Author Archives: Colin Holloway, Attorney at Law

About Colin Holloway, Attorney at Law

LinkedIn Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.

Forensic Expert Witness Claims Death was Suicide in Utah Murder Trial

The case against a Utah doctor accused of murdering his wife hit a snag this week when a forensic expert witness testified that the wounds the victim suffered were likely self-inflicted, suggesting the death was a suicide.  The expert testimony is the latest dramatic turn in the murder trial of Johnny Brickman Wall, and gives defense attorneys a compelling argument for sufficient reasonable doubt to warrant an acquittal.

Utah Doctor Accused of Murdering His Wife

In 2011, Uta von Schwedler, the 49-year-old ex-wife of Johnny Wall, was found dead in a bathtub full of water in her Utah home.  The subsequent murder investigation turned to Wall due to the couple’s messy divorce and bitter battle for custody of the four children. After examining all the available evidence, prosecutors charged the 51-year-old Wall with first-degree felony murder in von Schwedler’s death, and have built a case arguing that he attacked his ex-wife in her home and left her body in the bathtub.

Police and prosecutors point to defensive wounds on von Schwedler’s arms and an injection mark that was covered by a stab wound – where Wall allegedly injected her with Xanax – as evidence that the woman was murdered by her ex-husband, however, the cause of death has not been definitively settled. Throughout the investigation and trial, Wall and his defense team have argued that von Schwedler’s death was a suicide, and called upon forensic expert Dr. Judy Melinek to cast doubt on the conclusion that von Schwedler was murdered.

Forensic Expert Suggests Victim Committed Suicide

Giving genesis to the defense’s argument that von Schwedler’s death was a suicide rather than a homicide was the uncertainty by the Utah assistant medical examiner who listed her death as “undetermined” due to difficulty ascertaining the cause.  Although the medical examiner did not take a position, the defense called forensic expert witness Dr. Judy Melinek took the stand to present an argument that von Schwedler injured herself and took Xanex before drowning in her bath tub.

According to Dr. Melinek, the cuts on von Schwedler’s arms that prosecutors claimed were defense wounds were likely self-administered.  Dr. Melinek observed that the wounds were parallel, which usually indicates a suicide attempt rather than defensive wounds, which are usually at an angle or horizontal on the arm.  Further, Melinek informed jurors that the cuts showed sign of hesitation, which a suicidal person does when “they are testing to see what they can tolerate.”

Dr. Melinek also pointed out that there were no signs of a struggle at the scene, which, in her expert opinion, indicates von Schwedler was not attacked.  When asked on cross-examination if the scene was staged, Dr. Melinek responded that it did not appear to be, citing a lack of Xanax pills at the scene to further the appearance of a suicide.  Overall, Dr. Melinek’s expert opinion was that von Schwedler took Xanax, slit her own wrists, got into the bathtub and drowned – leaving the defendant Wall out of the equation.

Defense Seeks Reasonable Doubt with Expert Testimony

In offering Dr. Melinek as a forensic expert witness, Wall’s defense team has presented a compelling argument to reasonably doubt the prosecution’s claims that the defendant killed his wife.  The legal standard for conviction in criminal trials allows jurors to convict only if the defendant is guilty beyond all reasonable doubt, and Dr. Melinek’s expert testimony provides a strong basis for doubt.  Even if jurors think it is more likely that the prosecution is right, the existence of a second theory of von Schwedler’s death that is supported by an experienced forensic expert witness could weaken the jury’s belief in guilt sufficiently to acquit Wall.  Dr. Melinek might be wrong, and might even have failed to convince jurors that the death was a suicide, but her expert testimony that von Schwedler’s death was not a homicide casts an impossible-to-ignore shadow over the prosecution’s case.

Aaron Hernandez Murder Trial Features Expert Witness Testimony

The murder trial of former NFL star Aaron Hernandez continued this week with prosecutors presenting two expert witnesses who placed the defendant and the victim at the scene of the shooting. As Hernandez’s murder trial progresses, prosecutors have built their case with experts to interpret the evidence for jurors and fingerprint and DNA testimony is the latest attempt to bolster the state’s case.

