A Utah Judge has ordered California attorney Don Howarth to pay an unsuspecting expert witness $1,000 for administering an electric shock during a particularly bizarre cross-examination demonstration. Howarth questioned the testimony of Dr. A.P. Meliopoulos, an electrical engineering professor at Georgia Tech, by use of a children’s toy gag pen, capable of delivering a minor electrical current – a tactic deemed unacceptable by Judge James Brady.

Dr. Meliopoulos Provides Electrical Expert Witness Testimony
Meliopoulos offered his expert testimony in Gunn Hill Dairy v Los Angeles Department of Water & Power – a multi-million dollar lawsuit over dairy cattle in Utah receiving electrical shocks due to stray current on the ground between a local power plant and Los Angeles. Dr. Meliopoulos was called by the defense to testify that a 1.5 volt shock, the voltage allegedly transmitted through the ground, is equivalent to the power generated by a AAA battery, and cannot be felt by a human – much less a cow. Dr. Meliopoulos’ expert testimony was fairly standard, and designed to illustrate to jurors what type of electrical current was at issue by relating it to an everyday item. However, things took an interesting turn on cross examination.

Attorney Shocks Electrical Expert Witness
When cross-examining Dr. Meniopoulos, attorney Don Howarth approached the stand with a pen and the following instruction: “Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, sir?” What Howarth allegedly failed to disclose was that the pen was a shock pen, which can produce an enhanced electrical current due to an internal transformer within the device. The pen performed its duty, and Dr. Meniopoulos received an unexpected, and unwelcome, surprise in the form of an electrical shock upon complying with Howarth’s request to touch the pen.

Judge Brady took strong exception to the attorney’s behavior, noting that the shock pen used was capable of generating up to 750 volts – more than enough to cause pain. Further, the packaging on Howarth’s shock pen specifically warned against its use on people over 60 years old – meaning the over-60 Dr. Meniopoulos should not have been an unknowing target of Howarth’s unusual demonstration.

Judge Orders Sanctions for Electric Shock Demonstration
Writing, “A witness is entitled to be safe and protected from assaults or physical intimidation,” Judge Brady delivered what he considered to be “appropriate sanctions” against Howarth for witness battery. Brady went on, “Had Mr. Howarth disclosed his intent to deliver a shock to Dr. Meliopoulos, the court would not have allowed it. Witnesses … are called up to answer questions testing their qualifications, memory and truthfulness, to recall their prior testimony and explain any inconsistencies. To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a courtroom.”

Howarth and co-counsel Jefferson Gross disputed Judge Brady’s decision arguing that the children’s toy pen was not capable of delivering serious damage – even to a man over 60 years old. Claiming the pen caused more surprise than harm, Howarth argued that he used an effective demonstration to refute Meliopoulos’ claim that a minor electric current cannot be felt by humans or cattle. Gunn Hill has a long way to go before resolution, but Howarth’s side-show antics provide a useful example of how not to question an expert during cross examination. While in-court demonstrations can be useful when confronting an expert witness, causing physical shock or pain is widely held to be an unacceptable approach to rebutting testimony.

Earlier this month, a break in the Oscar Pistorius murder trial gave us the opportunity to analyze the testimony of expert witnesses who helped build the prosecution’s case against the former Olympian who is accused of murdering his live-in girlfriend, Reeva Steenkamp. Pistorius, who has testified that he killed Steenkamp when he mistakenly thought she was a home invader, presented two important defense expert witnesses this week to support his case.

Pistorius Defense Team Hires Private Ballistics Expert Witness
Last week, Pistorius presented the testimony of Tom Wolmarans, a private ballistics expert hired to discuss evidence that supports the defense’s theory of the crime. Mr. Wolmarans generally agreed with the prosecution’s ballistic expert, Captain Chris Mangena, about the sequence of the gunshots and the trajectories of the bullets. Wolmarans disagreed, however, on three key points:

• The position Ms. Steenkamp was in at the time of the shooting;
• The cause of injuries to her back;
• The position she was in when the fourth and fatal shot hit her.

Mr. Wolmarans testified that his investigation suggested that Ms. Steenkamp was reaching for the door at the time Pistorius opened fire – contradicting Captain Mangena’s claim that she was in a defensive position. Her body position is significant because a defensive stance suggests the couple was arguing while a position of reaching for the door could support Pistorius’ account that he did not know who was behind the bathroom door. Wolmarans also explained that the cause of Ms. Steenkamp’s back injury could have been the result of falling on a magazine rack rather than being hit by bullet ricochet while on the floor – suggesting she did not have time to cower on the floor in a defensive position during the shooting. Finally, Mr. Wolmarans suggested that the fourth and final bullet hit Ms. Steenkamp as she was falling, further supporting his claim that the shots had been fired in rapid succession with each hitting her before she fell to the floor.

