insulating cement in conjunction with thermal
insulation?
A: That would be correct. I do not take any air samples.
Q: You’ve never done such an air sample. Isn’t that right, Mr.
Smith?
OPPOSING COUNSEL: Objection. Vague and ambiguous.
Q: As to the insulating cement and in conjunction with asbestos-

containing thermal insulation.
A: I’m sorry. You’ve lost me. I don’t understand the question.
Q: If I understand then, Mr. Smith, you have never to your knowl-

edge or recollection sampled air while individuals were mixing
and applying asbestos-containing insulation cement in conjunc-
tion with thermal insulation?
A: That certainly would be true for the aluminum smelter, and I

don’t recall doing any sampling. I may have, but I just don’t recall.
Q: Well, let me just ask this, then, as a follow-up question. You

may have. Does that mean that you don’t recall a specific instance
of doing that in your career?
A: Yes. That would be correct.
Q: Would that be—would it be further true that you have no

recollection, if in fact you ever did that, of any of the fiber counts
that you may have recorded?
A: That would be correct.
Q: What is your present fee for reviewing the materials and talking
about the case with the defense attorneys?
A: The—my hourly rate is $225.
Q: Is that a universal charge? In other words, that’s what you

charge for your time at deposition and in trial as well?
A: No. Deposition and trial time is $350.
Q: Do you charge for your travel time?
A: I do.
Q: At this same rate, $350 per hour?
A: No. No. It’s—the $350 is specific to deposition and trial time.
Q: All right. So it would be the $225 rate then for travel?
A: Yes.
Q: Have you actually prepared a bill and submitted it to the

opposing counsel for this case?
A: Um, I don’t believe we have.
Q: By the way, who do you work for?
A: The Smith Group.
Q: Are you the Smith?
A: Well, I’m not sure if I understand the question, but I’m the
only Smith in the Smith Group.
Q: Okay. I’m just trying to figure out if there’s another Smith, I

guess. So you are the president of the Smith Group?
A: I am.
Q: Earlier you told us, Mr. Smith, that you were first certified as
an industrial hygienist in 1980. Did I get that correctly?
A: Yes. I completed my certification in 1980.

Q: And was that a comprehensive practice certification?
A: Yes. That was in comprehensive practice.
Q: Tell me how many companies over the course of your career

outside of litigation for the time being that you’ve worked for
who actually produced or manufactured an asbestos-containing
product.
A: I have not worked for any companies that produce or manu-

facture an asbestos-containing product.
Q: Outside of litigation. Correct?
A: I—I am not employed by any company that has—that had

made an asbestos-containing product.
Q: All right. Well, let me just clear this up. The Smith Group is a
consulting company. Is that fair?
A: Yes.
Q: Has the Smith Group ever consulted outside of litigation for

any company that manufactured or produced asbestos-containing
products?
A: Um, we have consulted, but not with a manufacturer.
Q: All right. So your answer would be no, the Smith Group has
never consulted outside of litigation with any company that man-
ufactured asbestos-containing products. Fair?
A: That’s correct.
Q: Now, you have—let’s turn to litigation—the Smith Group has

in fact consulted in litigation over the last 26 years. Is that fair?
A: I don’t believe that we consulted for, um, all 26 years.
Q: All right. Mr. Smith, when did you first consult in litigation
involving asbestos personal injury?
A: I don’t recall the first case. I would presume it was in the late ’80s.
Q: Since that time how many cases have you been retained in
asbestos personal-injury litigation?
A: There have been many, but I don’t know the exact number.
Q: Would it be hundreds?
A: I would believe so.
Q: During the course of your work as a consultant in asbestos

personal-injury litigation since the late 1980s, how many cases
have you testified in on behalf of the plaintiffs?
A: And just for my understanding, when you refer to personal

injury, you’re only referring to civil litigation. Is that right?
Q: Right. Like this case?
A: Like this case.
Q: Right.
A: Um, I don’t believe I have ever.
Q: Would it be fair to say then since the late ’80s, when you got
involved and first retained as a consultant in an asbestos personal-
injury litigation, that your work has been exclusively for defen-
dants?
A: Um, with regard to asbestos, that would be correct. All I can

think of would be a property-damage case.
Q: Is it fair to say that you’ve never been retained and testified at

trial in any case on behalf of a plaintiff who has alleged they have
contracted an asbestos-related disease?
A: Yes.
Q: All right. Have you ever taught at any institution on the subject
of industrial hygiene to medical doctors?
A: No.
Q: As you sit here today, can you cite to me any industrial-hygiene

study which the industrial hygienists and authors have recorded
fiber-per-cc [cubic centimeter] counts or millions of particles per
cubic foot during operations where asbestos-insulating cement
was mixed and applied?
A: I cannot think of a specific study with asbestos cements.
Q: Right. And I’m not asking you for a study that’s entitled, you
know, “Fiber Counts for Mixing Asbestos Insulating Cements.”
I’m referring to any study in which there is data recorded on
fiber counts or particles per cubic foot during that operation,
amongst others.
A: I can think of studies that may have indicated it, but I just don’t
recall those levels at this time.
One additional example follows that illustrates the attempt on the part
of the expert witness to interject a joke into his testimony; this results in a
humorous backfire, to roars of laughter from the jury:
JUDGE: Did I qualify you as an expert in industrial-hygiene stuff?

I believe I did. Overruled.
A: I don’t have any data on the average diameter. I know the length
is very short. Most of the fibers are less than 5 microns in length;
therefore, the diameter would be very small.
Q: Let me direct your attention to—oh, we have already marked

this as Exhibit 167. This is a brochure, Dr. Jones, on Calidria
Asbestos RG-144. Have you seen that document?
A: I’ve seen similar documents. I don’t know about this specific

one.
Q: Let me put up on our viewer, here, page 3. This is the physical

property from Union Carbide’s own brochure about Calidria, the
specific grade RG-144. Do you have that in mind?
A: I do, yes.
Q: And it says there under “fiber diameter,” that would be what I

wrote here, 0.025 microns in diameter?
A: Yes, it would.
Q: And then it says length/diameter aspect ratio. Aspect ratio is

comparing how long it is compared to how wide it is, right?
Q: For something to be a fiber, under the definition of fiber, it has

to have an aspect ratio of three or greater?
A: Yes.
Q: Meaning it has got to be three times longer than it is fat?
A: Yes. You and I would qualify as fibers.
Q: Let’s hope that remains true. From one fiber to another, let me
ask you: If I see there it says, “length/diameter, two hundred av-
erage, one thousand maximum,” what can that tell us about the
average fiber length, if we know the fiber diameter is as indicated?
A: It is about 5 microns, or .5 microns; 5 microns is what I would

say.
Q: Five microns?
A: Yes.
Q: If you do the math?
A: Yes, I did.
Q: And the length, the longest length there would be 25 microns?
A: Yes, according to that.
Q: So RG-144 has got an average diameter here, and it is from 5

to 25 microns in length; is that right?
A: No. To be very precise, the average is 5 microns in length. The

maximum is 25, but there are many fibers that are less than 5
microns in length.
Q: Sure. That is how you would get it back to the average is five?
A: Yes.
Q: So that would be—these would all describe respirable asbestos

fibers?
A: Yes, it would.
Q: Now Mr. Brydon asked you a couple of questions about Amer-

ican PolyTherm. You have never been to American PolyTherm,
have you?
A: No, I have never had the opportunity.
Q: And other than reading Mr. Weatherly’s deposition that we

took, plaintiffs took in this case, you really don’t know anything
about American PolyTherm; is that fair?
A: And Mr. Bakkiels’ deposition, yes.
Q: Have you seen Mr. Taggart’s testimony?
A: I have not.
Q: One of the things Mr. Brydon asked you was, if AmericanPoly-

Therm had done all this stuff here in OSHA, that it would have
reduced the potential exposure to people at American PolyTherm,
I think you said between 95 to 99 percent. Do you recall that?
A: Yes, I do.
Q: Okay. Well, let me ask you some questions about this. Let’s
assume that they get these pallets of Calidria delivered to them in
their building. Have you seen the pictures of the building?
A: I have not.
Q: Do you know where in the building they were stored or ma-

terials were kept—Calidria?
A: Specifically, no.
Q: I would like you to assume it is basically a building that has

got three areas with big roll-up doors that connect them, and one
is in storage in a different room than where the mixer is.
A: I apologize. I did see the aerial photographs of the buildings.
The takeaway lessons from this discussion are very basic. Do not hold
yourself out as an expert on a topic you are ill-prepared to address or on
which you are not otherwise qualified to discuss. Answer questions posed to
you in deposition or trial squarely; do not mince words or appear evasive.
Finally, if you plan on acting as an expert in a specific litigation arena for an
extended period of time, make sure that you are not always testifying exclu-
sively for one side.
Jurors will tune in a good expert and tune out a bad expert every time.
While it may be embarrassing to be exposed as a bad expert in deposition,
it is far worse at trial.
The Ugly
The “ugly” expert is nothing more than a really bad expert. Discerning a
bright line between bad and ugly is, after all, a subjective call. Happily, the
ugly expert is the rarest of exceptions to the rule. Suffice it to say, the ugly
expert does not typically garner repeat customers in the legal field.
Rather than beating a dead horse, I will simply rest my case (no pun
intended) by providing the following excerpt of cross-examination drawn
from another asbestos trial. The expert industrial hygienist in the crosshairs
this time was hired by a defendant company that produced only one asbestos
product, an asbestos cloth used primarily to finish thermal insulation. This
gentleman not only sacrificed his own credibility, but obliterated any credi-
bility the defense attorney may have banked on with the jury, and amazingly
he did so with a wink and a smile.
Q: Who are the defendants you consulted for?
A: Yes.
Q: Who?
A: Pittsburgh-Corning, Rapid American, Klinger Gaskets. I think

there is another one in there somewhere. Oh, yes, a roof-tar man-
ufacturer.
Q: Can you tell us how much of your income currently—well,

let’s just say during the period you consulted for asbestos defen-
dants in this litigation, how much of your income has been derived
from that consultation work?
A: I estimated in the past on the order of 50 percent.
Q: Let me ask you this question right now, doctor: You’ve done
asbestos air sampling over your career; is that correct?
A: Yes, sir.
Q: Many times?
A: Oh, maybe a dozen or so times.
Q: For asbestos air sampling—excuse me. Did I say asbestos air

sampling?
A: Yes, you did.
Q: You would say how many times again?
A: A dozen or two dozen, something on that order. This is hands-

on stuff, not directing someone else.
Q: I understand. That’s what my question was getting at there. So

about a dozen or so times that you’ve done that?
A: Yes.
Q: Really?
A: Yes.
Q: On industrial hygiene-type issues?

A: Yes.
Q: You’re aware Exxon has an industrial-hygiene department?
A: Oh, sure. This was sort of an oversight job that I did.
Q: Did you ever work with a man named Jim Hammond?
A: I know Jim, yes. I never worked with him, but I know him.
Q: Is he a good industrial hygienist?
A: I don’t know. I can’t evaluate his industrial-hygiene prowess.

All I can tell you is that when he started teaching at the University
of Texas, he had adopted my book as the teaching tool to use.
Q: Wow, okay.
A: So he used to be a good teacher.
Q: Apparently so. Until fairly recently, you were a paid consultant

and lobbyist for the tobacco companies or Tobacco Institute,
correct?
A: Tobacco Institute.
Q: That was 1984 to 1993, correct?
A: Yep.
Q: You said you were a consultant. You were actually a lobbyist;

is that right?
A: Yes, I suppose I did consider something to be lobbying twice.
Q: What was that?
A: Talk to legislators with a lobbyist.
Q: On behalf of the tobacco companies?
A: On behalf of the Tobacco Institute.

Q: I apologize. The Tobacco Institute is made up by tobacco

companies?
A: No, it’s funded by the tobacco companies, not funded by them,

and is a nonprofit organization.
Q: I guess they don’t need to make a profit when they have all the
tobacco money coming in, right?
A: I suppose that’s true.
OPPOSING COUNSEL: I object.
Q: Were you lobbying for the Tobacco Institute in relation to

forestalling legislation with respect to regulating smoke?
A: Not to my knowledge, no. I don’t know what we were doing

there, frankly. I was talking about secondhand smoke and its lack
of effect on people.
Q: Okay. Now, most recently you’ve been receiving a check from

Raybestos-Manhattan or Raymark, as you prefer, correct?
A: No. The checks come from Bjork, Lawrence, Poeschl and Kohn
law firm.
Q: That’s opposing counsel’s firm?
A: She’s a consultant for the firm, yes.
Q: That’s true. She doesn’t directly work for Bjork, correct?
Q: You’re both consultants in a way?
A: That’s right, but I don’t bill her. I bill the Bjork firm.
Q: I believe you said you testify in trial or work with them on

something in a magnitude of cases.
A: On that order, yes.

Q: In the space of a year?
A: Less than a year. It won’t be a full year till July or so.
Q: How many depositions have you given on behalf of Raybestos-

Manhattan or Raymark?
A: I don’t know. Probably about the same number as trials.
Q: You were charging—had you already adjusted your charges to

300 bucks an hour when you started working for them?
A: Oh, yes. That was two or three years ago, anyway.
Q: How many trials have you testified in for them?
A: Again, it’s on the order of eight. I don’t know. I haven’t counted

them.
Q: I know you didn’t. Later on that same page, you’re asked about
how much asbestos is released from pipe covering and block. And
you indicate that you don’t know. Is that still the case?
A: Yes.
Q: So would you consider yourself to be an expert on the behav-

ioral characteristics of Raybestos-Manhattan’s cloth when used as
intended?
A: It depends on how one defines “expert.”
Q: Well, I guess it does. Do you consider yourself to be expert on

that subject?
A: No, I’m afraid I don’t consider myself to be an expert on much

of anything, sir.
Q: You would consider yourself to be expert on industrial hygiene,

wouldn’t you?
A: If one defines an expert as a person who knows more about it

than the average person, absolutely. And, in fact, that would apply
to my previous answer as well.
Q: Let me ask it this way. Wouldn’t you agree with me, doctor,
that it would be difficult to find an industrial hygienist who knows
less about the asbestos-fiber release from Raybestos-Manhattan
cloth than you do?
A: It would also be difficult—
Q: Excuse me, doctor, if you can answer that question.
A: The answer is, yes, it would difficult to find one who knows less.
Q: And that’s your considered opinion?
A: Of course.
Closing Argument
In closing, I want to make it clear to all those who may be considering a turn
as an expert witness that it was not my intention to discourage you from
embracing this important role in our legal system. Indeed, as an attorney I
encourage such participation.
For all its foibles, our legal system is still the most open and fair system
in the world. Nowhere else are ordinary citizens invested with the responsi-
bility to directly participate in government by adjudicating disputes that so
clearly impact the social fabric of a nation. In order to make a just decision,
our juries must be informed. It is the expert witness who is charged with
educating them. Without the participation of expert witnesses our legal
system would fail.
Closing Arguments
18
At time of trial, after all the evidence has been presented for both sides, there
comes a time of closure when each side is given the opportunity to sum up
what has been offered as evidence in its client’s favor and to remind the trier
of fact what has been offered. These almost final steps in the trial are called
closing arguments.
I also felt this book should have a closing-argument section in order to
review important areas covered, which the reader can then revisit. In the
pages of this book, many scientific, legal, and personal experiences dealt with
in a 30-year expert-witness practice have been explored. In the cases and
anecdotes given, I have tried my best to recount the details of my experiences
as accurately as my almost-70-year-old brain will allow. So I hope you have
followed me down the “yellow brick road” of being a litigation expert witness,
with all the benefits and potholes, the swerves and turns, so that we arrive
at our destination of feeling at ease in the legal arena if we must be there or
desire to be there.
Errors and omissions, in our everyday lives and at work, give rise to
anger, injury, and attributed fault. When errors and omissions occur to the
detriment of another, a lawsuit is sure to follow. The legal process does not
provide the opportunity for attorneys to convey facts or evidence to the court
or the jury; only witnesses or physical evidence can. The attorney is merely
the conduit for evidence to be judged by either a judge or jury.
After an incident has happened, either as the result of accidental circum-
stances or as a result of someone or something’s negligence, the piper must
be paid! When negligence is alleged, it must be proved with sufficient evi-
dence, often by way of expert opinion on the issues in question. It is worthy
of your efforts to understand at least some of the various types of negligent
behavior before becoming involved in a lawsuit. The opportunity to poten-
tially learn from other people’s mistakes may also benefit you in your personal
activities and business.
139
You don’t need to be a lawyer to appreciate and have a basic understand-

ing of the rules you are governed by when entering the world of litigation.
The few simple evidentiary areas and procedural rules learned can carry you
a long way toward understanding what you can and cannot do or why you
can or cannot bring your point of view to the forefront! Sitting in the witness
box is a lot like being the “dummy” in a game of bridge. You must depend
on the lawyers to ask the right questions and prompt you for the right answers
or you will find yourself quietly stewing in the witness box with much to say
and a virtual gag in your mouth.
If you are a technical type, make sure you know the latest and greatest
information and techniques about your special area of expertise. Whenever
possible, keep yourself updated on the legal, scientific, engineering, and
medical aspects of what applies in your current field of expertise. It is very
important to remember that the acceptability and weight given to your tes-
timony and opinions is directly proportional to the extent of foundation you
have given for expressing them.
In every legal case, each side attempts to persuade the trier of fact that
their side is the true and righteous way. It is just like the evaluation of a future
home: If the houses you consider vary in their structure and substance, it is
easier to form your decision. The house constructed of straw and speculation
is at one end of the spectrum while the brick and mortar structure is at the
opposite end. The literature you cite, the examples from your experience that
you relate, and the details of your specialized training are the bricks and
mortar of your testimony. The straw house can be blown down with the
weakest gust of wind, but the cross-examination hurricane makes little
impression on the brick house built on a solid foundation of facts. If you
were the jury, which one would you choose?
Have the confidence of your own self-worth! When you have expertise
in a unique subject area supported by years of experience, the court will,
more likely than not, judge you to be an expert. You certainly know a
great deal more about your subject that a layperson or the average juror.
Self-confidence is the key. Know your facts, support them with corre-
sponding opinions of others, and explain your opinion like a teacher to
students who now know you but don’t yet know your subject. The judge
or jury should be considered anxious receptors-students for your teaching
explanations of complicated technical concepts put before them. Trust in
the trier of fact’s handling of your information, for she may pleasantly
surprise you!
Many professionals have their own form of language and use it to com-
municate among themselves, yet seldom adequately communicate it well to
those whom they serve; lawyers and doctors are notorious for this behavior.
Never hesitate to ask the meaning of a question if you do not understand its
Closing Arguments 141
terminology or if you find its form unintelligible. One of the most respectable
answers to any legal question is, “I don’t know.”
The courtroom is a workplace, just like any other. The witnesses, lawyers,
judge, bailiff, jury, clerk, court reporter, and others are doing their jobs. When
you understand and appreciate those jobs, the courtroom will never again
be an intimidation. As I’ve said so many times, in this book, your most
important job is to tell the truth.
We all have skeletons in our past, and there are very few exceptions to
the rule. When involved in a litigation matter, let those representing you
know “up front” what your deepest and darkest secrets are, and what you
think the best way to handle them might be. Diffusing an issue by having
your attorney-client address it first in direct examination is the safest way of
making it a nonissue. Once disclosed, your demons may actually be consid-
ered inconsequential to your client or the court. If, however, you permit them
to be disclosed by the opposition’s attorneys on cross-examination, you run
the very real risk of becoming visibly emotional on the witness stand. Worse
yet, you will likely also be perceived by the judge, jury, or both as having
something to hide. Be scrupulously honest!
The best part about the prime directive tell the truth is that you never
have to remember what you said the prior time the question was asked. With
30 years of depositions and trial testimony transcripts behind me, it would
be easy to impeach me if I were to contradict myself on my testimony.
Litigation testimony, either in trial or deposition, seems to follow you like a
shadow and can creep up on you when you least expect it! In all my years of
witnessing, I have yet to be impeached, because, as I’ve said, the truth only
comes out one way.
The real difference between criminal, civil, and workers’ compensation
cases is merely the rules by which the game is played. Criminal cases can be
intimidating when working with the darker elements of society. My only
other comparison observation, between working civil versus workers’ com-
pensation cases, is that the pace in workers’ compensation cases is a bit slower
and somewhat more laid back than in civil matters.
We live and work in a chemically enhanced world, and very little is known
about the chemicals, and physical stressors with which we come in contact
on a daily basis. As science and medicine learn more about the adverse affects
of those chemicals, our focus is heightened by those who become injured
who are not content to allow the insult to exist with impunity and thus choose
to bring a toxic-tort suit against anyone responsible.
When dealing with human injury, we may never have a huge population
to evaluate, yet we are forced to draw conclusions from what we know. The
hope for those in the public-health professions who must sort out the data
is that the data is available as well as accurate. All too often, anecdotal
accounts of injury data are cloistered in dusty medical case files and out-of-
date court records. Contemporaneous measurements or indicators of expo-
sure are not generally available, and we must be content with the 20-20
hindsight of educated opinions.
We do the best we can in our professional lives and sometimes are not
aware that we are held to a standard higher than we once believed. When
our actions are reviewed with the cold, hard focus of 20-20 hindsight, our
vulnerability stands out. Do good work and keep good records to avoid
professional negligence and stay out of the spotlight.
Potholes in the Road to Expert Witnessing

From the attorney’s perspective, we are able to learn some of the pitfalls
that many witnesses have experienced. It is often helpful to see ourselves
from the perspective of someone on the other side of the aisle. The follow-
ing list of potholes in the road to successful expert witnessing may help
you to avoid tripping:
Know the case file well enough to testify from memory.

Do not answer questions you do not fully understand.
Avoid becoming a biased advocate; leave that to the lawyers.
Do not testify in areas outside your expertise.
Maintain physical-evidence integrity with a proper chain of custody.
Never lose your temper on the stand, no matter how provoked.
Examine a hypothetical question critically and demand more informa-
tion if needed.
Remember that juries pay attention to everything you say and do.
Failing to disclose pockmarks on your résumé can lead to disaster.
If opposing counsel asks you to confirm a concept that is correct and
accurate, do it! It will add to your credibility.
Do not exaggerate or embellish facts, events, or data.
Conclusions
It is important to keep in mind that expert witnessing is a critical part of
successful litigation. Understanding your role can go a long way toward
reducing your anxiety and any tension that might develop between you and
your attorney-client. As an expert you must be free of any recognized bias,
whereas your attorney-client must have absolute bias toward his client. The
lawyer’s job is to vigorously present the evidence in the light most favorable
Closing Arguments 143
to his client, whereas the expert witness must present the unbiased facts and
truth of the matter with the same level of vigor.
I hope that this primer on the litigation system has been of some small
help in your understanding of the law, legal matters, and the fundamentals
of expert witnessing. It has been an enjoyable adventure for me, and I hope
for you, the reader, as well. Here’s wishing you success in whatever part of
this expert-witness adventure you undertake.
Notes
Preface
1. A percipient witness is someone who has firsthand knowledge of events or
conditons relevant to a legal action; an expert witness is someone who has
knowledge or training in a particular field exceeding that of the average
layperson or jury member.
Chapter 1
1. The “person most knowledgable” is a person from a company or organization,
designated by that entity, to be the most knowledgeable person about the
subject at hand and also potentially the custodian of any records related to
the issue.
2. The finding of a violated regulatory statute can often be used as per se
evidence of negligence. The phrase “more likely than not” is frequently used
to indicate an absence of absoluteness, an opinion that reflects a 51 percent
probability, or a preponderance of the evidence.
3. The scientific method comprises the principles and procedures for the system-
atic pursuit of knowledge involving the recognition and formulation of a
problem, the collection of data through observation and experiment, and the
formulation and testing of hypotheses.
4. California Administrative Code, Title 8.
5. California Evidence Code §669 & 669-1.
6. Causation is the act or process of causing the incident.
Chapter 2
1. More detailed information on industrial hygiene and safety professional lia-
bility is dealt with in Chapter 13.
145
2. Taken literally, respondeat superior means “let the master answer.” This legal
doctrine states that an employer is responsible for negligent employee actions
performed within the course of employment.
3. In most states, a statute of limitation—a time limit—is set for filing a legal
action; if the expiration date is missed, a case cannot be brought, and the
matter will be dismissed by the court.
4. Negligence per se is the legal doctrine whereby certain acts constitute violations
of statutes or regulations may be considered intrinsically negligent.
5. The industrial-hygiene standard of 5 MPPCF is measured with impinger
technology as “total dust count” in air.
Chapter 4
1. Phillip Drinker and Theodore Hatch, Industrial Dust: Hygienic Significance,
Measurement and Control (New York: McGraw-Hill, 1936); Hervey B. Elkins,
The Chemistry of Industrial Toxicology (New York: John Wiley and Sons,
1950); Frank A. Patty, Industrial Hygiene and Toxicology (New York: Inter-
science, 1958); Donald Hunter, The Diseases of Occupations (Boston: Little,
Brown, 1962); Julian B. Olishifski, Fundamentals of Industrial Hygiene (Chi-
cago: National Safety Council, 1971); National Safety Council, Accident Pre-
vention Manual for Industrial Operations, 6th ed. (Chicago: National Safety
Council, 1974).
2. OSHA was created through the U.S. Occupational Safety and Health Act;
Public Law 91-694-1970.
Chapter 5
1. Cleavage is the longitudinal separation of smaller-diameter fiber bundles from
the original. This is a somewhat unique property of the asbestos-crystal
configuration.
2. The asymptotic area of the curve parallels the baseline and, by definition,
only reaches the baseline at infinity.
Chapter 8
1. A stipulation is an agreement made by both sides on an issue, and it is, by
law, binding.
2. A perpetuation deposition memorializes your testimony and opinions when
you are not available to be at trial in person. These depositions must be agreed
to by all parties and are often videotaped beforehand to later be played to
the jury.
Notes 147
3. A witness can be sworn in or asked to affirm his or her intent to tell the truth
during this testimony.
4. If a witness desires one, the holy book can be of any recognized religious faith
(though there are some limitations, and this varies from jurisdiction to jur-
sidiction) and often is available from the court bailiff upon request.
5. A signed statement, sworn to be true by the signer, will potentially expose
the signer to be guilty of the crime of perjury if the statement is shown to be
materially false—that is, if the lie is relevant and significant to the case.
6. Voir dire literally means “to speak the truth,” and is used to qualify both jurors
and expert witnesses.
7. Jury size varies with the jurisdiction. There are usually 12 jurors and between
two and four alternates, but some states only use six jurors and two alternates.
8. The gallery is the area behind the short “fence” from which onlookers (family
members, the press, etc.) view the trial. The well is the area where the judge,
clerk, reporter, bailiff, attorneys, and jury sit.
9. Impeachment is the process whereby a witness’s credibility is challenged if,
for example, he has changed specific testimony from one case to the next, or
within the case, without justification. For more on impeachment, see Chapter
10.
10. Daubert hearing is in Federal Court; the Kelly-Frye is in California Courts.
Chapter 9
1. William Dyson, Ph.D., CIH, serves frequently as an expert witness in asbestos
litigation.
2. William Dyson, “Wanted: Industrial Hygienists as Expert Witnesses,” Syner-
gist 17, no. 6 (2006), pp. iv–v.
3. To pretext is to represent oneself as someone else in order to obtain personal
information that would otherwise be protected by law or ethical convention.
4. The Gramm-Leach-Bliley Act (15 USC, Subchapter I, Secs. 6801–6809) pro-
hibits pretexting—that is, the use of false pretenses, including fraudulent
statements and impersonation—to obtain consumers’ personal financial
information, such as bank balances. This law also prohibits the knowing
solicitation of others to engage in pretexting.
Chapter 10
1. Often an unavailable witness will be videotaped elsewhere to preserve testi-
mony and presented to the court onscreen. This can often be a monotonous
distraction to an otherwise attentive jury and lacks the impact of a live
witness.
Chapter 11
1. Pro tem is a shortened form of the Latin pro tempore, meaning “temporarily”
or “for the time being.” In law, judge pro tem normally refers to a judge who
is sitting temporarily for another judge or to an attorney who has been
appointed to serve as a judge as substitute for a regular judge. A regulatory
citation is in essence having a governmental official write a “ticket” for break-
ing the law or violating a statute.
2. The legal concept of exclusive remedy precludes an employee from suing his
or her employer for injury except under workers’ compensation law.
Chapter 12
1. Fred Baron, Handling Occupational Disease Cases (Alameda, Calif.: Lawpress,
1981).
Chapter 13
1. The dose is the extent or concentration of exposure experienced on a “more
likely than not” basis.
2. See Occupational Exposure to Hazardous Chemicals in Laboratories, Occupa-
tional Safety and Health Standards no. 29 CFR 1910; available online at
http://grants.nih.gov/grants/policy/select_agent/29CFR_Occupational_
exposure.pdf.
Chapter 15
1. The term forensic comes from the Latin forensis, “belonging to the forum,”
which was ancient Rome’s site for public debate or trials. It currently means
“pertaining to the courts.”
2. It is the responsibility of manufacturers, distributors, and sellers of products
to the public to deliver these products reasonably free of defects that can
harm an individual or numerous persons, and to be held liable on that
responsibility if their products are proved to be defective.
3. “Peepshows” are arcade-type businesses that employ coin-operated viewing
booths showing a wide array of “X-rated” film clips.
4. The National Fire Protection Association maintains nationally accepted stan-
dards for building fire safety.
5. Myiasis is a disease resulting from ingestion of food contaminated with
domestic fly larva or maggots.
Notes 149
6. The chain of custody (see Chapter 2) is the trail of documentation that

identifies whose hands a piece of evidence left and whose it was forwarded
to; it is a legal “tracking” system for items of physical evidence.
7. The gauge is a measure of the number of lead shot balls that can be placed
in a one-pound circle. A 12-gauge projectile or shot diameter is the equivalent
of .729 inches. Rifled shotgun slugs are solid lead projectiles fired from an
unrifled shotgun barrel, with a diameter compatible to the gauge of the
shotgun. The projectile is rifled to aid in its release and trajectory from the
barrel, as opposed to the gun barrel being rifled, as in a nonshotgun-type
weapon.
8. The term livor describes the gravitation marks on a body due to blood
pooling. This process, and to the extent it is partial or complete, can suggest
number of hours of body positioning and is related to external temperatures.
9. Her Majesty’s Factory Inspectorate is the agency equivalent to the U.S. Occu-
pational Safety and Health Administration.
10. In litigation, rebuttal is the process of presenting evidence in order to con-
tradict or nullify other evidence that has been presented by an adverse party.
11. The rape evidence-collection kit is discussed in more detail in Chapter 3.
Chapter 16
1. The names of the witnesses in these testimony extracts have been changed to
protect their privacy.
Chapter 17
1. The moving party is the one making a motion before the court with the goal
of achieving some end result.
2. The term pro bono comes from the longer Latin pro bono publico, which means
“for the public good.”
Litigation Glossary
It should be made clear to the reader that the following glossary is neither
complete nor is it intended to address all issues related to expert witnessing
or scientific testimony. For more complete and exhaustive definitions of legal
terms, the reader is directed to any number of legal dictionaries commercially
available. The following terms are those directly related to the chapters in
the present volume. To any of the lawyers who may read this glossary, I
apologize in advance for any misuse or lack of legal understanding.
Aerosol A cloud of solid or liquid particles in a gas.