Aaron Hernandez on Trial for Murder

Hernandez is on trial for the murder of Odin Lloyd, a 27-year-old acquaintance of the former New England Patriot who was shot and killed on June 17th, 2013. Prosecutors charged Hernandez after police investigators uncovered evidence placing Lloyd and Hernandez together on the night of the murder and a series of communications between the two that indicated they had a recent disagreement.

Although the gun used to shoot Lloyd has not been found, and police have not been able to directly point to Hernandez as the shooter, the defendant can be found guilty of murder under a Massachusetts “joint venture” law that allows for conviction of any person who knowingly participated in a plan to commit the crime. Hernandez, who allegedly worked with two other men to orchestrate Lloyd’s killing, was arrested on June 26th, 2013 with his trial opening on January 29th of this year.

Police Fingerprint Expert Witness Testifies in Hernandez Murder Trial

Massachusetts State Police Trooper David Mackin took the stand this week to explain the fingerprint process that investigators used to place Hernandez and two alleged accomplices, Ernest Wallace, Jr. and Carlos Ortiz, at the scene of Lloyd’s murder. Central to Mackin’s testimony was evidence found in a Nissan Altima that prosecutors allege Hernandez rented in order to transport Lloyd to the murder scene on the night of June 17th. According to Mackin’s fingerprint investigation, all four men – Hernandez, Lloyd, Wallace, and Ortiz – left fingerprint evidence inside of the vehicle. Hernandez’s were on the driver’s side door handle and Lloyd’s were on the rear passenger door.

DNA Expert Witness Corroborates Prosecution in Hernandez Trial

Adding to the testimony from Trooper Mackin, prosecutors looked to a DNA expert witness from the Massachusetts State Police Crime Lab, Diana Fife Biagotti. Biagotti testified that DNA from Hernandez and Lloyd were found on the remains of a marijuana cigarette butt from the scene of the shooting, supporting the prosecution’s claim that the two men were together in the place where Lloyd was killed. Further, Biagotti testified that the defendant’s DNA was detected on a shell casing recovered from the Altima after it was returned to the rental agency. Police investigators recovered the shell casing stuck to a piece of chewing gum, and, according to Biagotti’s expert testimony, the casing contained evidence that Hernandez had handled it after it was fired.

Hernandez Attorneys Challenge Prosecution Expert Witnesses

Attorney for Hernandez, James Sultan, took both prosecution expert witnesses to task for failing to reconstruct a complete story of the night of the shooting. Sultan accused both experts of coming to conclusions that they wanted to see or hoped to see rather than objectively testifying about the facts of the case. In response to Trooper Mackin’s fingerprint testimony, Sultan pointed out that the fingerprints in the Altima could have been made at any time, and did not necessarily support the conclusion that Hernandez and Lloyd were in the vehicle together. Sultan also question Biagotti for failing to test other items found in the vehicle for DNA, suggesting that the police cherry picked evidence rather than conduct a thorough investigation.

Prosecutors have also presented expert witnesses on forensic video evidence to analyze footage of Hernandez’s activities on the night in question, and on crime scene reconstruction to suggest that Lloyd’s killers were in close proximity to him when he was shot. Sultan has challenged each expert for failing to fully connect all the dots back to Hernandez in order to give jurors an accurate picture of Lloyd’s murder. The trial is expected to last late into March with the defense yet to present its case.

Jesse Matthew Murder Trial on Hold for DNA Expert Witness

The murder trial of Jesse Matthew, Jr. has been delayed after a judge ruled this week that the defense would be entitled time to use the services of a state-appointed DNA expert witness.  Matthew is facing trial for murder in the death of Hannah Graham late last year, and will consult a DNA expert prior to mounting his defense.

Jesse Matthew, Jr. a Suspect in the Death of Hannah Graham

Graham, a student at the University of Virginia, disappeared in September of last year after a night out.  Suspicion fell on Matthew after surveillance footage showed him leaving a Virginia bar with Graham on the night she disappeared.  In October, Graham’s remains were discovered on an abandoned farm near UVA’s campus near the location of the remains of a Virginia Tech student, Morgan Harrington, that were discovered in 2010.

