Row v. Makena Sales Co., Inc., 266th Judicial District, Texas, March 7, 2012.
[Malone comments are throughout the transcript in red]
Every “expert” who climbs up on the witness stand is in fact an expert – in some one thing, maybe in many things. But maybe not in what you think the case should be about. The expert may have a highly buffed curriculum vitae, but whether all his expensive expertise fits your case will never become clear to the jury unless it is brought out in cross-examination.
This case concerned an incident at a gas wellhead that killed a service operator who was pressure-testing the well with a rig from his pumper truck. The hose assembly that connected the truck to the wellhead came apart under high pressure, killing him instantly. Jim Lees represented the man’s family in a product liability suit against the manufacturer of the hose assembly. Trial took place in Stephenville, a dairy community seventy miles southwest of Fort Worth, Texas.
On direct examination, expert Edward Ziegler testified that any number of other factors were to blame for the death: where the operator was standing, how his truck was positioned, his lack of training, and so on, but he steered clear of any opinion on the core issue of whether or not the hose assembly was defective.
Lees came to the cross armed with three things turned up in independent research:
• A long list of corporations the expert had established, courtesy of the Secretary of State;
• A published appeals court decision criticizing the expert’s tenuous grasp of the facts in another case;
• Another juicy bit of database research on the expert’s alma mater.
Q. (BY MR. LEES) Good afternoon. My name is Jim Lees, and I represent Colton Fluke. You and I have never met before today; is that correct?
A. I believe that’s correct.
Q. When you took the witness stand, by the way, you were referred to as “Dr.”, is that the way you prefer to be addressed, Dr. Ziegler?
A. Not — Well, no, sir, I’m not — I’m not a doctor.
[One hears the hiss as the expert’s balloon of credentials begins to shrink.]
Q. Okay. You, in fact, have a Bachelor’s Degree?
A. That’s correct, yes, sir.
Q. And you have a law degree?
Q. And you attended the University of Pittsburgh Law School for two years, correct?
A. Yes, sir.
Q. And then you left there, correct?
[This was a non-leading question with little risk of a bad answer, since it focused on a narrow piece of the expert’s educational story.]
A. I went back to work for Marathon Oil Company, and I finished my Law Degree at South Texas College of Law, and I — I transferred my credits from Pitt.
Q. And just to follow through very briefly on your CV, your educational experience, Texas publishes, through the Texas Higher Education Coordinating Board, publications identifying those institutions whose degrees are illegal to use in Texas, correct?
A. Yes, sir.
[Note how the examiner jumps into the topic with a single well-honed question that attracts the jurors’ attention with “illegal” and tells them to stay tuned for some fireworks. This is a dramatic and a bit edgy way to delve into the topic of credentials from a non-accredited school. I don’t know Texas law, but I have a strong suspicion there is no legal penalty for truthfully saying that one has a degree from a school not recognized by the state of Texas. Still, the witness agreed with the “illegal” characterization, so all is well.]
Q. One of the institutions that Texas says is illegal to use a degree from is Kennedy Western University, correct?
A. At this time, that’s correct.
Q. Okay. And you list Kennedy Western University on your CV as a place where you got your M.S. Safety Engineering Courses.
A. Like — Courses, yes, sir, courses.
Q. Didn’t you used to list a degree from there?
A. Yes, sir, because after I received a degree for several years it was not on the list you refer to.
Q. Says here you attended Kennedy Western University from 1994 to 2003?
A. Yes, sir.
Q. So you went to that college for nine years?
A. No, sir. I — I took my courses –huh– by correspondence all in one year, and then I finished my thesis, which was on the Brenham salt dome –huh– explosion, in 2003.
Q. And you were living in Texas at that time?
A. Yes, sir.
Q. And where is Kennedy Western University located?
A. Huh– It was a — At that time it was a program that was in –huh– Thousand Oaks, California, and all of the faculty members that I worked with for my correspondence courses were at the University of California, at Santa Barbara.
