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.

Poker Expert Witness Testifies in Wisconsin Court

Advocates for legalized poker in Wisconsin have called upon a poker expert witness to sign an affidavit testifying that the game is based largely on skill rather than chance.  An organization sponsoring the legal poker movement filed a request for declaratory action from a Wisconsin judge that affirms the game’s status as one of skill in order to avoid a state law banning gambling on games of chance.

Wisconsin Law Prohibits Games of Chance

The legal action stems from a Wisconsin anti-gambling law that bans all games of chance from the state, however, poker is not specifically addressed.  According to the Poker Players Alliance (PPA), “The language in the statute does not specifically speak to poker but does say that a bet does not include ‘bona fide contests of skill’ – which by recent federal and state rulings, scientific studies and our general knowledge, poker is clearly such a contest and therefore should not be included in Wisconsin’s definition of gambling and should be as legal to play for money as pool, darts, golf or other contests of skill.”

The PPA is hoping to legalize poker and improve the quality of live and online versions of the game throughout the state of Wisconsin, and has called upon poker expert Robert C. Hannum to provide written testimony supporting the position that poker is a game of skill.

Poker Expert Witness Supports Legalization

Hannum is a poker expert who has consulted with states including Connecticut, Iowa, and Mississippi about how the game is played in order to support legal poker initiatives.  As he explains in his affidavit, he has conducted numerous poker studies and has come to the conclusion that success in poker is driven primarily by the skill of the players.  Noting that even traditionally accepted games of skill, such as golf or baseball, can rely on incidents of chance, Hannum argues that a game should be evaluated one of skill if the predominate requirement for success is the ability of the contestents.

Like the PPA, Hannum argues that poker is not a game of chance, but instead depends almost entirely on the skill of the players.  In his affidavit to the Wisconsin court, Hannum wrote, “It is my considered opinion, based on my experience, on research that I have personally conducted, and on a review of the scholarly literature, that Texas hold’em is a game in which skill predominates over chance in determining the outcome.  Thus, in my opinion, it would be incorrect to describe Texas hold’em as a game of chance.”

Hannum went on to write, “Put another way: the question of whether skill or chance predominates in Texas hold’em is the same as asking whether the deal of the cards or the decisions of the players constitute the predominant factor in determining the outcome of the game. In my opinion Texas hold’em is not a game of chance because the decisions of the players have a much larger impact on the outcome than the deal of the cards.”

Poker Research Highlights Affidavit

Hannum’s expert opinion is formed after years of researching poker to find that the skill of the player has a significant and consistent effect on the outcome of the game – indicating that poker is not simply based on the luck of the draw.  Relying on a database of more than one billion hands of real online poker played by close to 2 million players, Hannum and his fellow researchers found that “virtually all of the variation in players’ returns on investment (ROI’s) from playing Texas Hold ‘em can be attributed to something other than systemic chance.”  Hannum has also run computer simulations pitting two players of unequal skill against each other and concluded through mathematical analysis that a skilled player will “win 96.8 percent of hands outright” by employing strategy the unskilled player cannot follow.

Hannum’s full expert witness affidavit can be found here, and represents a unique use of expert research supplementing a legal argument.

BP Presents Expert Witnesses in Deepwater Spill Trial

Last week, we covered the DOJ’s use of expert witnesses in the final penalty phase of its environmental lawsuit against British Petroleum (BP), and as the trial progressed this week the oil giant began presenting its own experts on the environment and Gulf economy in an effort to minimize the damages the company owes for its role in the 2010 Deepwater disaster. The DOJ presented a variety of experts earlier in the trial who explained the negative impact on the Gulf environment and economy in support of the government’s argument that BP should pay nearly all of the maximum $13 billion in fines, but the company fired back this week with its own experts whose testimony suggests the fine should be drastically less than its potential.

