Considering Serving as an Expert in a Lawsuit?

1. Considering Serving as an Expert in a Lawsuit? DNA can Make the Case!

2. Importance of Using Terms a Layman can Understand • “Constantly strive to translate your findings into nontechnical layman language.” (Feder & Houck, 2008) • From Lubet, 1998: • Expert Speak: prior and subsequent • Regular Speak: before and after • Expert Speak: contusions • Regular Speak: bruises

3. Gunning’s “Fog Index” • Technique to evaluate the difficulty of a given writing sample

4. Funkhouser: “Communicating Specialized Science Information to a Lay Audience” (1971) • Information gain • Enjoyment • Attitudes • Tendency to seek information

5. Attitude Scales • Peripheral--fundamental • Timely--untimely • Theoretical--practical • Comprehensible--incomprehensible • Weak--powerful • Active--passive • Optimistic--pessimistic • Relevant to me--irrelevant to me • Interesting--uninteresting • Meaningful--meaningless • Important--unimportant • Limited--universal • Beneficial--harmful • Safe--dangerous

6. Scales combined into “favorability index” • Favorability correlated with: • Readability • Information gain

7. Audiology’s DNA • Anyone who has ever watched a TV program called CSI-Miami or CSI New York can appreciate the importance of the term DNA. A guilty or not guilty verdict is often based on the results of this test. • Why doesn’t audiology have a term in our literature that is as powerful as this. Now we do.

8. “DNA” has already been used in contexts that do not involve genetic material – Example 1: • Fareed Zakaria in an October 20, 2008 article quoted Boykin Curry managing director of Eagle Capital by saying “For 20 years, the DNA of nearly every financial institution had morphed dangerously. Each time someone at the table pressed for more leverage and more risk, the next few years proved them 'right.' These people were emboldened, they were promoted and they gained control of evermore capital. Meanwhile, anyone in power who hesitated, who argued for caution, was proved 'wrong.' The cautious types were increasingly intimidated, passed over for promotion. They lost their hold on capital. This happened every day in almost every financial institution over and over, until we ended up with a very specific kind of person running things. This year, the capital that remains is finally being reallocated to more careful, thoughtful executives and investors—the Warren Buffetts … of the world." • See how The term DNA is used to explain simply a difficult problem to understand.

9. “DNA” has already been used in contexts that do not involve genetic material – Example 2: • Richard Stengel, managing editor of TIME magazine wrote in the July 2008 issue that Mark Twains book ‘Adventures of Huckleberry Finn’ created the literary DNA that helped shape race relations in America over the past century… • Literary DNA .huh!

10. Use of “DNA” in Audiology • I thought after reading these two articles that it was time to incorporate the term DNA into the Audiological literature. • While serving as an ‘expert witness’ where several workers from the same plant had sued the plant for ‘occupational hearing loss’, I was making the point in my deposition to the workers attorney about their workplace noise exposures. These measurements are made using a type 2 Noise Dosimeter by a certified Industrial Hygenist at the plant in question. The measurements made during the entire shift for each worker are known as the Time Weighted Average or TWA. • The Maximum allowable Noise Exposure of workers is 90dBA. The range of all of the of the workers TWA’s in this case was 71.2-85.0.

11. I explained in my deposition that the workers TWA’s was their workplace noise DNA (Daily Noise Average), the thing that causes hearing impairment, and none of those workers’ DNA met the criteria for Occupational Hearing Impairment. We won a Summary Judgment for all of these cases

12. What is an expert in the eyes of the court? • Most witnesses have unique information about the specific case under consideration. • In contrast, expert witnesses: • have expertise in a field that is important for the case but not unique information about the case itself. • can state an opinion. • do not have a civic duty to testify but charge for their services in providing expert assistance. • help the attorney understand information that is important in the case and how this information can be provided to the judge and/or jury clearly and concisely.