Amicus curiae Typically a brief filed by a nonparty to the action but as a
“friend of the court.” This brief outlines the thinking of the third party, which
may assist the court in its deliberations.
Applicant The subject of a workers’ compensation claim, hearing, or law-
suit, generally the subject worker.
Ballistic Pertaining to the science of analyzing firearms or projectile usage
in crimes.
Barefoot A term applied to professionals, or others subject to liability law-
suits, who elect to operate without the protection of malpractice insurance.
“Going barefoot” typically refers to an uninsured professional.
Brief A legal, written argument submitted to the court to establish a party’s
position on an issue. The format of the brief is generally prescribed by the
court’s jurisdiction.
Burden of proof The duty of proving an allegation or assertion. The bur-
den of proof in litigation is on the plaintiff to show, through a preponderance
of evidence or the weight of evidence that all the facts necessary to win a
judgment are probably true.
Case caption The formal name of the plaintiff/applicant and the defen-
dant/respondent named in the legal action. The caption also will contain the
jurisdiction information and case filing number assigned by the court clerk.
151
Case in chief The trial presentation, for one side or the other, that lays out
the facts as that side sees them.
Challenge In litigation, the ability of an attorney to exclude a juror or a
witness when appropriate grounds for that exclusion are defined.
Civil actions All forms of legal action that are not criminal action.
Conflict of interest An acquired or existing bias against an opposing side
of a legal issue which would preclude objective testimony on the part of an
expert witness.
Contingency fee The fee charged by an expert that is based upon the out-
come of the case. This is generally considered unethical for an expert witness,
due to the bias toward winning needed to improve or achieve a fee. This is
one of the many reasons for being paid an advance retainer.
Cross-examination Questioning of the witness present by the opposing
party during deposition or at trial in their case in chief. Often, leading
questions are asked in cross-examination.
Daubert-Kumho hearing The Daubert Standard is a legal precedent set in
1993 by the Supreme Court of the United States regarding the admissibility
of expert witnesses’ testimony during legal proceedings. The citation is Daub-
ert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). A Daubert/Kumho
motion is a motion raised, before or during trial, to exclude the presentation
of unqualified evidence to the jury. This is a special case of motion in limine,
usually used to exclude the testimony of an expert witness who has no such
expertise or who used questionable methods to obtain the information.
Defective by design Inherently faulty or dangerous in construction. A
product is defective by design when it causes harm or damage to someone
or something even though it fulfills its intended function.
Defendant The subject of a civil or criminal lawsuit; the party who is
being sued.
Deliberation The period of review and consideration, by either a judge or
jury, prior to passing judgment on an issue.
Deponent The person (e.g., percipient or expert witness) speaking in a
deposition.
Deposition An informal procedure in which testimony is taken (under
penalty of perjury) from a witness in the presence of a court reporter and
all parties to a lawsuit. This can be done in a lawyer’s office, a hotel room,
another location, or over the phone, but still has the same force and effect
Litigation Glossary 153
as if the testimony were given in a court of law. Depositions can be read into
the record at trial because they are testimony.
Direct examination The questioning of a witness during a party’s case in chief.
Disclosure Providing case-specific or expert information to the other side.
Any evidence not disclosed prior to the discovery cutoff can be potentially
excluded from being introduced at the time of trial.
Discovery cutoff The limitation of evidentiary demands and expert disclo-
sures that usually occurs 30 days before a trial.
Discovery process The process through which each side asks for eviden-
tiary bits of information (which must be surrendered if available) from the
other side. The conclusion of the discovery process is the discovery cutoff.
Duty A legal obligation, the breach of which can result in liability. In a
lawsuit a plaintiff must claim and prove that the defendant held a duty to
the plaintiff; this can be a duty of care in a negligence case or a duty to
perform in a contract case.
Evidence Physical or testimonial information in support for or against one
side of a lawsuit or the other. Most evidence gathered in the discovery process
is presented at the time of trial, if it has been admitted by the court.
Expert witness A person qualified by the court to give expert testimony as
a result of that person’s being more knowledgeable in the subject area than
a layperson.
Forensic Pertaining to the courts. Originally from the Latin forensis,
“belonging to the forum,” ancient Rome’s site for public debate or trials.
Forensic studies are those that aid the court in its deliberation.
Foundation in evidence The provision to the judge of the qualification of
a witness (particularly an expert witness), a document, or other piece of
evidence that assures the court of the talent and experience of the witness or
the authenticity of the document or article.
Full disclosure The presentation, to all parties, of facts or conditions which
may alter, hamper, or bias the outcome of testimony or the lawsuit. An
example would be when XYZ Company is being sued and it is discovered
that the expert contracted by the opposing counsel was fired from his or her
employ. Disclosure of this information is critical to the discovery process.
Idiopathic Arising from an obscure, unknown, or peculiar cause. An idio-
pathic medical diagnosis is one that says, in essence, that the patient is sick
but the doctors do not know why.
Impeachment The process of demonstrating that a witness is not telling

the truth or does not have the knowledge to testify as she did.
Impinger A sampling instrument employing impingement for the collec-
tion of particulate matter. Common types are: (i) the midget impinger
employing impingment in 1–10 cm3 water, (ii) the standard impinger
employing impingement in 75 cm3 water, and (iii) dry impingers. Impingers
are also suitable for sampling certain gases and vapors.
Interrogatories Legal procedures during the discovery process wherein each
side poses questions to the other side. These questions must be answered
under oath and have the same weight as evidence during trial.
Judgment An order of the court directing action on or by one party or the
other.
Jurisdiction The geographic location of the court and the origin or speci-
fications for local rules governing legal cases.
Jury A group of people taken from the local community who will evaluate
the evidence and sit in judgment during a trial.
Jury poll The questioning of jury members, after a trial is completed, to
get their reactions to various experts and other witnesses, and to ascertain
why they decided the case the way they did.
Leading question A question asked of a witness that directs the answer in
a way that is managed by the attorney asking the question. A leading-question
objection is appropriate for a percipient witness but does not apply to expert
witnesses.
Leukemogenic agent A chemical known or suspected of inducing or pro-
moting leukemia in an animal or human. A factor that is known or attributed
to be a cause of leukemia.
Lipoid pneumonia Exogenous lipoid pneumonia is an uncommon condi-
tion resulting from aspirating or inhaling fatlike material such as mineral oil
found in laxatives and various aerosolized industrial materials. These sub-
stances elicit a foreign body reaction and proliferative fibrosis in the lung.
Live witness One who testifies in person rather than by videotape or
through the reading of a written transcript.
Local Rules Rules or procedures set by the court, in the local jurisdiction,
that govern evidentiary, discovery, and trial procedures unique to that city
or county. An example would be the General Orders for San Francisco Supe-
rior Court.
Mandatory settlement conference A court-ordered meeting between all

parties, refereed by the judge, in an effort to avoid trial and settle the case.
More likely than not A phrase used to express the probability of an expert’s
opinion being correct. The basis of the probability assumes that a prepon-
derance (at least 51 percent) of the evidence available agrees with the opinion.
Motion A written or oral plea to the court for action or judgment on a
specific issue; a formal request made to a judge for an order or judgment.
Motions are made in court all the time for many purposes: to continue
(postpone) a trial to a later date, to get a modification of an order, for
temporary child support, for a judgment, for dismissal of the opposing party’s
case, for a rehearing, for sanctions (payment of the moving party’s costs or
attorney’s fees), or for dozens of other purposes. Most motions require a
written petition, a written brief of legal reasons for granting the motion (often
called “points and authorities”), written notice to the attorney for the oppos-
ing party, and a hearing before a judge. However, during a trial or a hearing,
an oral motion may be permitted.
Motion for summary judgment A motion to have the court issue a ruling
that no factual issues remain to be tried, and therefore a cause of action or
all causes of action in a complaint can be decided upon certain undisputed
material facts without trial. A summary judgment is based upon a motion
by one of the parties that contends that all necessary factual issues are settled,
and therefore need not be tried. The motion is supported by declarations
under oath, excerpts from depositions under oath, admissions of fact, and
other discovery, as well as a legal argument (points and authorities) that
argue that there are no triable issues of fact and that the undisputed facts
require a summary judgment for the moving party. The opposing party will
respond by counter-declarations and legal arguments attempting to show
that there are in fact triable issues of fact. If it is unclear whether there is a
triable issue of fact in any cause of action, then summary-judgment must be
denied as to that cause of action. The theory behind the summary judgment
process is to cut down on unnecessary litigation by eliminating without trial
one or more causes of action in the complaint. The pleading procedures are
extremely technical and complicated, and are particularly dangerous to the
party against whom the motion is made.
Motion in limine A motion made at the start of a trial requesting that the
judge rule that certain evidence may not be introduced in trial.
Negligence per se Negligence due to the violation of a specific statute or
regulation, such as driving over the speed limit, which is prohibited in specific
vehicle code provisions. Also known as statutory negligence.
Objection A verbal challenge made during deposition or at the time of trial

to evidence that is either improper or not probative to the action at hand.
Opine State or express an opinion.
Perpetuation testimony A type of testimony, either by deposition or vid-
eotaped deposition, in which the deponent may not be available for actual
trial testimony. This is done when a witness may be out of the country during
the estimated time of trial or, if ill, may pass away before the trial begins.
Percipient witness A person with direct personal knowledge about the inci-
dent or the environment in which it took place.
Plaintiff The subject or initiator of a civil lawsuit; the party suing.
Preponderance of evidence The greater weight (at least 51 percent) of the
evidence required in a civil lawsuit for the trier of fact to decide in favor of one
side or the other. This preponderance is based on the more convincing evidence
and its probable truth or accuracy, and not on the amount of evidence.
Prime directive A principal, authoritative guideline. The prime directive in
expert witnessing is, tell the truth, no matter what!
Privileged communications Discussions or written communications directly
with an attorney that are confidential and may not be disclosed or shared.
Probative In evidence law, tending to prove something. Thus, testimony
that is not probative (does not prove anything) is immaterial and not admis-
sible or will be stricken from the record if objected to by opposing counsel.
Pro bono work Work done without compensation and in the public’s
interest. From the Latin pro bono publico, “for the public’s good.”
Propounded Set forth for consideration; delivered to the opposing party.
Pro tem For the time being, temporary. An attorney may receive a pro tem
assignment to serve as a judge in, for instance, small-claims court until a new
judge is appointed or elected.
Purview A range of vision, extent of comprehension, or experience; outlook.
Rebuttal testimony Testimony that is allowed specifically for the purpose
of contradicting the testimony of a prior witness. This testimony is generally
limited to the scope of what is being rebutted.
Redirect Examination, at the time of trial, that takes place after cross-
examination. This is additional direct examination but is typically limited to
the scope of what was covered in cross-examination.
Res Ipsa Loquitor Latin for “the thing speaks for itself,” a doctrine of law
in which one is presumed to be negligent if he had exclusive control of
whatever caused the injury even though there is no specific evidence of an act
of negligence, yet without negligence the accident would not have happened.
Respondent In litigation, the subject of a workers’ compensation hearing
or lawsuit—generally the employer.
Statute A law passed by a governmental body.
Stipulation A matter agreed to by all parties to a litigation.
Subpoena A legal document, issued by a court or an officer of the court,
that orders a person to appear or documents to be produced.
Tort Damage, injury, or a wrongful act done willfully, negligently, or in
circumstances involving strict liability, but not involving breach of contract,
for which a civil case can be brought for monetary compensation.
Trial date The date set by the court upon which all pretrial motions must
be heard and ruled upon and the trial can begin.
Trier of fact Either the judge or the judge and jury who will be deciding
an issue based upon the evidence received and admitted.
Voir dire A preliminary questioning used to qualify both jurors and expert
witnesses. The French voir dire means, literally, “to speak the truth.”
Work product Preparative work done by an attorney in advance of trial
that is not subject to subpoena or the discovery process.
Appendix A:
California Code of Civil Procedure,
Section 2034
§2034.010. This chapter does not apply to exchanges of lists of experts and
valuation data in eminent domain proceedings under Chapter 7 (commenc-
ing with Section 1258.010) of Title 7 of Part 3.
§2034.210. After the setting of the initial trial date for the action, any party
may obtain discovery by demanding that all parties simultaneously exchange
information concerning each other’s expert trial witnesses to the following
extent:
(a) Any party may demand a mutual and simultaneous exchange by all parties
of a list containing the name and address of any natural person, including
one who is a party, whose oral or deposition testimony in the form of an
expert opinion any party expects to offer in evidence at the trial.
(b) If any expert designated by a party under subdivision (a) is a party or an
employee of a party, or has been retained by a party for the purpose of
forming and expressing an opinion in anticipation of the litigation or in
preparation for the trial of the action, the designation of that witness shall
include or be accompanied by an expert witness declaration under Section
§2034.260.
(c) Any party may also include a demand for the mutual and simultaneous
production for inspection and copying of all discoverable reports and writ-
ings, if any, made by any expert described in subdivision (b) in the course
of preparing that expert’s opinion.
§2034.220. Any party may make a demand for an exchange of information
concerning expert trial witnesses without leave of court. A party shall make
this demand no later than the 10th day after the initial trial date has been
set, or 70 days before that trial date, whichever is closer to the trial date.
159
§2034.230. (a) A demand for an exchange of information concerning expert

trial witnesses shall be in writing and shall identify, below the title of the
case, the party making the demand. The demand shall state that it is being
made under this chapter.
(b) The demand shall specify the date for the exchange of lists of expert trial
witnesses, expert witness declarations, and any demanded production of
writings. The specified date of exchange shall be 50 days before the initial
trial date, or 20 days after service of the demand, whichever is closer to the
trial date, unless the court, on motion and a showing of good cause, orders
an earlier or later date of exchange.
§2034.240. The party demanding an exchange of information concerning
expert trial witnesses shall serve the demand on all parties who have appeared
in the action.
§2034.250. (a) A party who has been served with a demand to exchange
information concerning expert trial witnesses may promptly move for a
protective order. This motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
(b) The court, for good cause shown, may make any order that justice requires
to protect any party from unwarranted annoyance, embarrassment, oppres-
sion, or undue burden and expense. The protective order may include, but
is not limited to, one or more of the following directions:
1. That the demand be quashed because it was not timely served.

2. That the date of exchange be earlier or later than that specified in the
demand.
3. That the exchange be made only on specified terms and conditions.
4. That the production and exchange of any reports and writings of
experts be made at a different place or at a different time than spec-
ified in the demand.
5. That some or all of the parties be divided into sides on the basis of
their identity of interest in the issues in the action, and that the
designation of any experts as described in subdivision (b) of Section
§2034.210 be made by any side so created.
6. That a party or a side reduce the list of employed or retained experts
designated by that party or side under subdivision (b) of Section
§2034.210.
(c) If the motion for a protective order is denied in whole or in part, the
court may order that the parties against whom the motion is brought, provide
Appendix A: California Code of Civil Procedure, Section 2034 161
or permit the discovery against which the protection was sought on those
terms and conditions that are just.
(d) The court shall impose a monetary sanction under Chapter 7 (commenc-
ing with Section 2023.010) against any party, person, or attorney who unsuc-
cessfully makes or opposes a motion for a protective order under this section,
unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust.
§2034.260. (a) All parties who have appeared in the action shall exchange
information concerning expert witnesses in writing on or before the date of
exchange specified in the demand. The exchange of information may occur
at a meeting of the attorneys for the parties involved or by a mailing on or
before the date of exchange.
(b) The exchange of expert witness information shall include either of the
following:
1. A list setting forth the name and address of any person whose expert
opinion that party expects to offer in evidence at the trial.
2. A statement that the party does not presently intend to offer the
testimony of any expert witness.
(c) If any witness on the list is an expert as described in subdivision (b) of

Section §2034.210, the exchange shall also include or be accompanied by an
expert witness declaration signed only by the attorney for the party desig-
nating the expert, or by that party if that party has no attorney. This decla-
ration shall be under penalty of perjury and shall contain:
1. A brief narrative statement of the qualifications of each expert.

2. A brief narrative statement of the general substance of the testimony
that the expert is expected to give.
3. A representation that the expert has agreed to testify at the trial.
4. A representation that the expert will be sufficiently familiar with the
pending action to submit to a meaningful oral deposition concerning
the specific testimony, including any opinion and its basis, that the
expert is expected to give at trial.
5. A statement of the expert’s hourly and daily fee for providing depo-
sition testimony and for consulting with the retaining attorney.
§2034.270. If a demand for an exchange of information concerning expert

trial witnesses includes a demand for production of reports and writings as
described in subdivision (c) of Section §2034.210, all parties shall produce

and exchange, at the place and on the date specified in the demand, all
discoverable reports and writings, if any, made by any designated expert
described in subdivision (b) of Section §2034.210.
§2034.280. (a) Within 20 days after the exchange described in Section
§2034.260, any party who engaged in the exchange may submit a supple-
mental expert witness list containing the name and address of any experts
who will express an opinion on a subject to be covered by an expert desig-
nated by an adverse party to the exchange, if the party supplementing an
expert witness list has not previously retained an expert to testify on that
subject.
(b) This supplemental list shall be accompanied by an expert witness decla-
ration under subdivision (c) of Section §2034.260 concerning those addi-
tional experts, and by all discoverable reports and writings, if any, made by
those additional experts.
(c) The party shall also make those experts available immediately for a dep-
osition under Article 3 (commencing with Section §2034.410), which dep-
osition may be taken even though the time limit for discovery under Chapter
8 (commencing with Section 2024.010) has expired.
§2034.290. (a) A demand for an exchange of information concerning expert
trial witnesses, and any expert witness lists and declarations exchanged shall
not be filed with the court.
(b) The party demanding the exchange shall retain both the original of the
demand, with the original proof of service affixed, and the original of all
expert witness lists and declarations exchanged in response to the demand
until six months after final disposition of the action. At that time, all originals
may be destroyed unless the court, on motion of any party and for good
cause shown, orders that the originals be preserved for a longer period.
(c) Notwithstanding subdivisions (a) and (b), a demand for exchange of
information concerning expert trial witnesses, and all expert witness lists and
declarations exchanged in response to it, shall be lodged with the court when
their contents become relevant to an issue in any pending matter in the action.
§2034.300. Except as provided in Section §2034.310 and in Articles 4(com-
mencing with Section §2034.610) and 5 (commencing with Section
§2034.710), on objection of any party who has made a complete and timely
compliance with Section §2034.260, the trial court shall exclude from evi-
dence the expert opinion of any witness that is offered by any party who has
unreasonably failed to do any of the following:
(a) List that witness as an expert under Section §2034.260.

(b) Submit an expert witness declaration.
(c) Produce reports and writings of expert witnesses under Section
§2034.270.
(d) Make that expert available for a deposition under Article 3 (commencing
with Section §2034.410).
§2034.310. A party may call as a witness at trial an expert not previously
designated by that party if either of the following conditions is satisfied:
(a) That expert has been designated by another party and has thereafter been
deposed under Article 3 (commencing with Section §2034.410).
(b) That expert is called as a witness to impeach the testimony of an expert
witness offered by any other party at the trial. This impeachment may include
testimony to the falsity or nonexistence of any fact used as the foundation
for any opinion by any other party’s expert witness, but may not include
testimony that contradicts the opinion.
§2034.410. On receipt of an expert witness list from a party, any other party
may take the deposition of any person on the list. The procedures for taking
oral and written depositions set forth in Chapters 9 (commencing with
Section 2025.010), 10 (commencing with Section 2026.010), and 11 (com-
mencing with Section 2028.010) apply to a deposition of a listed trial expert
witness except as provided in this article.
§2034.420. The deposition of any expert described in subdivision (b) of
Section §2034.260 shall be taken at a place that is within 75 miles of the
courthouse where the action is pending. On motion for a protective order
by the party designating an expert witness, and on a showing of exceptional
hardship, the court may order that the deposition be taken at a more distant
place from the courthouse.
§2034.430. (a) Except as provided in subdivision (f), this section applies to
an expert witness, other than a party or an employee of a party, who is any
of the following:
1. An expert described in subdivision (b) of Section §2034.260.

2. A treating physician and surgeon or other treating health care prac-
titioner who is to be asked during the deposition to express opinion
testimony, including opinion or factual testimony regarding the past
or present diagnosis or prognosis made by the practitioner or the
reasons for a particular treatment decision made by the practitioner,
but not including testimony requiring only the reading of words and
symbols contained in the relevant medical record or, if those words
and symbols are not legible to the deponent, the approximation by
the deponent of what those words or symbols are.
3. An architect, professional engineer, or licensed land surveyor who
was involved with the original project design or survey for which that
person is asked to express an opinion within the person’s expertise
and relevant to the action or proceeding.
(b) A party desiring to depose an expert witness described in subdivision (a)

shall pay the expert’s reasonable and customary hourly or daily fee for any
time spent at the deposition from the time noticed in the deposition sub-
poena, or from the time of the arrival of the expert witness should that time
be later than the time noticed in the deposition subpoena, until the time the
expert witness is dismissed from the deposition, regardless of whether the
expert is actually deposed by any party attending the deposition.
(c) If any counsel representing the expert or a non-noticing party is late to
the deposition, the expert’s reasonable and customary hourly or daily fee for
the time period determined from the time noticed in the deposition subpoena
until the counsel’s late arrival, shall be paid by that tardy counsel.
(d) Notwithstanding subdivision (c), the hourly or daily fee charged to the
tardy counsel shall not exceed the fee charged to the party who retained the
expert, except where the expert donated services to a charitable or other
nonprofit organization.
(e) A daily fee shall only be charged for a full day of attendance at a deposition
or where the expert was required by the deposing party to be available for a
full day and the expert necessarily had to forego all business that the expert
would otherwise have conducted that day but for the request that the expert
be available all day for the scheduled deposition.
(f) In a worker’s compensation case arising under Division 4 (commencing
with Section 3201) or Division 4.5 (commencing with Section 6100) of the
Labor Code, a party desiring to depose any expert on another party’s expert
witness list shall pay the fee under this section.
§2034.440. The party designating an expert is responsible for any fee charged
by the expert for preparing for a deposition and for traveling to the place of
the deposition, as well as for any travel expenses of the expert.
§2034.450. (a) The party taking the deposition of an expert witness shall
either accompany the service of the deposition notice with a tender of the
expert’s fee based on the anticipated length of the deposition, or tender that
fee at the commencement of the deposition.
(b) The expert’s fee shall be delivered to the attorney for the party designating
the expert.
(c) If the deposition of the expert takes longer than anticipated, the party
giving notice of the deposition shall pay the balance of the expert’s fee within
five days of receipt of an itemized statement from the expert.
§2034.460. (a) The service of a proper deposition notice accompanied by the
tender of the expert witness fee described in Section §2034.430 is effective
to require the party employing or retaining the expert to produce the expert
for the deposition.
(b) If the party noticing the deposition fails to tender the expert’s fee under
Section §2034.430, the expert shall not be deposed at that time unless the
parties stipulate otherwise.
§2034.470. (a) If a party desiring to take the deposition of an expert witness
under this article deems that the hourly or daily fee of that expert for pro-
viding deposition testimony is unreasonable, that party may move for an
order setting the compensation of that expert. Notice of this motion shall
also be given to the expert.
(b) A motion under subdivision (a) shall be accompanied by a meet and
confer declaration under Section 2016.040. In any attempt at an informal
resolution under Section 2016.040, either the party or the expert shall provide
the other with all of the following:
1. Proof of the ordinary and customary fee actually charged and received
by that expert for similar services provided outside the subject litigation.
2. The total number of times the presently demanded fee has ever been
charged and received by that expert.
3. The frequency and regularity with which the presently demanded fee
has been charged and received by that expert within the two-year
period preceding the hearing on the motion.
(c) In addition to any other facts or evidence, the expert or the party desig-
nating the expert shall provide, and the court’s determination as to the
reasonableness of the fee shall be based on, proof of the ordinary and cus-
tomary fee actually charged and received by that expert for similar services
provided outside the subject litigation.
(d) In an action filed after January 1, 1994, the expert or the party designating
the expert shall also provide, and the court’s determination as to the reason-
ableness of the fee shall also be based on, both of the following:
1. The total number of times the presently demanded fee has ever been
charged and received by that expert.
2. The frequency and regularity with which the presently demanded fee
has been charged and received by that expert within the two-year
period preceding the hearing on the motion.
(e) The court may also consider the ordinary and customary fees charged
by similar experts for similar services within the relevant community and
any other factors the court deems necessary or appropriate to make its
determination.
(f) Upon a determination that the fee demanded by that expert is unreason-
able, and based upon the evidence and factors considered, the court shall set
the fee of the expert providing testimony.
(g) The court shall impose a monetary sanction under Chapter 7 (commenc-
ing with Section 2023.010) against any party, person, or attorney who unsuc-
cessfully makes or opposes a motion to set the expert witness fee, unless it
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.
§2034.710. (a) On motion of any party who has failed to submit expert
witness information on the date specified in a demand for that exchange, the
court may grant leave to submit that information on a later date.
(b) A motion under subdivision (a) shall be made a sufficient time in advance
of the time limit for the completion of discovery under Chapter 8 (commenc-
ing with Section 2024.010) to permit the deposition of any expert to whom
the motion relates to be taken within that time limit. Under exceptional
circumstances, the court may permit the motion to be made at a later time.
(c) The motion shall be accompanied by a meet and confer declaration under
Section 2016.040.
§2034.720. The court shall grant leave to submit tardy expert witness infor-
mation only if all of the following conditions are satisfied:
(a) The court has taken into account the extent to which the opposing party
has relied on the absence of a list of expert witnesses.
(b) The court has determined that any party opposing the motion will not
be prejudiced in maintaining that party’s action or defense on the merits.
(c) The court has determined that the moving party did all of the following:
1. Failed to submit the information as the result of mistake, inadvert-

ence, surprise, or excusable neglect.
2. Sought leave to submit the information promptly after learning of
the mistake, inadvertence, surprise, or excusable neglect.
3. Promptly thereafter served a copy of the proposed expert witness
information described in Section §2034.260 on all other parties who
have appeared in the action.
(d) The order is conditioned on the moving party making the expert available
immediately for a deposition under Article 3 (commencing with Section
§2034.410), and on any other terms as may be just, including, but not limited
to, leave to any party opposing the motion to designate additional expert
witnesses or to elicit additional opinions from those previously designated,
a continuance of the trial for a reasonable period of time, and the awarding
of costs and litigation expenses to any party opposing the motion.
§2034.730. The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney
who unsuccessfully makes or opposes a motion to submit tardy expert wit-
ness information, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.
§2034.610. (a) On motion of any party who has engaged in a timely exchange
of expert witness information, the court may grant leave to do either or both
of the following:
1. Augment that party’s expert witness list and declaration by adding

the name and address of any expert witness whom that party has
subsequently retained.
2. Amend that party’s expert witness declaration with respect to the
general substance of the testimony that an expert previously desig-
nated is expected to give.
(b) A motion under subdivision (a) shall be made at a sufficient time in advance
of the time limit for the completion of discovery under Chapter 8 (commencing
with Section 2024.010) to permit the deposition of any expert to whom the
motion relates to be taken within that time limit. Under exceptional circum-
stances, the court may permit the motion to be made at a later time.
(c) The motion shall be accompanied by a meet and confer declaration under
Section 2016.040.
§2034.620. The court shall grant leave to augment or amend an expert

witness list or declaration only if all of the following conditions are satisfied:
(a) The court has taken into account the extent to which the opposing party
has relied on the list of expert witnesses.
(b) The court has determined that any party opposing the motion will not
be prejudiced in maintaining that party’s action or defense on the merits.
(c) The court has determined either of the following:
1. The moving party would not in the exercise of reasonable diligence

have determined to call that expert witness or have decided to offer
the different or additional testimony of that expert witness.
2. The moving party failed to determine to call that expert witness, or
to offer the different or additional testimony of that expert witness
as a result of mistake, inadvertence, surprise, or excusable neglect,
and the moving party has done both of the following:
(A) Sought leave to augment or amend promptly after deciding to
call the expert witness or to offer the different or additional
testimony.
(B) Promptly thereafter served a copy of the proposed expert witness
information concerning the expert or the testimony described
in Section §2034.260 on all other parties who have appeared in
the action.
(d) Leave to augment or amend is conditioned on the moving party making

the expert available immediately for a deposition under Article 3 (commencing
with Section §2034.410), and on any other terms as may be just, including,
but not limited to, leave to any party opposing the motion to designate addi-
tional expert witnesses or to elicit additional opinions from those previously
designated, a continuance of the trial for a reasonable period of time, and the
awarding of costs and litigation expenses to any party opposing the motion.
§2034.630. The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney
who unsuccessfully makes or opposes a motion to augment or amend expert
witness information, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.
Appendix B:
Actual Case Report Examples
The examples of case reports that follow are but a brief representation of
what information is published by the court after the case has come to com-
pletion. This generally appears within several months after a case completion
and is usually published on the Internet (if not also elsewhere) by the clerk
of the court. A review of this type of information can provide some degree
of insight as to the judge’s thinking and the role of the various pivotal
witnesses. In the examples that follow, the identification and/or testimony
of myself as the expert witness is given in bold type.
B1: Gunderson v. A. W. Chesterton

