EHS Consulting: Life as an Expert Witness

Expert witness work can be profitable, satisfying, interesting and nerve-wracking. Are you ready to put your safety opinions on trial?

Cole Miller remembers one case in particular. "He was a young man who was so egregiously injured that it turned his whole life upside down," recalls Miller, a consultant who serves as an expert witness and conducts liability assessments for construction-related claims. "He was scalded over the entire lower half of his body. He was hospitalized for months. He was disfigured. His wife left him. He was unable to function sexually. He tried to commit suicide a couple of times.

"That case was a 100 percent slam dunk," Miller insists. "The lawyer really wanted to go to court. I was ready to testify. That young man could have won millions."

What happened?

"The case was settled out of court in the hallway outside the courtroom door," Miller says. The young man accepted a settlement for an amount far less than a jury probably would have granted him. "Ninety-five percent of cases never get to court," Miller adds.

Telling the Truth, the Whole Truth

Why don't most cases see the inside of a courtroom? Much of the reason can be attributed to expert witnesses and their contributions to the process.

It is the responsibility of the expert safety witness to provide an analysis of a situation &endash; whether it is a personal injury case, a product liability issue, or a premise or property safety issue. If needed, expert witnesses should be prepared to testify in court about responsibility for safety, injury prevention and causation, and the safe design of products.

It is also the duty of the expert witness to be honest with the attorney who hires him or her.

"I've advised lawyers they've been dealt a bad hand of cards," reveals Miller, president of Cole Miller Consulting in Yardley, Pa. "I've told them to run, not walk, to make a settlement. I've told them it would take a miracle for them to win the case and that they should find somebody else to testify for them or make a settlement."

"The most important thing for an expert witness to remember is he has one thing to sell, and that's his reputation," says J. Terrence Grisim, CSP, ARM, CPSM, president of Safety Management Consultants in Elmhurst, Ill. "You don't want to tarnish it. A guy who will say anything for $200 an hour is a fool."

Expert witnesses need to be honest with themselves as well, says Grisim, who has been in safety since 1968, working first as an insurance investigator and later as an area safety manager for the U.S. Postal Service. They shouldn't draw quick, poorly researched conclusions about cause and effect, and they should try to remain as impartial as possible, he urges.

It's one thing to "shoot from the hip" during a safety inspection, he counsels, but quite another to get up on a witness stand and not have the facts to back up an opinion.

"It's like taking being a safety professional one step further," he says of acting as an expert witness. "No statement you make, no conclusion you draw, remains unchallenged on the witness stand."

Grisim, who says the cases in which he is involved are divided equally between the retail industry, trucking, warehousing and loading, and product liability, remembers his most memorable case as one in which 2,800 pounds of countertops toppled at a Home Depot store, killing a 3-year-old girl. "That one stood out because of the tragic consequences," he admits.

Even so, he had to sound as impartial as possible when delivering his opinion. "It's not an expert's role to be an advocate" no matter the circumstances, Grisim says. "It's an expert's duty to educate. I'd be telling you a story if I said some cases don't get to me, but I had to learn early on that I'd be doing a great disservice to the attorney who hired me if I sound like an advocate."

Not all cases are as dramatic as the examples offered by Miller and Grisim, but even the most mundane case can benefit from the knowledge a safety expert brings to the process. "Safety people as a bunch have contempt for lawyers," Grisim admits. "So there are not a lot of people in safety who want to be expert witnesses."

Job Description

Distilled down to the bare bones, the job of the expert witness is to "clarify and simplify for the jury the responsibilities of different people and organizations for safety" on a job or for a product, says Vincent A. Gallagher Jr., M.A., CHCM, a former OSHA inspector.

The first thing the expert witness does is state his or her qualifications, training and education. Once that's out of the way, the attorneys for the plaintiff and the defense ask their questions, doing their best to elicit answers that will sway the jury in their favor. Miller says he's been asked as many as 300 questions during the pretrial deposition process. By the time he's inside the courtroom, however, the number is usually whittled down to a pertinent 10 questions or so.

Gallagher complains that often both the plaintiff and defense attorneys hire engineers to testify about responsibility for safety. Engineers do not have the background to offer an opinion about injury causation as established by authorities such as OSHA, he adds.

More than half the time he testifies, Gallagher reveals, he's opposed by engineers who say an injury is the fault of the worker without understanding the system of safety management or the standard of care. The standard of care is what can and should be done to prevent injury, he says. This means that a manufacturer or employer should be "responsible and respond to all opportunities to prevent injury and death," according to Gallagher.

He enjoys testifying with other safety professionals, saying it is like "singing off the same sheet of music." Too often, he says, engineers testify that an employer or manufacturer met the industry standard, even though that standard may lag behind conventional wisdom about the standard for care in terms of safety. It is the role of the safety professional in the legal process to discuss what is technically and economically feasible in terms of product and employee safety.

"We should be involved in this because our voices should be heard," Gallagher adds.

Who Becomes an Expert Witness?

Miller says that he does not think anyone starts out his or her career in safety to become an expert witness. "You gather a lot of experience in one area and, eventually, someone calls you and asks you to use that expertise in a legal case," he says. Miller has served as an expert witness for cases in Pennsylvania, New York, New Jersey, Delaware and Maryland.

