ExposureBlog

When I first began my consulting business, I would take notes on whatever paper was handy at the time: pocket notebooks, 8-1/2 x 11 college-ruled books, yellow pads, you-name-it.  During the time I worked with the federal government I began the practice of keeping what I called a “schedule book,” which was mostly a to-do list.  Over time, it  became the hard documentation for countless phone numbers, contacts and random thoughts regarding my projects.  When I started up my business I used the “schedule book” to keep track of my progress in my cases.

Then came the day I received a subpoena deuces tecum from the opposing counsel on a case I was working on.  Roughly translated, it means: come meet with us. . .and bring along every note you have that has to do with this case.   That meant, of course, that I had to hand over a stack of pocket notes, three or four different kinds of regular notebook paper. . .and worst of all, my schedule book.  My schedule book, you see, had notes I had written down regarding previous cases.  Not good at all. 

As it turned out, the case settled before my deposition took place, so no one got to see the schedule book.  But that was the day I quit writing notes about cases in the schedule book. 

From that day on, the notes would all be on yellow legal pads, which I would number and clamp into a binder along with the case worksheet. Now, when I receive the deuces tecum, I just take the case binder.

Of course, no system is perfect; the one flaw for this one is that sometimes–rarely, but sometimes–not everything I take to the deposition comes back.  Technically, it goes from opposing counsel’s office to the court reporter, sometimes back to counsel’s office, then back to the court reporter, and then—maybe weeks later—back to me.   In the process, books, photos and documents have gone missing, never to return.   In preparation for the day the binder containing the handwritten notes vanishes, I had taken to copying the notes into a computer file.  While this helped me to understand the information and clarify the issues, it was also time-consuming.  I was faced with a choice: copy every note I had taken, or risk the notes vanishing at some point.  In a recent attempt to resolve the problem I created an “issues” page for each case, where I list the salient points.  In doing so, I discovered that most cases seem to boil down to just a few issues—lack of training, lack of communication, inappropriate procedures, inadequate instructions for the job, etc.

FLYTs

Then there are the Post-It Notes (registered trademark) flyts. . .”Funny Little Yellow Things” as one lawyer called them.  I read depositions very carefully and mark important passages with yellow post-it notes.  Typically, I will write on these FLYTs statements like “Critical” “Very Important!!!!” “Check this”, etc.   Interestingly, the meaning of the notes change as the deposition progresses—the early FLYTs reveal the location of information central to the issue, while the later FLYTs mark passages that contradict or underscore prior testimony or the testimony of other witnesses.  In other words, all FLYTs are not equal in importance, and some have no importance whatsoever except to mark a passage that I have already read. 

A well-examined document may have hundreds of FLYTs sticking out from all exposed edges–forcing the opposing counsel to read each and every one.  Only rarely have I been asked about the comments found on the FLYTs—because sometimes it’s unreliable.  A passage that I marked as “critical” when I began reading the document may turn out to be far less important by the time I finish reading it.  Of course, I’m not about to go back and cross through the word “critical” on such a FLYT—who knows when another doc could provide info that would support and thus revive the importance of the original passage.  When looking through case documents information emerges slowly.  A comment created in the final analysis may be 180 degrees different than a comment created during the initial stages of the investigation.

Every investigation and analysis has its share of dead-ends, but the documentation leading to those dead-ends should be included in the total package, if only to answer the opposing counsel’s question, “have you thought of this?” 

Just in from the New York Times, a jury acquits WR Grace executives in their town-poisoning case.  According the federal prosecutors, the executives in question knew that the vermiculite they were pulling from the earth under Libby, Montana was deadly, but did little or nothing to ensure that the townspeople were warned or otherwise protected.  Apparently the jury didn’t agree, and now the execs can go back to their Sun City retirement homes. 

But there’s more to the story. 

Much of the vermiculite that WR Grace mined in Libby was sent to companies and distributors around the U.S. and marketed as insulation for homes and businesses.  It was also sold as a fire retardant to contractors putting up buildings.  I’ve seen this stuff being used as filler for potted plants. 

While not all vermiculite is the same—the levels of asbestos vary—it is certainly something you don’t want in your home.  In the past, some people have come down with mesothelioma with no known prior exposures to asbestos.  Actor Steve McQueen died of mesothelioma and it was generally assumed he had been exposed to it wearing asbestos-lined suits while racing cars.  But what if it had come from an attic in a house he lived in?  Perhaps it’s time to take a closer look at the epidemiology of mesothelioma cases around the country.

