David H. Williams again named Super Lawyer
David H. Williams is again named to Super Lawyer’s Mid-South Super Lawyers in the category of products liability. David has been selected by his peers for inclusion in Super Lawyers every year since 2006. He also was selected as one of the Top 50 lawyers in Arkansas by Super Lawyers.
Mid-South Super Lawyers 2011
Mid-South Super Lawyers 2010
Mid-South Super Lawyers 2009
Mid-South Super Lawyers 2008
Mid-South Super Lawyers 2007
Mid-South Super Lawyers 2006
Is the expert qualified?
Knowledge, skill, experience, training or education.
Is the expert’s testimony reliable?
Daubert factors: Can it or has it been tested? Peer reviewed? Error
rate? Standards and controls? Generally accepted in the scientific
community? And, other factors.
Exclusion of expert’s testimony: Summary judgment (higher burden -
moving party must establish no genuine issue of material fact). Daubert
challenges (lower burden, non-moving party has burden of establishing
proper foundation for admission by preponderance of evidence).
Selection of Experts.
Word of mouth: client; authors of articles in the field; college
professors; other lawyers.
The internet.
Expert witness services.
Assessing Expert: check out his background. Prior testimony and
articles.
Interview the expert. Check out how they are going to do. Always eyeball
the expert.
Preparation.
Provide expert with all materials of any value in the case. Visit the
scene (expert now becomes a fact expert). Show him the product. Show
him other side’s expert deps and reports.
Determine bases for expert’s opinions. Theme of case. Cross-examine.
Direct Examination.
Organize the order of the testimony. Foundation re cv. Purpose of
testimony and issues addressed and not addressed. Sources.
Conclusions. Bases. Restatement of conclusions.
Qualify Expert: full explanation of cv. Specific qualifications for
case. Material reviewed. Stmt of conclusions. PPT, blowups, animations,
drawings, etc.
Questions on Direct: go thru qualifications; go thru specific exposure
to issues in case; illustration of procedure or technique involved; use
of models; use of drawings; why done?; if varied from procedure at
issue, then why?; explain causation factors.
Example: Reconstruction expert – establish facts of accident;
examination of scene; meaning of facts and evidence from scene; skid
marks equal speed and why?; damage equals speed and why?; calculations
performed before jury on board or chart.
Warts: expose them on direct; such as exorbitant fees.
Deposition Checklist for a Medical Witness or Expert
I. Qualifications
You must look into the expert qualifications when deciding whether or not he/she is qualified. You cannot solely rely on the expert’s CV when determining this.
First, you must look into the expert’s educational background. You need to identify professors and instructors that the expert had, the nature of the expert’s course work, texts the expert used, degrees and honors the expert received, and the expert’s class rank.
Second, look into the expert’s experience and employment history. Identify prior employers, supervisors, the nature of the expert’s duties, and how the expert’s work experiences relate to the subject of the expert’s testimony.
Next, identify the expert’s professional affiliations and recognition. Find out what organizations and societies of which the expert is a member, licenses and certifications the expert has received or attempted to received, committees upon which the expert has served, and honors and awards the expert has received.
Finally, you need to look at the expert’s writing and research he or she has conducted. Look at the expert’s published articles, comments on publications and book reviews, lectures presented, and research projects conducted in whole or in part.
II. MEDICAL OR SCIENTIFIC SUBJECT MATTER
When you are hiring an expert to testify on a medical or scientific matter, you must test the general knowledge of the expert by asking questions in the abstract about the medical or scientific subject matter related to the issues of the lawsuit. This interrogation serves two functions. It gives you insight into the depth of the expert’s knowledge, but more importantly, an expert who is evasive and non responsive in answering a question directed specifically to the circumstances of the lawsuit will often give a candid answer to a medical question when the question is posed in the abstract. Engaging in a discussion of medicine with the expert prior to inquiring about the case at hand, may result in concessions and important cross-examination material for trial.
III. INTEREST OR BIAS
Look into the expert’s business or social relationships and determine if he or she has a relationship with the employing party, counsel, or employer. Determine the number of prior contacts wit the employing party, the nature of any economic or other benefits the expert has derived from his or her association with the employing party.