After a brief investigation, Matthew was arrested for Graham’s disappearance and death, leading to evidence that he was involved with Harrington’s murder as well.  According to police, forensic evidence obtained after Matthew was arrested links him to the death of both girls, leading investigators to issue the following statement, “For the past five years, the Virginia State Police has been aggressively pursuing the investigation into the disappearance and death of 20-year-old Morgan D. Harrington of Roanoke, Va. Last week, the arrest of Jesse L. Matthew Jr., 32, of Charlottesville, Va., provided a significant break in this case with a new forensic link for state police investigators to pursue.”

Although the investigation continued after Matthew was arrested, police and prosecutors presented preliminary forensic evidence sufficient to charge the defendant with the murder of both Hannah Graham and Morgan Harrington, as well as a 2005 sexual assault that took place in northern Virginia.

Jesse Matthew Requests Delay to Hire DNA Expert Witness

Given the forensic evidence linking Matthew to both murders, his defense team argued that he should be entitled to the opportunity to have a DNA expert witness evaluate the evidence and provide a report.  With the trial set to begin on June 29th, Matthew’s defense attorneys argued that they needed more time to allow them to find a DNA expert and review the forensic evidence.  Prosecuting attorney Denise Lunsford acknowledged that the Commonwealth’s case relied “in some way on DNA evidence,” and did not object to the motion to delay the trial in order to find the appropriate expert witness.

After reviewing Matthew’s request, the trial judge overseeing the proceedings granted his request to continue the trial in order to appoint a qualified DNA expert witness to review the forensic evidence used by the prosecution.  Given that Matthews is facing 20-years to life for his alleged crimes, the ruling comes as no surprise.  Defendants are entitled to a full and fair defense in criminal trials, and the seriousness of the charges combined with the prosecution’s reliance on forensic evidence necessitates a ruling that Matthew be entitled to the appointment of a DNA expert to testify in the upcoming trial.

The judge did not set a new trial date, but a hearing on May 5th will finalize the details of the trial and the expert witness who will be appointed to the defendant’s case.

New Jersey Judge Excludes Expert Witness Testimony in Accutane Lawsuit

A New Jersey judge struck a blow to thousands of pending cases against the manufacturer of Accutane this week by denying plaintiffs use of an expert witness connecting the drug to Crohn’s disease.  Finding that the expert testimony failed to meet the standards of reliable scientific analysis, Atlantic County Superior Court Judge Nelson Johnson prevented plaintiffs from using a key expert in their Accutane lawsuit.

Plaintiffs Allege Accutane Causes Crohn’s Disease

By February of this year, more than 6,700 lawsuits against Accutane’s manufacturer Roche Laboratories were combined and heard by Judge Johnson.  Plaintiffs across the country claim that the acne medication posed several harmful side effects including depression, birth defects, ulcerative colitis, and inflammatory bowel disease (IBD).  Crohn’s disease is a chronic gastrointestinal type of IBD with symptoms ranging from severe diarrhea, fatigue, abdominal pain, rectal bleeding, and weight loss.  Crohn’s disease can lead to cancer, bowel perforation, and other life-threatening health complications.

According to plaintiffs, Accutane increased the risk of Crohn’s disease, and Roche Laboratories failed to provide adequate warning about the drug’s side effects.  In order to support allegations, the plaintiffs submitted reports by two expert witnesses who advanced research that claimed to connect the acne drug to Crohn’s.

Accutane Plaintiffs turn to Expert Witnesses

At issue before Judge Johnson were the expert witness reports from Dr. Arthur Kornbluth, a professor at the Mount Sinai Medical School, and David Madigan, a statistics professor at Columbia University.  Dr. Kornbluth and Madigan compiled and interpreted information from hundreds of studies, reports, and treatises from relevant scientific literature in order to present Judge Johnson with a consolidated report that weeds through the existing work on Accutane and presents an argument that the drug increases the risk of Crohn’s disease.

According to the expert witness report from Kornbluth and Madigan, there are several unreliable studies on the effects of Accutane that downplay its negative side effects.  The two experts discounted these works, and highlighted a selection of other studies and statistical data that point to a connection between the acne medication and IBD complications including Crohn’s.