Miller spent 30 years supervising large construction projects at places such as refineries and airports. He became more interested in safety and responsibility for safety while working as the construction manager on a large project, overseeing several contractors. A fired employee called OSHA and complained about safety on the site. Following an inspection, all the contractors, including Miller, were cited.

"I told them, 'Hey, I'm just the guy who beats the drum and makes everybody march. I don't have anyone working for me. These aren't my employees,'" Miller recalled. OSHA disagreed, saying that he and the other contractors were jointly responsible for safety.

At that point, Miller decided he'd better learn about OSHA regulations, eventually becoming an OSHA instructor "in self-defense," he asserts. "I never realized it would become an area of expertise for me."

Eventually, colleagues began calling him to ask questions about responsibility for safety. He began to conduct increasing numbers of investigations and evaluations, appearing more often in court as an expert witness.

"Attorneys talk, and word of mouth about my expertise spread. First it was part time, then I started doing it more and more. Eventually, I decided to do it full time, and I haven't looked back," Miller says.

Another of his most memorable cases seemed pretty cut and dried on the surface. An ironworker fell out of a window during a big building renovation project and was severely injured. It looked bad for the contractor, Miller remembers, until he began to examine the facts.

After conducting a thorough investigation, Miller realized there was no way the worker could have fallen out of the window. "Somebody threw the worker out of the window. They had an argument, and he decided he'd say he fell out to collect workers' compensation and so he could sue whomever he could sue for negligence."

What started out as a personal injury case against a contractor turned into a felony case for the police, thanks to the safety detective work of Miller.

Do You Have What It Takes?

Gallagher says that expert witnesses should possess certain qualities. Competency in his or her field, integrity, honesty, persistence, appropriate experience in the field and the ability to communicate clearly are necessary characteristics for a career as a successful expert witness.

"Expert witness work is not for the timid," he asserts. "The stakes are high."

At times, millions of dollars may ride on the testimony of expert witnesses and others involved in a lawsuit. The economic security of the injured worker and his or her family might depend on the outcome of a case, as can the financial stability of the company that is being sued and the future of its employees. The reputation of the expert witness can also be influenced by the verdict or settlement.

"The expert witness must be able to stand his or her ground," Gallagher says, "and know that ground well." He knows what he's talking about because he is president of Occupational Safety and Health Consultation Group in Stratford, N.J., and is qualified to testify in courts in more than 10 states.

Gallagher, Grisim and Miller emphasize that the safety professional who wants to become an expert witness must do the "groundwork." For the three of them, that means not only understanding how the legal system works and knowing the merits of a particular case, but attending professional seminars to brush up on the latest innovations in their fields of expertise and the current state of affairs at state and federal agencies such as OSHA.

Grisim says he even attends a seminar every year that is put on expressly for expert witnesses, educating them on such topics as how to take good forensic photography, business management issues such as how to bill clients and how much to bill them, and trends in litigation.

"If you're a part of the process," Grisim notes, "then you'd better understand it or you're dead in the water."

If you are ready to be challenged, literally and figuratively, then maybe the life of an expert witness is for you.

While the role of an expert witness is not without risks, the rewards &endash; average pay of $175 an hour, professional satisfaction and a highly regarded professional reputation &endash; can be great for those who are prepared.

"It's not for the faint-hearted. It's very challenging," Grisim admits. "If you want to be a successful expert witness, you have to love what you're doing and be willing to invest the time and energy to keep up your skills. I'm willing to do that, and I love what I'm doing."

Safety Principles for Expert Witnesses

Vincent Gallagher suggests that expert witnesses remember these basic principles of safety management when evaluating a case:

  • Safety begins at the top
  • Safety begins during design - on the drawing board
  • A proactive approach is best
  • Accidents are predictable
  • Effective controls can be anticipated and implemented before hazard exposure occurs
  • Planning is essential
  • A hazard should not be allowed to evolve with the expectation that an inspection will discover it before an injury results
  • Defining and assigning responsibility and accountability for safety is key to successful management
  • Unsafe acts and unsafe conditions are symptoms, not causes
  • Safety pays

Terry Grisim's Golden Rules for Expert Witnesses

Rule 1. "When an attorney calls, we all want to hit a home run, especially when we're just starting out in our careers as expert witnesses. You're doing them a disservice if you don't want to deliver bad news. You have to be able to say, 'Listen, you've got real problems here.'

"He or she may not love you for it, but it's better they hear it from you than in a courtroom six months down the road and $100,000 later."

Rule 2. "It's tempting, especially if you're just starting out and need the money, to take a case you're not comfortable with, that's not in your field of expertise. Don't do it. I heard a great quote at a conference. A guy said, 'I never stick my shovel in somebody else's ditch.' Don't take the case if it's not in your mainstream field of expertise."

Rule 3. "This is the best analogy: Never give an opinion that is something you wouldn't be proud to present as a paper to your professional

Sandy Smith is the online editor for Occupationalhazards.com. She is a former senior editor at Occupational Hazards and former managing editor of Web site Safety Online.

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