Also, look at the witnesses’ relationship loyalty to the industry, occupation or profession of the employing party. You must determine what organization both the expert and employing party are affiliated, meetings that both expert and employing party have attended, and whether the witness or his firm has ever been personally involved in similar litigation to determine this.
Next, you must examine the expert’s earning related to his or her testimony. You must look into the sources of those earnings, whether there is a pattern for one side, one carrier, one law firm, or one defendant, percent of income derived from expert witness fees versus perfect of income derived from employment, and compensation the witness received or expects to receive in the current lawsuit.
IV. SEARCH FOR DOCUMENTS FOR IMPEACHMENT
The next step in hiring an expert witness is you must search for document that may be used for impeachment. Look at research papers and reports prepared by the expert on matters similar to the subject of the lawsuit, other depositions given by the expert on similar matter, correspondence, notes, time records and reports prepared by the expert during preparation and formulation of his or her opinions, and search for article the expert may deem authoritative. When examining the articles, you need to look at what texts the expert keeps in his or her library or office, whether the expert has consulted or reviewed any texts or literature in the preparation of his opinion, and whether the expert is familiar with the leading writers on the subjects of his opinion.
V. ENGAGEMENT; ASSOCIATION WITH CASE
Next, you need to determine the expert’s engagement and association with the current case. Look at when the witness was employed or consulted, who located and employed the expert, what was the stated purpose of the witnesses’ engagement and what instructions were given to the expert, what oral and documentary information was furnished to the witness, each task performed by the expert while developing his or her opinion, any work which may be performed by the expert after the deposition and the purpose of the future work.
VI. THE EXPERT’S OPINION
When you are getting the expert’s opinion, first ask the expert to state his opinion and the basis for the opinion. The opinions should be elicit opinions from the expert on specific issues in the lawsuit that are within the scope of his expertise. Then, ask the expert to assume facts most favorable to your client’s position, assuming these facts to be true, ask the expert if this would alter his or her presently held opinion.
VII. REVIEW IN DETAIL MEDICAL RECORDS AND FILM PREPARED OR MADE AVAILABLE
TO THE WITNESS
When the expert has reviewed medical records or other materials, request the expert to describe what is depicted in each photograph and stat what significant the photograph has to the formulation of his or her opinion. Also, request the expert to review his notes and interpret anything that is illegible, symbols and abbreviations in notes, and to state the significance of omitted information and entries.
VIII. ELICIT AN ENDORSEMENT OF YOUR EXPERT FROM THE OPPONENT’S EXPERT
Finally, figure out if the expert for the opposing party personally knows your expert. Ask opposing party’s expert if your expert is well-respected in their profession or discipline, and if opposing party’s expert himself respects your expert.
10 Things I wish I knew When I started My PI Practice
- I’m not a non-profit corporation.
When to charge and when not to charge. How to figure out that we do our best work by learning not to take on business we have no business taking on. - Case Evaluation
- experience – no substitute – law – rules – lawyers, judges and juries
- identify the issues – time spent evaluating potential cases
- judge, jury, jurisdiction
- likelihood of settlement – time is money
- cost to work up – time is money
- Type of cases – type of practice
What do I want to do? What am I suited to do? What cases can I make money doing? What cases can I lose money doing? Pharmaceuticals. Class actions. Products. Medical malpractice. Car wrecks. Tractor-trailer wrecks. Speciality cases such as plane crashes, insurance coverage, business torts and non-competes, arbitration clauses. - Business Plan
Think like a businessman. Real estate developer-joint venturer. 5-year plan. 10-year plan; 15-year plan; “Get out number.” - How to get business. What type of plan? What kind of lawyer?
- Direct to consumer
- Peer to peer
- How to get business?
Exposure. Professional organizations. Community organizations. Teaching opportunities. Speaking opportunities. Socialization. How to get business without seeming like you are trying. (Jock Davis) - Association, Joint Venturing, and Referral.
Who with? Fee agreements. How to handle? - The Internet.
Computers. Mac or Windows. IT guy. Websites, Facebook, Twitter, I-pads, smart phones, technology. - Don’t Petunia on the People Who Write the Checks!
Adjusters. Lawyers. And, others. - Figure out your Management Style and then go fix it.
Hiring, firing and training costs money. Finding good people and rewarding/retaining them makes money.