BP Calls Environmental Impact Expert Witness

First to take the stand for BP was retired US Coast guard Captain Frank Paskewich, an expert witness who assisted the 2010 clean-up operation and now manages a New Orleans-based oil spill response team. Capt. Paskewich testified that BP was prepared with a spill response plan that allowed the company to “pull the trigger” on effective containment and clean-up efforts immediately after the Deepwater Horizon explosion that killed 11 men and created the worst offshore oil spill in American history. Paskewich noted that BP took the lead and became the responsible party in the wake of the spill, and testified that the company’s extensive efforts had a significant effect on containing the damage.

Citing government reports that BP had taken “safe and effective” measures to minimize the impact on the Gulf shoreline, Paskewich testified that the company had cleaned an estimated 1.2 million barrels, which amounted to 37{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the total oil spilled. According to Paskewich’s expert testimony, BP’s efforts to clean the spill by use of skimming boats and surface burning – which involves burning the oil on the surface of the water before it comes to shore – were unmatched by other entities working to mitigate the disaster and had a significant effect on minimizing the damage to the Gulf coast region.

Government Cross Examines BP Expert Witness

On cross examination, DOJ attorneys attacked Paskewich for currently working with BP in ongoing clean-up efforts, suggesting his expert testimony was biased in favor of a company that provided his organization with substantial funding. This became a relevant point when the Justice Department went on to have Paskewich admit that BP was not alone in its clean-up efforts, but was assisted by state governments, the U.S. Coast Guard, and other private companies. Suggesting that he overestimated the contribution of BP, the DOJ went on to question Paskewich about concerns over the long term impact of BP’s clean-up actions, particularly surface burning of oil that could release toxins into the air.

Throughout the questioning, BP’s expert witness stayed firm that his interaction with the company was not the basis for bias, but instead gave him the opportunity to interact directly with BP and assess the impact the company had after the Deepwater spill. Paskewich went on to acknowledge that there may be a cost to surface burning, but testified that BP made the right choice to pay that cost rather than let the oil reach the shoreline. Paskewich’s expert opinion is not the only one that the company will rely on, and as the trial progresses BP plans to call a number of other professionals to assist its cause.

BP Lines Up Expert Witnesses for Upcoming Testimony

According to reports on the progress of the BP penalty trial, the company plans on calling a number of expert witnesses specializing in environmental and economic impact of oil spills, including:

  • John Tunnell, Jr.: Mr. Tunnell is a marine biology expert witness working for the Harte Research Institute for Gulf of Mexico Studies at Texas A & M who will be called to present his opinion on the effect of the Deepwater spill on the fish and bird populations of the Gulf region. Tunnell Jr. is called in direct response to the selection of DOJ experts who testified to the grave effect that BP’s actions had on the Gulf environment.
  • Robert M Daines: Mr. Daines is a law professor at Stanford University who will explain the legal relationship between the research team that operated the oil drill and BP, its parent company. Daines’s legal expert testimony will likely provide an argument that distances BP from responsibility for financial damages under the law.
  • Loren Scott: Mr. Scott is an expert economist from Louisiana State University who will testify about the impact the spill had on the Gulf Coat economy. Like Tunnell, Scott is called as a direct response to testimony from DOJ experts who testified last week about the significant impact BP’s actions had on the Gulf region.

Attorneys for BP are arguing that the company should not be forced to pay the maximum potential fine of $13 billion because of a number of mitigating factors that have been, or will be, explained by expert witnesses during the trial.

Expert Witnesses Testify in Birmingham Police Pepper Spray Lawsuit

Expert witnesses on police tactics and psychology took the stand last week in a lawsuit filed against Birmingham Police Officers for using pepper spray to subdue students in public high schools.  The lawsuit has been filed on behalf of eight high school students who allege the local police were too quick to use pepper spray and caused them physical and psychological harm.

