Experts of the Future: 4 Areas of Emerging Litigation

Now that 2015 is nearing its end and 2016 is fast approaching, it’s easy to appreciate how much can change over the course of a year. Major developments have occurred in areas like robotics, genetic studies, structural engineering, and data collection. You can talk to your doctor and turn off the lights in your garage at the same time, from anywhere in the world, just by using an app on your smartphone. As significant changes in science and technology continue to shape and influence society, they will also affect the nature of litigation where these industries are concerned–especially with respect to expert witnesses. Below are just a few examples of the areas in which new experts are being employed in litigation today.

Cyberpsychology

As of 2015, Americans spend an average of 11 hours per day using digital media devices, and a significant portion of that time is spent online. Internet usage has become pervasive in our daily routines, and at times can almost define our lifestyles. When it comes to litigation, the proliferation of internet use has given rise to a whole new generation of expert witnesses under a subfield of traditional psychology- known as “cyberpsychology”. Used in both criminal and civil lawsuits, these types of expert witnesses possess knowledge representing an extremely unique combination of traditional psychology and the effect of increasingly popular online activities.

Online gambling experts are just one example of this “cyberpsychology” expert. As several states deliberate the regulation of online gambling, experts in the field have been retained to testify about the nature of online sports betting, and extremely popular games like online poker. These experts are not only familiar with the online gambling population at large; they are also familiar with online gambling institutions and their specific logistics.

The “Daily Fan Sports” case – involving companies Draftkings and Fan Duel – is currently the highest profile online sports betting litigation. In that case, expert witnesses have been called to testify whether the outcome of these games relies on skill or luck. Many experts in this field have also published directly on the issue of online gaming regulation and public policy issues associated with the industry. Regardless of the type of litigation, an online gambling expert will be able to describe the effects of a particular online gambling game on an individual or a group at large. Especially concerning issues like addiction and other related compulsive disorders. These types of experts often have substantial medical backgrounds, as many are certified psychologists or psychiatrists.

In a related field, experts in video game psychology have increased in the last decade given the advent of advanced gaming systems such as Sony PlayStation and Microsoft X-Box. The games that have been designed for these systems are highly realistic, and have caused controversy for their ability to influence the real-world behavior of players. In 2013, a video game psychology expert was retained to testify for the defense in an Illinois murder trial. The nature of the testimony concerned the degree to which the murderer was influenced by an addiction to violent video games. A defense that has been gaining more traction in recent years.

With violent video games, these types of expert witnesses often discuss the causal connection between the “environment” of the video games as paralleled to an individual’s real life, and how certain individuals or groups may process this stimulus differently than others. Like online gambling experts, video game psychology experts take particularized knowledge of certain types of video games, like “first person shooters” for instance. They then apply the facts to schemes within traditional psychology disciplines for a unique understanding of how video games can affect the individuals playing them.

Biotechnology

The digital era has also ushered in a wave of unanticipated changes to the medical industry. Technology has revolutionized approaches to traditional doctor-patient visits, determination of employee health benefits, prediction of congenital birth defects, and the creation of prosthetics. In the legal sphere, expert witnesses in these fields are retained to help juries understand the role these technologies play with respect to a given case.

Mobile health apps or commonly known as “mHealth” or “mobile health” are rapidly growing. As patients communicate with health-care professionals straight from their mobile phones. These applications, referred to as “patient portals,” represent the collection and dissemination of patient health information. As well as how this information is shared between patients and health-care providers. Patients can ask questions, check on the status of their medications, and a host of other activities that previously required a visit to the doctor’s office. As expected, this change in the medical industry has had an impact on medical malpractice cases.

One LA-based attorney offers predictive insight about the nature of litigation involving mHealth. Noting specifically the need for strict, reliable information collection and storage systems for all mHealth usage. Expert witnesses in this field are knowledgeable about these mHealth applications, the underlying technology on which they are built, and the doctor-patient interactions that occur on these platforms. These expert witnesses are usually IT experts. Thus they are skilled in retrieving data stored by these programs, which parties will undoubtedly seek as evidence during the discovery phase of a medical malpractice litigation.

In some cases, technology itself is the “expert witness,”. Hence prompting the need for another expert to explain the data collected by the technology. A Canadian law firm is using its client’s “FitBit” data as evidence in a personal injury claim. Here in the US, fitness and health data expert witnesses have been retained in personal injury lawsuits. They offer testimony regarding contributory negligence.

In other circumstances, expert witnesses have been part of disputes where employees are denied certain health benefits or portions of coverage based on lifestyle factors logged by fitness data collection technologies such as FitBit. These experts have extensive knowledge of exactly how these technologies are tracking your day to day movements. Including how that information is used to output values in terms of calories, heart rate, water retention, and more. In most instances, these witnesses are general health and fitness experts who are extremely familiar with the technologies that collect individual fitness statistics. The nature of their testimony requires some translation of the data collected for the benefit of the jury. However, it can become a persuasive weapon in the expert’s arsenal.