New Jersey Judge Dismisses Accutane Plaintiffs’ Expert Reports

Acknowledging that Kornbluth and Madigan were accomplished experts in the field, Judge Johnson nonetheless found their report to fall short of the “sound and well-founded methodology” that is expected of expert witnesses in defective drug litigation.  Of primary concern to Judge Johnson was the experts’ reliance on a small selection of available studies on the connection between isotretinoin, the active ingredient in Accutane, and IBD.  Johnson, who personally reviewed 400 documents the two expert witnesses relied on, pointed out that the studies Kornbluth and Madigan looked to were small samples of the available research.  Finding that the plaintiffs’ experts dismissed larger studies that did not point to a connection between Accutane and Crohn’s, Judge Johnson excluded the experts for selectively presenting research and being “willing to contort the facts and torture the logic associated with plaintiffs’ hypothesis.”

Throughout his opinion, Judge Johnson remained true to the role of judges as gatekeepers of expert witness scientific reports by focusing less on the conclusions reach by Kornbluth and Madigan, and more on the methodological process which the experts used.  Johnson found that the research presented by the Accutane experts selectively focused on reports that bolstered their conclusions and was therefore limited in its scope.  Concluding that the Kornbluth and Madigan were driven more by conclusions than by sound scientific research, Judge Johnson excluded their testimony, effectively pumping the brakes on thousands of Accutane lawsuits.

EEOC Expert Witness Excluded for Unreliable Methodology

A criminal records expert witness has been dismissed from an Equal Employment Opportunity Claim (EEOC) lawsuit for sub-standard research that cherry-picked data to support the plaintiff’s case.  The Federal Fourth Circuit Court of Appeals upheld the dismissal last week, and reaffirmed the high methodological standards that expert witnesses are held to.

Expert Witness Supports EEOC Claim

Litigation in EEOC v FreemanEE due to the defendant’s regular practice of conducting criminal background checks for all job applicants, and dismissing applicants with prohibited criminal histories including violent felonies.  In 2008, an applicant who was denied a position with Freeman filed a charge of discrimination alleging that the policy of criminal background disproportionally affected black applicants in violation of Title VII of the Civil Rights Act.

As the case prepared for trial, the EEOC filed an expert witness report from Kevin Murphy, an industrial / organization psychologist, that purported to demonstrate that Freeman’s criminal record checks discriminated against black applicants.  After a series of supplemental reports from Murphy, Freeman filed a request to have the expert reports dismissed for presenting unreliable data and not adding value to the litigation.  Upon review of the Murphy reports, the trial court agreed with the defendant and rejected the EEOC’s expert.

Fourth Circuit Rejects EEOC Expert Witness on Appeal

The EEOC appealed the lower court’s decision to dismiss its expert witness to the 4th Circuit, but the appeals court was similarly unconvinced by Murphy’s efforts.  First, the Court took issue with Murphy’s decision to exclude hundreds, if not thousands, of applicants that Freeman reported conducting criminal background checks on.  Murphy took a limited sample of applicants to Freeman’s business, and the Court felt that his expert witness report was therefore not representative of the effect criminal record checks had on everyone who applied for a job during the period at issue.  By limiting his sample, the Court found that Murphy had selected data that would support the EEOC’s case rather than paint an accurate picture of the effect of criminal record checks.

Going further, the Court found that Murphy’s expert witness report featured a number of “mind-boggling” errors and unexplained discrepancies in interpreting the criminal record check database that he presented.  From miscoded applicants, to incorrect racial designations, to double-counted records, to missing data throughout the report, Murphy’s efforts were littered with what can generously be considered errors, and suspiciously be viewed as attempts to manipulate the data to favor the EEOC’s claims.  One of the 4th Circuit Justices even wrote separately to admonish the EEOC for “disappointing litigation conduct” in attempting to use Murphy as an expert witness despite his methodological shortcomings and habit of using suspect data that may be “cherry-picked” to favor one side.