Q. Just so I’m clear, then, did you go to Santa Barbara, to the university, and attend there?
A. No, sir, it was a correspondence course.
Q. Correspondence course.
A. I — I was sent there by the U.S. Department of Energy.
[The witness’s explanation doesn’t matter, because the message is clear: his master’s degree in the topic for which he is testifying in court came from a correspondence school not recognized by Texas education authorities.]
Q. You –huh– You, in your past, have branched out in terms of the things you are willing to offer opinions on, is that fair?
A. I — I don’t know what you mean by “branched out”, I’ve worked on a lot of safety areas –huh– OSHA, a lot of different things.
Q. Well, has a court ever said you weren’t qualified to give an opinion in a court of law in Texas on something you were trying to give an opinion on?
A. No, I re — I recall one –huh– case that I gave a deposition in, I was working as an expert, I sat in that case, I did not have enough information, by the time the trial came along I was not working on the case –huh– been several years, as I recall, the attorney tried to use my deposition that I’d said I didn’t have enough information for, and the judge did not let that be read into evidence, so that’s the only case I recall.
[The witness has just changed his answer from “no” to “yes, once”. Rather than quibbling with that change, or chasing the witness’s explanation, the cross-examiner starts to unspool his source information. This might be hearsay but because it is intended to impeach a witness’s credibility, the recitation of what the other court said is not objectionable.]
Q. Well, I may be misinformed, then. I’m looking at an Appellate Opinion from the Fourteenth Court of Appeals, on a case called Memorial Hermann Hospital System –huh– from Harris County, Texas, in which there is reference to an expert witness that has your name, were you involved in that case?
A. Yes, sir, that’s the case I just referred to.
Q. Says here you were attempting to give an opinion — and I’m reading now from the Appellate Court of Texas —
Q. — as evidenced by his deposition testimony and accompanying exhibits, Ziegler concluded that Memorial Hermann Hospital System failed to properly select the patient food carts in accordance with the safety concerns for the employees who operate them. You gave a deposition on food carts?
A. Yes, sir, it was on — on training and the selection of the food cart —
Q. Attempting to help the lawyers who were suing that hospital, correct?
A. It was an OSHA issue, yes, sir.
Q. It was an OSHA issue?
Q. According to the appellate court, you had never even seen the food carts, correct?
A. Yeah, I seen — I’d seen pictures and the invoices and I went to the manufacturer and saw them.
Q. You didn’t even know, according to the appellate court, how big the carts were, correct?
A. I — I doubt that because — Well, I don’t know what they said, but I — I saw the exemplar carts.
Q. Well, I don’t want you to — to think I’m trying to trick you here, I’ll just read from the appellate opinion. Yet he had not seen the carts in person, he did not know how big the carts were, how much the carts weighed, or how much they could or should carry. He also had no knowledge of the relevant factors in determining whether the weight of a loaded cart or amount of force to be applied to it would be excessive. Yet Ziegler concluded that the hospital failed to properly train its employees in how to operate a food cart. You gave a deposition on that subject?
A. Yes, sir. An OSHA issue.
Q. And the court said no way.
A. Well, for a reason, because the –huh– when I gave my deposition I said I didn’t have that information, but I did give an opinion they didn’t have a training program because they didn’t.
[Translating the court’s holding into a crisp “the court said no way” works well to box in the witness. The witness retreats to his defense that the lawyer in the other case had failed to give him certain information. The cross-examiner could have insisted on a simple yes or no answer, but it wasn’t necessary, since the answer was patently defensive.]
Q. You go around a lot and criticize hospitals and companies that they don’t have training programs?
A. I criticize a lot of people for not having training programs, just like this case, yes, sir.
[Note how the witness has tried to lure the cross-examiner back into discussing the core of his opinions in this case, which the lawyer resists. Instead, the cross-examiner moves into the list of corporations obtained from his online research.]
