[In the Courtroom] Just the Facts

Have you noticed that just about every conceivable dispute in life or business nowadays is battled out in courts of law? It’s a fad. Several popular television shows are good examples of this trend. I personally have watched episodes of the show Judge Judy where the litigants were squabbling over $1,500 or less. It seems ridiculous that people can’t work out their problems without taking every little thing to court.

Unfortunately, even pest management professionals are not immune to lawsuits filed by customers claiming neglect, harm, personal injury, emotional trauma, poisoning or damage to their food or property from insects. At the other end of this spectrum is the situation where pest control personnel serve as expert witnesses in court cases. Under this scenario, the professional entomologist is serving as a consultant or testifying expert in a court case. They aren’t being sued, but instead, are hired as technical experts in someone else’s lawsuit. In this article I will try to explain the interface between the legal profession and pest control, more specifically, forensic entomology in the broadest sense meaning only “pertaining to courts of law.”

But many of the basic principles of record keeping, data integrity and transfer, and testifying are the same, no matter which side of the law you are on.

To start, let’s discuss ways to avoid a lawsuit in the first place.

1. Stay within your outlined professional “duties.”
Whether you work for a corporation, governmental entity or independent licensed pest manager, one of the best ways to keep from getting sued is understand your duties and perform them well (and only them). A corporate, public or government employee is usually protected from lawsuits if he/she remains within his prescribed duties. This is sometimes applicable to employees working for private companies. For example, if you are a technician for a major pest control company, then do your job diligently, following the policies and procedures developed by the technical staff of the company you work for. It sounds silly, but if you get sued, you can say something like, “Hey, I just followed the official policies and procedures adopted by my company. Go talk to them.”

2. Stay within your expertise.
Never stray from your training or expertise, no matter how tempting. If, for example, you are a pest control technician, and a customer asks you about mold growth in her bathroom, it would be best to say something like, “I’m not an expert on indoor molds. The best thing for you to do is to ask someone else, maybe a health department person or an industrial hygienist.”

As another example, if, during an investigation, you claim that the offending pest is a phorid fly, then you had better be able to demonstrate your fly identification abilities because this will be challenged in court. Attorneys for the other side will most certainly ask you questions like, “Mr. so-and-so, are you a board certified entomologist?” Or, “Could you please tell us what kind of entomological training you have received.” Or, “Mr. So-and-so, how many phorid flies have you ever identified?” And, “What are the distinguishing characteristics of this particular fly family?”

Another common problem is when customers ask medical questions or ask for a medical opinion (spider bite questions, for example). Non-physicians should never offer any type of medical advice or examine a patient or any lesions/bites on their body. Invariably, at some point, the customer will become angry or disgruntled and claim that you offered a medical diagnosis, leading to harm or injury.

3. Maintain good notes and records of your work.
Good record-keeping is a must for both preventing and fighting lawsuits. All sorts of claims can be made by plaintiffs about you and your services, and if months or years have passed since the incident, written and digital records are critically important. Inspection reports or pest management “logs” or application records may be used to establish the mechanism of contamination in a single outbreak or to discern a pattern of neglect and sub-standard behavior. Records show what the findings were at the particular time of the incident, conditions, environmental data, and time and duration of your visit, etc. For record-keeping beyond standard inspection or pesticide application forms or encounter reports, I suggest using a bound notebook (not loose-leaf) with consecutively numbered pages. This type of record book makes it difficult to claim that notes have been tampered with since the incident.

Good records may either help or hurt your case. Believe me, your records will be prominently displayed on the wall in the courtroom for all to see. This can be quite embarrassing. I’ve personally seen lawsuits against PMPs won because the records revealed that the pest control technician was only at the site for less than 10 minutes (the argument being that it would be impossible to perform the necessary pest control applications in that short period of time). On the other hand, I’ve seen frivolous lawsuits defeated or thrown out because the records showed that the technician followed accepted inspection and treatment guidelines. Remember, people can claim or allege that you did all sorts of terrible things, but proving maleficence is another thing altogether. Records are an integral part of that proving/disproving process.

Read and follow pesticide labels (don’t go off-label). In the same way that physicians are legally bound by prescription drug labels, PMPs are mandated to use pesticides only according to their label directions. Using a product “off-label” is illegal and punishable by fines and even imprisonment. A surefire way to invite lawsuits is to use a product at a higher rate than prescribed on the label or in a site not listed on the label. Conversely, if someone sues you claiming injury from pesticide use, if your records show that you were within label rates and guidelines, the chances of a successful suit are diminished.

4. Respond quickly to complaints.
One of the best prevention strategies against lawsuits is to immediately and thoroughly respond to customer complaints. The longer an “injured” party is allowed to think on the incident, the more likely he/she will contact an attorney. In lawsuits, often part of the claim of injustice is that PMPs showed calloused disregard for the customer’s feelings. I personally know PMPs who avoid lawsuits by visiting the offended person(s) right away and saying things like, “How can I help? What will it take to make this right?” Complaints that are swiftly dealt with usually do not end up in court.

Other Legal Aspects. By the very nature of their jobs, pest management professionals at times may have their work records utilized in legal cases or courts of law. They may even be asked to give a deposition or testify in court. This could be anything from cases of misapplication of pesticides to insect damage to foodstuffs or property.

Knowing this, PMPs should make every effort to ensure their records are reliable and will hold up when challenged in court. Whether or not records or testimony are “admissible” is a big deal in legal matters. Attorneys and judges understand this concept, and much wrangling in court occurs over whether or not certain testimony or tidbits of information are admissible or not. Generally, statements made out of court, orally or in writing, are unreliable and inadmissible. However, even an out-of-court statement (especially business records) may sometimes be admissible when offered to “prove the matter asserted.” The main thing is to make sure your records are accurate and reliable.