The distinctions between Mr. Wolmaran’s and Captain Mangena’s testimony are, Pistorius argues, important because the defense expert witness presented evidence that Ms. Steenkamp was not in a position to defend herself and was fatally wounded before having the opportunity to cry out. Each point lends support to Pistorius’ claim that he heard an unfamiliar noise in his bathroom and opened fire without having the opportunity to process that the individual inside was his girlfriend.

Anesthetist Expert Witness Testifies in Pistorius Trial
During the prosecution’s case, pathologist Dr. Gert Saayman testified that Ms. Steenkamp had eaten at 1 AM on the night of the shooting – contradicting Pistorius’ claim that the two were in bed by 10 PM. The timing of Ms. Steenkamp’s last meal could be significant because if she and Pistorius were not asleep by 10, then his claim that he thought she was sleeping next to him at the time of the shooting loses credibility. Prosecutor Gerrie Nel argued that the two were awake and arguing late into the evening, leading to Pistorius shooting her through the bathroom door.

Pistorius called Professor Aina Christina Lundgren as an anesthetist expert witness to question the certainty of Dr. Saayman’s conclusion regarding Steenkamp’s last meal. Professor Lundgren testified that the methodology employed by Dr. Saayman could not, with certainty, determine that Ms. Steenkamp had eaten at 1 AM. Dr. Lundgren pointed out that a number of factors could call Saayman’s timeline into question because the rate of digestion cannot be accurately determined. Professor Lundgren’s claim echoes a similar criticism of the prosecution’s digestive estimation made by defense expert pathologist Dr. Jan Botha earlier in the trial.

Pistorius’ defense team rebounded from the near disaster it created by the rambling and unqualified forensic expert testimony of Roger Dixon earlier in the trial by presenting two qualified experts to attack specific points made by Prosecutor Nel. The prosecution’s attack on Pistorius’ story relied heavily on the position of Ms. Steenkamp’s body before and during the shooting and the fact that the Olympian’s timeline was called into question by the contents of her stomach. Mr. Pistorius’ expert witnesses were able to present credible explanations based on their investigation of the evening, and lend support to his account of the tragic events that led to Ms. Steenkamp’s death.

Apple and Samsung, who have been waging a high stakes patent battle over smartphone and tablet technology for years, continued to place significant value on expert witness testimony throughout their recent patent infringement lawsuit. In the latest case, Apple filed suit for violations of five patents while Samsung counter-sued for violation of two of its patented technologies. Both companies have used technology and business expert witnesses in an effort to convince the jury that their competitor not only infringed on patented designs, but profited as a result.

Apple Expert Witnesses Claim Patent Infringement

Both Apple and Samsung relied almost exclusively on expert witness testimony in an effort to clarify how the jury should rule on the variety of patent claims in dispute. Early in the case, Apple produced several computer science expert witnesses to support the company’s claim that Samsung had committed patent infringement by using Apple technology to build Samsung smartphones and tablets. Professors from esteemed universities, including the University of California and Carnegie Mellon University, provided expert witness testimony on behalf of Apple to identify the similarities in technology between the company’s iPhones and tablets and the Samsung counterparts.

Apple also called the engineers who invented the slide-to-unlock iPhone feature and the company’s quick link search technology, two of the patents at issue, to testify that their designs were used directly and copied by Samsung. Finally, Apple called an economist expert witness to explain to jurors that Samsung’s infringement cost Apple an average of $33 per infringing smartphone and tablet sold – concluding that Apple is due over $2 billion in total.

Samsung Expert Witnesses Deny Apple’s Claims

Samsung countered with its own set of computer science expert witnesses to attack Apple’s claims on three fronts:

1. Apple’s patents are limited, and Samsung did not infringe;
2. There is no evidence customers purchased Apple products because of the patented technologies; and
3. Apple’s patents were invalidly granted by the US Patent Office.

Computer science professors from MIT and UNC took the stand to testify to the differences between Apple’s patented technology and the software that Samsung employed. Samsung attorneys made sure the computer experts were able to offer clear reasons why Apple’s claims were not justified, asking the professors to identify distinctions between the technologies and the limitations on Apple’s patents.

