FBI Admissions
The headline read, “Feds knew of bad lab data used in trials. Many inmates not told that evidence against them was discredited.” Thus began an April 18, 2012, article by Spencer S. Hsu of the Washington Post. Hsu may be a candidate for the Pulitzer Prize for his work, which seems to support many of the comments fielded by PBS's Frontline. “Justice Department officials have known for years that flawed forensic work might have led to convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.  Officials started reviewing cases in the 1990s after reports that sloppy work at the FBI lab had produced unreliable forensic evidence.” 

In one Texas case, the innocent party was executed by the State of Texas, a leader in capital punishment sentences. The Connecticut legislature abolished capital punishment this year, and other states are considering it, and will probably cite cases cited by Hsu and the Innocence Team, a university study group that has led to many overturned convictions based on false testimony.

Parallels in the Insurance World
It was the case of Daubert [Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 570, 113 S.Ct. 512 {1999})] followed closely by Kumho Tire [Kumho Tire v. Carmichael, (526 U.S. 137, 119 S.Ct. 1167 {1999})] that brought to light the challengeability of so-called “experts” in what amounted to pseudo-science, at least in the federal court systems. The U.S. Supreme Court in Daubert established that the judge was empowered to decide whether to allow “scientific evidence” based on four primary conditions for admissibility:

1. Whether the expert's theory or technique has been subjected to peer review and publication;
2. Whether the theory or technique can be or has been tested;
3. What is the known or potential rate of error for any test or scientific technique that has been used, plus the existence and maintenance of standards controlling the technique's operation; and 
4. Whether the technique is generally accepted.

In Kumho Tire the Supreme Court curtailed use of “junk science” that had been used in the courtroom by giving federal judges even more latitude in disallowing expert testimony through a process of previewing it. Such testimony must meet the test of Rule 702 of the Federal Rules of Evidence, as applied in Daubert.

Every day hundreds, if not thousands, of product-liability claims are made, either by a direct claim to the manufacturer or by the filing of a lawsuit. It is as big a business for attorneys and “experts” as is any auto-insurance injury claim process. On television we constantly see the ads asking, “Have you taken 'X' [whatever the product or medicine is] and suffered bad results? You may not even be aware of the dangers yet. Contact Sleazebag Shyster & Shrewd immediately to protect your rights in our class action.” But then comes the big “but”: Prove it!

Burden of Proof
It was emotional to see the forlorn shrimpers and fishermen following the BP oil spill in the Gulf of Mexico in 2010 complaining about not getting reimbursed for their loss, when the ads and the New York attorney in charge of funds distribution said they were paying all legitimate claims as fast as they could. The key word was “legitimate.” Again the issue was, “Prove it!” A primary problem was that many of these self-employed fishermen, boaters or shrimpers were in a “cash business.” The daily catch was sold on the dock to wholesalers who would pay in cash and ship the product to markets in other states. The first question the claim investigators would ask is, “Where are your federal income tax records for the last three years?” Oops! Dah, income tax?

Well, what other proof might they have? It is the same in a business income (BI) claim under a property form. One could almost make a song out of it: “Books and Records, Books and Records, Go together like Crooks and Beggars!” Just as in the old Chinese laundry refrain: “No tickee, no laundry!”

Expert Selection
In more than 40 years in the claims industry, I have hired many experts in many different areas ranging from arson investigation to electrical malfunction, roof collapse, hail damage, and so forth. These are common in the adjusting business. Even auto-accident reconstruction can require someone who really knows his or her “stuff.” So what does one look for in the criteria of an expert? 

Certainly academic accreditation is one factor. Also consider a typical workers' compensation disability dispute. The employee's licensed physician, with all sorts of degrees and certifications, says the patient was 70-percent disabled. The insurer's “independent medical examiner,” with credentials just as good and valid, says the employee was only 30-percent disabled. What are the options? Negotiate? Get a third opinion? Go to trial and let a judge decide? 

The first expert I hired was a specialist in large-truck brake systems. He examined the involved truck, and I then received about a three-hour lesson on truck brakes. I was convinced. So was my adversary. We won. I recall another case involving a sideswipe accident. Key to the case was the width of the traffic lanes and the width of the involved autos. I didn't have to hire an expert that time; I measured the lanes and then called the reference librarian (at the Philadelphia Public Library as I was then working in Pennsylvania and New Jersey), and within half an hour she called back with the exact measurements of the autos involved in the wreck. 

