The Expert Witness: Tougher than it looks [The Synergist / AIHA]
by Hope Katz Gibbs
The Synergist / American Industrial Hygiene Association
It all rests on what you say. Your testimony is the thing that will determine if a company is fined millions of dollars. But you are calm as you sit on the witness stand, looking proper in your conservative blue suit. There is no sweat on your lip. Your hands aren’t shaking. No quivering lips. You are confident, detached.
Only, it isn’t as easy as it looks, says expert witness Hank Muranko, an industrial hygienist and consultant specializing in comprehensive practice in Scottsdale, Ariz.
“As an expert witness, you are being asked to render an expert opinion based on your experience and training,” says Muranko. “But, you are really being asked to be a teacher. It is your job to inform the jury as clearly, factually and truthfully as possible about the facts. And that isn’t so easy, because it is also the job of the opponents’ attorney to make you look like you never left high school.”
Muranko has testified in about 20 cases on the topics of chemical exposure, engineering controls and the adequacy of health and safety programs for the rail transportation industry, abrasive blasting operations and hospitals. Each case is a challenge, he says.
“Although you are an expert in your field, someone is trying to make you seem unknowledgeable and careless—at least in relation to the case. Therefore, being an expert witness is challenging and educational, but it is also very stressful.”
Still, Muranko thinks it is his duty as an industrial hygienist to work as an expert witness. “In my opinion, the first important thing an industrial hygienist can do to practice industrial hygiene to prevent injury,” he says.
“The second most important thing is to help regulators and legislators to understand the science so they can make good laws.
“The third most important thing is to be an expert witness, for you are there to interpret the science and apply it to a leg situation,” Murano says. “That is essential if we want to see justice done.”
He cautions, however, that anyone wanting to be an expert witness has a firm foundation of academic training and experience. “There are a lot of experts in many fields involved in litigation who have less than great understanding of the science that drives our profession,” says Muranko. “You aren’t expected to be an in-depth expert in every field, but you should know enough to help the judge and jury make a decision.”
FOCUS ON: EXPERT WITNESS JOHN CIGNATTA
“Being a witness really brings to task not only all that you know, but how well you can educate a very non-technical audience,” says Cignatta. “That’s why it is such an incredible challenge. When you can do that effectively, it is a prestigious accomplishment in your field.”
He’s only testified a dozen times, but Cignatta, an engineer and expert in corrosion, has been effective. Last February he was called by U.S. Secretary of Labor Robert Reich to testify against Manganas Painting Co., of Canonsburg, Pa. Cignatta’s job was to testify that blasting operations that take place while employees are present could be problematic.
Reich proposed penalties of $1,319,850 against Manganas for allegedly subjecting some of its employees to lead exposures many times the level permitted by federal regulations. “The employer in this case apparently failed to provide even the most basic and important protections for its workers,” Reich said. “Such callousness cannot and will not be tolerated. Employers need to know that the Department of Labor will go after bad actors who blatantly jeopardize the safety and health of workers.”
Citations against Manganas, issued by OSHA, were the first major enforcement action under a congressional mandate governing lead exposure in construction. The investigation began after a Pittsburgh toxicologist treated a Manganas employee for
having 120 micrograms of lead in his blood. A normal range is 4 to 5 micrograms.
Also testifying in the case was another expert industrial hygienist specializing in the painting of steel structures. His testimony centered on the fact that he had questions or reservations about the methods used by the compliance officer who took the paint sampling.
It was the testimony of Cignatta, however, that convinced the judge. According to the docket, administrative law judge Michael H. Schoenfeld said he accorded more evidentiary weight to the expert opinion of Cignatta than those of another expert involved in the case.
“Mr. Cignatta’s experience, particularly with designing containments and systems to measure exposure to airborne lead is far greater,” writes Schoenfeld. “He was specifically trained and has qualified for licensing as a professional engineer and many of the matters addressed are engineering type of problems.
Cignatta carefully approached the questions in this case. He studied drawings of the bridge and photographs of various stages of work.
“He visited the bridge with the ODOT project engineer, and he even reviewed daily inspection reports filed by ODOT inspectors. He prepared a far more complete and detailed basis for formulating his opinions about the work down on Jeremiah Morrow Bridge than did (the other expert witness) that spoke in more general terms.
“I find that under the circumstances of this case, the sampling results reached by the compliance officer are reliable evidence upon which a factual finding of exposure may result.”
The judge found Manganas guilty and imposed a civil penalty of $44,100 for each willful violation for a total fine of $1.3 million. Magnanas is appealing the case.
THE GOOD EXPERT WITNESS
“As you can see from the judge’s findings, Mr. Cignatta was a good witness,” says Matthew Rieder of the Office of the Solicitor at the U.S. Department of Labor, who worked with Cignatta. “A good expert witness should have a good academic background but also have very good hands-on experience in correcting the type of engineering problem you are up against.”