Although there are many fields of medicine generating the need for new types of expert witnesses, the teratology and prosthetics fields deserve special attention. Teratology, or the study of birth defects (and prevention thereof) is a common subject of medical malpractice suits. New technologies require teratology experts to have an ever-growing, constantly updated knowledge base about factors that contribute to birth defects. This requires expertise in a multitude of fields. Such as pre-natal screening technologies and long-term health effects of newer pharmaceutical drugs on mothers.

Experts in this field are usually medical doctors who have expertise in diverse areas such as molecular genetics, toxicology, and biotechnical engineering. Similarly, as prosthetics technology continues to evolve, expert witnesses in this field are constantly updating their knowledge of new materials from rubbers to metallic alloys. In litigation, these experts may be called upon to explain how particular materials interact and a particular design is best for prosthetic limbs in simulating movement.

3D Printing and Software IP

3D printing enables jurors to hold a particular piece of evidence in their own hands where they were previously limited to only looking at such evidence through two-dimensional graphs, charts, and animations. Now that this relatively new technology is largely accessible by the public, it has started to change how evidence is traditionally received and analyzed in a courtroom.

Using digitized photography of virtually any item or landscape, the images are uploaded to a computer and the information is processed by a 3D printer which, layer by layer, “builds” a three-dimensional representation of the image. This means that in a case where an individual has a physical heart defect, a 3D replica of the exact heart with the exact defect can be created without ever making a single incision into the body. In part because of its novelty, 3D printing expert witnesses are often retained in litigation to explain exactly how the 3D printing process works. These experts often have backgrounds in computer engineering, digital photography and printing technologies in general. In the recent intellectual property battles between major printing companies, these types of expert witnesses have been retained to testify about patent and design related matters to prove or disprove patent infringement.

One of the most hotly litigated issues in intellectual property law today concerns the copyrightability of software programs. Expert witnesses in this field are especially unique, since their knowledge is highly technical and specialized. These types of witnesses are well-versed in software development technology. They are charged with the difficult task of defining terms like “source code” and “API packages” to a jury. Litigation surrounding the intellectual property rights of software programs is especially complex since such programs have both functional and expressive elements.

This places them at an awkward definitional crossroad for determining the scope of their entitlement to patent or copyright protection. Thus expert witnesses in these types of litigation have to be extremely careful as to how they describe certain methods of operation or process. They must carefully distinguish the expressive elements for a separate analysis. Expert witnesses in this field are almost invariably computer science engineers and are often employed with development companies. Since the size of the industry and number of software program users vastly outweighs the number of individuals with expertise in the subject, it is difficult to find expert witnesses that are not wholly partial to certain companies, or that are not affiliated in some way or another with corporate giants already involved in their own litigations- raising concerns over conflicts of interest and biased witnesses.

With the increase of online businesses, there has also been a huge increase in expert witnesses responsible for “valuations.”. These differ from damages experts in the traditional sense because valuations experts for these new types of businesses must base their projections on a business that may have few fungible goods, assets, or inventory. This makes legal matters extremely complicated since these types of market valuations can be highly conjectural. These expert witnesses often have economics backgrounds. They are also familiar with market dynamics in general and specialize in determining the valuation of businesses like Uber and GrubHub. Very recently, an expert witness was retained in the lawsuit between Oracle and Google, estimating that Google’s creation of Android using Oracle’s computer code cause billions of dollars’ worth of damage, based on what Oracle’s market value could have been had it put out its own version of Android.

UAVs

The advent of unmanned aircraft systems, popularly known as “drones,” has also raised a host of legal questions. Drones have been used commercially by companies like Amazon and by everyday hobbyists. The use of drones has prompted the generation of several new law firms with attorneys who specialize in the legality of using unmanned aircraft systems in light of pending regulatory legislation. The need for expert witnesses in this field has likewise grown. These individuals generally categorize their expertise as a subset of “digital forensics.”. These witnesses have extensive backgrounds in computer and mechanical engineering, robotics, and signal processing. In some cases, drone experts have military backgrounds. Others have worked for mobile communications and technology companies attempting to use drones commercially.

Consulting v. Testifying Experts

The emergence of so many new expert witnesses for the corresponding new technologies warrants a word of caution with respect to their roles in litigation. Precisely because these are are newer areas in litigation, many of the experts in these fields are not experienced in testifying at trial. More importantly, many are better equipped as preliminary consultants, so that attorneys can get a better understanding of the technology at issue in a given case. For these reasons, it is important to bear in mind the kind of witness needed– for consulting or for trial– when searching for expert witnesses in these new areas.

All of the expert witnesses discussed have varying backgrounds and disciplines. However, the one thing they have in common is what makes them unique in an era of rapidly evolving technology. All the expert witnesses take the facts of new technologies and their interactions with the public and apply it to traditional disciplines. Thus resulting in the hybrid knowledge base that these experts have and for which they are sought out. The larger question that remains is whether the legal rules governing the expert witness testimony will adjust to keep up with the times.