David Williams Speaks at Several Legal Seminars Recently
David Williams spoke recently at the Arkansas Bar Association’s annual meeting in Hot Springs, the Arkansas Trial Lawyers Personal Injury Seminar in Little Rock, and the Barristers in Evidence Seminar also in Little Rock. The topics included “Locating, Qualifying and Preparing Experts”, and “10 Things I Wish I Knew When I Started My Personal Injury Practice”.
David H Williams Receives Maurice Cathey Award
David H. Williams will receive the Maurice Cathey Award at the Arkansas Bar Association’s annual meeting in Hot Springs, Arkansas, this June for outstanding contributions to The Arkansas Lawyer editorial board. This is the second time David received this award, having first been awarded it in 2001 when he chaired the Board.
Williams Reappointed to Arkansas Lawyer Board
David H. Williams has been reappointed to the Arkansas Bar Association’s ‘Arkansas Lawyer’ Editorial Board. David has served on the Board since 2001 when he last received the Maurice Cathey Award for his contributions as Chair of the Editorial Board.
Full Press Release
For Immediate Release
Anna Hubbard, Publications Director
Arkansas Bar Association
David H. Williams of The Law Office of David H. Williams has been appointed to the Editorial Board of the Arkansas Bar Association by 2011-2012 President Tom D. Womack of Jonesboro. The appointment becomes effective during the Association’s 2011 Annual Meeting in June.
The Arkansas Bar Association is a voluntary, statewide Association with more than 5,000 attorney members. The Association and its members participate in a variety of programs and services for the legal profession and society. Among the purposes of the Association are advancing the administration of justice in Arkansas and fostering high ideals of integrity, learning and public service among its members. The Arkansas Bar Association was founded in 1898.
Study Finds Medical Errors Annually Cost at Least $19.5 Billion Nationwide
Findings from a new study released today estimate that measurable medical errors cost the U.S. economy $19.5 billion in 2008. Commissioned by the Society of Actuaries (SOA) and completed by consultants with Milliman, Inc., the report used claims data to provide an actuarially sound measurement of costs for avoidable medical injuries. Of the approximately $80 billion in costs associated with medical injuries, around 25 percent were the result of avoidable medical errors.
“This report highlights a singular opportunity for both improving the overall quality of care and reducing healthcare costs in this country,” says Jim Toole, FSA, CERA, MAAA and managing director of MBA Actuaries, Inc. “Of the $19.5 billion in total costs, approximately $17 billion was the result of providing inpatient, outpatient and prescription drug services to individuals who were affected by medical errors. While this cost is staggering, it also highlights the need to reduce errors and improve quality and efficiency in American healthcare.”
Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors. According to a recent SOA survey, which identified ways to bend the national healthcare cost curve, 87 percent of actuaries believe that reducing medical errors is an effective way to control healthcare cost trends for the commercial population, and 88 percent believe this to be true for the Medicare population.
“We used a conservative methodology and still found 1.5 million measureable medical errors occurred in 2008,” says Jonathan Shreve, FSA, MAAA, consulting actuary for Milliman and co-author of the report. “This number includes only the errors that we could identify through claims data, so the total economic impact of medical errors is in fact greater than what we have reported.”
Key findings from the study include:
- There were 6.3 million measureable medical injuries in the U.S. in 2008; of the 6.3 million injuries, the SOA and Milliman estimate that 1.5 million were associated with a medical error.
- The average total cost per error was approximately $13,000.
- In an inpatient setting, seven percent of admissions are estimated to result in some type of medical injury.
- The measurable medical errors resulted in more than 2,500 avoidable deaths and more than 10 million excess days missed from work due to short-term disability.
“In the past, the insurance industry had low visibility in its involvement in quality-improving initiatives,” says Toole. “Now is the time for the industry to assume an active role by helping healthcare systems implement an actuarial approach, which can more systematically identify potential causes of medical errors than alternative approaches.”
The study also identifies the 10 medical errors that are most costly to the U.S. economy each year. Approximately 55 percent of the total error costs were the result of five common errors:
- Pressure ulcers
- Postoperative infections
- Mechanical complications of devices, implants, or grafts
- Postlaminectomy syndrome
- Hemorrhages complicating a procedure
SEC charges Johnson & Johnson with bribery; settles for $70 million
The Securities and Exchange Commission today charged Johnson and Johnson (J&J) with violating the Foreign Corrupt Practices Act (FCPA) by bribing public doctors in several European countries and paying kickbacks to Iraq to illegally obtain business.