Finding “the sheer number of omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ,’” the 4th Circuit agreed with the trial court that the EEOC’s expert witness failed to provide a reliable report and was therefore not fit to testify at trial.  As a result of the decision, the EEOC’s complaint has been dismissed.

Mental Health Experts Debate Insanity Plea in American Sniper Killer Trial

Mental health expert witnesses debated the sanity of the ex-marine charged with shooting “American Sniper” author Chris Kyle in the closing stages of the murder trial this week. As the trial of Eddie Ray Routh moves closer to conclusion, both sides presented mental health experts to discuss the defendant’s insanity defense.

Ex-Marine on Trial for American Sniper Murder

The Chris Kyle story had gained significant attention nationwide due to the Oscar-nominated film based on his autobiography, and Routh’s murder trial has earned similar profile. It is undisputed that on February 2nd, 2013 Routh fatally shot Kyle and his companion, Chad Littlefield, at the Rough Creek Ranch-Lodge-Resort shooting range in Erath County, Texas. Routh was taken into custody almost immediately after the shooting, and has plead not guilty by reason of insanity to the two counts of capital murder that he has been charged with. The case has been delayed during the investigation stages, but finally went to trial on February 11th, 2015 with prosecutors seeking a sentence of life in prison without parole for the two killings.

With Routh’s mental state in question, a bulk of the trial has involved testimony from friends and family of the defendant who claim that he had become increasingly erratic in the days and weeks leading up to the shooting due to his mental illness. Supplementing the testimony of Routh’s family and friends, defense attorneys concluded their case by calling Dr. Mitchell H. Dunn to testify that the defendant suffered from schizophrenia that clouded his judgment to the point of insanity.

Defense Expert Witness Testifies to Insanity Plea

Dr. Dunn took the stand earlier this week to tell jurors about Routh’s state of mind at the shooting in an effort to support the defense team’s argument for not guilty by reason of insanity. According to Dunn, Routh did not suffer from PTSD, but instead was crippled by paranoid schizophrenia that induced hallucinations and a belief that hybrid “pig people” were trying to kill him and take over the world.

Dr. Dunn spent more than six hours interviewing Routh last year while the defendant was in jail, and concluded that the psychosis started in mid-2011 when Routh was hospitalized for complaining that he was being eaten alive by a giant tapeworm. Over the next two years, Routh’s psychosis allegedly caused him to have delusions that two of his co-workers were cannibals who wanted to eat him, and that the heater in his workroom was a large human rotisserie. Only eight days before the shooting, Routh was released from treatment by a Veterans Affairs hospital, despite objections by his mother who believed the defendant was a danger to himself or others due to his mental illness.

In regards to the killings, Dr. Dunn testified that Routh thought he felt threatened after meeting Littlefield and Kyle at the shooting range. Dr. Dunn said that Routh “thought he was going to die if he didn’t take care of business and kill them first. It was logical in his mind. None of us would have thought that, but he did.” Stating that Routh’s psychosis caused him to believe that he was in mortal danger, Dr. Dunn told the jury that, in his expert opinion, the defendant met the requirements for legal insanity.

Prosecutors Argue American Sniper Murder Defendant is Sane

The day after Dr. Dunn took the stand as an expert witness for the defense, prosecutors called two rebuttal experts to testify that Eddie Ray Routh was not legally insane when he shot and killed American Sniper author Chris Kyle and another man in February of 2013. According to Dr. Randall Price, a forensic psychologist who spent a total of 10 – 11 hours with Routh in two separate jailhouse interviews and reviewed the defendant’s medical history extensively, Routh had a paranoid disorder that was exacerbated by his use of marijuana and alcohol, but was not delusional. Dr. Price testified that Routh “did know what he was doing was wrong, and he did it anyway,” and accused the defendant of “setting the stage” for an insanity defense by taking an idea of pig people from an episode of “Seinfeld” that Routh saw while in prison.