It happens to all of us who have attorneys as clients.  Sooner or later someone is going to ask for a comprehensive report, read it, send it over to opposing counsel, then refuse to pay for it.  Some consultants send an invoice for the work immediately before the report goes out and others will refuse to sign it until they get paid.  One of my old friends, a world-renowned toxicologist, would demand payment before the report was sent.  It still didn’t help.  Not long before he passed away he told me about a very aggressive Missouri plaintiff lawyer popping him for several thousand dollars in a case involving diacetyl exposure.  When my friend asked the guy to pay up, the lawyer threatened him with a lawsuit. 

Not long after I began work as an Industrial Hygienist I was contacted by a Houston attorney who specialized in two things: (1) workers’ comp cases and (2) stiffing experts who worked for him.  I was told this by his assistant, who informed me early on that I would never, ever be paid.  How did he know?  Because HE had never been paid.   And yes, the assistant was correct. 

Several years later I was contacted by a Galveston lawyer who had a tox tort against one of the oil companies.  His routine: constantly explaining how much money this case would bring in, while being too busy to pay the bill.  Over many months of research he ran up a bill that totalled something like $25,000.   After my accountant–a grizzled ex-Chem Engineer–explained what was really going on, I refused to do any more work.  In response my client erupted with all sorts of threats.   Finally, he agreed to meet at a restaurant and pay “some” of his bill if I would turn over my documents.  I showed up with the material, and he showed up drunk, then explained how he could hire U of H students to do this sort of work “for about 4 dollars an hour.”  He never got his documents but he didn’t pay his bill either.  Later I heard he ran for judge and lost.

One of my friends, a clinical tox guy, said he was once cajoled into sending a fifty-page report to a lawyer before asking for payment.  The lawyer accepted the report, copied it and mailed it back to my friend, complaining the work “wasn’t good enough.”  No, he didn’t get paid either.

As a result of this behavior, many of my consultant friends are getting out of litigation support, preferring to work with businesses.  The work may be boring and repetitive, but the pay is regular.  One of my friends, a safety expert wonders why I’m still willing to appear in court–where opposing counsel will undoubtedly “wave every line you’ve ever written in front of the jury, trying to show you really don’t know much of anything.” 

He’s right, of course, but that’s one of the reasons litigation support is so interesting:  a trained litigator with a cadre of experts is available to review your work.  Can’t find that working for a business. 

Not long after our conversation, my agency sent me a case involving the floor of a restaurant.  Seems one of the features of that establishment was serving their customers peanuts and then allowing them to throw the debris on the floor.  A woman had slipped as a result of these peanut shells and had broken her leg.  After looking at the restaurant in question, I began researching peanuts.  I discovered that the shells on the floor can hide whole peanuts and that peanuts contain oil. . .quite a bit of oil, as a matter of fact.  

 I then visited one of the restaurants and sure enough, the waitress brought a bucket of peanuts to the table.  After ordering a steak (which was excellent) I confiscated a few of the peanuts and took them back for analysis: weight, size and oil content.   Then I started on my report.  The bottom line: I discovered that the shell debris can obscure whole peanuts, which when crushed underfoot can spread the mash over a surprisingly large surface.  Thus, while the peanut shells are “open and obvious” (the defense argument) the peanuts underneath are not.  And thus, the customer doesn’t have an idea of the true nature of the hazard.

After the analysis I spent about three days working up a report for the plaintiff lawyer.  By the time I sent it off it covered 15 single-spaced pages with 82 references.  Shortly after that, I sent my invoice for the work to my agency who then billed the lawyer. 

A month went by.  Then, I got a phone call from my agent.  Seems the lawyer didn’t understand why the bill was so high.  Seems he told my agent that I had agreed to do the investigation, analysis, report writeup–and apparently even the deposition–for the cost of the initial retainer (which typically covers about 18 hours of work.)  Bottom line: he wanted the analysis and report for free.

In all, it was about $5000 worth of work and this guy was simply not going to pay for it.  Worse, he had the information and there was nothing I could do about it.  While it was true that he couldn’t call me to the stand in trial, it was also true that opposing counsel had not hired an expert.  It would be dueling lawyers only. 

After wrestling with the situation for two months, I finally asked to be delisted from the case.  Two months later, he took it to a jury and won–the verdict came in (as I understand it) for over $200,000, a first for this type of case.

Experts in this situation have little recourse but to choose their clients–and especially their agencies wisely, making sure, that when confronted with clients like this one, that they’ll respond accordingly.  Additionally, my accountant has added a few caveats to the payment structure that will serve to prevent this from happening again.

I’m still doing litigation support, because I’ve found that the great majority of attorneys will treat their experts fairly.  It’s the ones that don’t who make life very interesting indeed.  Too interesting.