Another time I needed to know the average age of chicken coops in Arkansas, as an insurer was debating the amount of depreciation involved. I called my secretary into my office and said, “I want you to find me the oldest operating chicken coop in Arkansas!” She looked at me like I was crazy. Well, it wouldn't have been the first time…I suggested that she start with the Little Rock Public Library Reference Librarian. Within an hour the library had put her in contact with the Arkansas Poultry Association, which had just recently conducted a survey on the age of chicken coops. One was over a hundred years old and still in operation. My case was won.

I suppose today such evidence would be looked up on Google or some other Internet search engine. Should we not rely on the brief initial summaries in such findings? Find the source behind the Internet posting, contact that person, and find out the qualifications and accuracy of what was posted online. Otherwise, when the adjuster gets to court with his Internet “evidence,” the judge and the plaintiff may laugh him out of the courtroom. Call it being Dauberted. 

Visit the Expert
Some claims adjusters don't go out much anymore; they seem locked behind computers. When hiring an expert, it is imperative to go visit him or her. If they have good credentials but talk like Donald Duck or look like one of the Three Stooges, or are so steeped in academic lingo that the jury will never be able to understand what they're trying to prove, then find another expert. 

I recall a serious lawsuit that eventually (after I bought out of it) ended up in the Indiana Supreme Court. It involved a double leg amputee. Someone had recommended a “great defense attorney.” I'd hired him and got glowing reports of what he thought of my plaintiff's case, one of those, “Well, he hasn't a legal leg to stand on.” Shoot, he didn't have any legs to stand on—that was the problem. I was suspicious, and as I was going to be in Chicago in the near future I found out from my attorney's secretary when the attorney would be in a trial. He was unaware of my presence in that courtroom in Northern Indiana as I observed him defending some young kid in an auto-accident claim. His questioning was blah. He'd allowed his client to show up in court looking like a bum. It only took me a few minutes of observation to decide that, whether or not there was liability, this was a case I wanted out of, so I settled while my co-defendant elected to fight on. They eventually won—in the state's Supreme Court—but the cost for doing so was far more than I paid to buy out of the case. Know your expert and defense attorney.

There is no central clearinghouse for experts. There are various agencies that will supply names of so-called experts; I'm even on a couple such lists. One trick I learned for a really serious case is that if there is some sort of professional organization to which the expert being considered belongs, get the names of all the potential experts in that field and put them all on retainer, even if it costs a hundred bucks or more each. While you may actually use only one, by having the others available the opposition cannot hire them, and the list looks great in the discovery process. It may seem like a low-down, dirty trick—but it is worth the cost. 

Protecting Evidence
One of the greatest hazards in claim resolution is the problem of spoliation of evidence. This occurs when the physical evidence—anything from an entire vehicle or a part to a small widget in a machine, or a bottle of whatever is alleged to have caused the damage—is lost, damaged or modified. Fortunately it does not occur too often, but when it does, the loss of the physical evidence can be disastrous. Sometimes one must pay to have evidence protected. After an expert has examined it, the question may be what to do with it. Eventually the other side may want to have their expert examine the physical evidence, too, so if it has been thrown away or lost, the other side will claim spoliation and your expert's testimony will be meaningless. 

Protecting the vehicles following a severe and fatal wreck can be difficult. The cops want the cars removed quickly, before any expert could get there. The insurers don't want to pay storage charges, especially on a vehicle they don't insure. The junk yard needs the space. But the cars are evidence. Get a court injunction to preserve them, if necessary, but protect that evidence. At the same time, be cautious. If an expert is to examine the “other car,” obtain the owner's permission before touching it. 

The Wrong Wright Wrench Company
I recall one claim where a wrench had broken, resulting in a serious injury. The wrench had the word “Wright” on it, so the insurer's adjuster found a Wright Wrench Company and sent the wrench to it for examination. Turned out to be the wrong Wright Wrench Company, and by the time the right Wright tool manufacturer was found, the evidence was lost in the mail. Protect thy evidence—it is not just old junk in a storage closet or in a desk at the back of the office. Don't let the building custodian throw it out.

So now we know. Fingerprint expertise is just guessing, and most forensic testimony—other than DNA—is probably worthless. Certification may mean nothing. Innocent people go to jail or the death chamber while the guilty go free. That's the message we are now learning in 2012 after years of “CSI” on television. That's the gamble of the courtroom. It is an equally hazardous gamble in an insurance claim. One may have the “expert,” but the other side will have their own expert; and juries are notoriously bored by it all. It is all a gamble, and gambling is a bad habit.