Spotlight Case
Fact Sheet
Case Summary. Plaintiff, Genevieve Gunderson, is 75 years old and is
dying from mesothelioma. She alleged she contracted mesothelioma from
asbestos exposure brought home by her ex-husband from 1948 to 1963. It
was undisputed that Ms. Gunderson has an asbestos-caused mesothelioma.
Her ex-husband, Gordon Fraser, was a pipefitter at large industrial sites
from 1946 to 1982 throughout Southern California. He was married to Ms.
Gunderson from 1948 to 1963. During the marriage, he wore his work clothes
home and she laundered them twice weekly. He worked at Union Oil (Uno-
cal) on several large construction projects for a total time of approximately
three years from 1948 to 1963. These were all new construction projects and
his employers were Bechtel and Fluor Corporation (both of whom settled
during the trial).
Unocal presented both duty and state-of-the-art defenses. Defendant
argued it was unforeseeable that before 1960, “take-home” exposures could
cause disease. Therefore, they argued no duty as a matter of law (the court
denied all motions on this issue.) They also argued that they were not neg-
169
ligent. They supported their case with the expert testimony of Dr. William
Hughson, a pulmonologist and Howard Spielman, a Certified Industrial
Hygienist. Plaintiff responded with state-of-the-art testimony of Dr. Barry
Castleman.
The defendant found in plaintiff ’s favor on three separate theories of
ordinary negligence, premises liability, and peculiar risk.
Jury Trial: Genevieve J. Gunderson v. A. W. Chesterton Company, et al.
San Francisco Superior Court Case No. 406207
Judge: The Honorable Tomar Mason, Department 608
Case Filed: March 29, 2002
Verdict Rendered: December 12, 2002
The Case
On December 12, 2002, a San Francisco jury awarded $11,550,750 to Genev-
ieve Gunderson of Torrance, California, for a terminal cancer she contracted
from her husband’s clothing in the 1950s. The verdict against Unocal was on
three separate theories of negligence. Ms. Gunderson is dying of mesothe-
lioma, an incurable asbestos-caused cancer.
Genevieve Gunderson is a 75-year-old homemaker and retired hair-
dresser from Torrance, California, who was exposed to asbestos by her former
husband, Gordon Fraser, who worked as a pipefitter at various industrial
sites, including Unocal in Wilmington, California, from 1948 to 1963.
In October, 2001, Genevieve Gunderson, mother of one adult child, four
grandchildren, and several great-grandchildren, was diagnosed with
mesothelioma, a cancer caused by exposure to asbestos. Ms. Gunderson’s
prognosis is terminal and she has been given only months to live.
Ms. Gunderson filed her lawsuit in San Francisco in March, 2002. In
October, 2002, following a three-week jury trial and three days of delib-
eration, the jury found the remaining defendant, Unocal, 9.3% at fault.
Ms. Gunderson was exposed to asbestos in her home when she shook out
and laundered her husband’s work clothing. Her former husband, Mr.
Fraser, worked intermittently at the Unocal refinery in Wilmington, Cal-
ifornia, as a pipefitter for approximately three years from 1948 to 1963
during their marriage.
The jury found that Ms. Gunderson suffered $550,750 in lost income and
medical expenses based upon the expert testimony of Santa Rosa economist
Dr. Barry Ben-Zion and Berkeley pulmonologist Dr. Barry Horn. Ms. Gun-
derson was also awarded $11 million for her pain and suffering. Evidence was
presented that cancers such as Ms. Gunderson’s can be caused by relatively
low exposures, including dust brought home on workers’ clothing. Though
Appendix B: Actual Case Report Examples 171
largely ignored, the industrial community was well aware of recommendations

for providing changing rooms, work clothing, and workplace laundry service
to workers who worked around asbestos and other harmful dust.
The case was initially filed in March, 2002, against 40 separate defendants,
and was advanced to trial quickly because of Ms. Gunderson’s terminal
condition. Before trial, all defendants except Unocal, Chevron, and Fluor
Corporation settled. Chevron and Fluor Corporation settled during trial.
The total verdict will be reduced by the other parties’ settlements. The final
judgment against Unocal is estimated to be approximately $1.5 million.
Total Verdict
Total Economic Damages: $550,750
Total Non-Economic Damages: $11 million
Trial testimony: 3 weeks: deliberations lasted 3 days
Trial commenced: November 14, 2002 and concluded December 12, 2002
Allocation: 90.7% to all other defendants; 9.3% to Union Oil Net judgment
after settlement verdict and costs approximately $1,485,725
Experts
Plaintiff ’s experts included: Richard Hatfield, Materials Analyst Specialist,
Atlanta, GA; Barry R. Horn, M.D., Pulmonologist, Berkeley, CA; Barry
Castleman, M.D., Medical State of the Art, Baltimore, MD; Barry Ben-
Zion, Ph.D., Economist, Santa Rosa, CA; Kenneth Cohen, C.I.H., Ph.D.,
El Cajon, CA; Allan Smith, M.D., Ph.D., Epidemiologist, Oakland, CA.
Defense experts included: William Hughson, M.D., Pulmonologist, San
Diego, CA; Howard Spielman, Certified Industrial Hygienist, Los Alam-
itos, CA.
Prior settlement negotiations: Plaintiff served CCP§ 998 offer for $300,000
which was rejected. During the trial, plaintiff ’s last demand was $700,000.
B2: Moore v. American Honda

Court of Appeals Division I, State of Washington
Opinion Information Sheet
Docket Number: 55923-1-I
Title of Case: Patricia Moore, Appellant v. American Honda Motor Co et al.,
Respondents
File Date: 03/20/2006
Source of Appeal.
Appeal from Superior Court of King County
Docket No: 03-2-33651-3

Judgment or order under review
Date filed: 02/18/2005
Judge signing: Hon. Sharon Armstrong
Judges.
Marlin Appelwick
Ronald Cox
William Baker
Counsel of Record.
Counsel for Appellant(s).
Zachary B Herschensohn
Brayton Purcell
621 SW Morrison St Ste 950
Portland, OR 97205-3824
Scott Allen Niebling
Brayton Purcell
621 SW Morrison St Ste 950
Portland, OR 97205-3824
Counsel for Respondent(s).
Ronald Clayton Gardner
Gardner Bond Trabolsi
2200 6th Ave Ste 600
Seattle, WA 98121-1849
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PATRICIA E. MOORE, as )
Personal Representative of ) No. 55923-1-I
the Estate of )
PAUL A. MOORE, ) DIVISION ONE
Appellant, ))
) UNPUBLISHED OPINION
v. ))
))
AMERICAN HONDA MOTOR CO., )
INC.; AMERICAN SUZUKI MOTOR )

CO., INC.; ASBESTOS )
CORPORATION LIMITED; ATLAS )
TURNER, INC.; AURORA CYCLE; )
BMW OF NORTH AMERICA, LLC; )
BSA MOTORCYCLES; BARTELL’S )
ASBESTOS SETTLEMENT TRUST; )
BATES INDUSTRIES; BECK/ARNLEY )
WORLDPARTS CORP.; BELL )
ASBESTOS MINES, LTD; BIG )
FOUR, INC.; BILL LOWE CYCLE; )
BURNS INTERNATIONAL SERVICES )
CORPORATION; CARLISLE )
CORPORATION; CSK AUTO, INC.; )
CUSTOM CYCLE PARTS; CYCLE )
BARN, INC.; DAIMLERCHRYSLER )
CORPORATION; DANA )
CORPORATION; DESTINATION )
HARLEY-DAVIDSON, INC.; DIXIE )
DISTRIBUTING; DRAG ) FILED: March 20, 2006
SPECIALTIES; DUCATI NORTH )
AMERICA, INC.; DUNN LUMBER )
CO., INC.; ENPRO INDUSTRIES, )
INC.; ERNST HARDWARE; EXPERT )
CYCLE; FIDALGO INSULATION; )
FORD MOTOR COMPANY; GARLOCK )
SEALING TECHNOLOGIES, LLC.; )
GARY BANG; GATKE CORPORATION; )
GENERAL MOTORS CORPORATION; )
GLOBAL MOTORSPORTS GROUP; )

GREAT WALL MANUFACTURING; )
HANSON PERMANENTE CEMENT, )
INC.; HARLEY-DAVIDSON MOTOR )
COMPANY, INC.; HONEYWELL )
INTERNATIONAL, INC.; )
HUSQVARNA MOTORCYCLES; INDIAN )
MOTORCYCLES; KAWASAKI MOTORS )
CORP., USA; MARLOTTS; )
MCGOODIES; METROPOLITIAN LIFE )
INSURANCE COMPANY; MOTO GUZZI )
MOTORCYCLE; NORTON )
MOTORCYCLES; OWENS-ILLINOIS, )
INC.; PACCAR, INC.; PNEUMO )
ABEX CORPORATION; ROCKY POINT )
CYCLE; STANDARD MOTOR )
PRODUCTS, INC.; THURMAN )
INDUSTRIES, INC.; TRIPLE A )
ACCESSORIES; TRIUMPH )
MOTORCYCLE AMERICA LTD.; )
VOLKSWAGEN OF AMERICA, INC.; )
WHEEL SPORTS DISTRIBUTION; )
WHITE FRONT STORES, INC.; )
WINNING PERFORMANCE; YAMAHA )
MOTOR CORPORATION, USA; and )
FIRST DOE through ONE )
HUNDREDTH DOE; )
)
Respondents. )
Per Curiam
Patricia Moore, as personal representative of the Estate of Paul Moore
(Estate), brought this action against Global Motorsports Group (GMG),
alleging that her late husband died of mesothelioma after exposure to asbestos
sold by GMG. Because the evidence fails to create a reasonable inference that
Moore was exposed to asbestos supplied by GMG, we affirm the trial court’s
dismissal on summary judgment.
Facts
Paul Moore owned and operated a series of motorcycle shops, beginning
with Seattle Assembly & Accessory (SA&A) in 1976. From 1986 to 2000, he
operated Rebel Motorcycle Mart in a series of locations, including Nevada,
Tacoma, and Puyallup. In each of his shops, Moore sold motorcycle acces-
sories and parts and performed motorcycle repairs. In about 1977, under the
name of Custom Chrome, Inc. (CCI), GMG started selling wholesale motor-
cycle accessories and replacement parts, including asbestos-containing brake,
clutch, and gasket products. Over the years, Moore purchased products from
several wholesalers, including GMG. He died from mesothelioma on August
19, 2000.
In 2003, Patricia Moore, as personal representative of the estate of her
late husband, filed this action, alleging Moore was exposed to asbestos pur-
chased from GMG and other entities. For purposes of this appeal, only the
allegations against GMG remain. GMG eventually moved for summary judg-
ment, arguing the Estate had failed to submit any evidence that it sold
products containing asbestos to Moore. In considering the motion, the trial
court had before it the following materials.
By deposition, Patricia Moore stated that for the period before 1986, she
could not recall any particular seller of brake and clutch parts, only that SS&A
had used several different distributors. She believed that after 1986, when
Moore opened Rebel Motorcycle Mart, CCI became the primary supplier of
parts and accessories, but she could not recall whether any brake and clutch
parts purchased during that period contained asbestos.
She stated that from 1986 to 2000, when Moore worked primarily on
Harley Davidson motorcycles, he also purchased brake, clutch, and gasket
products directly from Harley Davidson dealers.
Neither the Estate nor GMG submitted any invoices or other records
identifying any specific friction products that Moore had purchased from
GMG. The only evidence in the record indicating what parts from GMG
contained asbestos was a series of catalogues that GMG issued after 1977.
These catalogues indicate that GMG began offering asbestos-free brake
pads in 1986. The record contains evidence that Harley-Davidson motorcy-
cles had asbestos-containing brake components until 1973 and asbestos-

containing clutch components until 1984.
George Dean worked for Moore from 1977 to 1981. During this period,
Dean did virtually all of the repair work while Moore sold accessories in a
different part of the shop. Dean stated that the shop purchased brake and
clutch parts directly from dealerships and from after-market companies such
as CCI. After first stating that he was “certain” that Moore had ordered brake
and clutch parts from CCI, Dean explained his answer as follows: “I cannot
say 100 percent that he did. This would be an assumption. I would assume
that he did at one time or another, but I couldn’t tell you 100 percent that
he did.”
Dean had no specific recollection of Moore working with brake pads
purchased from CCI. Nor could Dean recall working with brake pads from
CCI in Moore’s presence. Dean characterized brake pads as “a very, very small
part” of the items supplied by CCI and could not recall any details about the
brake parts that CCI might have supplied. Dean recalled that the parts pur-
chased from CCI were primarily chrome accessories, such as light bars, crash
bars, and brake caliper covers.
Keith Recker testified that he met Moore in 1993 and that Moore would
sell CCI parts in their original packaging to shop customers. Recker also
specifically recalled seeing Moore working with brake parts from CCI in the
shop, but did not know whether any of the CCI parts contained asbestos.
Edward Moore, Moore’s son, recalled that Moore ordered brake parts
from several distributors, including CCI, but could not identify the manu-
facturer of any of the brake parts and did not know whether the brake parts
contained asbestos. Walter Harrison purchased a muffler through Moore
from the CCI catalogue in about 1995, but he did not know if the muffler
contained asbestos.
By declaration, Ken Cohen, a certified industrial hygienist, stated that in his

opinion, Moore had been exposed to significant amounts of asbestos from
brake and gasket components during the period that George Dean had
worked in the shop, both from installing components himself and from his
presence when others installed these components. Based on his knowledge
of motorcycle parts, Cohen concluded that during the period from 1976 to
2000, it was more likely than not that the brake, clutch, and gasket parts
purchased from after-market companies like CCI contained asbestos, “absent
evidence to the contrary.”
The trial court entered an order granting GMG’s summary judgment
motion on February 18, 2005.
Standard of Review
When reviewing a grant of summary judgment, an appellate court undertakes
the same inquiry as the trial court and considers the evidence and the rea-
sonable inferences therefrom in the light most favorable to the nonmoving
party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665(1995). Summary
judgment is appropriate “if the pleadings, depositions, answers to interrog-
atories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” CR 56(c); White v. State, 131
Wn.2d 1, 9, 929 P.2d 396 (1997).
Decision
In order to sustain its claim, the Estate was required to demonstrate, among
other things, that Moore was exposed to asbestos-containing friction prod-
ucts—brakes, clutches, or gaskets—supplied by GMG. See Lockwood v. A C
& S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987). In Washington, a plaintiff
need not personally identify the asbestos products to which he was exposed
in order to recover; direct or circumstantial evidence may be sufficient to
identify the manufacturer of asbestos products present in a workplace. Berry
v. Crown Cork & Seal Co., 103 Wn. App. 312, 323-24, 14 P.3d 789 (2000)
(evidence that a worker saw specific asbestos-containing products at the work
site “almost every day” for seven years, coupled with evidence that the defen-
dant was a local distributor of both products and local distributors were the
first source for immediate needs, sufficient to support an inference that
plaintiff was exposed to defendant-supplied products); see also Lockwood,
109 Wn.2d at 247 (testimony from other workers placing a manufacturer’s
product at defendant’s work site, along with expert testimony about asbestos
drifting, sufficient to permit reasonable inference that plaintiff was exposed
to the manufacturer’s product).
On appeal, GMG concedes the evidence supports an inference that
Moore purchased various friction products from GMG over the years. But
we agree with GMG that even when viewed in the light most favorable to
the Estate, the evidence fails to support an inference that Moore was exposed
to asbestos from GMG products.
Several witnesses testified that Moore ordered friction parts from several
distributors, including CCI, but for the period before 1993, no one was able
to identify any specific parts ordered from CCI or recall Moore working with
any specific CCI parts. George Dean explained that he ‘assume{d}’ Moore
purchased CCI brake pads ‘at one time or another,’ and acknowledged that
such purchases would have been ‘a very, very small part’ of the brake pads
purchased by the shop. For the period after 1993, Keith Recker specifically
recalled that Moore sold packaged CCI brake parts in the shop and would
use the same packaged parts for repairing motorcycles.
But Recker did not know whether any of the CCI parts contained asbestos.
In order to support the inference that Moore was exposed to asbestos from
CCI parts, the Estate relies primarily on the declaration of Ken Cohen, a
certified industrial hygienist, who opined that motorcycle friction parts sold
in the United States during the period from 1976 to 2000 by after-market
companies “like” CCI “more likely than not” contained asbestos. But Cohen
does not indicate that this conclusion is based on any specific knowledge of
CCI’s products. Given the absence of evidence identifying any specific CCI
products used by Moore or specifically tying Moore to CCI friction products
until 1993, the undisputed evidence that Moore purchased friction products
from multiple sources, the fact that a major motorcycle manufacturer dis-
continued asbestos-containing brake products by 1973 and clutch products
by 1984, and the fact that CCI began offering asbestos-free brake pads by
1986, the trier of fact would have to rely on speculation or conjecture to find
that Moore was exposed to asbestos from CCI friction products, either during
the installation of new products or the removal of old products. Conclusory
opinions, lacking any meaningful factual support, are insufficient to defeat
a motion for summary judgment. See Guile v. Ballard Community Hosp., 70
Wn. App. 18, 25, 851 P.2d 689 (1993).
Affirmed.
For the court:
B3: Horton v. Harwick Chemical Corporation
Precedent-Setting Decision
Horton et al., Appellants, v. Harwick Chemical Corporation; A.W. Ches-
terton et al., Appellees.
Robert Derrick, Appellant v. John Crane, Inc., et al., Appellees.

[Cite as Horton v. Harwick Chem. Corp. (1995), Ohio St.3d]
Civil procedure — Appropriate summary judgment standard for proving cau-
sation in asbestos cases — Torts — Alternative liability cannot apply, when.
1. For each defendant in a multidefendant asbestos case, the plaintiff

has the burden of proving exposure to the defendant’s product and
that the product was a substantial factor in causing the plaintiff ’s

injury.
2. A defendant need not prove that he was exposed to a specific product
on a regular basis over some extended period of time in close proximity
to where the plaintiff actually worked in order to prove that the prod-
uct was a substantial factor in causing his injury. (Lohrmann v. Pitts-
burgh Corning Corp. [C.A.4, 1986], 782 F.2d 1156, disapproved.)
3. Summary judgment is proper in an asbestos case in the same cir-
cumstances as in any other case, i.e, when, looking at the evidence as
a whole, (1) no genuine issue of material fact remains to be litigated,
(2) the moving party is entitled to judgment as a matter of law, and
(3) it appears from the evidence, construed most strongly in favor of
the nonmoving party, that reasonable minds could only conclude in
favor of the moving party.
4. Alternative liability cannot apply if the defendants’ products do not
create a substantially similar risk of harm.
Nos. 94-115 and 94-1041 — Submitted January 11, 1995 — Decided Sep-
tember 13, 1995.
Appeals from the Court of Appeals for Montgomery County, Nos. 13872 and
14159.
These consolidated cases arise from the asbestos-related injuries allegedly

suffered by appellants Robert S. Derrick and Edward Horton. Edward Horton
worked for Dayton Tire and Rubber Company (“DTR”) from 1946 to 1980.
During his first four years at DTR, Horton worked in the general services
department, where he performed cleaning duties throughout the DTR plant.
From 1950 until his retirement, Horton worked as a tire builder, except for
one year that he spent as a bias cutter in the tire building department. Horton
alleges that his exposure to asbestos fibers at the DTR plant caused him to
contract asbestosis, asbestos-related pleural thickening, and small airways
obstruction.
On July 13, 1990, Horton and others filed a personal injury action in the
Summit County Court of Common Pleas against various manufacturers and
distributors of asbestos products. Mrs. Horton filed a claim for loss of con-
sortium. The part of the case dealing with the Hortons was transferred to
the Montgomery County Common Pleas Court on November 15, 1990.
In 1992, seventeen of the defendants moved the court for summary
judgment. On December 30, 1992, the court sustained the motions of thir-
teen defendants, overruled the motions of two defendants, and struck the
motions of two as untimely.
The Hortons appealed to the Second District Court of Appeals the entry
of summary judgment in favor of the thirteen. They eventually dismissed
their appeal on the record as to eight, leaving the following five defendants:
(1) A.W. Chesterton Company (“Chesterton”); (2) McNeil (Ohio) Corpora-
tion (“McNeil [Ohio]”); (3) McNeil-Akron, Inc. (“McNeil-Akron”); (4) Pitts-
burgh Corning Corporation (“Pittsburgh Corning”); and (5) John Crane,
Inc. (“John Crane”). McNeil (Ohio) and McNeil-Akron settled with the
Hortons during the pendency of their appeal. On November 23, 1993, the
appellate court affirmed the judgment of the trial court in favor of appellees,
Chesterton, Pittsburgh Corning, and John Crane.
Derrick, a lifetime nonsmoker but for a few months in his youth [sic],
worked at DTR from 1942 through 1975, except for two years of military
service from 1953 to 1955. Derrick served in a variety of capacities at the
plant, including working in the receiving department, as a janitor, and in the
Banbury mixer department. He alleges that as a result of his exposure to
asbestos fibers in the course of his employment at DTR, he contracted asbes-
tosis and asbestos-related pleural thickening. On February 8, 1991, Derrick
filed a personal injury action in Montgomery County Common Pleas Court,
alleging that his illness was the direct and proximate result of the shedding
of asbestos fibers into the air of his work environment by the defective,
asbestos-containing products of the named defendants.
Fourteen of the defendants moved the trial court for summary judgment.
Derrick dismissed six of those defendants on the record, and on July 6, 1993,
the court sustained the motions of five of the remaining defendants, and
overruled the motion of one other.
Derrick appealed to the Second District Court of Appeals the entry of
summary judgment in favor of four defendants: (1) Chesterton, (2) McNeil
(Ohio), (3) Pittsburgh Corning, and (4) John Crane. According to the opin-
ion of the court of appeals, McNeil (Ohio) settled with Derrick after the
appeal was filed.
The appellate court affirmed the trial court’s summary judgments in
favor of appellees Chesterton, Pittsburgh Corning, and John Crane on March
30, 1994. Derrick appealed to this court and we consolidated his appeal with
that of appellants Edward and Dorothy Horton.
In both of these cases, the appellate court employed the “frequency-
proximity” test set forth in Lohrmann v. Pittsburgh Corning Corp. (C.A.4,
1986), 782 F.2d 1156, to determine whether plaintiffs’ evidence regarding
causation was sufficient to withstand defendants’ summary judgment
motions. Under the Lohrmann test, to escape summary judgment a plaintiff
must present evidence of “exposure to a specific product on a regular basis
over some extended period of time in proximity to where the plaintiff actually
worked.” Id. at 1162-1163. This court never has specifically adopted the
Lohrmann test.
Both plaintiffs presented evidence that during the time that they worked
for DTR asbestos-containing products of each of the appellees were present
in the facility. The trial and appellate courts held, however, that neither
plaintiff demonstrated exposure to any of the appellees’ products on a regular
basis over some extended period of time in proximity to where the plaintiff
actually worked, and therefore granted summary judgment to the appellees.
These case are before this court upon the allowance of motions to certify
the records.
Michael F. Colley Co., L.P.A., Daniel N. Abraham, Thomas F. Martello, Jr., and David
K. Frank, for appellants.
Baden & Jones Co., L.P.A., Thomas P. Erven, and Nancy R. Blankenbuehler, for appellee
A.W. Chesterton Company.
Day, Cook & Gallagher, David L. Day and Dale D. Cook, for appellee John Crane, Inc.
Hermann, Cahn & Schneider, Gary D. Hermann, Jay H. Salamon, and Romney B.
Cullers, for appellee Pittsburgh Corning Corporation.
A. Russell Smith and R. Bryan Nace, urging reversal for amicus curiae, Ohio Academy
of Trial Lawyers.
Charles R. Armstrong and Carolyn T. Wonders, urging reversal for amicus curiae,
United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO,
CLC.
Joyce Goldstein Co., L.P.A., and Joyce Goldstein, urging reversal for amicus curiae,
Cleveland Building and Construction Trades Council, AFL-CIO.
Adams Legal Services and Russell J. Adams, urging reversal for amicus curiae, Asbestos
Victims of America.
Davis & Young Co., L.P.A., and Martin J. Murphy, urging affirmance for amicus curiae,
Owens-Corning Fiberglas Corporation.
Ronald G. Rossetti, Jr., urging affirmance for amicus curiae, Ohio Association of Civil
Trial Attorneys.
Vorys, Sater, Seymour & Pease, Mary Ellen Fairfield, Richard D. Schuster, and Brent
C. Taggart, urging affirmance for amici curiae, Acands, Inc., BF Goodrich
Company and the Goodyear Tire & Rubber Company.
Baker & Hostetler, Randall L. Solomon and John H. Burtch, urging affirmance for
amicus curiae, Center for Claims Resolution.
Bunda, Stutz & Dewitt, Robert A. Bunda, Barbara J. Stutz, and Anne Y. Koester,
urging affirmance for amicus curiae, Owens-Illinois, Inc.
Pfeifer, J. We are asked in this case to set forth the appropriate summary
judgment standard for causation in asbestos cases, and specifically, whether
Ohio courts should adopt the Lohrmann test. While this court is aware of
the docketing problems that may exist with asbestos-exposure cases, we will
not cause plaintiffs in such cases to carry a greater summary judgment
burden than other personal injury plaintiffs. In our view, the Lohrmann
standard casts judges in an inappropriate role, is overly burdensome, and
is unnecessary.
We are also asked in this case to adopt alternative liability as a possible
theory for recovery. This court has recognized the viability of alternative
liability in the past, but we find it inappropriate in the cases at hand, since
there is no evidence that the defendants’ products created a substantially
similar risk of harm.
I.
In Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph five
of the syllabus, this court held that “[w]here a plaintiff suffers a single injury
as a result of the tortious acts of multiple defendants, the burden of proof is
on the plaintiff to demonstrate that the conduct of each defendant was a
substantial factor in producing the harm.” In the asbestos cases, the plaintiff
also has the burden of proving exposure to asbestos-containing products.
Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 42, 514
N.E.2d 691, 693.
The Lohrmann test purports to be a tool for determining whether a
plaintiff ’s evidence of causation, i.e., whether a particular product was a sub-
stantial factor in producing the plaintiff ’s injury, is sufficient to withstand
summary judgment. However, the test creates less a legal standard than a
medical or scientific one. Under Lohrmann, a product cannot possibly cause
an injury unless a plaintiff has worked in close proximity to the product on
a regular basis for an extended period of time. By employing the Lohrmann
test, the trial judge usurps the traditional role of the medical or scientific
expert, establishing a mechanistic test regarding causation which no contrary
expert testimony can overcome. The Lohrmann test puts trial judges in the
position of having to find, for instance, that sporadic, intense exposure to
asbestos over an extended period of time cannot cause asbestos-related disease.
In effect, the Lohrmann test requires judges to take judicial notice that
an asbestos-containing product can cause injury only when someone
works in close proximity to the product on a regular basis over an extended
period of time. Evid. R. 201(B) describes the kind of facts which may be
judicially noticed:
“A judicially noticed fact must be one not subject to reasonable

dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reason-

ably be questioned.”
We certainly cannot say that there is no reasonable dispute as to what

level of exposure can cause asbestos-related diseases. In refusing to adopt the
Lohrmann test in Schultz v. Keene Corp. (N.D.Ill. 1990), 729 F.Supp. 609, 615,
the court wrote:
“[The] rule * * * flies in the face of evidence which indicates that