The SEC alleges that since at least 1998, subsidiaries of the New Brunswick, N.J.-based pharmaceutical, consumer product, and medical device company paid bribes to public doctors in Greece who selected J&J surgical implants, public doctors and hospital administrators in Poland who awarded contracts to J&J, and public doctors in Romania to prescribe J&J pharmaceutical products. J&J subsidiaries also paid kickbacks to Iraq to obtain 19 contracts under the United Nations Oil for Food Program.
J&J agreed to settle the SEC’s charges by paying more than $48.6 million in disgorgement and prejudgment interest. J&J also agreed to pay a $21.4 million fine to settle parallel criminal charges announced by the U.S. Department of Justice (DOJ) today. A resolution of a related investigation by the United Kingdom Serious Fraud Office is anticipated.
“The message in this and the SEC’s other FCPA cases is plain – any competitive advantage gained through corruption is a mirage,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “J&J chose profit margins over compliance with the law by acquiring a private company for the purpose of paying bribes, and using sham contracts, off-shore companies, and slush funds to cover its tracks.”
Cheryl J. Scarboro, Chief of the SEC Enforcement Division’s Foreign Corrupt Practices Act Unit, added, “Bribes to public doctors can have a detrimental effect on the public health care systems that potentially pay more for products procured through greed and corruption.”
According to the SEC’s complaint filed in federal court in the District of Columbia, public doctors and administrators in Greece, Poland, and Romania who ordered or prescribed J&J products were rewarded in a variety of ways, including with cash and inappropriate travel. J&J subsidiaries, employees and agents used slush funds, sham civil contracts with doctors, and off-shore companies in the Isle of Man to carry out the bribery.
Without admitting or denying the SEC’s allegations, J&J has consented to the entry of a court order permanently enjoining it from future violations of Sections 30A, 13(b)(2)(A), and 13(b)(2)(B) of the Securities Exchange Act of 1934; ordering it to pay $38,227,826 in disgorgement and $10,438,490 in prejudgment interest; and ordering it to comply with certain undertakings regarding its FCPA compliance program. J&J voluntarily disclosed some of the violations by its employees and conducted a thorough internal investigation to determine the scope of the bribery and other violations, including proactive investigations in more than a dozen countries by both its internal auditors and outside counsel. J&J’s internal investigation and its ongoing compliance programs were essential in gathering facts regarding the full extent of J&J’s FCPA violations.
Kelly G. Kilroy and Tracy L. Price of the Enforcement Division’s FCPA Unit and Brent S. Mitchell and Reid A. Muoio conducted the SEC’s investigation. The SEC acknowledges the assistance of the U.S. Department of Justice, Fraud Section; Federal Bureau of Investigation; Serious Fraud Office in the United Kingdom; and 5th Investigation Department of the Regional Prosecutor’s Office in Radom, Poland. The SEC’s investigation is continuing.
Topamax Birth Defects
The United States Food and Drug Administration (FDA) issued a warning this month regarding the drug Topamax. A 2008 scientific study showed that pregnant women taking Topamax had an 11 times higher rate of birth defects. Due to the dangerous side effects, the FDA increased the pregnancy warning for Topamax to Category D – meaning there is positive evidence of human fetal risk based on human data.
Topamax is an anti-convulsant drug, originally used for the treatment of epileptic seizures. However, in 2004 the FDA also approved Topamax to aid in the prevention of migraine headaches. Topamax has also been investigated for use in treating obesity, cocaine dependence, bipolar disorder, alcoholism, and post traumatic stress disorder.
The most common side effects of Topamax are numbness and tingling, fatigue, taste change, weight loss, memory loss and difficulty concentrating. However, the drug can have dangerous side effects if taken while pregnant. Taking Topamax prenatally can cause serious facial birth defects, such as cleft lip or cleft palate. These abnormalities occur when the areas of the palate and lip fail to fuse together, and can cause serious speech and ingestion issues.
If you took Topamax during pregnancy and your child has a cleft lip, cleft palate, or other serious birth defect, contact The Law Office of David H. Williams today for a free consultation. These abnormalities may be due to Topamax, and we will work to hold these drug manufacturers accountable.