13. Duties of an Expert in a Legal Case • Serve as an impartial expert • Provide opinions based on established knowledge in the field • Assist the “trier of fact” in reaching a “correct result” (Kraft, 1977) • Participate in educational and cooperative interactions with the attorney • Provide one of more of the following specific services: • Educate the attorney (or judge or jury) regarding technical aspects of the case • Indicate for the attorney the strengths and weaknesses regarding a specific issue and suggest questions that might be asked • Advise the attorney regarding what information is most critical • Assist in pretrial analysis and preparation for testimony at trial including differentiating fact from opinion • Testify at trial

14. Audiology Expert may be Called Upon to Educate: • Attorney • Judge • Jury

15. Types of Cases Audiologists May Encounter • Criminal: violation of a law (beyond a reasonable doubt) • Civil: violation of a duty owed to another person (e.g. negligence) In Civil the standard for guilty is: more probable than not. • Malpractice • Noise Ordinances • Worker’s Compensation • Personal injury

16. Example of a Personal Injury Case Involving Audibility

17. The Fire Alarm Case • The mother of a 6 year old child was out of her apartment talking to a friend in the parking lot when she heard the child screaming from her bedroom window. • The second story apartment was on fire. • The probable cause of the fire was food left unattended on the stove. • According to a neighbor, the apartment fire alarm went off. The mother did not hear the alarm. The child died in the fire. • The mother sued the fire alarm manufacturer because she thought she should have heard the alarm from the parking lot which was 57 feet from her apartment. • The question is: Why wasn’t the mother able to hear the fire alarm when it was activated by the fire?

18. As it is impossible to reconstruct the exact situation that occurred at the apartment that burned, I attempted to duplicate what happened during that fire in a similar apartment approximately 25 yards from where the fire occurred.

19. Information about residential firesand the National Fire Alarm Code (www.advanceweb.com/aud) • In 2007, there were 414,000 residential fires which resulted in 2,895 deaths and 14,000 injuries. • The most common cause of these fires is cooking. • The 2010 edition of the National Fire Protection Association National Fire Alarm Code requires use of a low-frequency (i.e. 520 Hz) square wave signal • The code has always required that a sound level be at least 15dB above the average ambient sound level or 5 dB above the maximum sound level for at least 60 seconds. For sleeping areas the alarm sound level must be at these levels or a minimum of 75dBA, whichever is greater. (http://www.nfpa.org/publicColumn.asp?categoryID=1939&itemID=45721&src=NFPAJournal&cookie_test=1)

20. The distance from the second floor fire alarm to the parking area where the mother was at the time of the fire was 57 feet. The measured ambient noise was 55dBA. The fire alarm was activated and measured to be 80dBA.This was a +25dBA Signal to noise ratio. The fire alarm sound could be heard by normal hearing persons at that location.

21. There are many reasons why a normal hearing person would not hear the fire alarm sound if he/she was outside an apartment. Most of these reasons have to do with “signal to noise ratio” issues. That is, in the presence of screaming, talking, a fire, a TV playing, traffic noise, etc., the ability to hear the signal is compromised. All of these noises were competing with the signal on the night of the fire. I estimate that the noises competing with the fire alarm signal created a S/N ratio of -10 to -15dBA. That is, the competing noises were approximately 90 to 100 dBA, which would make it impossible for a normal hearing person to hear the signal.

22. How can an expert explain this idea simply? • In the first case, the concept of time-weighted average was easily understood when DNA was used to convey the idea. • In this case, how can the concept of signal-to-noise ratio be presented in a way the layman can understand?

23. Remember Where’s Waldo?

25. Conclusion • It can be difficult for a layman to understand audiological concepts. • In forensic audiology, complex ideas often are important for laymen attorneys, judges, and jurors to grasp. • The audiologist can be more effective by translating difficult concepts into things that are more familiar to the layman. • DNA and Where’s Waldo are examples that show how something familiar can help a layman understand a technical idea.

26. References • Dobie, R.A. Medical-Legal Evaluation of Hearing Loss. Van Nostrand Reinhold: New York, 1993. • Feder, H.A. & Houck, M.M. Feder’s succeeding as an expert witness. CRC Press: Boca Raton, FL. 4th edition, 2008, p. 18. • Funkhouser, G. Ray & Macoby, N. Communicating specialized science information to a lay audience. J. Communication, 1971, 21, 58-71. • Lubet, S. Expert Testimony. Notre Dame, Indiana: National Institute for Trial Advocacy, 1998. • Resnick, D.A. Terminology: Considerations for the audiologist as witness. In Kramer, M.B. & Armbruster, J.M. (eds.) Forensic Audiology. University Park Press: Baltimore, 1982, pp. 29-44. • Schmitz, H.D. The audiologist as an exert witness in court. In Kramer, M.B. & Armbruster, J.M. (eds.) Forensic Audiology. University Park Press: Baltimore, 1982, pp. 45-55. • DNA image from: http://www.csb.yale.edu/userguides/graphics/ribbons/help/dna_rgb.html