short periods of exposure — from one day to three months —
can cause significant damage to the lungs. See Workplace Exposure
to Asbestos: Review and Recommendations, U.S. Dep’t of Health
and Human Servs. and U.S. Dep’t. of Labor, DHHS (NIOSH)
Publication No. 81-103, at 3 (Nov. 1980).”
Medical science suggests that very limited exposure to asbestos can cause
mesothelioma, perhaps the worst of asbestos-related diseases. See, e.g.,
“Mesothelioma: Has Patient Had Contact With Even Small Amount of Asbes-
tos?,” 257 JAMA 1569 (Mar. 27, 1987); New York Academy of Sciences, Cancer
and the Worker (1977) 50, cited with approval in Hardy v. Johns-Manville
Sales Corp. (E.D. Tex. 1981), 509 F.Supp. 1353, 1355, reversed on other
grounds, 681 F.2d 334 (C.A.5, 1982).
The temporal aspects of the Lohrmann test are scientifically dubious.
“The length of time that an individual was exposed to asbestos does not in
itself determine how serious the injury will be. Several factors, including
individual idiosyncrasy, the intensity of the exposure, and the nature of the
contaminant all play a part in the development of the disease.” Schultz, supra,
729 F.Supp. at 615, citing Zurich Ins. Co. v. Raymark Indus., Inc. (1987), 118
Ill.2d 23, 37, 514 N.E.2d 150, 156.
The proximity aspect of the Lohrmann test also chooses sides in a scien-
tifically disputed area. In these cases, Dr. Kenneth S. Cohen, a registered
professional engineer, certified industrial hygienist, and asbestos inspector
who holds a PhD in occupational health, testified through affidavit that
asbestos fibers can travel significant distances through the air, resulting in
substantial asbestos exposure even to employees who are not working
directly or in close proximity to any product containing asbestos.
Dr. Cohen described in his affidavit the process of “re-entrainment,” by
which the physical action of air movement, vibration, or physical trauma
causes aerodynamically active asbestos fibers and particles to “take flight”
and sail into the air. He stated that it was “more likely than not that some of
the fibers and particles released in one corner of the [DTR] plant would travel
on drafts and air currents throughout the plant, including to its furthest
opposite point.” Dr. Cohen stated that the theory that a worker would only
be exposed to asbestos released in the immediate vicinity of his workplace is
a “scientific impossibility,” due to the aerodynamic quality of the fibers and
the plant’s inevitable air turbulence. Dr. Cohen stated that the plaintiffs “were
more likely than not substantially exposed to asbestos and talc fibers and
particles from all manufacturers whose asbestos and talc containing products
were used in the [DTR] facility during the periods they worked there.”
It is not the province of the judge to immediately foreclose the validity
of testimony such as Dr. Cohen’s. The case that appellee Chesterton cites as
the leading case regarding the “fiber drift” theory, Robertson v. Allied Signal,
Inc. (C.A.3, 1990), 914 F.2d 360, actually recognizes the theory’s validity.
While allowing the use of the theory only with evidence of frequency and
regularity, Robertson does nonetheless accept that a worker not in close prox-
imity to the actual product may still inhale the product’s fibers:
“The fiber drift theory can not stand alone; it must be supported
by evidence showing the frequency of products’ use and the reg-
ularity of the plaintiff ’s employment in an area into which there
is a reasonable probability that the fibers drifted.” Id.
The true worth of testimony like Dr. Cohen’s is determined in the jury
room when weighed against competing testimony. We are unwilling to
close the door on the legitimacy of the “fiber drift” theory in every case in
Ohio courts. Indeed, the Lohrmann test is the product of the attempts of
Maryland federal courts to deal with claims brought by employees of ship-
yards, workplaces so large that fiber drift might seem impossible. The
Lohrmann court stressed the immensity of the shipyard in that case as a
reason for affirming the district court’s use of what later became known
as the Lohrmann test:
“[W]hen one considers the size of a workplace such as Key High-

way Shipyard, the mere proof that the plaintiff and a certain
asbestos product are at the shipyard at the same time, without
more, does not prove exposure to that product.” Lohrmann, 782
F.2d at 1162.
We think it unwise to apply a rule designed for shipyards to workplaces

of every size.
More important, we think it unwise to apply a strict standard rooted in
science when the science on the issue is unresolved. Lohrmann creates an all-
knowing, trumping medical expert that disallows competing scientific view-
points on the causes of asbestos-related diseases.
The Lohrmann test is the result of the law and public policy outstripping
the science at the heart of the asbestos problem. Sometimes when a phenom-
enon grounded in science creates public concerns, policymakers cannot wait
for the science to catch up with those concerns, and a public-policy-generated
pseudoscience can be the result. The Lohrmann test creates such pseudoscience
in an arena where there is a long tradition of leaving science to the experts.
Also, the Lohrmann test invites a trial judge into the domain of the jury.
The temporal aspects of the test, frequency and regularity, are subject to an
unlimited range of possibilities. How many exposures does it take to meet
the acceptable level of frequency? Can a judge be sure that one less exposure
could not have caused asbestos-related disease? What is a regular basis? Does
intense exposure over a shorter duration reduce the regularity requirement?
In regard to proximity, how close to the product is close enough? Will a few
feet make the difference?
The Lohrmann test does not call for simple responses which follow
directly from a presentation of the evidence. Instead, the test involves a
weighing of the plaintiff ’s evidence on the sliding scale of the test’s three
loosely defined criteria. The inquiry by the trial judge should be whether
there is evidence of exposure and evidence tying that exposure to the disease.
Whether that evidence is strong enough to prove causation is an issue for
the jury.
Finally, the Lohrmann test departs from our standard regarding summary
judgment. “Because summary judgment is a procedural device to terminate
litigation, it must be awarded with caution. Doubts must be resolved in favor
of the nonmoving party.” Davis v. Loopco Industries, Inc. (1993), 66 Ohio
St.3d 64, 66, 609 N.E.2d 144, 145. Plaintiffs in asbestos cases deserve that
same degree of caution in their cases. The Lohrmann test resolves doubts
about causation mechanically in the favor of the defendant from the outset.
It stacks the deck against plaintiffs by foreclosing all but one avenue of proof
of causation.
For each defendant in a multidefendant asbestos case, the plaintiff has
the burden of proving exposure to the defendant’s product and that the
product was a substantial factor in causing the plaintiff ’s injury. A defendant
need not prove that he was exposed to a specific product on a regular basis
over some extended period of time in close proximity to where the plaintiff
actually worked in order to prove that the product was a substantial factor
in causing his injury.
Instead, we adopt the definition of “substantial factor” contained in
Restatement of the Law 2d, Torts (1965), Section 431, Comment a:
“The word ‘substantial’ is used to denote the fact that the defen-
dant’s conduct has such an effect in producing the harm as to lead
reasonable men to regard it as a cause, using that word in a popular

sense, in which there always lurks the idea of responsibility, rather
than the so-called ‘philosophical sense,’ which includes every one
of the great number of events without which any happening would
not have occurred.”
Summary judgment is proper in an asbestos case in the same circum-

stances as in any other case, i.e., when, looking at the evidence as a whole,
(1) no genuine issue of material fact remains to be litigated, (2) the moving
party is entitled to judgment as a matter of law, and (3) it appears from the
evidence, construed most strongly in favor of the nonmoving party, that
reasonable minds could only conclude in favor of the moving party.
Thus, we decline to establish a formulaic approach in an area which defies
that kind of analysis, and therefore do not adopt the Lohrmann test. We
therefore reverse the court of appeals and remand these cases to the trial
court for a determination consistent with this opinion.
II.
The theory of alternative liability originated in Summers v. Tice (1948), 33
Cal.2d 80, 199 P.2d 1. In Summers, the plaintiff and the two defendants went
hunting together. The defendants negligently fired their guns simultaneously
in the direction of the plaintiff and a pellet struck him in the eye. Since the
plaintiff could not identify the responsible defendant, the court shifted the
causation burden to the defendants. Id. at 86-87, 199 P.2d at 4-5.
Alternative liability had its Ohio genesis in Minnich v. Ashland Oil Co. (1984),
15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, syllabus, in which this
court adopted the doctrine as set forth in 2 Restatement of the Law 2d, Torts
(1965), Section 433B(3):
“Where the conduct of two or more actors is tortious, and it is

proved that harm has been caused to the plaintiff by only one of
them, but there is uncertainty as to which one caused it, the
burden is upon each such actor to prove that he has not caused
the harm.”
In Minnich, the plaintiff was injured when ethyl acetate he was using to
clean a printing press ignited. The complaint alleged that two companies had
supplied ethyl acetate to Minnich’s employer; the supplier of the actual ethyl
acetate that ignited was unknown, since it had been transferred to an
unmarked bottle prior to its use by Minnich. Thus, this court applied alter-
native liability, since each of the defendants had allegedly supplied an iden-
tical, defective product to the plaintiff.
This court first faced the issue of alternative liability in asbestos cases in
Goldman, supra. This court in Goldman did not foreclose the possibility of
the use of the theory in asbestos cases, but instead explained the limitations
of its use therein. In Goldman, the plaintiff could not identify any of the
defendants as having supplied asbestos materials to his employer. Thus, Gold-
man could not demonstrate that each of the defendants had acted tortiously.
As this court noted, while the theory of alternative liability relaxes the tradi-
tional requirement that the plaintiff prove that a specific defendant caused
the injury, it applies only where the plaintiff shows that all the defendants
acted tortiously. Goldman, 33 Ohio St. 3d at 46, 514 N.E.2d at 696.
The factor which makes alternative liability inappropriate in this case
was mentioned in dicta in Goldman. The present cases lack what was present
in the seminal cases in this area: defendants creating a substantially similar
risk of harm. In Summers, for example, the defendants shot guns with iden-
tical ammunition in the direction of the plaintiff. In Minnich, both defen-
dants allegedly supplied the same defective chemical to the plaintiff ’s
employer. As this court stated in Goldman, “[a]sbestos-containing products
do not create similar risks of harm because there are several varieties of
asbestos fibers, and they are used in various quantities, even in the same class
of product.” Goldman, 33 Ohio St.3d at 46, 514 N.E.2d at 697. The records
in these cases fail to demonstrate that the level of risk posed by each of the
defendants’ products is substantially similar.
In the types of cases traditionally employing alternative liability, the
plaintiff is unable even to differentiate between the possible responsible par-
ties. In the within cases, the plaintiffs can at least identify which products
they were exposed to most, which contained the highest levels of asbestos,
and which were used in a manner more likely to release fibers into the air.
Alternative liability is a unique theory to be employed in unique situa-
tions. This court in Minnich limited application of the theory to “situations
similar to the one at bar.” Minnich, 15 Ohio St.3d at 397, 15 OBR at 512, 473
N.E.2d at 1200. Alternative liability cannot apply if the defendants’ products
do not create a substantially similar risk of harm. Since there is no evidence
that defendants’ products created a substantially similar risk of harm, we will
not apply the theory in the within cases. We therefore agree with the appellate
court on that issue.
Judgments Reversed and Causes Remanded
MOYER, C.J., concurs in part and dissents in part.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in part.
WRIGHT and COOK, JJ., concur in part and dissent in part.
Moyer, C.J., concurring in part and dissenting in part. I concur in the first,
third and fourth paragraphs of the syllabus and in the well-advised decision
of the majority to reject the theory of alternative liability. I dissent from the
majority opinion because it does not provide the bench and bar with a test
that can consistently be applied in asbestos cases. I would adopt the “fre-
quency-proximity” test adopted in the case of Lohrmann v. Pittsburgh Corning
Corp. (C.A.4, 1986), 782 F.2d 1156. No persuasive argument has been given
to persuade me that Ohio should not adopt the test applied in the majority
of jurisdictions in the country that have considered the issue.
For the foregoing reasons I would affirm the judgments of the court of
appeals.
DOUGLAS, J., concurring in part and dissenting in part. I enthusiastically
concur in the clear, cogent and well-reasoned discussion of the majority
concerning Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d
1156, and the so-called Lohrmann test. I also concur in paragraphs two and
three of the syllabus and in the ultimate judgment of the majority even
though I must confess that I am unsure what I would do, upon remand, if
I were the trial judge. I respectfully dissent from paragraphs one and four of
the syllabus and the discussion of the majority in Part II of the opinion
concerning alternative liability.
I.
Whether the majority does so intentionally or unintentionally, I believe the
majority, by today’s decision, ends asbestos litigation in Ohio in multidefen-
dant cases. By saying, in the first paragraph of the syllabus, that a plaintiff
in such cases “has the burden of proving exposure to the defendant’s product
and that the product was a substantial factor in causing the plaintiff ’s injury”
(emphasis added), the majority creates a standard that no plaintiff will ever
be able to meet. Each defendant in a multidefendant case will say that it was
another defendant’s product that caused the injury, and a plaintiff, of course,
will never be able to show that the injury was caused by, for example, the
asbestos in the ceiling tiles rather than the asbestos which was wrapped
around the pipes or heating ducts.
The test for plaintiffs in asbestos cases should be no different from what
it is for other plaintiffs in other multidefendant tort cases. In asbestos cases,
the test should be that a plaintiff must show that he or she has an asbestos-
related illness, that she or he was exposed to an asbestos product of the defen-
dant(s) and that exposure to asbestos was a factor in causing plaintiff’s harm.
When plaintiff proves these facts by a preponderance of the evidence, the
causation burden then shifts to defendants (who typically have better knowl-
edge of their product placement) to show that it was not their product that
caused the harm to plaintiff. This then leads to the theory of alternative liability.
II.
For its discussion of alternative liability, the majority relies principally on
Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473
N.E.2d 1199, and dicta in Goldman v. Johns-Manville Sales Corp. (1987), 33
Ohio St.3d 40, 514 N.E.2d 691. I believe that neither case is on point and
both can be easily distinguished.
It is true that in Minnich, we applied, as set forth by the majority herein,
alternative liability. The distinguishing feature of Minnich from the case at
bar is that in Minnich, it was clear that the harm had been caused by one of
two actors but it was unclear which of the actors had caused the harm. This
court shifted the burden to both actors for each to prove that, individually,
it was not the tortfeasor. In the asbestos cases, the allegation is not that a
single tortfeasor caused the injury. Rather, the allegation is that the injury
was caused by exposure to asbestos which was placed in the premises by
several different actors, all of whom are alleged to be responsible.
The same is true of Goldman. In Goldman, the plaintiff could not show
that any of the defendants had provided the asbestos materials alleged to
have caused the injury. Not so in the case at bar.
Rather than citing either Minnich or Goldman, I would cite this court’s
case of Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505,
which I find to be more directly on point. In Huston, the plaintiff was
involved in a beer party at a private home, which was attended by a number
of persons, most of whom were under the legal drinking age. Plaintiff
Huston left the party in a car with two other guests. The car was involved
in an accident and plaintiff Huston was injured. Plaintiff, along with his
parents, sued a number of people, claiming that the defendants had provided
(or permitted the providing of) alcohol to minors in violation of law and
that this conduct resulted in plaintiff ’s being injured. Apparently a number
of the guests at the party had brought beer with them, and a pony keg of
beer and various cans and bottles of beer were commingled in a bathtub.
One of the issues in Huston presented the question whether a plaintiff, in a
multidefendant action, is required to prove the specific source of the alcohol
that allegedly contributed to plaintiff ’s injury or whether it is enough, under
the alternative liability theory, that two or more defendants committed
tortious acts and that plaintiff was injured as a proximate result of the
wrongdoing of at least one of the defendants.
The trial court in Huston granted summary judgment to certain defen-
dants. The court of appeals reversed and we affirmed the judgment of the
court of appeals. Writing for a five-member majority of this court, Justice
Herbert Brown cited 2 Restatement of the Law 2d, Torts (1965), Section
433B(3), which had been adopted by this court in Minnich, supra. Justice
Brown went on to say that: “Comment f to subsection (3), supra, states that
the reason for the exception is the unfairness of permitting tortfeasors to

escape liability simply because the nature of their conduct and of the resulting
injury has made it difficult or impossible to prove which of them caused the
harm. Id. at 446. The exception applies when each of two or more actors has
acted tortiously and the harm has resulted from the conduct of one or more of
them. 2 Restatement of the Law 2d, Torts (1965), Section 433B, Comment
g.” (Emphasis added.) Huston, supra, 52 Ohio St.3d at 218, 556 N.E.2d at
510. At 219, 556 N.E.2d at 510, Huston goes on to say that “[a]pplying these
principles to the present case, plaintiffs must show: (1) that the beer furnished
to underage persons came from the Cordells, Goodsite or the other named
defendants, and (2) that Huston was injured as a proximate result of the
wrongdoing of at least one of these defendants.” (Emphasis added.) Finally,
and most tellingly, I believe, we said that “[t]he trial court erred when it
granted summary judgment on the basis that plaintiffs failed to prove the
specific source of the beer consumed by [the alleged driver] Bodnar.” (Empha-
sis added.) Id.
This is precisely the issue now before us. In the case we are now consid-
ering, allegedly all the defendants before the court supplied products of a
similar nature, some or all of which caused the injuries to these plaintiffs.
Thus, since the theory of alternative liability is the law of Ohio today, Huston,
supra, we should either follow Huston or overrule it. Since the majority does
not follow Huston, I respectfully concur in part and dissent in part.
RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion.
WRIGHT, J., concurring in part and dissenting in part. I quite agree with
the majority’s rejection of the theory of alternative liability in this case and
join paragraphs three and four of the syllabus. However, I vigorously disagree
with its treatment of the court of appeals’ opinion and its rejection of the
“frequency-proximity” test adopted in the leading case of Lohrmann v. Pitts-
burgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156, which has been embraced
in practically every other jurisdiction which has reviewed asbestos cases. 1
The majority and the appellants apparently accept the proposition that
“the plaintiff has the burden of proving exposure to the defendant’s product
and that the product was a substantial factor in causing plaintiff ’s injury.”
(Paragraph one of the syllabus.) The majority goes on to state, “[W]e decline
to establish a formulaic approach in an area which defies that kind of
analysis,” and rejects Lohrmann. What the majority has done is to adopt no
test whatsoever and in the process relegate Pang v. Minch (1990), 53 Ohio
St.3d 186, 559 N.E.2d 1313, and Goldman v. Johns-Manville Sales Corp.
(1987), 33 Ohio St.3d 40, 514 N.E.2d 691, to meaningless pronouncements.
The majority appears to adopt what, for lack of a better term, could be
described as the “fiber drift theory,” which, in essence, states that if there is
some evidence that a defendant’s product was located in or near or some-
where in the vicinity of the place where plaintiff worked then there is
potential liability, despite the total absence of a showing of plaintiff ’s prox-
imity to those products or evidence as to the frequency of the exposures. I
have no quarrel with the notion that asbestos particles have the ability to
“take flight” and “sail” into the air. Appellant’s expert indicates that such
particles might be released in one corner of a plant and travel by way of
drafts and air currents throughout the immediate vicinity of a workplace.
However, what is lacking here is any evidence suggesting that any of defen-
dant-appellees’ products were a substantial factor in causing the appellants’
injuries. I think it goes without saying that under Ohio law, to get past a
summary judgment a plaintiff must present evidence creating a probability,
not a mere possibility, of a casual relationship between a defendant’s conduct
or product and the alleged harm. Is there sufficient evidence here to create
a jury question where the plaintiffs merely show that there was a possibility
that they may have been exposed to the defendants’ products where they
worked? Perhaps, but I suggest that the plaintiffs must present evidence that
would tend to show the circumstances of the exposure, including some idea
as to the time, place, and manner in which the product was used and where
the plaintiff was in relation to the product. The Second District Court of
Appeals did just this and concluded that there was no evidence other than
speculation to support the posture of appellants.
Civ.R. 56, which deals with summary judgment, and our various deci-
sions dealing with it place the trial court in the posture of a gatekeeper, whose
role is to take from the jury’s province cases which fail to achieve a certain
minimum amount of evidentiary proof. This case is surely one that fails the
test. Due to the majority’s brevity in reviewing the facts, I feel that I should
excerpt a portion of the court of appeals’ opinion which analyzes the law as
it relates to the facts. In its opinion in Horton (Nov. 23, 1993), Montgomery
App. No. 13872, unreported, at 4-5, the court of appeals correctly noted that
in Lohrmann, the Fourth Circuit required “a plaintiff to introduce evidence
which would allow the jury to reasonably conclude that the conduct of the
defendant was a substantial factor in causing the plaintiff ’s harm. Id. [Lohr-
mann, 782 F.2d] at 1162. That requirement was derived from the Restatement
(Second) of Torts §431, which defines what constitutes legal cause. Lohrmann
held that simply showing that asbestos-containing products were present in
a large workplace while the plaintiff worked there is not sufficient to meet
the ‘substantial factor’ test because it does not prove that the plaintiff was
exposed to the asbestos-containing products. Id. Rather, the plaintiff must
present evidence to show the frequency of the use of the product and the
regularity of the plaintiff ’s employment in proximity thereto. Id.”
The court of appeals properly stated, “The frequency-proximity test ***
is not a test which is distinct from the substantial factor standard; rather, it
is a tool to enable a court to determine whether the plaintiff in an asbestos

case has put forth sufficient evidence against a defendant to show that a
reasonable jury could find that the defendant’s conduct was a substantial
factor in causing the plaintiff ’s harm. ***
“***The frequency-proximity test does not require any greater

showing than the substantial factor standard; rather, the test de-
termines when the plaintiff has met his burden under that stan-
dard.” Id. at 6-7.
As noted by the court of appeals, “The basis for this assignment of error
is an affidavit filed by the Hortons explaining the fiber drift theory as it relates
to DTR. Dr. Kenneth Cohen made the affidavit after an inspection of DTR
conducted in 1989. DTR closed a few weeks after Mr. Horton retired in
1980, so inferably the plant was in substantially the same condition at the
time of the inspection as it was when he still worked there. Dr. Cohen is a
recognized expert in industrial hygiene. The fiber drift theory holds that
asbestos fibers can become airborne and drift away from their original
source. Through repeated disturbances by such forces as air currents or
vibrations, these ‘aerodynamically active fibers and particles’ can be trans-
ported throughout the plant. Based on this theory, Dr. Cohen states that
‘[a]ny worker whose workplace was within the Dayton Tire and Rubber
Company plant was an asbestos and talc breather if asbestos and talc fibers
and particles were released within the confines of this facility. The plaintiff
workers who worked inside of this facility during use, installation, damage
to, repair, or removal of asbestos-containing and talc-containing products
during their employment more probably than not suffered substantial
occupational exposure to asbestos and talc fibers and particles by breath-
ing them into their lungs ***.’
“Dr. Cohen does not confirm that any asbestos or talc fibers were ever
released in DTR. He does not name any manufacturers of any asbestos or
talc present within the plant. He refers to all workers inside of the facility,
but he does not account for the fact that there was more than one building
in the DTR plant. In oral argument, counsel for the Hortons conceded that
the fibers would only drift within the contained structures where the asbestos
was located.” (Emphasis added.) Id. at 7-8.
For the foregoing reasons, I would affirm the judgment of the court of
appeals.
COOK, J., concurs in the foregoing opinion.
Note
1. See, e.g., Jackson v. Anchor Packing Co. (C.A.8, 1993), 994 F.2d 1295; Tragarz
v. Keene Corp. (C.A.7, 1992), 980 F.2d 411; Robertson v. Allied Signal, Inc.
(C.A.3, 1990), 914 F.2d 360; Menne v. Celotex Corp. (C.A.10, 1988), 861 F.2d
1453; Blackston v. Shook & Fletcher Insulation Co. (C.A.11, 1985), 764 F.2d
1480; Spaur v. Owens-Corning Fiberglas Corp. (Iowa 1994), 510 N.W.2d 854;
Sholtis v. Am. Cyanamid Co. (1989), 238 N.J.Super. 8, 568 A.2d 1196; Eckenrod
v. GAF Corp. (Pa.Super. 1988), 544 A.2d 50; Lockwood v. AC & S, Inc. (1987),
109 Wash.2d 235, 744 P.2d 605.
B4: Willmar Poultry Company v. Carus Chemical Company

Court of Appeals of Minnesota.
WILLMAR POULTRY COMPANY, Respondent,
v.
CARUS CHEMICAL COMPANY, Appellant,
Hawkins Chemical, Inc., et al., Defendants.
No. C4-85-716.
Dec. 17, 1985.

Review Denied Feb. 14 and Feb. 19, 1986.
Operator of turkey hatchery brought products liability suit against manufac-

turer of chemical which, when used in combination with another chemical
as fumigant, caused fire destroying hatchery building. The District Court,
Hennepin County, Charles A. Porter, J., entered judgment finding operator
of hatchery 20% responsible, and manufacturer 80% responsible on theory
of inadequate warnings, and manufacturer appealed. The Court of Appeals,
Huspeni, J., held that: (1) question of fact as to whether past use of chemical
in fumigating hatchery alerted operator to danger of fire precluded summary
judgment in favor of manufacturer; (2) evidence was insufficient to raise jury
question on negligence of distributors of chemicals involved; (3) trial court
did not abuse its discretion in refusing to give an instruction regarding
operator’s assumption of the risks; and (4) trial court did not abuse its
discretion in framing jury instructions regarding manufacturer’s duty to test
its product.
Affirmed.
*832 Syllabus by the Court
1. Respondent’s recovery against appellant was not precluded on the

basis that no one at the respondent company read the warnings on
the potassium permanganate drums.
2. Respondent’s recovery against appellant was not precluded on the
basis that respondent was aware of the risks involved in fumigating
its facility.
3. The trial court did not err in refusing to submit to the jury the issue
of the distributors’ negligence.
4. The trial court did not err in its jury instructions.
James L. Fetterly, Minneapolis, for respondent.

Eric J. Magnuson, Minneapolis, for appellant.
Heard, considered, and decided by HUSPENI, P.J., and FOLEY and FORS-
BERG, JJ.
Opinion
HUSPENI, Judge.
Respondent Willmar Poultry Company (Willmar Poultry) brought this
products liability action against appellant Carus Chemical Company
(Carus), Reichhold Chemicals, Inc. (Reichhold), Hawkins Chemical, Inc.
(Hawkins) and Thompson-Hayward Chemical Company (Thompson-Hay-
ward), seeking to recover damages arising from a fire which occurred at
Willmar Poultry’s facility. Reichhold, Hawkins, and Thompson-Hayward
settled with Willmar Poultry prior to trial. Following a lengthy trial, the jury
allocated responsibility for the fire 20% to Willmar Poultry, 80% to Carus,
and 0% to Reichhold. The trial court denied Carus’ motion for judgment
notwithstanding the verdict or, in the alternative, a new trial. Carus appeals.
We affirm.
Facts
Willmar Poultry operates a turkey hatchery in Willmar, Minnesota. It peri-
odically fumigates its hatchery buildings and incubators in order to disin-
fect them. For a number of years, Willmar Poultry fumigated its buildings
and incubators by combining potassium permanganate and a 37% form-
aldehyde solution.
Carus is the sole manufacturer of potassium permanganate in the United
States, and sells the product under the trade name “Cairox.” Carus recom-
mends that potassium permanganate be used in combination with formal-
dehyde for fumigating poultry hatcheries.
Reichhold manufactures a formaldehyde solution and sells its product under

the trade name “Formalin.” Willmar Poultry purchased the potassium per-
manganate involved in this case from Hawkins and it purchased the formal-
dehyde solution from Thompson-Hayward.
On November 17, 1978, as the final stage of a major cleaning of its facility,
Willmar Poultry planned to do a large-scale fumigation. It had never done
such an extensive fumigation before. Its normal procedure was to pour a
measured amount of potassium permanganate into a three pound coffee can
which contained a small amount of the formaldehyde solution.
The employees of Willmar Poultry did a few tests during the week prior
to the fumigation to determine the size of containers they should use and a
method for mixing the large quantities of chemicals. They decided to use
stock tanks to fumigate the smaller rooms in the hatchery and garbage
dumpsters to fumigate the larger areas of the facility. They also decided to
modify their usual procedure to accommodate the larger amounts of chem-
icals that were required.
Ray Norling, the vice president of Willmar Poultry, testified that he
decided to do an experiment prior to the fumigation in order to test two gas
masks and also to determine whether any unexpected reactions would occur
when he poured the formaldehyde solution on the potassium permanganate.
He used a stock tank for his experiment. Within twenty to thirty seconds
*833 after he poured the formaldehyde solution on the potassium perman-
ganate, he observed a flame that was blue at the base and, above a couple of
inches of blue flame, the flame was red. At times, the flame reached a height
of twelve inches. The flame was as thick as a pointer. After three to four
minutes, the flame subsided and Norling saw the flame go out. The flame
was not unexpected because Norling had observed soot in other containers
that were previously used for fumigation.
Norling then implemented a plan which he considered would control
the flow of the formaldehyde solution and prevent a fast release of fumes.
The employees placed approximately 180 pounds of potassium permangan-
ate in the bottom of a dumpster and approximately 45 gallons of the form-
aldehyde solution in a 55-gallon drum which was set on a stand above the
dumpster. Attached to the drum was a spigot and a hose. The employees
planned that, when they opened the spigot, the formaldehyde solution would
run from the drum into the dumpster and mix with the potassium perman-
ganate. They considered that the spigot would allow them to control the rate
at which the formaldehyde solution would pour into the potassium perman-
ganate, and therefore, they would be able to control the rate and speed of
the chemical reaction.
As a result of this setup, the chemicals were mixed at a much slower rate
than was normal. Norling testified that he thought the slower the rate of
mixture, the less fumes would be created, the personnel would have a longer
time to leave the building without being harmed by the fumes, and any
problems would be avoided. Norling expected some fire in the bottom of the
dumpster, but he testified that he would “anticipate the same kind of flame
that I saw in the stock tank.”
All of Willmar Poultry’s precautions backfired. When employees of Will-
mar Poultry opened the spigot on the drum, the formaldehyde solution poured
on to the potassium permanganate and there was an instantaneous violent
chemical reaction. Within seconds, fire leapt to the ceiling of the hatchery and
the uncontrollable fire destroyed the building. No one was injured.
Dr. Kent Voorhees, one of Willmar Poultry’s experts, testified at trial that
Willmar Poultry’s method of mixing the potassium permanganate and the
formaldehyde solution created a serious risk of fire. Voorhees conducted a
number of experiments with potassium permanganate and the formaldehyde
solution. Most of the experiments were videotaped and the videotape was
shown to the jury. He used a number of different containers—coffee cans,
barrels, stock tanks and dumpsters. Voorhees opined, based on his experi-
ments, that the reaction of the two chemicals is unpredictable.
Voorhees described five factors that influence the chemical reaction: (1)
in order to have a controlled chemical reaction, the chemicals need to be
mixed completely and thoroughly; (2) the faster the chemicals are mixed
together, the safer the reaction is; (3) it is safer to add the potassium per-
manganate to the formaldehyde solution, rather than vice versa; (4) contain-
ers with high sides tend to create a column of formaldehyde gas and thus
create a higher risk of flames; (5) there is a maximum limit to the amount
of chemicals that can be safely used.
Voorhees concluded that potassium permanganate and formaldehyde
cannot be used safely to fumigate a large building. He further testified that
the slow addition of small amounts of the formaldehyde solution to large
quantities of potassium permanganate is the most hazardous way to mix the
two chemicals.
Each drum of potassium permanganate had three labels on it. One label
stated:
DANGER: STRONG OXIDIZER