Another medical expert, Dr. Michael Arambula, reinforced Dr. Price’s findings and testified that the defendant’s use of marijuana and alcohol at the time of the shooting rendered his insanity defense useless. Dr. Arambula, a forensic psychiatrist and former pharmacist, testified that Routh “was intoxicated at the time of the offense … [and] any time intoxication is present, the game is over.” Like Dr. Price, Dr. Arambula was unconvinced by Dr. Dunn’s testimony that Routh was delusional at the time of the shooting, but instead testified that the defendant’s use of drugs and alcohol contributed more to his actions than mental illness.

The trial of Eddie Ray Routh will go to jury next week. If Routh is convicted, he will face life in prison, but if jurors believe that he was legally insane he will be committed to a mental facility instead.

California Law Allows Appeals for Recanted Expert Witness Testimony

A murder case in California has prompted a new state law that allows courts to consider re-trials if an expert witness repudiates his testimony after a conviction.  William Richards, convicted of the 1993 murder of his wife Pamela on the strength of a bite-mark expert, will get a chance to have his case reviewed by the California Supreme Court after the state’s expert witness law went into effect last month.

Expert Witness Aids 1993 Murder Conviction

In 1993, Pamela Richards was strangled and had her skull crushed in what was a clear murder.  Investigators built a case against her husband, William, based in part on a bite mark on the victim’s hand.  The bite mark was identified as William Richards’ based on testimony by Norman Sperber, a well-known forensic dentist in San Diego who had contributed to conviction of serial killer Ted Bundy by identifying bite-marks on his victims.  During Richards’ 1997 trial, Sperber testified that only 2 out of 100 people would have the defendant’s unusual tooth feature that appeared in the bite-mark on Pamela’s hand.

After the conviction, upon reviewing a clearer photo, Sperber claimed that Richards’ teeth were actually not consistent with the mark on his wife’s hand, suggesting that he was not the cause of the wound.  In 2012, the California State Supreme Court affirmed Richards’ conviction stating that a change in expert witness testimony did not necessarily set grounds for vacating it.  Finding that an expert’s testimony must be “objectively untrue,” something not demonstrated in the Richards’ case because no counter-experts reputed Sperber’s claim, the Court declined to overturn his conviction on appeal.

California Law Allows Appeals on Repudiated Expert Testimony

After the State Supreme Court denied Richards’ appeal, the California legislature went into action crafting a bill that would allow courts to strongly weigh repudiation of expert witness testimony, even if the expert was not directly contradicted during or after the trial.  The result was a new law that states expert testimony which has been recanted will be treated as false evidence, and, if the defendant can show it was key to the conviction, the repudiated testimony will serve as strong grounds for the conviction to be overturned.

In an interview with the Associated Press, Laurie Levenson of Loyola Law School explained the need for such a law, “More and more, experts are reconsidering their opinion not because they have pangs of guilt, but because in fact the science changes. You want a legal system that recognizes that reality.”  The California law, signed into effect by the Governor this January, allows courts to take into account the fact that expert witnesses may recant testimony after trial when considering appeals, giving attorneys fighting to overturn convictions an option when key experts change their testimony.

The passage of the law may give William Richards another chance to overturn his conviction after more than 25 years in prison, and will also open the doors for other defendants whose convictions turned on experts who later recanted what was said during trial.

Police Use of Force Expert Witnesses Debate Interrogation Tactics

Two conflicting use of force experts testified in the trial of a former Milwaukee detective who stands accused of assault for a violent confrontation with a suspect during an interrogation.  The trial of Rodolfo Gomez, Jr. will turn on whether jurors determine the former officer was justified in punching and physically subduing a suspect who became angry during a tense questioning session, and both sides called experts to directly argue the crucial point.

Milwaukee Detective Charged with Prisoner Abuse

In August, 2013, Gomez was interrogating Milwaukee resident Deron Love who was accused of fatally abusing his infant son.  During the questioning, Love had one of his arms handcuffed to the table, but the two men nonetheless engaged in an increasingly heated exchange throughout the session.  Video evidence presented during trial showed Love standing up to shout at Gomez, and the detective responding by punching the suspect in the face, forcing Love into a corner, and punching and kneeing him a few more times before leaving the room.

