An Expert Witness In The Field

How to use one and how to become one

By Tom Bowler
Photos: Tom Bowler

Approximately one-quarter million children are injured each year on playgrounds. Not all of these injuries go to litigation, but how well prepared are you to defend a case? Do you keep weekly, monthly, and yearly records? Is there an in-house Certified Playground Safety Inspector (CPSI)? If not, do you retain a CPSI periodically to inspect equipment? By doing this, your case will have more credibility in a court of law. Have you read the most recent American Society for Testing and Materials International’s F-1487-17 standard entitled, “Standard Consumer Safety Performance Specification for Playground Equipment for Public Use”? Have you reviewed recently the U.S. Consumer Product Safety Commission’s Public Playground Safety Handbook?

Playground Injuries

Playground injuries are very common on specific equipment:

• Climbers

• Swings

• Slides

• Overhead ladders.

Children falling on a playground surface account for many of these injuries. Hopefully, industry professionals are informed that grass, dirt, and macadam surfaces are not appropriate landing and protective surfaces for children. Loose-fill materials, poured-in-place materials, and rubber tiles can offer protection, depending on their depth and whether they comply with the attenuation standards in the field.

Signage is a key for play areas:

• Hours of operation

• Appropriate ages for using equipment

• Requirement of supervision.

I am reminded of a case from years ago when a township posted a sign indicating the playground hours of operation. Unfortunately, the time for closure in winter was listed incorrectly as 7:30 p.m. (Eastern Standard Time), which was beyond darkness. If the time had been posted correctly as 6:00 p.m., the plaintiff would have been a trespasser, and the case may very well have been dismissed.

Falling Limbs

Playgrounds are not the only area in parks and recreation to be concerned with litigation. For example, when was the last time you actually looked up at tree limbs? Falling branches surprisingly account for an unusual number of injuries and litigation. I can recall at least two significant injuries in parks within the last several years. One incident occurred in the bleachers when a dead branch hit spectators at a game. In another tragic incident, a limb fell on a 3-year-old boy in a community park while he was playing near playground equipment. The child died and the estate was settled out of court for millions of dollars in favor of the plaintiff. One might question why several defendants in this case had to pay for the plaintiff’s estate. How can you prevent a decayed limb from falling? The crux of the case rested with actual notice. One week prior to the child’s death, the parks department was warned that a branch almost hit someone. The arborist on retainer cited other branches to be removed in the park; however, that particular branch was not taken down. The park had the option to close, which would have been a temporary remedy to correct the issue.

Recreation Areas

A gymnasium is another area ripe for litigation. Sometimes, recreation departments share dual facilities with a local school district. The parks department must do its own inspection if there is a hazardous situation. One common litigation issue is the safety area at the end line of a basketball court, referred to as the “buffer zone.” All too frequently—especially in older gymnasiums—space was sacrificed in this area from the end line to the wall. Most major organizations reference this space in the rule books as 3 to 10 feet. However, the low measurement is woefully inadequate for safety. If someone is running at full speed, can he or she actually stop in 3 feet or less before crashing into a wall or even a padded wall? In a “chase and flee” organized game case, a child had only 2 feet, 8 inches to stop prior to hitting an unpadded wall. Safety space is critical for most sports (e.g., softball requires a 25-foot setback off the backstop).

Glass is another area where some serious accidents can occur in recreational venues. First, glass should not be installed within any activity area. If glass is present, it must be safety glass (i.e., the type that will shatter into little beads and without shards). In my experience, I have had three cases of glass litigation in gymnasiums. Typically, the glass is a window in a door or a viewing area for spectators. Glass might be non-safety glass and embedded with wire. If the participant breaks the glass with his/her fist, cutting is inevitable on the shards. As a double whammy, once the participant withdraws his/her fist, there are lacerations from the wire. The embedded wire has nothing to do with the strength of the non-safety glass, as many people erroneously think. The actual reason is that the shattering of the glass will be more contained within a fire. The actual strength of this type of glass is less than that of traditional glass.

Becoming A Professional

Have you ever thought of becoming an expert witness and providing a service for the parks and recreation community? First, you must really have a passion for what you do. While some professionals have the background, they lack a strong desire in the legal arena. It does take “tough skin” to deal with attorneys at times.

An expert witness can play a vital role in a parks and recreation department. Can just anyone become an expert witness? The answer is a resounding “no.” There are rules more specifically contained in the Federal Rules of Evidence. An expert is defined specifically by Rule 702: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion.” (See https://www.rulesofevidence.org/article-vii/rule-702).

Additionally, you need to develop a business sense. Many times in human-services professions, people volunteer their time and do “freebies.” Your firm should be run as a business with time is charged hourly. Additionally, mileage, “windshield time,” copying documents, airplane fare, writing reports, consulting over the telephone, inspecting sites, reading documents relating to the case, and associated travel expenses, such as food and lodging, are all billable.

Finding Work

How do you secure a first consulting job? No attorney wants to hire an inexperienced expert witness. You may have 30 years on the job, but your testimony experience, caseload experience, and business experience place you as a novice! I started by advertising with the state trial lawyers association (plaintiff attorneys mostly). Within a month or so, two referrals came my way. Once you become known, attorneys have their own networking (e. g., (e.g., listserv, etc.). You can narrow the scope geographically, such as the state in which you live or a region of the country (e.g., New England), or you can opt to be hired anywhere within the United States.

There are some firms that will match an attorney’s request for an expert in a specific field. These firms are commonly called “brokerage firms.” The attorney will pay a surcharge on top of the expert’s fee. The brokerage firm has a “stable” of experts in various fields. When a call comes in desiring a particular expertise, the match is made. The upside of these firms is the attorney is usually vetted. However, the downside is the brokerage firm is a third party and payment can be slower.

Details, Details

How do you determine your hourly fee? If you price yourself too low, no attorney will give you any credibility. Explore what other people in the field are earning. Develop a fee-schedule letter explaining all of the fees;

• Testimony

• Travel by car

• IRS mileage rate for business

• Lodging

• Food

• Tolls

• Parking fees

• Inspection fees.

Apply for an EIN number.

Create a system for logging information on case calls. The following might be helpful in developing a form sheet:

• Name of client

• Address

• Phone number

• Email address

• Location of incident

• Date of incident

• Source of referral

• Specific notes as to how injury occurred.

As a CPSI, I have the necessary probes (head and torso, protrusion gauges, fish probe, measuring tapes, cameras, etc.). Therefore, there are some initial expenses. Advertising will range from almost no cost to several hundred dollars. Once you are known, there is little reason to advertise. I cut back on my advertising years ago.

In summary, expert witnessing is totally distinct from what you are doing currently. The demands on your time and challenges are NOT for everyone. However, the field of expert witnessing is very gratifying. Think about it!

Tom Bowler was an elementary physical-education teacher for 33 years in Vernon, Conn. He is now “retired” and living in Florida; however, he continues to work part-time as an expert witness for attorneys throughout the United States. He holds a B.S. degree in physical education from the University of Connecticut and a M.Ed. from Springfield College in physical education. Additionally, he earned his Certificate of Advanced Graduate Studies from the University of Connecticut. In 26 years as an expert witness, he has worked on more than 400 cases. Reach him at bowlertpcs@aol.com.