CONTACT WITH OTHER MATERIALS MAY CAUSE FIRE. KEEP
FROM CONTACT WITH CLOTHING AND OTHER COMBUSTI-
BLE MATERIALS. REMOVE AND WASH CLOTHING PROMPTLY.
STORE IN TIGHTLY CLOSED CONTAINERS. DO NOT *834
STORE NEAR COMBUSTIBLE MATERIALS.
Another label stated, among other things, that “contact with combustible
material may cause fire or explosion.” The third label contained a yellow
flame symbol with the word “OXIDIZER” printed underneath the symbol.
Willmar Poultry’s other expert witness, Dr. Kenneth Cohen, testified that
the warnings on the potassium permanganate were inadequate. First, he
testified that the warning labels specifically contradict the long-standing and
recommended practice in the poultry industry of combining a combustible
material (the formaldehyde solution) with a strong oxidizer (potassium per-
manganate). Second, Cohen testified that the labels did not set an upper limit
on the quantities of chemicals that could be safely mixed. Cohen suggested
that the labels should use stronger language to communicate to the user the
possibility of an explosion and they should specifically state that additional
information is required before a user can safely proceed with “any unique
processes that are contrary to the instructions on the label.”
Carus’ expert, Charles O’Connor, testified that the labels were adequate.
He testified that the labels on the potassium permanganate drums satisfied
the standards of the American National Standard Institute. Further, he opined
that the language of the labels is easily understood by someone with a sixth
grade education. He did not believe there was any inconsistency between the
language on the labels and the use of potassium permanganate for fumiga-
tion. In his opinion, the label on the potassium permanganate adequately
warned users of the hazards of mixing the two chemicals together.
The jury determined that the potassium permanganate was in a defective
condition which was unreasonably dangerous, because Carus failed to pro-
vide adequate warnings and/or instructions for the safe use of the product
(in combination with the formaldehyde solution) as a fumigant for buildings.
The jury also determined that Carus’ failure to provide adequate warnings
directly caused Willmar Poultry’s loss. The jury found no fault on the part
of Reichhold. The trial court did not submit the issue of Hawkins’ and
Thompson-Hayward’s negligence to the jury. The parties stipulated to dam-
ages of 1.8 million dollars.
Issues
1. Was Willmar Poultry’s recovery against Carus precluded on the basis

that no one at Willmar Poultry read the warnings on the potassium
permanganate drums?
2. Was Willmar Poultry’s recovery against Carus precluded on the basis
that Willmar Poultry was aware of the risks involved in fumigating
its facility?
3. Did the trial court err in refusing to submit to the jury the issue of
the distributors’ negligence?
4. Did the trial court err in its jury instructions?
Analysis
I.
Carus argues that no one at Willmar Poultry read the warnings or instructions
contained on the potassium permanganate drums and, as a result, Carus’
alleged failure to adequately warn Willmar Poultry could not as a matter of
law be a direct cause of Willmar Poultry’s loss.
We need not determine whether the failure of a user to read the provided
warnings bars recovery based on an inadequate warning. Our review of the
evidence indicates that the jury could have determined that at least Norling
and Donald Lenz, two Willmar Poultry employees who were involved in the
fumigation, had read the labels on the potassium permanganate drums before
the fire.
II.
Carus also argues that Willmar Poultry’s awareness of the risks involved in
using potassium permanganate precludes its *835 claim of an inadequate
warning as a matter of law. We disagree.
[1] A manufacturer has no duty to warn when a user or operator is aware
of the dangers of a product. Dahlbeck v. Dico Co., 355 N.W.2d 157, 163
(Minn.App.1984), pet. for rev. denied, (Minn. Feb. 6, 1985) (quoting Strong
v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir.1981)). See also
Independent School District No. 14 v. Ampro Corp., 361 N.W.2d 138, 143
(Minn.App.1985), pet. for rev. denied, (Minn. Mar. 29, 1985).
Willmar Poultry admitted knowing about some of the risks involved with
fumigation. Based on Willmar Poultry’s previous fumigations and Norling’s
experiment, Willmar Poultry did know that the chemical reaction between
potassium permanganate and the formaldehyde solution created heat and
some flames. Further, it did know that its employees should only be exposed
to the chemicals for a short period of time. Finally, there is testimony that
Norling and other Willmar Poultry employees were concerned about how to
safely fumigate the facility.
[2][3] Past experience with a product, however, does not necessarily
alert users to all of the dangers associated with the product. See Blasing v.
P.R.L. Hardenbergh Co., 303 Minn. 41, 48, 226 N.W.2d 110, 115 (1975). See
Ampro Corp., 361 N.W.2d at 143 (plaintiff admitted knowing that the
polyurethane foam-filled landing mats might burn, but it indicated no
knowledge of the speed or intensity with which they burned). There is
testimony which indicates that Willmar Poultry was not aware of the risks
involved in slowly adding small amounts of the formaldehyde solution to
large quantities of potassium permanganate. There is evidence that its prior

fumigations did not make it aware of these risks. All of the prior fumiga-
tions at the hatchery were on a much smaller scale. Norling’s testimony
and Voorhees’ expert testimony viewed together indicate that neither Nor-
ling nor any of the other employees knew about the dangers involved in
fumigating large buildings.
We believe the evidence concerning Willmar Poultry’s knowledge of the
risks at least raised a question of fact for the jury to determine. The jury was
instructed that “[t]here is no duty to warn where the product user knows the
danger.” The issue of Willmar Poultry’s prior knowledge of the risks was
appropriately left to the jury to consider. We cannot determine this issue as
a matter of law.
III.
Carus claims the trial court erred in refusing to submit to the jury the issue
of Hawkins’ and Thompson-Hayward’s negligence. Carus argues that the trial
court erroneously relied on Minn.Stat. § 544.41 (1984), which limits non-
manufacturers’ liability in products liability actions. Carus further argues
that there was sufficient evidence of the distributors’ negligence to submit
the issue to the jury.
Initially, we note that, contrary to Carus’ argument, the trial court uti-
lized section 544.41, not as a basis for its nonsubmission of Hawkins’ and
Thompson-Hayward’s negligence to the jury, but for guidance in determining
whether enough evidence of the negligence of the two distributors had been
presented to raise a jury question. The trial court essentially directed a verdict
in favor of the distributors when it decided to not submit the issue of their
negligence to the jury.
[4] In reviewing a directed verdict, we must make an independent deter-
mination of the sufficiency of the evidence to present a fact question to the
jury. Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669
(Minn. 1983). The directed verdict is sustainable if it clearly would be the
duty of the trial court to set aside a contrary verdict, as against the evidence
or contrary to the law of the case. Id. at 670.
[5] A negligence claim against the distributors required proof that they
had knowledge of the products’ condition and the risks involved in that
condition. See 836 Bilotta v. Kelley Co., 346 N.W.2d 616, 622 (Minn. 1984).
Here, there was evidence that Hawkins sold Willmar Poultry the potassium
permanganate which was used in fumigating the facility and that Thompson-
Hayward sold the formaldehyde solution. Both distributors did know that
their chemicals were used for fumigation. The distributors’ knowledge of
how their products are used, however, is not enough evidence to create a fact
question for a jury. No evidence was presented that the distributors knew
and appreciated the risks involved or that they had knowledge of any inad-
equacies in the warnings.
We agree with the trial court that there is no evidence in the record that
the distributors knew or reasonably should have known that the warnings
provided by Carus were inadequate. Hence, the trial court did not err in
refusing to submit to the jury the issue of the distributors’ negligence.
IV.
Carus contends that the trial court committed two errors in the jury instructions.
[6][7] First, Carus asserts that the trial court erred in refusing to give the
jury an instruction regarding Willmar Poultry’s assumption of the risk. We
find no error. It is within the trial court’s discretion to give an assumption
of the risk instruction. Kantorowicz v. VFW Post, No. 230, 349 N.W.2d 597,
599 (Minn.Ct.App.1984). In Springrose v. Willmore, 292 Minn. 23, 24-25, 192
N.W.2d 826, 827 (1971), the supreme court mandated that “assumption of
risk must be apportioned under our comparative negligence statute.” Here,
the court gave the jury a typical comparative negligence instruction. The jury
was able to consider the evidence regarding Willmar Poultry’s assumption of
the risks involved within the framework of that instruction. See Kantorowicz,
349 N.W.2d at 600. Hence, we do not find that the trial court abused its
discretion in refusing to give an assumption of the risk instruction to the jury.
Carus also claims the trial court erred in instructing that Carus had a
duty to test its product. The trial court instructed the jury regarding a man-
ufacturer’s knowledge of its product as follows: In determining whether the
manufacturers of the two chemicals knew or reasonably could have discov-
ered the danger, you are instructed that they are obligated to keep informed
of the scientific knowledge and discoveries in the field. A manufacturer of
goods has a duty to use reasonable care to test the goods to protect those
who will use them from the unreasonable risk of harm while the goods are
being used for the recommended purpose.
The first part of this instruction is part of the proposed Minnesota JIG
for “failure to warn” products liability cases. The second part is the proposed
Minnesota JIG for negligence products liability actions involving manufac-
turing flaws.
Carus asserts that a manufacturer’s duty to test its product is only appli-
cable to negligence actions and that the jury instruction that it had a duty
to test the potassium permanganate in conjunction with the formaldehyde
solution was prejudicially erroneous.
[8] A trial court has broad discretion in instructing a jury as long as the
law of the case is fully, fairly and correctly stated. Swanson v. LaFontaine, 238
Minn. 460, 469, 57 N.W.2d 262, 268 (1953). The trial court explained its
instruction in its post-trial memorandum on the basis that “[t]he duty to
develop adequate warnings and instruction may well encompass a duty to

test a product to discover defects.”
[9] We conclude that the trial court did not abuse its discretion in framing
the jury instructions. First, it is well-recognized that “failure to warn” strict
liability actions are based on negligence concepts. See Bilotta v. Kelley Co.,
Inc., 346 N.W.2d at 622. Thus, an instruction which the Minnesota JIG
suggests should be given in a negligence products liability action may well
state the law applicable to a strict liability “failure to warn” case.
*837 [10][11] In a strict liability “failure to warn” case, a manufacturer
is only required to warn of forseeable risks in its product. Karjala v. Johns-
Manville Products Corp., 523 F.2d 155, 159 (8th Cir.1975). Both a manufac-
turer’s duty to be informed of current scientific knowledge and a manufac-
turer’s duty to exercise reasonable care and foresight to discover a danger in
his product is relevant to whether a manufacturer knew or should have
known of the risks in its product. See id. at 159 n. 6; Borel v. Fibreboard Paper
Products Corp., 493 F.2d 1076, 1089 (5th Cir.1973), cert. denied, 419 U.S. 869,
95 S.Ct. 127, 42 L.Ed.2d 107 (1974). Hence, under the particular facts of this
case, where there was a great deal of evidence that Carus had not tested its
potassium permanganate product for many years, we do not believe the trial
court abused its discretion in instructing the jury as it did. We find that the
instruction accurately stated the law applicable to the case.
Decision
Willmar Poultry’s recovery against Carus was not precluded on either the
basis that no one at Willmar Poultry read the warnings on the potassium
permanganate drums or on the basis that Willmar Poultry was aware of the
risks involved in using potassium permanganate. In addition, the trial court
did not err in refusing to submit to the jury the issue of the distributors’
negligence. Finally, the trial court did not err in its instructions to the jury.
Affirmed.
378 N.W.2d 830, Prod.Liab.Rep. (CCH) P 10,903
END OF DOCUMENT
Appendix C:
Forms and Other Data
203
I. First contacted April 28, 2006

A. Retention
B. Materials review
C. Documentation and memorialization below
II. Exhibit A for Sam Smith

A. Work Hx chronology
B. Consisting of 22 pages
C. Dated August 18, 2005
D. Reviewed and retained to permanent file.
III. Supplemental/amended responses to

interrogatories
A. Sets Nos. 1 and 2
C. Dated January 29, 2005
D. Reviewed and recycled
IV. Supplemental/amended responses to

interrogatories
A. Sets Nos. 1 and 2
C. Dated January 6, 2005
V. Supplemental/amended responses to
SMITH, Sam vs. Asb. Def’s, et.al. Page-1
Kenneth Cohen,. CONSULTING HEALTH SERVICES El Cajon CA 92020
Phone (619) 579-6233 Fax (619) 579-1350 e-mail anergy@cox.net
Appendix C: Forms and Other Data 205
Interrogatories
A. Set No.1
C. Dated October 14, 2004
VI. Video Direct Depo of Sam Smith

A. Consisting of 174 pages
B. Taken on November 17, 2004
C. Discussion Re: Personal and Family Hx
D. Discussion: Medical Hx
E. Employment Hx
1. Pearl Harbor NSY
a) Did his apprentice training there
(1) As an outside Marine machinist

(2) From 1970-74
(3) Finished as a step 2 journeyman
b) Total time at Pearl was 9 years
(1) Until 1979
c) Worked both surface craft and submarines
d) Ships he worked on:
(1) FF 1052 fast frigate

(a) USS Knox

(b) USS Brewton
(c) USS Bradley
(2) CG’s guided missile cruisers and Oilers
(a) USS Quellet
(b) USS Reeves
(c) USS Ponchatula
(d) USS Haciampa
(e) USS Kawishawi
(2) SS submarines
(a) USS Blueback
(b) USS Barbill
e) Worked in the engine/fire room 95% of the time
f) Boiler systems he recalled
(1) Babcock & Wilcox

(2) Foster-Wheeler
g) Discussed the packing he used:
(1) Garlock
(2) Chesterton
(3) Anchor
(4) John Crane
(5) Used a corkscrew to dig out the packing
h) Discussed the gaskets he used:

(1) Garlock
(2) Flexitallic
i) Discussion re: Pumps he worked on

(1) Shaft seal packing
j) Discussion re: Turbines he worked on

(1) Steam seal packing
k) Discussion re: electrical work that he worked

around
(1) He worked around electricians working

(a) Pulling cables
(b) Installing cables
(c) Installing electrical boxes
(d) Working switchboards
(e) Work on generators
(f) Wiring and unwiring electric motors
(2) He recalls Bakelite, phenolic and micarta

insulators
(3) The electricians used compressed air to blow
out the “cans” of accumulated dust
l) Also did work as a lagger from time to time
(1) During the years he worked at Pearl Harbor,

the insulators didn’t do removal, only installation.
(2) He worked the thermal insulation
(2) He covered the insulation with asbestos cloth

(a) Cut the cloth with a scissors
2. Puget Sound NSY
a) Bremerton, WA
b) He was there for 11 years
c) He was still working as a machinist
d) He was now a journeyman-5
e) Same type of work as Pearl Harbor
f) Here her also worked on compressors as well as

generators
(1) Large sheets of Micarta used to insulate the

generators.
(2) The sheets had to be cut to fit the footprint of

the generator
g) He worked on aircraft carriers:

(1) USS Ranger
(2) USS Midway
(3) USS Constellation
(4) USS Enterprise
(5) USS Oriskany
h) He was loaned to LBNSY for 6 months
2. Northwest Marine
a) Porland, OR
b) Private shipyard
c) He continued as an outside machinist

k) He recalls the class of ships he worked:
(1) Oil tankers

(2) Cruise ships
(3) Coast Guard ships
(4) The Inactive Fleet
(a) MSC’s
(b) APL’s
4. Southwest Marine
a) San Pedro, CA
b) Same type of work as above
5. Power Generating and Consulting
a) They did generator work on Naval vessels
6. Pacific Ship Repair
a) National City, CA
b) Same type of work as above
7. Henderson Automotive
a) Phoenix, AX
b) Worked a little over 1 year
c) He was an automotive mechanic
d) He did brake and clutch jobs along with other work
(1) He used compressed air to blow out the dust
(2) He felt the “dustiness” was not as bad on disc

brakes as it was on drums
F. No further exposure testimony beyond this point!
G. Reviewed and recycled
Appendix C-2:
This is an example of the direct note taking

while reading case review materials.
Making notes, directly into a computer word
processing program has served well to act as
a submission to opposing counsel as the
entirety of notes made in a case.

Lab Sent to: Date:
Sample Number Sample Date Sample Identification Description Analysis required
Released By: Signature: Date & time:

KENNETH S. COHEN week period will be 25% of the original fee up

FEE SCHEDULE - June 1, XXXX. until 48 hours prior. Any cancellation made
[dba CONSULTING HEALTH SERVICES(CHS)] within the 48 hour period will still be billed at the
DAILY CONSULTATION full price.
This constitutes a day-by-day consultive
arrangement on an "as-needed" basis at the rate of Demonstrative expenses:
$2,000.00 per day plus out-of-pocket expenses, All video, computer, and photographic work
travel, and per diem. Days available will be will be estimated prior to Client’s monetary
scheduled as calendar openings permit. Less than commitment. Charges will be additional for all work
1-full day rates (Hourly Rates) are available in the of a tangible nature including set-up time and the
San Diego County area only and are restricted to physical equipment needs of the presentation.
investigational activity only. Fractional day rates are Photographic and Videotape productions
charged at $400.00 per hour, with a two-hour will be on a time and charges basis plus supplies and
minimum. One consulting day consists of six working will be cleared by Client prior to work being
hours, with a half day being three hours. One performed.
testimonial day consists of four working hours of
testimony. The fee for Deposition testimony is Review materials:
$400.00 per hour, with a one hour minimum. Materials sent for review should be
Calendar days blocked or reserved, and photocopies and photographic duplicates rather than
unused, are billed at the full rate for the activity original materials. Chain of Custody materials should
scheduled. Cancellation must be made at least two be so identified at time of delivery. Physical items of
weeks prior to the date in question1. Deposition, evidence will be maintained in protective custody for
Court, Cal/OSHA Appeals Board or OSHRC a period not to exceed one(1) year beyond the date
testimony is charged only at the daily rate. of the last written communication with the client.
Depositions noticed for an advance date will be
prepaid for as a "full day rate" due to the inability of SERVICES AVAILABLE:
other scheduling. The "full day rate" for deposition or SCIENTIFIC AND FORENSIC INVESTIGATIONS
court testimony is $2,000.00 per day. If hourly COMPLETE PHOTOGRAPHIC DOCUMENTATION
testimonial rates are demanded, they will be VIDEOTAPE PRODUCTIONS AND
charged at $400.00 per hour. DOCUMENTATION
Consulting Health Services or Kenneth INDUSTRIAL SAFETY&HEALTH STUDIES
S.Cohen will at all times operate in a professional COMPUTERIZED LITERATURE SEARCHES
and prudent manner to offer Client the highest CASE REVIEW AND CONSULTATION
quality performance possible in keeping with the FIELD INVESTIGATIONS AND DISCOVERY
cost limitations established; however, no SPECIALIZED LITIGATION-BASED PROBLEM
warranty as to the outcome of Client's case or SOLVING
project is possible and none is expressed herein
or elsewhere. TRAINING PROGRAMS
Preparation and travel time is included in
Fee schedule: the fee for most types of training programs, if no
All fees are Net and due as presented, and equipment, display or classroom-use equipment are
are NON-REFUNDABLE. Standard rates for daily used. If equipment, display or classroom use
consultation will be charged according to the below equipment is needed, an additional one (1) day at
listed scale: $2,000 must be charged for time involved in
shipping, packing, cleaning, and repairing equipment,
=> Start-up2 Retainer (Legal)
and for wear-and-tear on equipment. Actual cost of
$1,500.00
shipping equipment via airline cargo services, with
=> Daily rate (Routine) $2,000.00/day
pick-up and delivery charges, will be charged on an
=> Hourly rate(2-hr.min.) $ 400.00/hour
actual cost basis.
=> Deposition & Trial $2,000.00/day
$ 400.00/hour EXPENSE BASIS
=> Expenses (Invoice basis) Actual expenses include round trip air fare
Hourly rates apply to travel time under (first class) from San Diego,California to client's site
four(4)hours, and consultation within the San Diego and return to San Diego; lodging; rental car; and
area. training materials. Meals are charged at $155.00 per
day. (At client's option, a travel day can substitute
Cancellation Charges: for 1st class travel)
Dates "booked" or reserved will be charged When travel is required to a client's site of
for at the task-related fee unless canceled two consultation, litigation, or arbitration, one-half (1/2)
weeks prior. The fee charged within the two day of fee is charged for travel to the site, and one-
half (1/2) day of fee is charged for return within the
1See Cancellation Charges. Continental U.S. If outside Continental U.S., one (1)
2 Start up retainers are designed to facilitate long term day of fee is charged for travel to site and one (1)
day of fee is charged for return to home base.
projects or studies. Included in “start up” activities are
case file reading, pertinant research, permission to
disclose, and review with client, at which point the REPORT GENERATION FEE SCHEDULE
entire retainer fee is exhausted.
Consulting Agreement as of June 1, 1998 Page-1
Report generation of consultation or surveys will per month charge will be added to the total. The
be prepared and charges will be based on actual charges stated on the price list do not include any
time spent at $400.00 per hour. Report generation sale, use, or other taxes unless so stated specifically.
can be estimated at one-half (1/2) hour for each hour Such taxes will be added to invoice prices in those
of onsite activity. instances in which CHS is required to collect them
from customer.
GENERAL TERMS AND CONDITIONS OF SALE
Miscellaneous:
Warranty-Liability: The consulting services are contracted for
CHS will perform Industrial Hygiene according to the laws of the State of California. This
Services, and upon request, provide Customer with a document constitutes the full understanding of the
written report of results within a specified time from parties (CHS and Customer), and no terms,
receipt of purchase. Notwithstanding anything herein conditions, understanding or agreement purporting to
to the contrary, CHS's liability in connection with any modify or vary the terms of this document shall be
claim relating to Industrial Hygiene Services shall be binding unless hereafter made in writing and signed
limited to, at CHS's option, repeating the Services at by the parties to be bound.
CHS's expense, or the refund of the charges paid for In the unlikely circumstances that sums
performance of the Services.
payable under this agreement become the subject of
Except as expressly stated above, CHS
makes no warranty, express or implied, whether of litigation, your signature on this agreement
merchantability or fitness for any particular purpose, acknowledges our right to recover from you our
or use, or otherwise of the Services. In no event reasonable attorney's fees, costs and expert witness
shall CHS be liable to Customer for any special, fees which may be incurred in collecting any sums
indirect, incidental or consequential damages arising due as a result of services rendered to you under the
out of, or as the result of, the performance of the terms of this agreement.
Services, the use or loss of the use of a report
prepared by CHS, or for any charges or expenses of OFFERED BY:
any nature incurred without CHS's written consent.
X _____________________________________
Indemnification:
Customer shall defend and indemnify and CONSULTING HEALTH SERVICES
hold CHS harmless from and against all costs,
expenses, damages, liabilities, or claims of any DATE ____________________
nature whatsoever resulting from or in any way ACCEPTED BY:
relating to CHS's performing, or failing to perform,
the Services. X ______________________________________
Re: Lois Missik vs. GATX, Case No. 97-CV-303 (Judge Kontos)
Force Majeure: Court of Common Pleas, Warren, OHIO
CHS shall not be liable for any default or .
delay in performance if caused, directly or indirectly, DATE ___________________
by acts of God, war, force of arms, fire, the elements,
riot, labor disputes, picketing or other labor BY ______________________
controversies, sabotage, civil commotion, accidents,
any governmental action, prohibition or regulation, TITLE ____________________
delay in transportation facilities, shortage or
breakdown of, or inability to obtain or non-arrival of,
any labor, material or equipment used in the PLEASE RETURN SIGNED COPY OF
performance of the Services, failure of any party to AGREEMENT, INORDER THAT WORK MAY
perform any contract with CHS relative to the
COMMENCE.
performance of the Services covered hereby, or from
any cause whatsoever beyond CHS'S control,
whether or not such cause be similar or dissimilar to
those enumerated.
CHS shall be compensated for costs3 Rev. June 1, XXXX
incurred when Services cannot be completed for any
of the above causes.
Charges and Payment:

CHS will perform consulting services in
return for fees as outlined on this agreement form,
where applicable, or as stated on CHS's current price
list, which may change periodically. Terms of
payment are NET after receipt of invoice. After thirty
(30) days from receipt of invoice, a two percent (2%)
3Exclusive of fees.
Page - 2

1 Kenneth S. Cohen, PhD., in propria persona

P.O. Box 1294
2 El Cajon, CA 92022
(619)555-5555
3
STATE OF CALIFORNIA
4 DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF INDUSTRIAL ACCIDENTS
5 WORKERS’ COMPENSATION APPEALS BOARD
6
8 [Plaintiff's name], ) Case No.: [Case number]

)
9 Plaintiff, ) ORDER
)
10 vs. )
)
11 [Defendant's name], )
)
12 Defendant )
)
13
14 A Petition for payment of expert witness deposition fees been filed herein, and good
15 cause appearing, Defendant is hereby ordered to pay Kenneth S. Cohen, PhD. reasonable expert
16 witness fees of $ ___________.
17 If said fee is not paid within 25 days of the date of this Order, defendant is also ordered to
18 pay penalties and interest thereon.
19 UNLESS, on or before 15 days after service hereof said defendant shall file and serve
20 written objection thereto setting forth good cause why said order should not issue. In the event
21 objection is filed and served within said, time, this Order shall be of no effect, and the matter will
22 be referred to a calendar hearing.
23
24 DATED: ___________ __________________________________________

25 Judge, Workers’ Compensation Appeals Board
26
[Summary of pleading] - 1
1 Kenneth S. Cohen, PhD. in propria persona

P.O. Box 1294
2 El Cajon, CA 92022
(619)579-6233
3
4 WORKERS’ COMPENSATION APPEALS BOARD

5 STATE OF CALIFORNIA
6
7 [Plaintiff's name], ) Case No.: [Case number]

)
8 Plaintiff, ) PETITION FOR PAYMENT OF EXPERT
) WITNESS FEES
9 vs. )
)
10 [Defendant's name], )
)
11 Defendant )
)
12
13 COMES NOW, Kenneth S. Cohen, PhD. Who respectfully requests an Order issue
14 allowing payment for his Expert Witness Deposition fee.
15 The deposition of Kenneth S. Cohen, PhD. was taken at the request of ______________ ,
16 attorney for Defendant _____________. A request for fees was presented at the time of the
17 deposition.
18 Wherefore, these fees remain unpaid at this time Kenneth S. Cohen, PhD. requests that an
19 Order issue herein allowing Expert Witness fees in the sum of $ _____.
20 If payment is not made within 30 days of the date of the Order, defendants shall pay a
21 penalty of 10% plus interest.
22
23
24 DATED: ___________ Respectfully submitted,

25
26
[Summary of pleading] - 1
Appendix D:
The Curriculum Vitae
D1: Curriculum Vitae of Kenneth S. Cohen

In an era of one-page résumés, I have included my own curriculum vitae
here to illustrate what the typical expert witness might include for purposes
of explaining his background as it applies to a particular case or to establish
his qualifications in the case of a court challenge. The CV shown below is
one that I give to potential legal clients as well as what I used when repre-
senting myself to industrial or business clients.
“Is This Your Most Current Résumé?”

You should note the revision date at the end of the last page. This should be
changed with every modification or update to your information. As you work
into retirement, you may desire to include past licenses and certifications to
establish your expertise in those areas even if you no longer hold the license
or certificate. When doing so, you should indicate that the license or certif-
icate was held, but has been retired or has not been renewed.
Size does matter!

Ten pages may seem like a lot of information, but if you have had an active
professional practice your lifetime of experiences can easily fill the space.
Many resources suggest a variety of résumé configurations and this is just
one more which has worked successfully for me. Choose a format which best
supports the expert-witness direction toward which you are aiming. There
is no magic size or length. Remember your target reader audience. The
resumé will be most effective if it is an outline of “talking points.” If there
are specific areas about which the reader/client desires more information, it
can be elaborated in a phone call or e-mail.
217
Résumé Documentation
Keep a résumé notebook in which you have a photocopy of each and every
résumé revision, to fend off challenges which may arise. Once again, docu-
mentation is your best defense.
CURRICULUM VITAE OF KENNETH S. COHEN
P.O. Box 1294

El Cajon, CA 92022
(619) XXX-XXXX
Personal Information
Born: May 30, 1937, Los Angeles, CA.

Health: Excellent; height 5'8", weight 180 lbs.
Married: 1961, wife Karen, B.S. (microbiology); four children
Residence: Own home in suburb of San Diego; forty years in area.
Medical technician; former director/manager of clinical/environmental
lab.
Clearances held: Secret/Department of Defense, confidential.
Education
Pharmacy school in conjunction with U.S. Navy tour of duty, 1960.