Q. I’m sure you do. Let me ask you just a few questions about some of the businesses you’ve been in, and again, I may have this wrong, but I just got this off the Secretary of State’s website, says you are or were the registered agent for Rini, R-I-N-I, Design, Incorporated, is that a company you have been or are affiliated with?
A. Huh– I probably incorporated that for her or was — was a registered agent, that’s — that’s my wife and that’s her –huh– comput — her –huh– graphic design company.
Q. Okay. So that’s your wife’s company.
Q. Let me go to the next one. Edward Ziegler Racing, Inc., is that anything to do with you?
A. Yes, sir.
Q. What’s that company?
A. Huh– I have a company that –huh– we — we both sponsor and have race cars — vintage — vintage race cars.
Q. I see. Is that company still in existence?
Q. Because it says here in the Secretary of State “forfeited existence” —
Q. — okay? Do you know why the existence was forfeited?
A. Probably because we didn’t keep it as a — as a corporation and file the paperwork, we didn’t — didn’t need that anymore, we still have the company, but it’s a sole proprietorship.
Q. Didn’t file the paperwork, franchise taxes, things like that, right?
A. No, sir.
A. Filed — We — I mean, if — if you don’t want to keep a corporation you just simply don’t file the paperwork.
Q. So you didn’t want to keep that company?
A. As a corporation, that’s correct.
Q. Do you still have a racing company?
A. Yes, as a sole proprietorship.
Q. And you race what, cars?
A. Vintage race cars, yes.
Q. Vintage race cars. Erebus, E-R-E-B-U-S, Energy, Inc., you’re listed as a registered agent for that company.
Q. What’s that company about?
A. Huh– Doesn’t exist anymore, but it was an oil and gas company.
Q. Did you start it?
A. We –huh– It was set up but I don’t think we ever did any business with it.
Q. Who set it up, when you say “we”?
A. My wife and I.
Q. Wife and I. And when did you start that oil company?
A. I don’t recall, probably in the 1980’s.
Q. That one says “forfeited existence”, correct?
A. I don’t –.
Q. Did you decide not to pursue that company?
A. Yeah — Yes, that’s correct.
Q. Experts United, Incorporated, is that a company you’re affiliated with?
A. Not — Not sure anymore.
Q. You’re not sure if you have a company called Experts United, Incorporated or not?
A. Not — At this time I’m not sure. It was a company we set up.
Q. Well —
A. That — That was the company that did the business with — ultimately with –huh– Halliburton KBR Government Services and we — we operated as Safety United, Incorporated.
Q. You got part of that government money for Halliburton to go do some safety consulting for safety in Iraq, didn’t you?
A. Right, to supply equipment to our troops.
Q. And so Experts United, Incorporated is owned by whom?
A. Probably by my wife and I.
Q. Your wife and you. Is that still in existence or not?
A. I don’t know.
Q. You don’t know?
A. I don’t know.
Q. I’ll just tell you the Secretary of State says it by the way, okay?
[The witness has now disowned an interest in four companies in a row that he had originally owned. His lack of knowledge about whether his company still exists paints a picture of someone spread so thin he doesn’t know where he is.]
Q. Okay. Dynamic Marine Engineering, Inc., is that a company you’re affiliated with?
A. Used to be.
Q. Used to be?
Q. What was the purpose of that company?
A. That was my –huh– I — I owned a welding and maintenance company in Cameron, Louisiana that did a lot of –huh– work in — in chemical plants in the offshore oil industry for several years back in the 1980’s.
Q. Who owned that company?
A. Huh– I did.
Q. You did. That company still in business?
Q. No. What happened to it?
A. Huh– When I sold my welding company, about 1989 or ’90, I stopped using that business.
Q. You had a welding company, too?
A. Yes, sir. I’m a member of the ANSI Welding and Cutting Safety Committee, I’ve been in the welding business for years.
Q. So you’re also an expert not only in food carts and oil and gas but welding?
[In a single sentence, the cross-examiner hopscotches the witness around his diverse fields of claimed expertise, highlighting their dubious nature.]