The term “hearsay” is applied to testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone else. Hearsay is often struck down in courts, e.g., something like, “Jane told me that John Doe often doubles the rate of pesticides in the course of his work. I didn’t see it myself, but that’s what she told me.”

There are exceptions to the hearsay rule such as: 1) records of regularly conducted business activity may be admissible and 2) public records and reports also may be admissible if deemed reliable. For example, health department inspection records, made during the regular course of one’s duties, are often allowed by judges in court cases. As such, it makes sense for PMPs to make efforts to strengthen the reliability of their records whenever possible.

This might include things like supplementing written records with photographs whenever possible, and recording the author, date and time of any notes placed in a file. This makes the data more reliable. The person with the most direct knowledge of the situation can then be found and questioned. In your notes, try to avoid saying things passively like, “the tenant was instructed about proper clean-up procedures and also was shown the proper method of waste disposal.” Who instructed the tenant? Who showed them the proper method? Notes should be in an active voice whenever possible.

Being an Expert. There are two kinds of “professional” or paid experts in court cases — consulting experts and testifying experts.

Consultants provide background and technical information to attorneys for a fee, but do not have to give a deposition or testify in court. They can be anonymous players in the background without fear of their opinions being attacked, cross-examined or destroyed in a trial. They are merely offering ideas and opinions to the attorneys who hired them. Consultants are important in court cases, especially in complex matters wherein almost no one understands the technical jargon. Attorneys for both sides need someone to clarify the issues and help them better prepare their case(s).

Testifying experts, on the other hand, are hired by plaintiff or defense attorneys to testify in a deposition or in court to help their cause and win the case. In this case, it is not just the facts of the case, but how the expert frames them, how he/she looks, etc. It is all part of the package. Of course, testifying experts are supposed to be impartial and not be an advocate for the side they are working for; however, in reality, they often want their side to win and may avoid saying things that hurt their cause.

In fact, some testifying experts are downright dishonest and will say anything for money. These are people who advertise in publications and trade journals as being “experts” in a wide variety of subject areas. One way to help expose these types of experts is to ask them what percent of their annual income is derived from professional “testifying.” Most real experts have another job or profession and testifying is only a part-time enterprise.

Scientific facts and expert testimony are subject to scrutiny. In the United States, federal and state courts now operate under “Daubert” rules of admissibility, based on a case Daubert vs. Merrell Dow. In that case, the Supreme Court ordered a new standard for admissibility of scientific evidence now known as the Daubert test, which tries to ensure that so-called scientific evidence meets certain standards. Now, under the judge’s new role under Daubert, expert reports or deposition testimonies need to address explicitly factors for reliability and relevancy:

Reliability Factors in Daubert

• Has this scientific theory or technique been empirically tested?
• Has this scientific theory or technique been subjected to peer review and publication in scientific journals?
• What is the known or potential error rate in this theory or technique? Every scientific idea has Type I and Type II error rates, and these can be estimated with a fair amount of precision. There are known threats to validity and reliability in any tests (experimental and quasi-experimental) of a theory.
• What is the expert witness’s qualifications and stature in the scientific community?
• Can this theory or technique and its results be explained with sufficient clarity and simplicity so that a court and jury can understand its plain meaning?

Expert witnesses often will be asked to give a deposition in a particular case and may be required to testify in the actual trial, should the case go to trial. A deposition is part of the process of assembling evidence before the trial in a lawsuit. Depositions may be taken anywhere, but a court reporter is there to take the deposition, and the testimony is “sworn” or under oath. The “deponent” is the person being questioned, and may be either the plaintiff, the defendant or various experts/witnesses.

If you are ever asked to give a deposition, at the beginning you will be asked to offer all sorts of background information about who you are, your educational and technical background, and then, more importantly, why you are uniquely qualified to offer an opinion in the case. Be careful during depositions to only say what you intend to say and nothing extraneous. Attorneys may try to set you at ease to get you to answer questions freely — to offer up new or unintended information. This can come back to haunt you. Attorneys may ask you leading questions to arrive at (their) desired answers, or they may ask you several questions in rapid-fire fashion, leaving you little time to think through your responses. Don’t be tricked. You have the right to slow down and think about each question before responding.

You also have the right to ask for a question to be repeated or even rephrased. In one deposition I was giving, I asked for the same question to be rephrased three times. The attorney seemed frustrated, but I didn’t care. I wanted to make sure what I said was what I wanted to say. Also, attorneys from the opposing side may try to discredit or destroy you during cross-examination. They may offer up hypothetical scenarios, such as, “What would you say, Dr. Goddard, if I told you we have evidence directly contradicting what you’re saying here today?” Remain calm and don’t let it unsettle you. Tell them, “Fine, then bring it out. Let’s see your so-called evidence.” Chances are, they have no such evidence.

Final Thoughts. Pest management professionals need not be fearful of courts or legal proceedings. Keep a cool head, rely on the notes and records you made during your visits, and don’t be afraid to say, “I don’t know,” or “I don’t recall” when you have to. It’s better to say that than to piece together an answer that is sketchy even faulty. Keep in mind that if you choose to be an expert witness (for compensation), it’s an adversarial environment and you will need tough skin to withstand the cross-examination and occasional attacks on your integrity and character.

Goddard is the author of “The Physician’s Guide to Arthropods of Medical Importance.” He is an extension professor of medical and veterinary entomology at Mississippi State University. E-mail him at jgoddard@giemedia.com.