Upper division (B.S.) and graduate work at San Diego State University.
Both programs were in the fields of microbiology with a heavy em-
phasis on chemistry. Last attended 1967.
Doctoral work completed at California Western University; Ph.D. award-
ed 1976. Dissertational investigation in the area of occupational
health (industrial ventilation engineering): Toxic Vapor Simulation of
Industrial Ventilation Systems Using Sulfur Hexafluoride.
License and Certifications—Existing or Previously Held
California Licensed Forensic Alcohol Supervisor

No expiration date
California Licensed Junior College Teaching Credential #77131
No longer active
California Licensed Medical Laboratory Techincian #11169
Renewed annually; no longer active
Appendix D: The Curriculum Vitae 219
California Licensed Manufacturing Pharmacist #E-5351-M

No expiration date
California Licensed Public Health Microbiologist #1146
No expiration date
California Licensed Radiation Safety Officer #2592-59
No longer active
California Registered Professional Engineer (SF-2929)
Reregistered annually; voluntarily retired June 2003
Canadian Registered Occupational Hygienist #421 CRBOH
February 1992; no longer active
Certified Industrial Hygienist (CIH-ABIH) #1537
Comprehensive practice; recertified 1986–1992, 1992–1998; volun-
tarily retired June 2003
Certified Marine Chemist Training (NFPA) 100/300 hours.
No longer active
Shipyard Competent Person Training (NFPA)
No longer active
Certified Mine Safety and Health (MSHA) Instructor
No longer active
Certified AHERA Asbestos Inspector & Management Planner [8802-02-
014 and 8802-02-078]
Recertified 1989, 1990, 1991, 1992 (UC–Berkley); no longer active
California Registered Environmental Assessor (REA-00703)
No longer active
Additional Postgraduate Education
American Conference of Governmental Industrial Hygienists: “Labeling

and Warning Systems,” 1977
Harvard University: “Evaluation and Control of Occupational Hazards,”
1977
Texas A & M University: “Safety in the Chemical Industry,” 1977
B & K Forum: “Acoustical Engineering Principles,” workshop, 1978
South Dakota Trial Lawyers Association: “Defective Products,” seminar,
1978
University of Minnesota: “Recombinant DNA and Laboratory Safety” (at
UC–San Diego), 1978
American College of Chest Physicians: “International Conference on Oc-
cupational Lung Disease,” 1979
Cook County Hospital, Chicago: “Update in Occupational Medicine,”
1979
McCrone Research Institute: “Microscopic Identification of Asbestos,”

1979
Mt. Sinai School of Medicine, New York: “Recent Advances in Occupa-
tional Medicine,” 1979
Society for Occupational and Environmental Health: “Epidemiologic
Methods for Occupational and Environmental Studies,” 1979
UC–Los Angeles: “On-line Services Training for the National Library of
Medicine,” 1981
University of Utah: “Design and Evaluation of Industrial Ventilation
Systems,” 1980
U.S. Mine Safety and Health Administration: “Toxicology Data Base
Workshops,” 1981
McCrone Research Institute: “Advanced Microscopic Identification of
Asbestos,” 1984
UC–Davis: “Occupational and Environmental Medicine,” 1985
Lovelace Inhalation Toxicology Research Foundation: “Concepts in In-
halation Toxicology,” 1986
Tufts University: “AHERA Inspection and Management Planning,” 1988
UC–Berkeley: “Advanced Topics in Building (Asbestos) Inspection and
Management Planning,” annually, 1989–1992
University of Washington: “Advances in Pesticide Medicine,” 1989
U.S. Environmental Protection Agency: “Total Exposure Assessment
Monitoring (TEAM) Workshop,” 1989
California Department of Health Services: “Environmental Epidemiolo-
gy,” 1990
UC–Davis: “Environmental Auditing: Legal and Regulatory Framework,”
1990
U.S. Environmental Protection Agency: “Medical and Infectious Waste
Management and Disposal,” 1990
American Industrial Hygiene Conference and Exposition 91: “Industrial
Hygiene in the Healthcare Industry: Before and After OSHA’s Blood-
Borne Pathogen Standard,” 1991
Published Biographies
American Men and Women of Science: Physical Biological Sciences, 14th

ed., 1979
Biographical Directory of the American Public Health Association, 1979
Selected Affiliations (Committee or Service; Past and Current)
Air Pollution Control Association

American Academy of Industrial Hygiene

Diplomate
American Chemical Society
Chemical Health and Safety Committee
Chemistry and the Law Committee
American College of Toxicology
Occupational Health Committee (ad hoc)
American Conference of Governmental Industrial Hygienists
American Industrial Hygiene Association
Computer Applications Committee (chair)
Law Committee
Textbook Committee (ad hoc)
Toxicology Committee
Education and Training Committee
Continuing Education Committee
American Public Health Association
Occupational Health Section
American Society of Safety Engineers
National Member Education Committee
National Professional Development Committee
Safety Engineer of the Year 1982
San Diego Chapter (president, 1984)
National Environmental Health Association
National Fire Protection Association
Electrical Standards Committee
New York Academy of Sciences
San Diego County Lung Association
Environmental Health Task Force
San Diego County Pulmonary Society
Society of Environmental Toxicology and Chemistry
Selected Court Qualifications and Testimony

Expert witness testimony, court qualified in municipal, superior, and federal
jurisdictions; or professional litigation support consultation has been given
throughout the United States in the following areas:
Alcohol and intoxication effects

Asbestos: maritime, commercial, industrial, and residential applications;
health effects
Defense and plaintiff attorney review of case aspects in many areas of
potential litigation
Drugs: theraputic and abuse substances
Ergonomics and workplace design

Homicide: medical aspects
Homicide: chemical exposure induction
Medical, hospital, and staff malpractice case review
Microbiological contamination of food: products and sources
Occupational toxicology
Product defect, labeling, and liability
Product failure engineering
Safety aspects of industrial, commercial, and residential sites
Warnings, labels, and human factor engineering
Selected Publications
Monographs
E. E. Lory, D. S. Coin, K. S. Cohen, J. S. Dyer, and M. J. Hienzsch,

Management Procedures for Assessment of Friable Asbestos Insulating
Materials. Port Hueneme, Calif.: Naval Civil Engineering Laboratory,
1980.
Book Articles
“Computer Applications Glossary.” In American Conference of Govern-

mental Industrial Hygienists, ed., Microcomputer Applications in Oc-
cupational Safety and Health. Boca Raton, Fla.: Lewis, 1987.
“Computer Glossary.” In K. Cohen, originating ed., Computer Applica-
tions in Safety and Health. Akron Ohio: American Industrial Hygiene
Association, 1989.
“How to Tap Occupational Safety and Health Resources.” In P. Slote, ed.,
Handbook of Occupational Safety and Health. New York: John Wiley
and Sons, 1987.
“Professional Liability in Occupational Health.” In J. S. Lee and W. N.
Rom, eds., Legal and Ethical Dilemmas in Occupational Health. Ann
Arbor, Mich. Ann Arbor Science, 1982.
“Unique Occurrences of Asbestos.” In G. A. Peters and B. J. Peters, eds.,
The Current Status of the Asbestos Public Health Problem. Salem, N.H.:
Butterworth, 1994.
Journal Articles
“Asbestos in Buildings: To Remove or Not to Remove, That Is the Ques-

tion.” American Industrial Hygiene Association Journal 46 (1985).
“A Basic Tool-Kit for the Safety Practitioner: Suggested Tools for Document-
ing Recognized Health Hazards.” Professional Safety, December 1978.
“Custom TOXFILE Can Offer Low-Cost Toxicological Data Base.” Occu-
pational Health and Safety, May 1984.
“Dust Reduction in Asbestos Bulk Sampling.” Applied Industrial Hygiene
3, no. 4 (1988).
“Hazardous Material Information Resources.” Occupational Health and
Safety, February 1983.
“Health Hazard Awareness.” Protection, October 1978.
“Health and Safety Consultants: Uses and Abuses.” Occupational Health
and Safety, November 1982.
“Hidden Chemical Dangers May Exist Despite Safety Precautions.” Oc-
cupational Health and Safety, February 1984.
“Lipoid Pneumonia: An Old Enemy, Revisited in San Diego.” American
Society of Safety Engineers–San Diego Newsletter, February 1991.
“Sarcoidosis and Beryllium Exposure.” Western Journal of Medicine 163,
no. 4 (1995).
“Toxicology Tunnel Vision.” Professional Safety, December 1977.
“Unrecognized Industrial Diseases Caused by Chemicals.” Occupational
Medicine and Workers Compensation Newsletter 2, no. 1 (1978).
“The Video-Tape Revolution in Employee Education.” Occupational
Health and Safety, July 1982.
E. Medina and K. S. Cohen, “Mexico’s Regulations on Hazardous Mate-
rials and Wastes.” Asbestos Hazard Management Program Newsletter
4, no. 1 (1990).
Poster
J. Abraham, K. Cohen, B. Powell, and C. Merrit. “Analysis of Bulk and

Aerosolized Asbestos Fibers from Children’s Play Sand Reveal a Po-
tential Health Hazard.” Research Poster Winner, State University of
New York Health Science Center Second Annual Research Poster Ses-
sion, Syracuse, N.Y., November 30, 1988.
Editorial Positions (Past or Current)

Journal of the American Industrial Hygiene Association
Article review: toxicology
Journal of Applied Industrial Hygiene
Computers in safety and health
Occupational Health and Safety
Editorial advisory board
“In Review” monthly column
Employment History (Nonacademic)
1965–1967: National Cancer Institute at the San Diego Zoo Hospital, San
Diego, CA. Established and directed clinical pathology laboratory for
research on subhuman primates used in cancer studies.
1967–1971: Biological Associates/Scott Labs, San Diego, CA. Owner/gen-
eral manager of biological chemical manufacturing company. Made
disposable microbiological growth media and reagent chemicals.
1972–1976: Micronomics International, Inc., El Cajon, CA. Director of
industrial hygiene and analytical services (periodic). Field and lab
studies, experimental design and expert witness testimony.
1973–1974: Interhealth Laboratories, Inc., San Diego, CA. Clinical lab-
oratory marketing and quality control supervisor.
1974–1975: Systems, Science, and Software, Inc., La Jolla, CA. Manager
of environmental lab and instrumentation development.
1975: Campbell Industries, Inc., San Diego, CA. Employee and consult-
ant. Corporate director of health and safety for two major shipyards
and several manufacturing locations.
1976–1978: Naval Regional Medical Center, San Diego, CA. Acting head
of industrial hygiene services for the San Diego region.
1988: Owen Consultants, San Diego, CA. Corporate vice president and
manager of environmental sciences.
1978–1988, 1989–1994: Consulting Health Services (Divison of Toxos
Corporation, 1980–), El Cajon, CA. Industrial hygiene & safety con-
sulting.
1994–1998: California Occupational Safety and Health Administration,
High Hazard Unit, Anaheim CA. Associate industrial hygienist. Reg-
ulatory compliance inspections.
1998–present: Retired from active industrial hygiene and safety engineer-
ing practice. Semiretirement activity in the area of litigation support
(limited basis).
Employment History (Academic)
University of California–San Diego

Medical School, Continuing Education Unit, Department of Com-
munity Medicine
Industrial Toxicology I and II
Industrial Hygiene X405.5
San Diego Community College:

Introduction to Occupational Safety and Health
Standards, Codes, Regulations, and OSHA Law
Introduction to FED/OSHA (eight-hour apprentice course)
Industrial Hygiene
Clinical Chemistry
Clinical Microbiology
National University, San Diego, CA
Industrial Hygiene
Toxicology I & II
Occupational Health
University of Southern California
Recognition of Occupational Health Hazards
San Diego State University
Nursing Microbiology Lab
Graduate School of Public Health
Industrial Hygiene
Air Pollution Control Lab
Environmental Hygiene Lab
Industrial Ventilation
School of Engineering
Control of the Human Environment
Lecture Seats and Speaking Engagements
Indiana University, Navy Safety School: “Industrial Carcinogens,”

1976–77.
American Society of Safety Engineers: “Health Hazard Awareness for the
Safety Practitioner,” 1976–1978. Nationwide touring presentation.
San Diego Trial Lawyers Association: “Courtroom Medicine Laboratory
Diagnosis,” 1977.
University of Wisconsin, School for Workers: “Asbestos Health Hazard
Workshop,” Foreign Military Training Unit, Stewards Long Beach
Naval Shipyard, 1977.
E. St. John Holt and Associates, Ltd., Southhampton: “Health Hazard
Awareness,” 1978. Lecture series throughout the United Kingdom.
Arizona State University, U.S. Air Force Ground Safety School: “Intro-
duction to Occupational Health,” 1978–1979.
University of California–Davis, Medical School: “The Pathology Spec-
trum of Occupational Lung Disease,” 1979.
University of Southern California, School of Safety and Systems Man-

agement: “Recognition of Occupational Health Hazards—NIOSH
510,” 1980.
University of Utah, Rocky Mountain Center for Occupational and Envi-
ronmental Health: “Advanced Respiratory Protection-Legal Aspects,”
1980.
Colorado State University: “EPA—Introduction to Indoor Air Quality
Problems.” Tucson, AZ, and Reno, NV, 1995.
Rev. 12/06
D2: Curriculum Vitae of Christopher E. Andreas

The résumé of an attorney typically differs dramatically from that of an expert
witness, as it is used primarily as a marketing tool to reflect the firm employ-
ing the attorney as well as prospective clients who may be searching for an
attorney to handle their case. This résumé below was adapted from the
Brayton-Purcell Web site (www.braytonlaw.com).
Checking Out the Attorney

It is not uncommon to get a phone call from an attorney who desires to use
your services but who is totally unfamiliar to you. During the phone call,
you may be asked for a résumé or curriculum vitae (CV). I typically do not
respond to phone requests and ask the caller to send either an e-mail request
or a letter. This allows me to gather a good bit of information prior to
accepting a case retainer from someone I have never known. With an e-mail
address, or a letterhead, I can then do a quick search on the Internet to
become better acquainted with the attorney and the firm. As you will see
from Mr. Andreas’ CV, a number of case victories are listed. From this you
can glean the area of his practice, the various jurisdictions he has been
accepted in, his educational background, and how current his trial experi-
ences are: a great deal of information in a quick read.
Attorneys’ Résumés Are an Indication of How Well-Versed

They Are
I have had good and bad experiences with a wide array of attorneys, and
there are now a number of attorneys that I prefer to avoid. The criteria I
use is based upon how potentially skillfully and easily the attorney will
handle my direct testimony and any rehabilitation of cross-examination that
becomes necessary.
Informative Case Information

Another purpose for reviewing this attorney’s accomplishments is to gain a
better understanding of the legal processes you will encounter. Reading the
synoptic details of cases can give you an insight into what goes into a trial
makeup.
Curriculum Vitae of Christopher E. Andreas
Personal
Mr. Andreas is a native of San Francisco, California
Education
Town School and Saint Ignatius High School; graduated from Fountain Valley
School in Colorado Springs, Colorado, in 1982. Mr. Andreas attended Lewis
and Clark College in Portland, Oregon, earning a B.A. in 1986 with a double
major in English and history. San Francisco Law School (J.D. 1994).
Upon returning to San Francisco, Mr. Andreas operated his own business
for several years before ultimately deciding to pursue a J.D. Mr. Andreas
attended San Francisco Law School, where he served on the Moot Court
Board and graduated in the top 10% of his class in 1994.
Employment
After passing the California Bar Examination, Mr. Andreas worked with his
father, Arthur Andreas, a well-regarded solo practitioner in San Francisco.
Mr. Andreas began working with Brayton Purcell in 1995, and became
a junior partner in January 2000. His responsibilities include case manage-
ment, law and motion, and all phases of discovery. He is involved in preparing
and conducting trials in California and Oregon on behalf of injured workers
and their families.
He has been lead counsel on multiple jury trials in the San Francisco
Superior Court, where he has successfully vindicated the rights of injured
persons in over thirty cases since 1997. He obtained a verdict against Lorillard
Tobacco Company in a wrongful death case, one of only four such verdicts
nationwide.
Mr. Andreas is admitted to the California Bar and the U.S. District Court,
Northern District of California. He is a member of Consumer Attorneys of
California, Trial Lawyers for Public Justice, the Bar Association of San Fran-
cisco, the Marin Trial Lawyers Association, the American Trial Lawyer’s Asso-
ciation and the Consumer Attorneys Association of Los Angeles.
Court Cases
Family of Deceased Plasterer Awarded $2.9 Million against Manufacturers
of Asbestos-Containing Plastic Cements
Sharon McKinney, et al v. Amcord, Inc. and California Portland Cement
Company
Civil Jury Trial

Superior Court, San Francisco County
Judge: Padovani Mitchell
Trial Type: Product Liability—Negligence
Verdict: $2,955,702.21
Eight weeks, January 2000
SAN FRANCISCO, California, January 10, 2000. A San Francisco jury

awarded $2,955,702.21 to the family of lifelong plasterer Roland McKinney.
Mr. McKinney died at the age of sixty-four of malignant lung cancer caused
in part by his occupational exposure to asbestos. Defendants included Cali-
fornia Portland Cement, and Amcord, Inc. (formerly Riverside Cement Com-
pany), manufacturers of asbestos-containing construction products.
Mr. McKinney had an extensive work history involving asbestos exposure
over many decades. He was a radar operator in the U.S. Navy from 1953
through 1955 at the Naval Air Station, Point Magu, Oxnard, California, and
Port Hueneme Naval Base, Port Hueneme, California.
His primary exposure to asbestos stemmed from his lengthy career as a
plasterer before and after his naval duty. After working for Williamson Plas-
tering from 1955 through 1983, Mr. McKinney began his own plastering
business, which he operated until 1989.
In 1996, Mr. McKinney was diagnosed with malignant lung cancer, and
died shortly thereafter. Mr. McKinney was survived by his wife Sharon and
two children, Kevin and Melody.
Evidence was presented at trial that California Portland and Amcord were
the primary manufacturers and suppliers of asbestos-containing “gun-
applied plastic cements” in the Southern California area during Mr. McKin-
ney’s career. The evidence indicated that Mr. McKinney regularly used these
products in the application of exterior finishes throughout his thirty years
of plastering work. Gun-applied plastic cements were historically used to
form supportive layers underneath stucco-finished construction in both res-
idential and commercial buildings.
The jury found that California Portland and Amcord asbestos-containing
products were defective, and that both defendants acted negligently in the
manufacture and sale of these products. The jury found that Mr. McKinney’s
cancer was causally related to his exposure to asbestos-containing products.
The jury further found that Mrs. McKinney and her family had suffered a
loss of financial support as well as the love, companionship, and moral
support of Mr. McKinney as a result of his premature death.
The jury’s award was divided into $205,702.21 for economic damages
and $2,750,000 as noneconomic damages. The jury made an additional spe-
cial finding that Amcord, Inc. acted with conscious disregard for the rights
and safety of its consumers, including decedent Mr. McKinney.
Plaintiff was represented at trial by Christopher E. Andreas, a junior
partner in the firm of Brayton Purcell of Novato, California.
Jury Awards $371,050 to Ironworker Injured by Asbestos Products

Cecil and Oneida Martin v. Plant Maintenance, Inc. of California
Civil Jury Trial

Judge: John Dearman
Trial Type: Negligence
Verdict: $371,050
Fourteen days, April 2000
SAN FRANCISCO, California, April 19, 2000. On April 19, 2000, a San
Francisco jury awarded $371,050.00 to Cecil Martin, a retired ironworker
suffering from asbestosis and asbestos-related pleural disease due to his occu-
pational exposure to asbestos. The defendant was Plant Maintenance, Inc. of
California, a company that has performed maintenance contracts involving
the use, removal and disturbing of asbestos-containing products at major
East Bay oil refineries for a number of years.
During the trial, Mr. Martin described how the activities of Plant Main-
tenance had exposed him to asbestos, and a variety of medical experts and
treating physicians described how this exposure had caused him to develop
asbestos-related lung disease and severe breathing problems. “Mr. Martin is
so ill that he was not able to attend trial, and we had to use videotaped
testimony,” noted Christopher Andreas, attorney for Mr. Martin.
The jury was also provided evidence of the history of medical and sci-
entific knowledge regarding the health hazards of asbestos exposure and
corporate documents relating to Plant Maintenance’s direct knowledge of
asbestos hazards. Plant Maintenance contended that Mr. Martin did not have
asbestosis, and that they were not negligent. Cecil Martin had a long work
history of asbestos exposure covering many decades while working as an
ironworker at several major East Bay oil refineries.
The jury determined that Plant Maintenance was negligent in carrying
on its maintenance contracts at these oil refineries and exposing Cecil Martin
to asbestos dust. The jury further found that the plaintiff was injured as a
result of exposure to asbestos dust created by the negligent activities of Plant
Maintenance, Inc.
Mr. Martin and his wife Oneida Martin were represented at trial by
Christopher E. Andreas of Brayton Purcell, Novato, California.
Jury Awards $1,048,100.00 in Kent Micronite Asbestos Cigarette Filter Case

Donna Traverso, et al. v. Lorillard Tobacco Company
Civil Jury Trial

Judge: John E. Munter
Trial Type: Wrongful Death—Products Liability—Negli-
gence—Mesothelioma
Verdict: $1,048,100
Three weeks, May 2000
SAN FRANCISCO, California, May 8, 2000. A jury awarded $1,048,100.00

to two children of a woman who contracted and died from malignant abdom-
inal mesothelioma caused by her exposure to asbestos during the period
1953–1956 when she smoked Kent Micronite asbestos-filtered cigarettes. The
plaintiffs were Donna Traverso and Paul Bucedi. The defendant was Lorillard
Tobacco Company, manufacturer of micronite asbestos-filtered cigarettes
between 1952 and 1956.
The trial began on April 17, 2000, before San Francisco Superior Court
Judge John E. Munter. A jury was impaneled to hear the case and heard
testimony. Closing arguments were presented May 3, 2000. The jury delib-
erated for three days before reaching a verdict. During the trial, testimony
concerning the decedent’s smoking of Kent Micronite asbestos-filtered ciga-
rettes, medical diagnosis, epidemiology, historical knowledge of the danger
of asbestos, cell biology, and pathology was presented.
Decedent Daisy Bucedi (nee Daisy Hammer) was born on June 21, 1919
in San Francisco, California. Ms. Bucedi attended Mission High School and
graduated in 1937. She met her husband, John Bucedi, also of San Francisco,
in 1941 and they were married in 1942. Ms. Bucedi gave birth to her daughter
Donna in 1945, and her son Paul in 1950. The family resided initially in the
inner Richmond District until 1953 when they moved to Francisco Street in
the North Beach District.
Donna attended Sts. Peter and Paul Elementary School and later gradu-
ated from Star of the Sea High School. Paul attended Sts. Peter and Paul
Elementary School and high school at Sacred Heart.
Daisy Bucedi smoked cigarettes from 1937 to 1997. Ms. Bucedi smoked
approximately one pack of cigarettes per day during this period of time. From
1937 to 1952, she smoked Sensation and/or Chesterfield brand cigarettes and
from the fall of 1953 to 1979 she smoked Kent brand cigarettes.
Daisy Bucedi was diagnosed with malignant abdominal mesothelioma
in July 1996 and succumbed to that disease on December 29, 1997.
Evidence at trial demonstrated that defendant Lorillard Tobacco Com-

pany knew or should have known of the dangers associated with asbestos
before 1952 when it first made and sold Kent Micronite asbestos-filtered
cigarettes. Thereafter, despite such knowledge, Lorillard Tobacco Com-
pany (by and through its predecessor P. Lorillard Tobacco Company)
continued to manufacture, market, and sell Kent Micronite asbestos-
filtered cigarettes until at least May 1956, when a new filter media was
substituted. Throughout this period Lorillard never advised or warned
consumers that its Kent cigarette filters contained crocidolite asbestos, the
most potent carcinogen of the various asbestos fiber types. Despite inde-
pendent testing conducted at the request of Lorillard in 1954, which
demonstrated fiber release from Kent cigarette filters, the company con-
tinued to manufacture and sell its product, without recall, for another
two years. Between 1952 and 1956 Lorillard sold thirteeen billion Kent
Micronite asbestos-filtered cigarettes.
The jury found Lorillard Tobacco Company guilty of negligence and
products liability. By a vote of 9–3, the jury further found that Lorillard
Tobacco Company committed oppression in its conduct, which finding
allowed for a second phase of trial, which was set to begin May 10, 2000. In
that phase of trial, the jury would have been asked to assess punitive and
exemplary damages against Lorillard Tobacco Company. Prior to the start of
the second phase of trial the case was fully resolved between the parties.
Plaintiffs were represented at trial by Christopher Andreas of Brayton
Purcell, Novato, California.
Defendant Lorillard Tobacco Company was represented at trial by Roger
Geary, David Thorne, and William Crampton of Shook, Hardy and Bacon,
Kansas City, Missouri.
Jury Awards Over $8,000,000 in Asbestos Case

Alan Vasen v. Exxon Mobil Corporation
Civil Jury Trial

Judge: Carlos Bea
Trial Type: Negligence (Control)
Verdict: $8,224,600
Three weeks, March 2001
SAN FRANCISCO, California, March 21, 2001. A jury awarded $8,224,600

to a former insulator afflicted with a fatal form of cancer, malignant pleural
mesothelioma, caused by his occupational exposure to asbestos. The plaintiff
was Alan Vasen. The defendant was Exxon Mobil Corporation (formerly
Exxon Corporation; Standard Oil of New Jersey/Humble Oil/Esso Oil), the

owner and operator of an oil refinery located in Benicia, California.
The trial began on January 29, 2001, before San Francisco Superior Court
Judge Carlos Bea. A jury was impaneled to hear the case and heard testimony.
Closing arguments were presented March 16, 2001. The jury deliberated for
three days before reaching its verdict. During the trial, testimony concerning
asbestos, medical diagnosis, epidemiology, cell biology, industrial hygiene,
and Exxon Mobil’s extensive corporate knowledge of the dangers of asbestos
was presented, as well as evidence regarding Mr. Vasen’s occupational expo-
sure circumstances.
Alan Vasen began work as an insulator in late 1962 after serving hon-
orably in the U.S. Navy aboard the USS Ticonderoga. Mr. Vasen joined the
Heat, Frost, and Asbestos Workers Union Local 16, San Francisco, California,
at the age of twenty-two years old. He worked as an insulator apprentice for
four years and thereafter as an insulator mechanic until he retired in 1997.
During the course of his career, Mr. Vasen worked at numerous job sites
throughout the San Francisco Bay Area and Northern California. Most of
his work prior to 1975 involved the application and removal of asbestos-
containing insulation, including pipe covering, block insulation, and insu-
lating cements manufactured by Johns Manville, Owens Corning, Fibre-
board, and Pittsburgh Corning. These products contained up to 65 percent
asbestos fiber by weight. Mr. Vasen was required to cut, saw, and miter the
insulation before application, activities that generated excessive levels of
asbestos dust. Mr. Vasen was unaware of the hazards of asbestos until the
mid-1970s and did not protect himself from breathing the dust created by
his work prior to that time.
Exxon Mobil Corporation, formerly known as Exxon Corporation (Stan-
dard Oil of New Jersey/Humble Oil/Esso Oil), designed, approved, and over-
saw the construction of an oil refinery located in Benicia, California, during
the period 1966–1969. Alan Vasen worked as an insulator at this site from
September 1968 through mid-April 1969. Mr. Vasen installed thousands of
lineal feet of asbestos pipe covering and thousands of square feet of asbestos-
block insulation throughout the operating units of the Benicia refinery.
Evidence was presented at trial that Exxon Mobil had actual knowledge
of the health hazards posed by asbestos insulation work beginning in 1937
when one of its safety engineers, Roy Bonsib, published an intracompany
report detailing such hazards to insulators and recommending safe work
practices to avoid exposures at company refineries. The so-called Bonsib
Report was never published outside of Exxon Mobil.
In 1947, the company hired James Hammond, a certified industrial
hygienist, to oversee safety company-wide. Mr. Hammond’s videotaped dep-
osition played to the jury, revealed that he fully appreciated the risks of
asbestos exposure attendant to the work performed by insulators when he

started with Exxon Mobil in 1947. Mr. Hammond testified that in conjunc-
tion with Exxon Mobil’s considerable medical department, he further refined
the recommendations of Bonsib with respect to safe asbestos work practices.
Mr. Hammond adopted stringent maximum permissible exposure levels for
asbestos starting in 1947, which he enforced throughout the company with
the assistance of company industrial hygienists and safety personnel. In 1949,
Mr. Hammond coauthored a confidential report in which he and other top
safety personnel revealed their belief that asbestos could cause lung cancer
and that insulators were a trade at risk for that fatal disease. By 1966, Mr.
Hammond had become aware of and convinced that asbestos fiber inhalation
could cause mesothelioma at levels lower than his own mandated limits and
as a result he tightened his company’s already stringent asbestos handling
guidelines further. The threat of mesothelioma spurred Mr. Hammond to
actively promote the use of non-asbestos insulation at company properties
whenever feasible.
In addition to the videotaped testimony of Mr. Hammond, the jury was
also presented with the videotaped deposition of Dr. Neill Weaver, the former
medical director for the company, who admitted that he and other company
physicians had accepted the connection between asbestos insulation work
and mesothelioma by 1964. Dr. John Lione, a protégé of Dr. Weaver and
successor to the medical directorship, claimed that the company asbestos
safety programs, developed in conjunction with James Hammond, were
extraordinarily effective, as demonstrated by the lack of any serious asbestos
disease in Exxon Mobil employees up to the present time.
Mr. Hammond testified that control of safety for the Benicia Refinery
project resided initially with the general contractor hired to construct the
plant. However, Mr. Hammond further testified that once processing units
were mechanically complete and turned over to Exxon Mobil, a process that
started in early 1968, he and Exxon Mobil’s safety department were respon-
sible for the protection of all individuals working in the units, including the
employees of outside contractors such as Mr. Vasen. Despite Exxon Mobil’s
extensive knowledge of the hazards posed by insulation work at Benicia,
inexplicably it failed to warn Mr. Vasen or any of the 450 insulators on site
and/or exercise its authority to stop the work and institute its asbestos-
handling guidelines. Exxon Mobil did not provide respiratory protection to
any insulator at Benicia after it assumed control of safety and permitted Mr.
Vasen and his crew to be exposed to extremely hazardous levels of asbestos.
Mr. Vasen was diagnosed with malignant pleural mesothelioma in Feb-
ruary 2000, several months after his fifty-ninth birthday. Mr. Vasen was a
lifetime nonsmoker and nondrinker. He underwent four chemotherapy treat-
ments that had no salutary effect and the chemotherapy was discontinued.
He has been receiving palliative care since the fall of 2000, which consists of
increasing doses of morphine to control the pain. Dr. Sidney Crain, his
treating physician, has given Mr. Vasen a very poor prognosis and anticipates
that he will die within the next month.
Malignant pleural mesothelioma is a rare form of cancer involving the
lining of the chest cavity called the serous membrane or, more commonly,
the “pleura.” It is caused by exposure to asbestos and is not caused by smok-
ing. It typically presents in workers decades after exposure to asbestos and
is invariably fatal. Despite much focused study and attention in medicine,
there is still no effective cure or treatment for malignant mesothelioma.
“I am happy for my client,” said Christopher Andreas, the plaintiff ’s
attorney. “Unfortunately, the unnecessary exposures he suffered at Benicia
and the abject failure of Exxon Mobil to pass on its superior knowledge
about asbestos to Alan Vasen in 1968, contributed greatly to the tragic
situation in this man’s life today. Mr. Vasen was a very healthy man before
his diagnosis, and likely would have enjoyed a long life. Now he is living
day by day and dealing with issues surrounding his death. It did not have
to turn out this way.”
Purcell, Novato, California.
Defendant Exxon Mobil Corporation was represented at trial by Susan
Ogdie and William Armstrong, Ogdie and Armstrong, Oakland, California.
San Francisco Jury Awards $150,000 to Mechanic with Asbestosis