According to Gomez, he forgot that Love was handcuffed to the table and was responding to a legitimate threat of potential violence from a suspect who was bigger and stronger than him.  Gomez stated that Love refused to comply with an order to sit back down, creating the necessity for him to physically neutralize the suspect before the interrogation got further out of hand.  Gomez testified that he did not intend to use force against Love, but was forced into the situation by Love’s outburst.

Love, who was not seriously injured by Gomez, was acquitted of all charges in the death of his infant after a trial in September of last year.  As a result of the incident, Gomez was immediately suspended and later fired from the Milwaukee police force before being formally tried with two felony charges – misconduct in office and abuse of a prisoner.

Police Use of Force Experts Testify During Former Officer Trial

Prosecutors and defense attorneys called expert witnesses to testify about whether or not former Milwaukee detective Rodolfo Gomez, Jr. used appropriate force during his interrogation of a suspect in August of 2013.  Prosecutors called Lt. James MacGillis, who trains the Milwaukee police department in appropriate use of force, who testified that jurors should examine Gomez’s actions on the whole rather than at an individual level.  According to MacGillis, some of the punches and kicks against Love may be justified when analyzed alone, but the overall interaction was evident of excessive and unlawful use of force.

Defense expert witness Robert Willis took the opposite approach, and broke down the interaction frame by frame to explain that at each point Detective Gomez was justified in responding to an unruly and potentially threatening suspect.  According to Willis, a handful of the supposed punches that Gomez threw were actually attempts at openhanded grabs that missed their mark – indicating that the former officer was trying to subdue Love rather than attack him.  Willis counted only three punches and one knee strike, and testified that all were within Gomez’s authority to try to control a suspect who had just jumped up and angrily shouted at him.

The trial will likely conclude this week, but the expert witnesses testifying to Gomez’s use of force may get another crack at the case due to the civil lawsuit that Love filed against Gomez following the incident.

Pennsylvania Murder Trial Costs Taxpayers Thousands in Expert Witness Fees

A capital murder trial in Pennsylvania has cost York County taxpayers over $16,000 in expert witness fees, with more to come when the case goes to trial in July.  The defendant, unable to pay for his representation, is entitled to a complete defense which includes experts on pathology and mitigation who will testify on his behalf during the upcoming trial.

Pennsylvania County Pays Expert Witness Fees

Ross William Crawford, 44, is accused with first-degree murder for allegedly stalking and beating Cherylann Dowell, 53, to death in June of 2012.  Prosecutors argue that since Crawford was under a no-contact order to stay away from Dowell after a history of abusing her, there is sufficient aggravating circumstance in the case to seek the death penalty.  Pennsylvania law allows for the death penalty if aggravating circumstances of the crime elevate the heinous nature of the act, and prosecutors argue that Crawford had established a pattern of abuse and stalking that sufficiently raised his culpability to warrant a death penalty verdict.

As is required by the Constitution, jurors must determine whether or not any mitigating factors outweigh aggravating factors before issuing a death penalty verdict, and defense attorneys requested the court grant funding for use of expert witnesses to highlight mitigation.  Additionally, defense attorneys requested funding for an independent pathologist to analyze the details of the Dowell’s death and, presumably, argue against the presence of aggravating circumstances that would suggest the death penalty is warranted.

From July 2012 to May 2014, the York County court approved a payment of $16,000 to pay for the two expert witnesses the defense team for Crawford has hired.  Judge Gregory Snyder set a cap for the expert fees as follows: the pathologist, who charges $300 per hour, can be paid up to $3,000; the mitigation expert, who charges $100 per hour, has fees capped at $10,825; and a third expert witness, a psychiatrist who charges $500 per hour, has fees capped at $10,000.  If all expert witnesses work to the capped amount, the total bill to be paid by the county will be $23,825.  Add in the more than $9,000 in attorney’s fees, and the Crawford murder trial is costing York County significantly.

Capital Murder Trials Accumulate Fees

The Crawford trial is not a unique situation, but is a representative of the significant cost attached to capital murder trials.  No matter how heinous the crime, every defendant has a right to a fair and vigorous defense which typically requires, among other fees, expensive expert witness testimony.  Capital murder trials carry an additional cost due to the split phases of the trial: the guilt phase and, if necessary, a separate penalty phase.  Expert witnesses are required for both portions of the trial, and in the Crawford case, the pathologist will be a part of the guilt phase of the trial while the psychiatrist and mitigation expert witness will contribute separately to the penalty phase.