Donald Maciejewski, a Jacksonville, Fla., attorney, agrees. “An expert witness needs to be knowledgeable about the subject matter, to present themselves professionally, and most important to communicate well so that the jury easily understands the information being presented,” says Maciejewski.
But the key to being an excellent witness, says Maciejewski, is to maintain your credibility. “As an expert witness, your commodity is your time and your credibility,” he says. “Deny requests by attorneys to extend your testimony beyond your field of expertise or the subject matters with which you are comfortable.”
Last year, Maciejewski and his law partner Robert Spohrer wrote an article on the topic for Chemical Health & Safety magazine on the subject in which they gave some helpful hints to prospective witnesses.
THE “10 COMMANDMENTS” FOR EXPERT WITNESSES
1. Know the proper standard for admissibility of your testimony.
2. Don’t try to be an expert on everything. Know the limits or bounds of your expertise.
3. Do your homework.
4. Always maintain your cool during a deposition and trial.
5. Don’t talk down to the jury or the opposing counsel.
6. Request a thorough briefing from the consulting lawyers.
7. Know when to and when not to “toot” your own horn.
S. Don’t guess or go out on a limb.
9. Never sacrifice your credibility.
10. Be an expert, not a hired gun.
Remember, he says, the opposing counsel can only ask you questions. So, stay relaxed. “If you maintain control and keep your cool, there is no reason to be anxious about being an expert witness.”
The element that causes most witnesses to be anxious, however, is the deposition (the taking of testimony under oath). “Lawyers want to depose experts on the other side to size up their demeanor and to probe their options through the process of questions and answers,” says Maciejewski.
“Witnesses need to prepare thoroughly and review the case at length with the attorney consulting you. He or she should be able to anticipate the types of questions that will be asked of you and also alert you to the style and personality of the attorney who will be your interrogator.”
Maciejewski says attorneys have several objectives when they take your deposition.
• Be truthful, precise, polite but firm, and don’t lose your temper.
• Don’t be drawn into an argument with the opposing attorneys.
• Don’t volunteer. Answer only the questions you are asked.
• If you are given a document, always read it carefully before answering.
• Correct any prior testimony if you determine that your earlier statement was incorrect or incomplete.
• If one of the attorneys makes an objection, stop and wait until the lawyers are finished speaking and then complete your answer. If you cannot recall the question, ask the court reporter to read it back.
• Ask to read and sign the deposition once it has been completed. Be prepared to explain why any changes to the transcript are necessary and discuss them with your attorney.
• Beware of hypothetical questions that may be incomplete.
• Before the deposition begins, make sure you set aside ample time to prepare a review of the opposing side’s expert report, interrogatory answers, and contentions.
• If the interrogator misstates your prior testimony, call him or her on it and do not accept that description of your opinions. And, avoid sarcasm at all costs.
• If you feel you need it, ask for a break, have a cup of coffee or take a short walk outside the building. Most deposition mistakes occur late in the day when the witness’s guard is down.
• At the conclusion of the deposition, arrange for adequate time for a debriefing with the attorney who is consulting with you.
GETTING THE JOB: HOW TO GET YOUR NAME OUT
It’s a tough job, but if you feel you have the experience, education and temperament to be an expert witness, you may want to try it. But how do you get your name out to the lawyers who need your type of testimony?
The first rule: Don’t advertise. Experts say self-promotion can be counterproductive.
It is often the case that an ad placed by an expert witness winds up being an exhibit in the trial to be used against that very witness during cross-examination. The opposing lawyer can make the case that if the expert were credible, there would be no need to advertise.
A better way: word of mouth. Send out a resume with an appropriate cover letter targeted to attorneys in the field. Ask friends who are attorneys to help get your name out to those who specialize in the areas that you are an expert.
Best approach: Let lawyers come to you. A great way to do that is to publish an article on which you are knowledgeable in a legal journal. That tact that worked for John Rekus, a consultant specializing in OSHA compliance training for workers and managers and confined spaces. Since 1987, Rekus has written more than 50 professional papers and magazine articles on occupational safety and health.
It was the first article he ever wrote that attracted the attention of an attorney.
“After reading my article, the lawyer called and said he was working on a case that was similar to one that I had written about.” That new case—about three men in Texas who had been cleaning a tank car when they were overcome by an oxygen deficient atmosphere and died—provided Rekus with his first opportunity to give a deposition.
The case was settled out of court, but Rekus has found himself testifying in court several times since then.
“It is a lot of fun to be an expert witness, “ he says. “ You get to play detective.”
Rekus, who spent much of his career working for the Maryland OSHA State Plan as a technical coordinator for occupational health and as director of the industrial hygiene program, says he “always wanted to be a writer. And I think I am successful as a writer and as a witness because I try to explain technical things in simple language. That ability is what got the attorneys hooked. Although I don’t get a lot of money for my articles, I do get a lot back from the work I do. I think everyone should be generous with his or her time. You never know what it will lead to.”