A. Well, the food — yeah, the food cart is OSHA, but, yes, I’m — I’m — I’m an expert in welding, yes.
Q. Okay. And I’m sorry, is that company still in existence or not, Dynamic Marine Engineering, Inc.?
A. Well, I haven’t used it for twenty years but it could still be in existence, I don’t know.
Q. Well, according to the Secretary of State, it says “forfeited existence” —
A. Okay. Probably —
Q. — so —
A. Probably so.
Q. Probably so.
Q. How about Rini Florist One, Incorporated, is that a company you’re affiliated with?
A. It was a flower shop my wife had for about five years.
Q. You — It lists you as the registered agent, right?
Q. Is that one still in business?
Q. Ziegler Investment Management, Inc., is that one of your companies?
A. I don’t recognize that one.
Q. Says Edward R. Ziegler, list an address on Westheimer in Houston, is that your business address?
A. That’s correct.
Q. And you don’t recognize Ziegler Investment Management, Inc.?
A. No, sir.
[No wonder the cross-examiner stays on this path. The witness keeps giving answers that don’t help his credibility, as he fails to recognize even the names of some of his own companies.]
Q. Hmm. How about Ziegler slash (Sic) Peru, Inc., does that one ring a bell?
A. Yes, sir, that’s my current oil company, we drilled about a hundred wells in the last year.
Q. Who owns your oil company?
A. My wife and I.
Q. And how long’s the oil company been in business?
A. Since about 1993 roughly.
Q. Here’s one City Best Magazine Publishers, Inc., you’re listed as registered agent, any affiliation with that company?
A. My wife set up that company to –huh– buy a magazine, yes.
Q. All right. Is that one still in existence?
A. I don’t think so.
Q. Ziegler Operating Company, does that one ring a bell?
Q. Is that one still in existence?
Q. What’s that one do?
A. That was my original consulting and oil company I started in 1981.
Q. Your original consulting and what?
A. Oil company.
Q. So why did you start all of these other ones?
[Because the subject matter is completely safe for the cross-examiner, a “why” question works well to hand the witness a shovel and let him dig his own hole.]
A. Huh– Dif — Just different purposes at different times.
Q. You kept incorporating different business after different business after different business as I’m looking through the years of your professional life, fair enough?
A. Yes, sir. In thirty years I’ve had about ten different businesses, that’s correct.
Q. Well –huh– Do you have a landscape company, by the way?
Q. Huh– First Safety Consultants United, Inc., is that one of your companies?
A. Yes, that might be the one that Safety United was operated through.
Q. Pardon me?
A. That may be the one that Safety United was operated through.
Q. What’s Safety United, is that another company?
A. Well, it’s the one I mentioned earlier when you asked me about Halliburton KBR, that’s our — that was our primary safety consulting business.
Q. I thought the Ziegler Operating Company was?
[The purpose of the expert’s various companies is now thoroughly confused, further undermining his credibility.]
Q. No. Okay. In addition to operating all of these companies at various times — and I know some of them are out of existence, you testify as expert witness a lot?
A. Not much anymore.
Q. Okay. Because you’re kind of busy with this other stuff?
A. Yeah, I drilled a hundred wells — we have — we have four drilling rigs and I’ve drilled a hundred wells in the last year.
Q. Well, you’ve testified against a hospital, right?
Q. Who else have you given opinions against in a court of law or attempted to besides a hospital or in this case you’re talking about Swan, you’re talking about Mr. Graves and EOG, what other kinds of businesses have you given opinions about?
A. Well, in — in the last –huh– thirty years roughly a lot of businesses I’ve given opinions about, both positively and against –huh– dealing with almost every aspect of safety. When you go through the OSHA Training Institute for construction and general industry, that covers everything that’s in OSHA, virtually every type of workplace, and as a certified safety professional, we deal with all industries.