Because defendants have a right to a complete defense, lack of funds cannot be a barrier to hiring expert witnesses for any criminal trial – although capital trials are more likely to grant leeway in expert witness requests.  Like many counties, York County sets aside a significant dollar amount, $320,000 in 2015, to pay for professional services for indigent defendants such as psychiatric counseling or expert witness services.  While tax payers may be turned off by the thought of contributing significantly to the defense of an accused murderer, the Constitution requires a fair criminal trial which typically requires expert witness testimony to analyze and explain facts of the crime.

Federal Judge Dismisses Expert Witnesses in Fixodent Lawsuit

Plaintiffs in a multidistrict defective product litigation against Procter & Gamble alleging its Fixodent glue causes neurological damage hit a snag last week when a federal judge in Florida dismissed expert witness testimony that was deemed unreliable.  Expert reports in defective product lawsuits must be based on studies with reliable methodology and sound scientific process, and plaintiffs in the Fixodent case failed to provide a professional report that met the standard.

Plaintiffs in Fixodent Lawsuit Present Expert Report

Central to the plaintiffs’ claim is evidence that the zinc contained in Fixodent increases the risk of copper deficiency that results in neurological problems.  In order to demonstrate the necessary causal link between Fixodent’s zinc content and neurological problems, the plaintiffs called upon several expert witnesses to present a reports detailing the results of empirical studies and clinical trials that provided evidence supporting the plaintiffs’ case.  According to the scientific studies submitted by the plaintiffs’ experts, there is a sufficient connection between higher levels of zinc in Fixodent and increased risks of neurological problems for a reasonable jury to infer cause.

U.S. District Court Judge Cecilia M. Altonaga was unconvinced by the expert reports supporting the plaintiffs’ case, however, taking specific issue with the analytical gaps in the causation conclusions due to unreliable methodology and hand-picked data that ignored counter-evidence.

Federal Judge Dismisses Fixodent Expert Witness

Issues with expert witness reports in the Fixodent case arose late last year when a separate lawsuit filed by a single plaintiff was dismissed due to failure of experts to demonstrate that zinc in the glue caused neurological problems.  Marianne Chapman presented a medical expert witness whose research on the subject was fundamentally flawed and, in an order that was upheld by the Eleventh Circuit Court of Appeals, was dismissed from the trial.

Although the plaintiffs’ in the post-Chapman Fixodent litigation promised better evidence than the expert testimony that was previously dismissed, Judge Altonaga determined that the new expert testimony, “relies on factually inaccurate data and unsupported assumptions, and generally lacks the sound scientific basis and intellectual rigor required by Daubert. These experts’ opinions also leave significant gaps in plaintiffs’ general causation theory.”

Fixodent Expert Witnesses Fail to Provide Reliable Evidence

In one study performed in India, the plaintiffs’ expert examined the short-term effects of Fixodent on copper absorption in the body.  Judge Altonaga found that the study deviated substantially from ethic protocols, and was not sufficiently objective or methodologically sound to be considered respectable science.  Another study that argued that zinc, regardless of source, caused copper blockages which lead to neurological defects was similarly dismissed for poor methodology and unsound conclusions.  Other expert contributions to the trial followed the same pattern – not objective, not supported by reliable methodology, and unable to provide sound scientific evidence that established the necessary causal link between Fixodent and neurological damage.

The standards for admissibility of expert witnesses in defective product cases can be quite onerous.  Judges are required by the Federal Rules of Evidence to conduct a thorough review not only of the expert’s qualifications, but of the quality of the scientific research conducted.  Compounding the legal standard of review is the high dollar nature of the litigation which attracts experienced legal teams that are able to make strenuous arguments against the admissibility of experts.  Considering this intense scrutiny and opposition, parties presenting expert witnesses in high dollar product liability cases need to ensure that the expert opinions are well supported by quality science that provides reliable evidence.