Lewis Sunderman v. Aqua-Chem Inc.
Civil Jury Trial

Judge: Ernest H. Goldsmith
Trial Type: Products Liability—Negligence
Verdict: $150,000
Three weeks, November 2002
San Francisco, California, November 21, 2002. A San Francisco jury awarded
$150,000 to a retired instrument mechanic and maintenance supervisor suf-
fering from asbestos pleural disease and asbestosis caused by on-the-job
exposure to asbestos. The plaintiff was Lewis Sunderman, who is seventy-
nine years old and a decorated war veteran. The defendant was Aqua-Chem,
Inc. and its Cleaver Brooks division, the leading manufacturer of package
boilers worldwide.
San Francisco Superior Court Judge Ernest H. Goldsmith presided over
the three-week trial. The jury heard testimony about asbestos, medical diag-
nosis, epidemiology, cardiology, industrial hygiene, and Cleaver Brooks’

knowledge that its boilers contained asbestos.
A History of Asbestos Exposure. Mr. Sunderman spoke about his
long history of occupational exposure to asbestos. He first came into contact
with the substance while serving in the U.S. Marines at boot camp on Parris
Island, North Carolina. For two to three days he helped clean up asbestos-
containing debris from two Cleaver Brooks boilers located at that site. He
was again exposed to asbestos for almost two years while serving onboard
the USS Denver during World War II.
After the war, Mr. Sunderman worked for ten years as an instrument
mechanic at Cincinnati Gas and Electric Company. He estimates that he
mixed and applied five hundred bags of asbestos insulating cement while at
the company. He was also exposed to asbestos packing materials during
valve repair.
Mr. Sunderman relocated to California in the early 1960s and was
employed as a maintenance supervisor until his retirement in 1987. During
this period he was intermittently exposed to asbestos through his own work
and as a bystander to maintenance, inspection, and repair of Cleaver Brooks
boilers at Foremost Food and Chemical, Oakland, California; HITCO, Gar-
dena, California; and at the Felters Company, Jackson, Michigan.
Mr. Sunderman’s exposure to Cleaver Brooks boilers occurred when
asbestos-containing gaskets, cements, refractory, and millboard were dis-
turbed. These products contained up to 95 percent asbestos fiber by weight.
He did not protect himself from breathing the dust because he was unaware
of asbestos hazards at that time.
Manufacturer Never Warned About Asbestos in Its Boilers. Cleaver
Brooks has designed, manufactured, sold, and delivered package boilers since
1931. Its packaged fire-tube and water-tube boilers contained asbestos com-
ponents from 1931 until sometime in the late 1970s or early 1980s. The
company also manufactured asbestos-containing gaskets, refractory lining
materials and insulation for the boilers.
Cleaver Brooks boilers must be inspected and maintained on a yearly
basis. Each inspection involves the removal of door, manhole, and hand-hole
gaskets containing asbestos. Repairing boilers frequently involved distur-
bance of asbestos-containing refractory linings and insulation.
The company never tested its boilers for asbestos fiber release or warned
customers about asbestos hazards. It never recalled a boiler or any asbestos
component or issued safe work practices brochures to its customers.
The Plight of Asbestos Victims. Asbestos pleural disease and asbes-
tosis are chronic respiratory diseases caused by inhalation of asbestos fibers.
In Mr. Sunderman’s case, these conditions affect his breathing and play a
major role in preventing him from receiving needed coronary artery surgery.
He has never smoked.
“In light of what is occurring in Washington, D.C., with proposed asbes-
tos legislation which is designed to deprive asbestos victims of their right to
a jury trial, it was great to have this jury validate Mr. Sunderman’s case with
a verdict,” said the plaintiff ’s attorney, Christopher Andreas. “Under the
proposed legislation, somebody like Mr. Sunderman would be turned away
at the courthouse door.”
Mr. Andreas is from the Novato, California, office of Brayton Purcell.
The defendant, Aqua-Chem, Inc., was represented by Christopher Wood of
C. W. Wood and Associates, San Francisco, and Leonardo Vachina of Berry
and Berry, Oakland, California.
San Francisco Jury Awards Over $5,000,000 in Asbestos Lung Cancer Case
Edward Jones v. John Crane Incorporated, et al
Civil Jury Trial

Judge: Ernest H. Goldsmith
Verdict: $5,048,000
Four weeks, August 2003
San Francisco, California, August 1, 2003. A jury awarded over $5,000,000

to a retired U.S. Navy machinist and engineering officer suffering from ter-
minal lung cancer caused by his occupational exposure to asbestos. The
defendants were John Crane, Inc., an asbestos steam packing and gasket
manufacturer, and Leslie Controls, Inc., a manufacturer of asbestos-contain-
ing marine valves. The plaintiffs were Edward Jones and his wife Elleree Jones
of Santa Cruz, California.
Edward Jones was first exposed to asbestos while working at a steel mill
in Colorado when he was sixteen years old. He was involved in the cleanup
of insulation debris during piping and furnace repairs. He joined the U.S.
Navy in 1950, serving as an apprentice machinist and machinist mate on the
USS Juneau during the Korean War and aboard various other vessels until
the early 1960s. Mr. Jones maintained and repaired equipment, including
valves, pumps, turbines, and auxiliary equipment during these early years of
his Navy career. He was routinely exposed to insulation, packing, and gaskets
containing asbestos.
Despite only having an eighth-grade education, Mr. Jones rose through
the ranks of the Navy, receiving specialized training in deep sea diving and
eventually in the operation of nuclear powered submarines. After he stopped

performing hands-on repairs and maintenance, Mr. Jones continued to be
exposed to asbestos in the 1960s and 1970s when he supervised other Navy
machinists and engineering department personnel aboard submarine tenders
and nuclear submarines.
Mr. Jones testified that John Crane’s asbestos steam packing was used
throughout his career, saying it was “synonymous with packing.” He also had
repaired valves manufactured by Leslie Controls, Inc. and was a bystander
to repair activities on the same valves when he later became a supervisor.
In 1978, Mr. Jones retired from the Navy as an officer in the shipbuilding
division and received an honorable discharge. He then worked with Lockheed
Shipbuilding in Washington State until 1985 supervising the construction of
Navy submarine tenders. During this period, he was intermittently exposed
to asbestos from the use of asbestos packing and gaskets.
Mr. Jones was diagnosed with a primary lung cancer in December 2000,
and underwent lung lobe resection and chemotherapy. Sadly, Mr. Jones’s
cancer has spread to his liver, and doctors believe that he will die within a year.
At trial, Mr. Jones described the course of his medical treatment and the
effect it has had on his life. His wife, Elleree Jones, also testified regarding
her husband’s struggle with cancer and how it had impacted their marriage.
The defendants unsuccessfully claimed that Mr. Jones’s lung cancer was
caused solely by his prior cigarette smoking, which occurred from 1949-1970.
A History of Asbestos in John Crane and Leslie Control Products.
John Crane, Inc. (formerly known as John Crane Packing Company) engaged
in the manufacture and sale of a wide variety of asbestos steam packing from
at least 1930. In 1985 it discontinued the use of asbestos in its products. The
company never tested its products for asbestos fiber release until it became
involved in asbestos personal injury litigation in the early 1980s.
At trial, John Crane claimed that it was exempt from labeling require-
ments. However, the company nonetheless placed warnings on its products
regarding the hazards of asbestos in 1983, coinciding with its first involve-
ment as a defendant in asbestos litigation. Before that time, the company did
not warn its customers about asbestos health hazards. John Crane has never
recalled a single product containing asbestos. It did not call any corporate
witnesses at trial.
Leslie Control, Inc. has been a major supplier of asbestos-containing
marine valves to the U.S. Navy since World War I. The valves for steam
applications contained asbestos packing and gaskets since at least the 1930s.
The packing was manufactured by John Crane.
Leslie Controls never placed warnings regarding asbestos on its valves or
in its technical manuals and has never recalled any of its products. At trial,
Leslie Controls presented a corporate witness that claimed the company did
not have knowledge of asbestos as a health hazard until the 1980s.
The plaintiff presented evidence about both defendants’ longstanding
involvement in manufacturing asbestos-containing products. Mr. Jones tes-
tified for over three days regarding his occupational exposure circumstances.
Christopher Andreas of Brayton Purcell in Novato, California, repre-
sented the plaintiffs at trial. Defendant John Crane, Inc. was represented at
trial by Philip Ward, Robert Nelder, and John Katerndahl of Hassard Bon-
nington LLC, San Francisco. Defendant Leslie Controls, Inc. was represented
at trial by Kenneth McCarthy of Knox Ricksen LLC, Oakland, California.
San Francisco Jury Awards $2,999,543 in Asbestos Case

Philip Hoeffer v. Rockwell Automation
Civil Jury Trial

Judge: Alex Saldamando
Verdict: $2,999,543
Four weeks, November-December 2003
San Francisco, California, December 9, 2003. A jury awarded $2,999,543 to

a seventy-year-old retired electrician, Philip Hoeffer, who is terminally ill
with malignant pleural mesothelioma caused by asbestos exposure on the
job. The defendant, Rockwell Automation, was held liable for the defective
products and negligence of its Allen Bradley division and a former division,
Rostone Corporation.
Rostone Corporation developed, manufactured, and sold asbestos-con-
taining phenolic plastic compounds and molded asbestos-containing parts
for many of the major electrical equipment manufacturers since the 1940s,
including General Electric, Westinghouse, Cutler Hammer, and Allen Brad-
ley. Rostone asbestos-containing phenolic plastic compounds and molded
parts were used for arc chutes, breakers, contactors, and enclosures found in
distribution panels, breaker boxes, rotary switches, motor controllers, and
other electrical equipment prior to 1985. Allen Bradley manufactured and
sold asbestos-containing electrical equipment prior to 1985.
The trial began on November 3, 2003, before San Francisco Superior
Court Judge Alex Saldamando. A jury was impaneled to hear the case. Jury
members listened to closing arguments on December 3, 2003, then deliber-
ated for four days before reaching a verdict. During the trial, they heard
evidence concerning Rockwell Automation and its predecessor companies’
involvement with asbestos, as well as testimony about the historical use of
asbestos, the medical diagnosis of mesothelioma, epidemiology, pulmonary

medicine, pulmonary pathology, industrial hygiene, and medical articles con-
cerning asbestos and disease.
A History of Asbestos Exposure. The plaintiff, Philip Hoeffer, was
born in Southern California. He was first exposed to asbestos as a teenager
when he disassembled and rebuilt an automobile that included asbestos-
containing brakes, clutches, and engine gaskets. An enthusiast of sprint car
racing, Mr. Hoeffer performed similar automobile repairs on other vehicles
from 1944 through 1962.
After attending Pasadena City College for two years and Saint Mary’s
College in Moraga, California, for one year, Mr. Hoeffer enlisted in the U.S.
Navy in 1950. He trained as a Navy electrician and served aboard the ARD-
29, the USS Hanson, and the USS Yorktown until his honorable discharge in
1955. While carrying out his duties Mr. Hoeffer came in constant contact
with electrical equipment. He cleaned contacts with emery cloth and main-
tained the equipment with files and screwdrivers, frequently abrading the
phenolic plastic parts, which released asbestos. Also, evidence showed that
the operation of the equipment generated airborne asbestos due to friction
and wear from moving parts. The equipment aboard Mr. Hoeffer’s Navy
ships included Westinghouse panels, Cutler Hammer panels, and Allen Bra-
dley switches, all of which contained Rostone molded parts.
After his discharge from the Navy Mr. Hoeffer worked as a design engi-
neer for Ralph M. Parsons in Pasadena, California, from 1956 to 1962. He
developed prototype military equipment using early electronic miniaturiza-
tion technology. In constructing these prototypes, Mr. Hoeffer cut and drilled
asbestos-containing phenolic panels to use as circuit boards.
In 1969, Mr. Hoeffer moved to Charlottesville, Virginia. He worked for
R. E. Lee and Sons, a large general contractor, from 1973 to 1978. During
the construction of a nurse’s dormitory at the University of Virginia in 1973,
Mr. Hoeffer supervised drywall workers sanding asbestos-containing joint
compounds. He also oversaw the cleanup of electrical equipment debris when
an explosion destroyed Westinghouse distribution panels on every other floor
of the nine-story building. Rostone asbestos-containing molded parts were
used in those panels.
Mr. Hoeffer worked as the head of renovations for the University of
Virginia in Charlottesville from 1978 to 2003, when he retired due to his
present illness. He was frequently exposed to asbestos when performing
retrofit, repair, and maintenance on electrical equipment made by Westing-
house, Allen Bradley, and General Electric. Most to this equipment contained
Rostone molded parts that included asbestos.
Companies Failed to Warn about Asbestos Exposure Hazards. N e i -

ther Allen Bradley nor Rostone Corporation tested their products for fiber
release during the decades each engaged in the manufacture and sale of
asbestos-containing products. Neither company provided any warning to
consumers about asbestos and did not indicate that asbestos was used in their
phenolic plastic parts. Neither company recalled any of its asbestos-contain-
ing products, despite successfully developing asbestos-free substitutes in the
late 1970s and early 1980s.
Rockwell Automation presented expert witness testimony concerning
fiber release testing performed at the request of Rockwell Automation’s
national supervising counsel during the course of recent litigation. This
testing, which revealed small fiber counts, was conducted under alleged
“worst case” conditions. This claim proved false, however. Historic internal
documents obtained from Allen Bradley showed that more extensive testing
of the same products had been done years before and produced visible dust
from wearing of the asbestos-containing phenolic plastic parts. Rockwell
Automation produced none of these test results at trial.
A Mesothelioma Diagnosis. Mr. Hoeffer was diagnosed with malig-
nant pleural mesothelioma, a rare cancer of the lining of the lung, in June
2002. Previously he had survived a rare cancer, malignant schwannoma,
diagnosed in 1986. He had been free of cancer for over ten years when he
was diagnosed with mesothelioma. Medical testimony showed that his
mesothelioma was unrelated to his prior malignancy and that it was caused
by his asbestos exposure. At trial, Mr. Hoeffer described the course of his
medical treatment and the effect it has had on his life. Despite doing well on
chemotherapy and having his tumor progress slowly, Mr. Hoeffer is expected
to die within the next twelve to twenty-four months.
Christopher Andreas and John Goldstein of Brayton Purcell, Novato,
California, represented the plaintiff at trial. Rockwell Automation was rep-
resented at trial by Christopher Keele and Christian Marsh of Stoel Rives
LLP, San Francisco. Nancy Stone of Shea and Gardner, Washington, D.C., is
the national supervising counsel for Rockwell Automation.
San Francisco Jury Awards $1,250,000.00 in Asbestosis Case

Geronia Quarles v. Advocate Mines, Ltd.
Civil Jury Trial

Judge: Ellen Chaitin
Trial Type: Products Liability—Negligence—Asbestosis
Verdict: $1,250,000
Three weeks, January 2005
San Francisco, California, January 26, 2005. A San Francisco jury unani-
mously awarded damages of $1,250,000.00 in favor of a retired pipefitter with
asbestosis and pleural disease caused by his occupational exposure to asbes-
tos. The plaintiff, Geronia Quarles, of Fresno, California, is sixty-nine years
old. The defendant, Advocate Mines, Ltd., was held liable for their defective
asbestos fiber supplied to make Johns-Manville Transite pipe in their Stock-
ton, California facility. The jury made an additional unanimous finding of
malice or oppression against the defendant.
Advocate Mines, Ltd., in partnership with the Johns-Manville Corpora-
tion, owned and operated an asbestos mine in Baie Verte, Newfoundland,
starting in the 1950s. Advocate Mines sold asbestos fiber to various manu-
facturers of asbestos-containing products, including Johns-Manville Corpo-
ration, for use in Transite asbestos-cement pipe.
The trial began on January 4, 2005, before San Francisco Superior Court
Judge Ellen Chaitin. A jury was impaneled to hear the case and heard testi-
mony. Closing arguments were presented January 19, 2005. The jury delib-
erated for one day before reaching its verdict. During the trial, in addition
to evidence concerning Advocate Mines’ involvement with asbestos, testi-
mony concerning the historical use of asbestos, medical diagnosis, historical
medical articles concerning asbestos and disease, pulmonary medicine, radi-
ology, and industrial hygiene was presented.
Geronia Quarles was born in Palestine, Texas and relocated to Fresno,
California as a child. As a pipefitter in the 1970s installing underground
pipelines for new housing developments Mr. Quarles handled, cut, and bev-
eled Johns-Manville Transite pipe containing Advocate Mines asbestos fiber,
which generated respirable asbestos.
Advocate Mines did not provide any warning to consumers about their
asbestos fiber used in Johns-Manville Transite pipe and continued to sell
asbestos fiber even after their own miners went on strike due to asbestos-
related health problems.
Mr. Quarles was diagnosed with asbestosis and pleural disease in October
2003. Medical testimony established that his asbestosis and pleural disease
was caused by his occupational exposure to asbestos.
Plaintiff was represented at trial by James P. Nevin and Christopher E.
Andreas of Brayton Purcell, Novato, California. The defendant, Advocate
Mines, Ltd., was represented at trial by John Graniez of Lewis Brisbois Bis-
gaard and Smith LLP, Los Angeles.
San Francisco Jury Awards $8,673,704 in Mesothelioma Case

Anthony Cadlo and Maxlyn Cadlo v. John Crane Inc. and Metalclad
Insulation Corp.
Civil Jury Trial

Judge: John J. Conway
Verdict: $8,673,704
Seven weeks, February-March, 2005
San Francisco, California, March 22, 2005. A San Francisco jury awarded
$8,673,704.74 to a sixty-year-old former U.S. Navy machinist and engineering
officer suffering from terminal pleural mesothelioma caused by his service-
related asbestos exposure. The plaintiffs are Anthony Cadlo and his wife,
Maxlyn Cadlo. The defendants are John Crane, Inc., a former manufacturer
of asbestos pump and valve packing and distributor of asbestos gaskets, and
Metalclad Insulation Corporation, a former supplier of asbestos thermal
insulation products.
The trial began on February 1, 2005, before San Francisco Superior Court
Judge John J. Conway. A jury was impaneled to hear the case and heard
testimony. Closing arguments were presented March 14, 2005. The jury delib-
erated for over three days before reaching its verdict.
During the trial, testimony was introduced concerning the historical use
of asbestos, the state of medical knowledge historically regarding asbestos,
cell biology, epidemiology, pulmonary medicine, pulmonary pathology, and
industrial hygiene. Evidence was also presented regarding defendants’
involvement in the supply of asbestos-containing products to the U.S. Navy.
Anthony Cadlo testified at the trial, despite weighing less than 140
pounds, suffering with tumor protrusions on his left chest, and being tethered
to supplemental oxygen on a twenty-four-hour basis.
A History of Asbestos Exposure. Mr. Cadlo joined the U.S. Navy in

1964 at the age of eighteen. He received training as a Navy machinist mate
at the Great Lakes Naval Station in Illinois, where he learned how to maintain
and repair equipment on naval vessels, including pumps and valves. In order
to effect those repairs, Mr. Cadlo was required to remove and install asbestos-
containing pump and valve packing as well as asbestos-containing gaskets.
Mr. Cadlo was assigned to the USS Black (DD-666), a Fletcher-class
destroyer, in early 1965. He joined the ship in the Philippines and was soon
involved in the first of two combat cruises in Vietnam. Mr. Cadlo was also
aboard the Black when it participated in the Tet Offensive. He was discharged
honorably in June 1968.
During his service aboard the Black, Mr. Cadlo served as an apprentice
machinist and machinist mate. His duty station was in the forward engine
room, where he was routinely exposed to hazardous levels of respirable
asbestos from thermal insulation, packing and gaskets. This asbestos expo-
sure occurred while Mr. Cadlo and other machinist mates maintained and
repaired valves, pumps, piping, and auxiliary equipment in ports, including
the San Diego Destroyer Base and Sasebo, Japan. Mr. Cadlo was also exposed
to asbestos during the repeated firing of the Black’s three- and five-inch guns
in combat, which caused thermal insulation throughout the ship to vibrate
and emit asbestos dust.
Mr. Cadlo and the crew of the Black were also heavily exposed to asbestos
during a three-month overhaul at Long Beach Naval Shipyard in late 1965,
involving extensive thermal insulation removal and installation. Although
Mr. Cadlo was unable to recall the manufacturers or distributors of any of
the asbestos products he worked with and around on the Black, plaintiffs
presented such evidence through four of Mr. Cadlo’s shipmates and a former
insulator from the Long Beach Naval Shipyard.
Mr. Cadlo’s shipmates identified John Crane, Inc. as the predominant
manufacturer of asbestos pump and valve packing used on the Black before
and during Mr. Cadlo’s service on the ship. John Crane, Inc. was also iden-
tified as one of the manufacturers of asbestos gaskets used on the Black during
the same time period.
A former insulator from Long Beach Naval Shipyard, Charles Ay, testified
to the regular and routine supply of large quantities of asbestos thermal
insulation to the shipyard by Metalclad Insulation during the 1960s. Insula-
tion stored in common supply areas was utilized for the repair and overhaul
of Navy ships involved in the Vietnam conflict. Mr. Ay further testified to
performing multiple repairs and overhauls on the Black from 1960 through
1966, including the three month overhaul in late 1965.
Mr. Cadlo never wore respiratory protection while on the Black and was
unaware of the hazards of asbestos. Neither Mr. Cadlo nor his shipmates saw
any warnings from the manufacturers or suppliers of the asbestos products

they worked with and around on the ship. After his discharge in 1968, Mr.
Cadlo was never again exposed occupationally to asbestos.
John Crane, Inc. (formerly known as John Crane Packing Company) of
Morton Grove, Illinois, engaged in the manufacture and sale of a wide variety
of asbestos pump and valve packing from at least 1930. In 1985 it discontin-
ued the use of asbestos in its products and advertised its nonasbestos packing
as “safer” than asbestos packing.
John Crane never tested its products for fiber release during normal and
foreseeable use until it became involved in asbestos personal injury litigation
in the early 1980s. John Crane first placed asbestos warnings on its products
regarding the hazards of asbestos in 1983, coinciding with the first asbestos
personal injury claims being filed against it. Prior to that time the company
did not warn its customers about asbestos health hazards.
Metalclad Insulation Corporation, a thermal insulation supplier and
insulation contracting firm, began operations in 1933 in Southern California.
While it is currently located in Anaheim, California, Metalclad Insulation
Corporation was headquartered in Torrance, California, during the 1960s.
Evidence introduced at trial demonstrated that Metalclad Insulation regularly
supplied large quantities of asbestos pipe covering, block insulation, insula-
tion cement, and asbestos cloth to the Long Beach Naval Shipyard for use
on naval vessels during the Vietnam War. The company made no effort to
provide warnings or safe work practice information with its products. When
asbestos thermal insulation was discontinued in 1972 due to health concerns,
Metalclad Insulation sold off its existing asbestos inventory for a profit despite
the fact that nonasbestos substitutes were available through manufacturers.
Mr. Cadlo’s Mesothelioma Diagnosis. Anthony Cadlo was diag-
nosed with malignant pleural mesothelioma in August 2002. Mesothelioma
is a rare cancer of the lining of the lung which is incurable and invariably
fatal. The only established cause of mesothelioma in the United States is
asbestos. The diagnosis of Mr. Cadlo’s mesothelioma and its asbestos cause
was not disputed by the defendants.
Defendant John Crane presented expert testimony suggesting that its
packing and gasket products released “trivial” amounts of chrysotile asbestos
during removal and installation. Additionally, John Crane alleged through
expert testimony that chrysotile asbestos poses little to no risk of mesothe-
lioma and thus that company products could not have been a cause of Mr.
Cadlo’s mesothelioma.
Metalclad Insulation did not dispute that its asbestos products could
release high levels of respirable asbestos and conceded in closing argument
that its products were defective. Metalclad Insulation contended that plain-
tiffs had not met their burden of proof demonstrating that its products were
ever used on the Black.
Purcell, Novato, California. Defendant John Crane, Inc. was represented at
trial by Philip Ward and John Katerndahl of Hassard Bonnington LLC, San
Francisco. Defendant Metalclad Insulation Corporation was represented at
trial by Frank Berfield of McKenna, Long, and Aldridge LLP, San Francisco.
Jury Awards $2.8 Million for Terminal Asbestosis

Harold Phelps and Neva Phelps v. Hamilton Materials, Inc.
Civil Jury Trial

Judge: James McBride
Trial Type: Products Liability—Negligence—Asbestosis
Verdict: $2,842,442
Three weeks, September–October, 2005
San Francisco, California, October 4, 2005. A San Francisco jury awarded

Harold Phelps and his wife Neva $2.8 million in damages because of occu-
pational exposure to asbestos. Mr. Phelps, who is seventy-seven years old,
suffers from terminal asbestosis and is dependant on oxygen twenty-four
hours a day. The Las Cruces, New Mexico, resident had to be driven to San
Francisco for the trial because the airlines would not allow his liquid oxygen
on board any plane.
Mr. Phelps worked as a mechanic, laborer, and carpenter. He was likely
first exposed to asbestos as a child when he delivered lunch to his father at
work in a locomotive roundhouse. Mr. Phelps was also exposed to asbestos
during his years in the U.S. Navy and U.S. Army; at work as a mechanic
replacing automotive brakes, clutches and engines; and during his years in
construction. At no time during his career was Mr. Phelps advised to wear
any form of respiratory protection. Hamilton Materials, the defendant, man-
ufactured asbestos drywall finishing materials that Mr. Phelps was exposed
to during his work as a carpenter.
The jury deliberated for five days before finding Hamilton Materials
liable. They determined that Hamilton Materials products were defectively
designed, that the company had failed to provide adequate warnings, and
that they were negligent. Hamilton Materials was represented by Robert
Channel and Florence McLain of the law firm Walsworth, Franklin, Bevins,
and McCall, San Francisco, California. Christopher E. Andreas of Brayton
Purcell, Novato, California, represented Mr. Phelps. The trial lasted just over
three weeks and was presided over by the Honorable James McBride.
“The jury members were very touched by the Phelps’ predicament,” said
Christopher Andreas, Mr. Phelps’s attorney. “The couple has been happily
married for over fifty-seven years. A number of jurors even went so far as to
request the Phelps’s address so that they could write to them. As one juror put
it, ‘This was one of the most unique and amazing experiences I have ever had.’”
San Francisco Jury Awards $1,083,000 in Asbestos Cancer Case

Merle Sandy v. Exxon Mobil Corporation
Civil Jury Trial

Judge: Gail Dekreon
Trial Type: Premises Liability—Negligence
Verdict: $1,083,000
Three and one-half weeks, January–February 2006
San Francisco, California, February 17, 2006. A jury awarded $1,083,000 to

Merle Sandy, a sixty-year-old retired pipefitter suffering from asbestos pleural
disease, asbestosis, and colon cancer caused by his on-the-job exposure to
asbestos. The defendant, Exxon Mobil Corporation, is the former owner and
operator of an oil refinery located in Benicia, California, where Merle Sandy
did industrial maintenance work. He was exposed to hazardous levels of
asbestos while removing insulation and while working with asbestos gaskets,
packing, and welding blankets. Employed by an independent contractor, Mr.
Sandy worked at the Benicia refinery from 1970 through 1974. He also
worked at the refinery in 1977 and 1979.
A History of Asbestos Exposure and Disease. In the mid-1990s, Mr.
Sandy’s chest CT scans showed asbestos pleural plaques and early signs of
asbestosis. In 2004 he was diagnosed with stage 1 colon cancer and underwent
surgery. The cancer returned in 2005 and metastasized to his liver. Despite
extensive treatment efforts, Mr. Sandy’s cancer has progressed and his disease
is considered terminal.
Mr. Sandy was first exposed to asbestos when he was fourteen years old.
His father, a pipefitter, brought Mr. Sandy with him on a summer pipeline
job in Wyoming. Mr. Sandy was exposed to asbestos welding strips and
insulation while working as a helper. From 1963 to 1966, Mr. Sandy worked
as a roughneck at oil drilling operations throughout the San Joaquin Valley.
He was exposed to asbestos while dumping hundreds of bags of dry-drilling
mud mix. He wore no respiratory protection.
Mr. Sandy became a full-time pipefitter in 1966, joining Local 342,
Vallejo, California. He retired in 1999. In addition to working at Exxon
Mobil’s Benicia refinery, Mr. Sandy worked as an industrial pipefitter at a

number of sites throughout the San Francisco Bay Area, including chemical
plants, oil refineries and manufacturing facilities. No respiratory protection
was provided, and he was exposed to asbestos during his work with insula-
tion, gaskets, packing and welding blankets.
In 1974 Mr. Sandy traveled to Alaska, where he worked on the Alyeska
pipeline. Over the next fifteen years there he was exposed on an intermittent
basis to asbestos working with gaskets, packing and welding blankets. Once
again, Mr. Sandy was not offered respiratory protection.
Exxon Mobil Was Aware of Asbestos Hazards. The Merle Sandy v.