Q. So you are the guy when it comes to safety in the — the workplace, right?
A. I am one of the guys, yes. I — I –
[The cross-examiner has now set up the witness to be someone of self-proclaimed vast and diverse expertise, who should know why the hose assembly failed. So he asks the $64,000 question.]
Q. I want you to tell the ladies and gentlemen of the jury why the hose assembly came apart.
A. Well, I — I didn’t look at that, that wasn’t my area. I know why Mr. — I know why Mr. Fluke was killed but I don’t — I don’t know why the hose came apart, that wasn’t my area.
Q. Okay. Why was Mr. Fluke killed? I’ll bite.
[Under the normal “rules” of cross-examination, Lees has just violated two commandments: asking a “why” question and asking the witness to repeat unfavorable testimony. It works here because it’s a way of underscoring the cross-examiner’s basic point: that this is a witness of vast and diverse self-proclaimed expertise – expertise already shown to have a dubious if not bizarre career trajectory – and yet the witness cannot bring himself to look at the core issue of the case: why did the hose assembly fail.]
A. Mr. Fluke was killed because Mr. Graves, Mr. Wright left him and his truck in a bad position, let him pressure up. Mr. Fluke was not –huh– was not properly trained and did not have a proper safety program or the knowledge from his employer to –huh– be able to conduct the operation safely. Hoses come apart all the time, but if you’re at the right place and do it correctly, and position your truck the right place, then you don’t get killed or injured.
Q. And so you came all the way from Houston, Texas to tell these people under oath that’s why Tim Fluke was killed, correct?
A. Yes, sir.
Q. You can’t even answer my question as to why that hose came apart?
A. I wasn’t — I wasn’t –huh– designated to be the person to decide why the hose came apart.
Q. Here’s the fitting —
Q. — here’s the hose. All your expertise, you want to take a look at it and tell me why it came apart.
[The cross-examiner keeps pushing for an answer because the witness has shown he wants to avoid the question. The answer cannot help the expert’s side, and thus he evades. The more the cross-examiner gives the expert an open-ended opportunity to explain what happened to the hose assembly, the more evasive the witness appears.]
[Bench conference not transcribed.]
Q. (BY MR. LEES) Question stands. Based on your vast expertise, look at it, tell us why did it come apart?
A. Don’t — I don’t know why it came apart, it could have come apart because it was abused, it could have come apart because it was pulled on, I — I mean, a number of different reasons —
A. — but the — but the — but the bottom line is, if Mr. Fluke had not by his supervisor and his employer be allowed and required to be where he was, he would not have been killed or injured.
Q. You know, if he had called in sick that day, with all due respect, he’d be alive today, right?
[A neat way to ridicule the witness’s point.]
A. Well, maybe one of his co-workers would be dead but he might be alive, yes, sir.
Q. There’s a million reasons in hindsight, you can look back and say if, if, if, somebody would be alive today, but God doesn’t give us do-overs, Mr. Ziegler, does he?
A. No, sir, that’s why you have to do it right to start with, it’s not — it’s not if, if, if, it’s if you have the proper training and if you’re standing and required allowed to be at the right place, that’s why you don’t need a do-over if you do it safely.
[The logic of the witness’s position about safe practices should apply equally to the defendant, and makes for a good “turnabout is fair play” question. The cross-examiner knows this won’t bring a positive answer, but will further show the witness’s bias.]
Q. Right. And so if Makena and Bridgeport/Jacksboro had just done it safely, this young man would be alive today, wouldn’t he?
A. I don’t know what that means, because —
Q. I’m sure you don’t?
A. — a hose can come apart for any reason, that’s why you always stand the right place and do it safely as far as the procedures.
MR. LEES: Judge, I don’t have any further questions for this guy.