Samsung also called a Google engineer as a technology expert witness to testify that Google’s Android platform, the operating system in Samsung phones and tablets, invented much of the technology in question before Apple patented it. Finally, in response to Apple’s damage claim, Samsung countered with its own economist expert witness to argue that even if Samsung did infringe, the damages would average 35 cents per device – entitling Apple to only $38.4 million.

Expert Witnesses Key in Patent Cases

As the jury deliberates the latest Apple v Samsung trial, they will need to consider which side made best use of its expert witnesses. The latest chapter in the high stakes legal battle provides example of the need for experts from a variety of different fields to not only argue whether or not a patent was infringed, but also to provide analysis that helps jurors determine the value of a damage award. Both Apple and Samsung relied on technology and economic expert witnesses to cover all aspects of their legal case, and the lawsuit demonstrates how experts are used at the top level of civil litigation.

In trials involving highly complex questions about technology patents and the economic impact of patent infringement, jurors rely on expert witnesses who can clearly explain difficult to understand material.

The use of expert witnesses has become commonplace across the American legal landscape, and attorneys must develop the ability to challenge opposing experts during the course of the trial process. In an effort to keep experts away from juries, most attorneys will attempt to preclude opposing expert witnesses from providing testimony by either challenging the expert’s credentials or calling into question the methods the expert used to develop his or her testimony. In the New York lawsuit, Valente v. Textron, a defendant in a personal injury case successfully used both tactics to prevent two plaintiff expert witnesses from testifying.

Qualifying an Expert Witness for Trial

When questioning the qualifications of an expert or the soundness of his conclusions, courts will rely on the Daubert standard. Under Daubert, an expert may only testify if he satisfies the requirements under Federal Rule 702, and if his testimony is both relevant to the issue at trial and based on reliable scientific evidence and knowledge.

Central to a judge’s decision is whether or not the testimony is derived from a scientific methodology – a determination that can be made based on a variety of factors, including:

1. Whether the theory has undergone empirical testing
2. Whether the theory has been subjected to peer review and publication
3. The existence of professional standards in the industry
4. The degree to which the theory is generally accepted by the scientific community

In addition to the scientific knowledge requirement, an expert must be qualified to reliably apply the principles and methods to her analysis of the case. In Valente, the plaintiff was unable to provide experts who were able to both demonstrate their qualifications and prove that their testimony was based on scientifically reliable methodology.

Challenging Expert Witness Credentials

The Valente plaintiff, 18-year old Matthew Valente, suffered a devastating and permanent injury after he lost control of the E-Z golf cart he was driving. Valente sued the manufacturers of the golf cart, E-Z Go company, alleging that the break system was faulty and the vehicle lacked appropriate safety equipment or adequate warning about improper use. Plaintiff expert witness Bruce Gorsak, who has a bachelor’s degree in mechanical engineering and used to work for manufacturer E-Z Go, intended to testify that the E-Z golf cart was unsafe because it had a 2-wheel break system and lacked a safety belt. However, the defendant argued he was unqualified as an expert witness.

In challenging Mr. Gorsak’s ability to testify in the case, E-Z Go pointed out that none of his analysis nor understanding of the cart’s safety features were based on peer reviewed scientific studies, and his claims that the safety warning was inadequate were made without actually knowing what the golf cart’s warning said. By proving that Gorsak was unable to support his testimony with the factors articulated in Daubert, E-Z Go’s defense team was able to convince the judge that he would not present reliable testimony and was therefore unqualified as an expert witness.

Challenging Expert Witness Testimony

Typically more effective is to challenge the methodology used by the expert to generate his opinions, and the E-Z Go defense was able to disqualify forensic engineer Kristopher Seluga in this manner. After stipulating to Seluga’s qualifications as an engineering expert familiar with rear-wheel braking systems, the E-Z Go attorneys turned their focus to the method Seluga used to evaluate the accident scene and arrive at his conclusions about the case.

Mr. Seluga inspected the accident scene, took various measurements of acceleration, and used a computer simulation program to determine that the golf cart’s brake system caused it to enter a dangerous spin and tip, causing Mr. Valente’s injuries. Upon analyzing Mr. Seluga’s computer simulation, the court found that he had written the code himself and did not have the process reviewed by other experts in his field. Further, Seluga’s model was designed for vehicles larger than golf carts, and was not commercially available for use and critique by others.

Under the Daubert standard, the court determined that Mr. Seluga’s simulation model was not validated by proper scientific method and therefore was “wholly inadmissible.” Without a proper scientific basis for his methodology, Seluga’s testimony was disallowed as being unreliable. The Valente case provides a demonstration of two effective means of challenging and disallowing opposing expert witnesses, both relying on the Daubert standard of qualifying experts for trial.