Exxon Mobil Corporation trial began on January 16, 2006, with jury selection
before San Francisco Superior Court Judge Gail Dekreon. A jury was impan-
eled to hear the case and received testimony. Closing arguments were pre-
sented February 9, 2006. The jury deliberated for over four days before
reaching its verdict.
During the trial, testimony was introduced concerning Exxon Mobil’s
extensive knowledge of asbestos hazards dating back to the late 1930s, the
historical uses of asbestos in industrial settings, the state of medical knowl-
edge historically regarding asbestos, cell biology, pulmonary medicine, and
industrial hygiene.
Plaintiff presented testimony from the videotaped depositions of Exxon
Mobil’s former chief industrial hygienist James Hammond and medical direc-
tor Neill Weaver, M.D. This testimony, as well as internal company docu-
ments, established that Exxon Mobil was fully aware of the risk of disease
posed by asbestos dust at its refinery properties as early as 1937.
The Benicia refinery was constructed between 1966 and 1969. Asbestos
insulation, gaskets, and packing were widely used. Mr. Sandy’s employer, a
local mechanical contractor, received the first maintenance contract once the
Benicia refinery was fully operational. Exxon Mobil retained control over Mr.
Sandy’s work by issuing permits designed to identify hazards he might
encounter in his work and requiring compliance with company safety rules
and regulations, none of which referenced asbestos.
Exxon Mobil provided Mr. Sandy with asbestos gaskets, packing, and
welding blankets to carry out his work, but gave him no warnings about
these items. Although Exxon Mobil personnel oversaw Mr. Sandy’s work at
Benicia, he was never told that the products he was working with were
hazardous, or provided with information about the location of asbestos at
the refinery. He was not given instructions about how to work safely to
prevent asbestos exposure or provided with respiratory protection.
Testimony from plaintiffs’ experts showed that Mr. Sandy was signifi-
cantly and substantially exposed to hazardous levels of asbestos throughout
his career. Also, each and every exposure was a substantial factor contributing
to his risk of later developing an asbestos-related disease, including asbestosis
and cancer.
Merle Sandy was represented at trial by Christopher Andreas and Andrew
Chew of the Novato, California office of Brayton Purcell. Exxon Mobil Cor-
poration was represented at trial by William Armstrong and Lisa Sapcoe of
Armstrong and Associates, Oakland, California.
San Francisco Jury Awards Over $11.5 Million in Asbestos Case

Joseph Garza and Mary Garza v. Asbestos Corporation Limited
Civil Jury Trial

Judge: Suzanne Bolanos
Trial Type: Defective Product—Negligence
Verdict: $11,578,294
Three and one-half weeks, June-July 2006
San Francisco, California, July 12, 2006. A San Francisco jury awarded
$1,178,294 in compensatory damages to a sevety-five-year-old Navy veteran
and retired maintenance mechanic suffering from severe asbestos pleural
disease and asbestosis. His spouse was awarded $400,000 for loss of consor-
tium. The jury also found that the defendant, Asbestos Corporation, Ltd.,
acted with legal malice or oppression and awarded an additional $10 million
in punitive damages.
The defendant is the owner and former operator of asbestos mines in
the Thetford Mines region of Quebec, Canada. The plaintiffs are Joseph and
Mary Garza, currently residing in Longmont, Colorado.
The trial began on June 20, 2006, with jury selection before San Francisco
Superior Court Judge Suzanne Bolanos. A jury was impaneled to hear the
case and receive testimony. Closing arguments in the first phase of the case
were presented on July 6, 2006. The jury deliberated for only six hours before
reaching its verdict. A second phase of the case began and concluded on July
12, 2006, with a verdict of $10,000,000 in punitive damages.
Testimony during the trial concerned Asbestos Corporation’s admitted
knowledge of asbestos hazards dating back to the 1940s and the historical
uses of asbestos in the maritime and industrial settings where Mr. Garza was
exposed. It also covered the state of medical knowledge regarding asbestos,
pulmonary medicine, industrial hygiene, and forensic economics.
Mr. Garza was diagnosed with asbestos pleural disease and asbestosis in
early 2004. He was placed on supplemental oxygen shortly thereafter. His
asbestos-related lung disease has since progressed and his normal life expect-
ancy is reduced as a result.
Asbestos Exposure as a Boilerman. Mr. Garza was first exposed to
asbestos when he joined the U.S. Navy in 1948 at the age of eighteen. Initially
he was assigned to the aircraft carrier USS Antietam, where he served as a
fireman (engineman) in the engine rooms aboard the ship. During this period
he was exposed to asbestos insulation debris while sweeping up after repairs
and also through removing and installing asbestos gaskets and packing from
pumps and valves.
Mr. Garza was transferred to the USS Randall, a Navy troop and cargo
transport vessel, in 1949; there he served for over five years as a boilerman
assigned to the boiler rooms below deck. During his service aboard the
Randall, Mr. Garza was exposed on a regular basis to insulation products,
including asbestos insulating cements and pipe and boiler insulation, as well
as gaskets and packing. He personally mixed and applied insulation cements
to make repairs and was present and in close proximity to others performing
the same work.
Mr. Garza transferred to the destroyer USS Agerholm in mid-1955. This
was the last ship on which he served during his Navy career. Once again, Mr.
Garza worked as a boilerman. He was exposed in the same manner to the
same products on the Agerholm as he had been on the Randall.
Mr. Garza stated that one of the most prevalent asbestos insulating
cements he and other sailors used during his Navy service was Eagle Picher
Super 66. Expert testimony established that the mixing, application, and
cleanup of this dry powder material released extremely high levels of asbestos
in the confined spaces of the engine and boiler rooms aboard vessels.
The widespread use of Eagle Picher Super 66 insulating cement aboard
Navy ships and at Navy shipyards during the 1940s and 1950s was corrobo-
rated through the testimony of a retired Navy shipyard insulator. At no time
during his Navy service was Mr. Garza advised to wear any form of respiratory
protection.
In June 1957, Mr. Garza was honorably discharged from the U.S. Navy.
He and his wife Mary, whom he had met while on leave in San Francisco,
California, settled in the Bay Area to raise their family. Mr. Garza began
working for Westinghouse Corporation in Sunnyvale, California, as a tester
of steam turbines. During the sixteen years he was employed at Westinghouse,
Mr. Garza was exposed on an intermittent basis to asbestos insulation used
in turbines. No respiratory protection was provided.
From 1973 through 1993, Mr. Garza worked for various employers in
the Bay Area, primarily as a boiler operator and maintenance mechanic. He
was exposed intermittently to existing asbestos insulation, gaskets and pack-
ing during this period. Mr. Garza was not advised to wear respiratory pro-
tection. He retired in 1993.
Defendant Supplied Asbestos Fiber Used in Insulating Cement. Evi-
dence introduced at trial established that Asbestos Corporation was the exclu-
sive supplier of asbestos fiber to Eagle Picher Industries of Joplin, Missouri,
from 1935 to 1957. The asbestos used in Eagle Picher’s Super 66 insulating
cement was entirely comprised of Asbestos Corporation Limited’s chrysotile
asbestos fiber.
Asbestos Corporation Limited began operating its asbestos mines in the
Thetford Mines region of Quebec, Canada, in 1925. The company admitted
that it was “certainly aware” of the health hazards posed by inhalation of
asbestos by the 1940s. It shipped its raw asbestos fiber to manufacturers of
finished goods in jute bags (akin to canvas) until sometime in the 1960s,
when it switched to paper (later plastic) to reduce dust emissions.
The first warning label regarding asbestos health hazards appeared on
Asbestos Corporation Limited bags in early 1970. Asbestos Corporation Lim-
ited sales brochures from 1935, 1956 and 1961 were introduced into evidence
and established that the company never warned its customers of the known
health hazards of its product, nor otherwise advised of safe work practices
with asbestos.
Asbestos Corporation Limited ceased operating its mines in the mid-
1980s; however, it continues to derive income from the mining and sale of
asbestos worldwide through its participation in a limited partnership with
other asbestos mines, known as LAB and Company, Limited. Asbestos Cor-
poration Limited permits LAB and Company, Limited, to mine asbestos from
its mines in exchange for a 22.5% interest in the partnership and the profits
derived. No corporate witness appeared at trial on behalf of Asbestos Cor-
poration Limited to testify regarding its past conduct and practices or to
address its current operations.
Plaintiff ’s Health Deteriorates Due to Asbestos Exposure. Mr. and
Mrs. Garza moved from the Bay Area to Longmont, Colorado, in 2000 to
live with their youngest daughter’s family. Due to increasing difficulty with
his breathing, Mr. Garza saw a pulmonologist in early 2004 and was diag-
nosed with asbestos pleural disease and asbestosis. He was placed on supple-
mental oxygen shortly thereafter and remains on supplemental oxygen on a
twenty-four-hour basis. Mr. Garza takes various medications to control the
anxiety caused by his breathing problems and for chest discomfort. Medical
testimony at trial established that he is likely to die within the next five years
as a consequence of his asbestos lung disease.
Mr. and Mrs. Garza have been married for fifty-six years. Mrs. Garza was
unable to travel from Colorado to attend the trial. She is currently disabled
and almost entirely dependent on her husband to perform household services,

such as cooking, cleaning, gardening, and maintenance. He testified that as
of the time of trial he was 80 percent reduced in his ability to perform these
services and feared that as his disease progressed he would become completely
incapacitated, requiring Mrs. Garza to live in an assisted care facility.
Plaintiffs presented the live testimony of Joseph Garza; deposition testi-
mony from Robert Bockstahler, corporate witness for Eagle Picher Industries;
and various expert witnesses on the subjects of industrial hygiene, the his-
torical state of the art regarding asbestos health hazards, pulmonary medi-
cine, and forensic economics in the first phase of the trial. The jury found
for plaintiffs, awarding them compensatory damages totaling $1,578,294 at
the conclusion of the first phase. A finding of legal malice or oppression was
also made by the jury entitling plaintiffs to seek punitive damages from
Asbestos Corporation in a second phase that considered the company’s finan-
cial condition.
Despite Asbestos Corporation’s refusal to produce its corporate officers
for deposition in advance of the second phase, as ordered by the court, and
its provision of scant financial condition information, plaintiffs’ expert foren-
sic economist Barry Ben-Zion, Ph.D. was nonetheless able to utilize publicly
available sources and provide the jury with various means for assessing the
company’s fiscal health on July 12, 2006.
Plaintiffs were represented at trial by Christopher Andreas and Paul
Vaillancourt of Brayton Purcell, Novato, California. Defendant Asbestos Cor-
poration Limited was represented at trial by Randall Bernard of Wilson Elser
Moskowitz Edelman and Dicker of San Francisco.
Index
A Harold Phelps and Neva Phelps v.

Hamilton Materials, Inc.,
Accident Prevention Manual for Industrial 246–247
Operations, The, 21 Horton v. Harwick Chemical Corporation,
Adobe Acrobat, 23 178–193
Aerosol Technology, 26 Joseph Garza and Mary Garza v. Asbestos
Alan Vasen v. Exxon Mobil Corporation, Corporation Limited, 249–252
232–235 Lewis Sunderman v. Aqua-Chem Inc.,
Alternative liability, 186–187 235–237
American Conference of Governmental Merle Sandy v. Exxon Mobil Corporation,
Industrial Hygienists, 73 247–249
American Industrial Hygiene Association, 57 models used in, 28–30, 31f
Andreas, Christopher Philip Hoeffer v. Rockwell Automation,
on expert witnesses, 113–137 239–241
résumé of, 227–252 Tyndall effect and, 96–97
Anthony Cadlo and Maxyln Cadlo v. John "ugly" expert witnesses in, 132–137
Crane Inc. and Metalclad Attorney-client privilege, 50
Insulation Corp., 243–246 Attorneys
Anticipating questions, 48–49 curriculum vitae of, 227–252
Asbestos litigation, 16, 24, 38–39, 93–94, 113 on expert witnesses, 113–137
Alan Vasen v. Exxon Mobil Corporation, Audiovisual aids, 32–33
232–235
bad expert witnesses in, 119–132
B
Cecil and Oneida Martin v. Plant
Maintenance, Inc. of California, Baron, Fred, 73
230 Bases, fee, 108–109
Donna Traverso, et al. v. Lorillard Tobacco Billing practices, 109, 214–216
Company, 231
Edward Jones v. John Crane Incorporated,
C
et al, 237–239
electron microscopy and, 33–34, 35f California Code of Civil Procedure, 159–168
exponential decay curve and, 33, 34f Canadian Center for Occupational Health
Geronia Quarles v. Advocate Mines, Ltd., and Safety, 22
242–243 Cancellation fees, 111–112
good expert witnesses in, 115–119 Case notes, 7
Gunderson v. A. W. Chesterton, 169–171 Kenneth S. Cohen, 204–210
253
Cases and incidents Certified industrial hygienists, 85–86

Alan Vasen v. Exxon Mobil Corporation, Chain of custody, 16–17, 92–93, 98, 149n6
232 form, 211
Anthony Cadlo and Maxyln Cadlo v. John Chemistry of Industrial Toxicology, The, 21
Crane Inc. and Metalclad CIHs, 85–86
Insulation Corp., 243–246 Citations, regulatory, 68, 148n2
anticipating questions regarding, 48–49 Civil cases, 68–69
asbestos, 16, 24, 31f, 33, 38–39, 93–94, Claims-made insurance, 82–83
96–97, 113, 115–119, 230, 231, Cleavage, 146n1
232–235, 237–239 Closing arguments, 139–143
Cecil and Oneida Martin v. Plant Codes of civil procedures
Maintenance, Inc. of California, California, 159–168
230 expert witnesses and, 16, 108
civil, 68–69 Cohen, Kenneth S.
criminal, 67–68, 91, 94–96 affiliations, 220–221
determining how events take place in, bill for services, 214–216
8–9 case notes, 204–210
Edward Jones v. John Crane Incorporated, court qualifications and testimony,
et al, 237–239 221–222
Geronia Quarles v. Advocate Mines, Ltd., editorial positions, 223
242–243 education and training, 218–220
Gunderson v. A. W. Chesterton, 169–171 employment history (academic),
Harold Phelps and Neva Phelps v. 224–225
Hamilton Materials, Inc., employment history (nonacademic), 224
246–247 expert testimony by, 176, 183–184, 192
Horton v. Harwick Chemical Corporation, lecture seats and speaking engagements,
178–193 225–226
Joseph Garza and Mary Garza v. Asbestos publications, 222–223
Corporation Limited, 249–252 résumé of, 217–226
key players in, 7 Common law, English, 15, 16
Lewis Sunderman v. Aqua-Chem Inc., Confidence of expert witnesses, 38–39,
235–237 140–141
Merle Sandy v. Exxon Mobil Corporation, Consensus standards, 14
247–249 Contracts, retention, and consulting
Moore v. American Honda, 171–178 agreements, 106–107
Philip Hoeffer v. Rockwell Automation, Contradictions, justified, 66
239–241 Credibility of expert witnesses, 5–6
physical conditions of, 7–8 Criminal cases, 67–68, 91, 94–96
products liability claims, 68, 89–91, Cross-examination testimony, 54, 63–65,
98–99, 193–201 100–101
rape, 19–20, 97–98 Curriculum vitae. See Résumés
timing of, 8 Custody, chain of, 16–17
toxic torts, 73–74
varieties of, 89 D
workers’ compensation, 69–71, 110–111
Causation, 9, 145n6 Daubert-Kumho hearings, 53, 147n10
CD-ROM databases, 22 Declaration of fees, 109
Cecil and Oneida Martin v. Plant Demonstratives
Maintenance, Inc. of California, audiovisual, 32–33
230 models, 28–32
Index 255
value of, 25 backgrounds of, 9–10

videotape reenactment, 30, 32 bad, 119–132
Depositions, 51–52, 106–107 challenges of, 142
cancellation fees, 111–112 Christopher E. Andreas on, 113–137
locations for, 59–60 confidence of, 38–39, 140–141
perpetuation, 51, 146n2 contracts, retention, and consulting
Destructive testing, 18 agreements, 106–107
Direct examination, 54 credibility of, 5–6
Disclosure versus privacy, 112 in criminal cases, 67–68
Discovery process, 45–46, 84 deposition of, 51–52, 59–60
Diseases of Occupations, The, 21 evaluating potential problems, 4–5
DNA testing and rape evidence collection fee questions asked of, 58–59
kits, 19–20, 97–98 fee structure, 105–110, 212–213
Documentation, 86–87 foundation of knowledge, 27, 145n1
Donna Traverso, et al. v. Lorillard Tobacco good, 114–119
Company, 231 impeachment of, 63–66
Double-edged sword of testimony, 41–42 as invisible experts, 40–41
Drinker, Phillip, 146n1 knowledge gained in normal work, 2–3
Dyson, William, 57 marketing, 42–43
objectiveness of, 4
E preparation of witnesses by, 39–40
privacy versus disclosure and, 112
Edward Jones v. John Crane Incorporated, et pro bono work by, 110, 149n2
al, 237–239 rehabilitation of, 60–61
Electron microscopy, 33–34, 35f, 98 résumés of, 59, 217–226
Emergency rooms and rape evidence retrospective work, 4–5
collection kits, 19–20 truth and, 41–42
English common law, 15, 16 "ugly," 132–137
Epidemiology, 77–79, 101–102 who qualifies as, 37–38
Errors and omissions, recognizing, 3, 4 working for defense versus plaintfiffs, 43
Evidence Exponential decay curve, 33, 34f
chain of custody, 16–17, 92–93, 98,
149n6, 211
F
hazardous materials as, 17–18
hearsay, 9, 15–16 Fee(s)
nondestructive testing, 18 bases, 108–109
preponderance of, 77, 114, 145n2 billing practices, 109, 214–216
rape, 19–20, 97–98 cancellation, 111–112
scientific accuracy, completeness, and collecting, 110
documentation, 86–87 declaration of, 109
Exclusive remedies, 69, 148n2 hourly, 107–108
Excrement, human, 102–103 questions about, 58–59
Experts, invisible, 40–41 structure of, 105–110, 212–213
Expert witnesses. See also Testimony; travels expenses and, 111
Witnesses Foundation of knowledge, 27, 145n1
answer format during questioning, 47 Fundamentals of Industrial Hygiene, 21
attacked personally, 57–58
attorney-client privilege and, 50 G
avoiding becoming advocates, 50
background reading prior of, 6 Galleries, courtroom, 147n8
Geronia Quarles v. Advocate Mines, Ltd., Judges, 9, 25

242–243 determining weight of testimony, 25–27
“Going barefoot,” 85 pro tem, 68, 148n1
Goldman, supra, 187 Juries, 65, 147n7
Goldman v. Johns-Manville Sales Corp., 190 selection, 53
Gramm-Leach-Bliley Act, 58, 147n4 Justified contradictions, 66
Gunderson v. A. W. Chesterton, 169–171
K
H
Key players in litigation, 7
Handling Occupational Disease Cases, 73 Knowledge, foundation of, 27, 145n1
Harold Phelps and Neva Phelps v. Hamilton
Materials, Inc., 246–247 L
Hatch, Theodore, 146n1
Hazardous materials, 17–18 Laws
risk from, 78–79 ignorance of, 14
Health-related cases peepshow, 91–92, 148n3
epidemiology and, 77–79, 101–102 purpose in safety and occupational
expert witnesses hired for, 75–76, 92–93 health, 79
medical misdiagnosis, 74 Lawsuits. See Litigation
technology and, 102–104 Leading questions, 65–66
toxic torts, 73–74, 102–103 Lewis Sunderman v. Aqua-Chem Inc.,
Hearsay rule, 9, 15–16 235–237
Hepatitis, 101–102 Liability
Hinds, William, 26 alternative, 186–187
20-20 hindsight, 5, 6, 142 causation and, 9, 145n6
Hold-harmless agreements, 84–85 insurance, 82–83
Homicides, 91, 94–96 premises, 68
Horton v. Harwick Chemical Corporation, products, 68, 89–91, 98–99, 193–201
178–193 professional, 81–87
Hourly fees, 107–108 Library collections of safety and industrial
Huston v. Koneiczny, 189–190 works, 21
Limited financial assets and "going
barefoot," 85
I
Lipoid pneumonia, 103–104
Ignorance of the law, 14 Literature, medical and scientific
Impeachment, 63–66, 147n9 CD-ROM databases, 22
In camera hearings, 53 held by libraries, 21–22
Indemnification, 83–84 on the Internet, 22–23
Industrial Dust, 21, 26, 146n1 MEDLARS searching for, 22
Industrial Hygiene and Toxicology, 21 selecting reliable, 23–24
Insurance, professional liability, 82–83 Litigation
Internet, the, 22–23 avoidance, 81–82
Interrogatory responses, 46–47 discovery process, 45–46
Invisible experts, 40–41 hearsay in, 9
identifying key players in, 7
interrogatory responses in, 46–47
J
origins of, 77–78
Joseph Garza and Mary Garza v. Asbestos physical conditions of incidents and, 7–8
Corporation Limited, 249–252 society and, 2
Index 257
statute of limitations and, 12–13, 146n3 Occupational Safety and Health

subpoenas and, 1–2 Administration, U. S., 21
timing of incidents and, 8 Occurrence-based insurance, 82–83
toxic-tort, 73–74 OSHA. See Occupational Safety and Health
Livor, 149n8 Administration, U. S.
Lorhmann test, 180–186
Lorhmann v. Pittsburgh Corning Corp., P
180–186, 188
Pang v. Minch, 182
Peepshow laws, 91–92, 148n3
M
Percipient witnesses, 114, 145n1
Malpractice, 11–13, 81–82 Perpetuation depositions, 51, 146n2
Mandatory settlement conferences, 52 Per se, negligence, 13–14
Medical misdiagnosis, 74 Personal attacks against expert witnesses,
MEDLARS, 22 57–58
Merle Sandy v. Exxon Mobil Corporation, Philip Hoeffer v. Rockwell Automation,
247–249 239–241
Mesothelioma, 93, 169–171 Physicians
Microscopy, electron, 33–34, 35f malpractice, 11–13
Minnich v. Ashland Oil Co., 186–187, 189 medical misdiagnosis cases and, 74
Misdiagnosis, medical, 74 Premises liability claims, 68
Models, 28–32 Preponderance of evidence standard, 77,
Moore v. American Honda, 171–178 114, 145n2
Motion for summary judgment, 52 Pretexting, 58, 147n3
Multistate operations and professional Preventive actions, 78
liability, 84 Prime directive, 42
Myiasis, 92, 148n5 Privacy versus disclosure, 112
Pro bono work, 110, 149n2
N Products liability claims, 68, 89–91, 98–99
Willmar Poultry Company v. Carus
National Enquirer, 23 Chemical Company, 193–201
National Institute of Occupational Safety Professional liability
and Health, 21 actionable events and activities and,
National Library of Medicine, U. S., 22 85–86
Negligence, 139 avoidance of litigation and, 81–82
legal definition of, 11 "going barefoot" and, 85
per se, 13–14, 146n4 hold-harmless agreements and, 84–85
professional, 11–13 indemnification and, 83–84
statutory, 13–14 insurance, 82–83
New England Journal of Medicine, 23 multistate operations and, 84
NIOSH. See National Institute of scientific accuracy, completeness, and
Occupational Safety and Health documentation, 86–87
NLM. See National Library of Medicine, U. Professional negligence, 11–13
S.
Nondestructive testing, 18 Q
O Qualifications of expert witnesses, 37–38

Questions
Oaths, 53, 147n3–4 anticipating, 48–49
Objectiveness of expert witnesses, 4 fee, 58–59
format of answers to, 47 T

leading, 65–66
Testimony. See also Expert witnesses
rehabilitative, 60–61
cross-examination, 54, 63–65, 100–101
demonstratives used in, 25
R depositions, 51–52, 59–60, 106–107
direct examination, 54
Rape evidence collection kits, 19–20, 97–98
impeachment of, 63–66, 147n9
Re-cross, 60
justified contradictions in, 66
Redirect, 60
rehabilitation of expert witnesses
Regulatory citations, 68, 148n2 through, 60–61
Rehabilitation of expert witnesses, 60–61 responsiveness to questions during, 47
Reports, workers’ compensation case, 70–71, during trial, 53–54
110–111 truthful, 41–42, 141
Re-re-direct, 60 weight of, 25–27
Respondeat superior, 12, 99, 146n2 Testing, nondestructive, 18
Responses, interrogatory, 46–47 Torts, toxic, 73–74
Résumés Toxic torts, 73–74
of attorneys, 217–226 Travel expenses, 111
of expert witnesses, 59, 217–2216 Trials
Retainers, 106–107 basic elements, 114
Risk, 78–79 closing arguments, 139–143
jury selection for, 53
Robertson v. Allied Signal, 184
testimony during, 53–54
Rules of evidence
verdicts, 54–55
chain of custody, 16–17
Triers of fact, 9
hazardous materials, 17–18 determining weight of testimony, 25–27
hearsay, 9, 15–16 jury selection and, 53
nondestructive testing, 18 Truth in testimony, 41–42, 141
rape evidence collection kits and, 19–20 Tyndall, John, 96
Tyndall effect, 96–97
S
V
Schultz v. Keene Corp., 183
Scientific accuracy, completeness, and Verdicts, 54–55
documentation, 86–87 Videotape reenactments, 30, 32
Scientific method, the, 145n3 Voir dire, 53, 147n6
Standards
of care, 12 W
consensus, 14
Willmar Poultry Company v. Carus Chemical
preponderance of evidence, 77, 114,
Company, 193–201
145n2
Witnesses. See also Expert witnesses;
Statute of limitations, 12–13, 146n3
Testimony
Statutory negligence, 13–14 oaths taken by, 53, 147n3–4
Stipulations, 51, 146n1 percipient, 114, 145n1
Subpoenas, 1–2 preparation, 39–40
duces tecum, 24 Workers’ compensation cases, 69–71,
Summers v. Tice, 186 110–111
Synergist, The, 57 Wrongful death claims, 68–69

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fm Page i Monday, June 18, 2007 12:02 PM

Surviving in the Courtroom

Boca Raton London New York

CRC Press is an imprint of the

No claim to original U.S. Government works

International Standard Book Number-10: 1-4200-5503-8 (Hardcover)

Library of Congress Cataloging-in-Publication Data

Visit the Taylor & Francis Web site at

1 Involvement in a Legal Action .............................. 1

3 Rules of Evidence and Codes of Civil

iv Expert Witnessing and Scientific Testimony

4 The Body of Scientific Literature ......................... 21

5 Foundation Equals Persuasion.............................. 25

6 The Expert Witness .............................................. 37

7 Speaking the Language of Lawyers ...................... 45

8 To Do the Courtroom Dance, First Learn

9 Skeletons in Your Closet ...................................... 57

10 Impeachment Is Not Just for Presidents! ............ 63

11 Criminal, Civil, and Workers’ Compensation

12 Toxic Torts in Retrospect..................................... 73

vi Expert Witnessing and Scientific Testimony

13 One Case Is Tragic; Two or More Cases Are

14 Professional Liability ............................................ 81

15 Out of the Ordinary: Investigations, Cases,

16 Do You Charge for Your Testimony? No,

Table of Contents vii

Contracts, Retention, and Consulting Agreements........................... 106

17 Expert Witnesses: The Good, the Bad, and

18 Closing Arguments ............................................. 139

Notes ............................................................................. 145

Litigation Glossary ....................................................... 151

Appendix A: California Code of Civil Procedure,

Appendix B: Actual Case Report Examples ................. 169

Appendix C: Forms and Other Data ............................ 203

viii Expert Witnessing and Scientific Testimony

Appendix D: The Curriculum Vitae ............................ 217

x Expert Witnessing and Scientific Testimony

be excellent witnesses for either side of a complex litigation. A physician I

I would like to acknowledge and thank the following contributors whose

About the Author

Welcome to the World of Litigation!

2 Expert Witnessing and Scientific Testimony

The emotional response to receipt of a subpoena will change over time

How Did I Get Into This?

I’m Not an Expert or a Witness

Involvement in a Legal Action 3

potentially control errors, processes, or omissions that might cause harm or

When Recognizing Errors and Omissions Is Your Job

4 Expert Witnessing and Scientific Testimony

Involvement in a Legal Action 5

6 Expert Witnessing and Scientific Testimony

Involvement in a Legal Action 7

The What and Where

8 Expert Witnessing and Scientific Testimony

Involvement in a Legal Action 9

contribute to the knowledge base in support of your opinions. Court or jury

10 Expert Witnessing and Scientific Testimony

12 Expert Witnessing and Scientific Testimony

or breach of duty in the performance of a professional service and thus

went to trial as a legal-malpractice action, it was won, and the malpractice

14 Expert Witnessing and Scientific Testimony

Ignorance of the Law Is No Excuse