Birmingham High School Students File Pepper Spray Lawsuit

Leading the case against the Birmingham Police Department (BPD) are attorneys from the Southern Poverty Law Center (SPLC) who allege that that police officers stationed in Birmingham high schools used pepper spray on an estimated 200 students between 2006 and 2011.  The lawsuit, originally filed on behalf of eight former students at a Birmingham high schools, has grown to a class action that is requesting monetary damages for six of the named plaintiffs and an injunction against the BPD forcing police to stop using pepper spray until better training is available.  Ebony Howard, lead attorney for the SPLC claimed the lawsuit was filed because, “All Birmingham students have a fundamental right to attend school without the fear that they will be subjected to pepper spray on a whim.”

Birmingham’s Chief of Police has defended allegations in the lawsuit by testifying that students were not subject to pepper spray unless it was absolutely necessary to subdue them and prevent violent or disruptive behavior.  Chief A.C. Roper argued that each of the named plaintiffs was engaged in violence and resisted police involvement before the use of mace. Further, attorneys for the BPD have noted that all officers are subject to rigorous training on the proper use of pepper spray and “has been accredited by the Commission on Accreditation for Law Enforcement Agencies.”  Chief Roper also pointed out that police officers must not comply with use of force training requirements two times a year that teach responsible pepper spray use, but must defend every decision to administer the chemical spray on students.

In an effort to demonstrate that the BPD was overzealous in its use of mace on high school students, attorneys for the plaintiffs called expert witnesses to critique the appropriateness of pepper spray against students and to opine on the psychological effects mace has on children subject to it.

Expert Witnesses Used in Birmingham Pepper Spray Lawsuit

Earlier this week Daniel Coulombe, a former police chief who offers his services as an expert witness in law enforcement and police tactics, took the witness stand on behalf of the plaintiffs.  Coulombe testified that, in his opinion and experience, pepper spray was not an appropriate use of force against high school students.  Further, Coulombe claimed that when police use pepper spray in a high school environment, they are violating the student’s rights to an environment safe of excessive force.  Coulombe went on to explain to jurors the proper procedures for neutralizing and restraining an unruly and potentially violent student that did not involve pepper spray.

Attorneys for the SPLC also called Dr. Daphne Glindmeyer to the stand as an expert in the psychological effects that the use of chemical spray has on students.  Dr. Glindmeyer is a psychiatrist based in Louisiana who has experience working with victims of trauma, particularly from the use of pepper spray.  During her expert testimony, Dr. Glindmeyer stated that the named plaintiffs in the lawsuit, one of whom was pregnant, all exhibited symptoms of trauma after being exposed to pepper spray at the hands of the BPD.  Expanding beyond the name plaintiffs, Dr. Glindmeyer testified that many students in Birmingham schools who could be exposed to pepper spray, directly or indirectly, use ADHD medication and could suffer severe psychological or lasting physical harm.

Birmingham Police Attorneys Challenge Plaintiff’s Expert Witnesses

During cross examination of Coulombe, the defense challenged the police tactics expert for lack of experience in an environment as large or diverse as Birmingham.  The BPD, which has nearly 800 officers, dwarfs Coulombe’s former department of 24 officers and is forced to deal with circumstances that the plaintiff’s law enforcement expert would not have sufficient experience with.  Arguing that he could not provide adequate perspective on the appropriateness of the BPD’s use of pepper spray, attorneys for the department looked to downplay his contributions to the case.

Defense attorneys challenged the plaintiff’s psychologist expert on cross examination by pointing out that she did not speak to the students until nearly two years after police used pepper spray on them, and that none of the plaintiffs exhibited symptoms severe enough to indicate they suffered from PTSD. Defense attorney Elizabeth Shirley argued, “All they have are symptoms, according to this doctor, and those symptoms can come from any physical encounter: any fight, any kick, any punch, strike, any sort of physical integration with anyone in life.”

The trial, which is a bench-trial to be ruled upon by U.S. District Court Judge Abdul Kallon, is schedule to continue this week when the defense takes center stage.

DOJ Calls Expert Witnesses in BP Oil Spill Penalty Trial

Expert witnesses for the US government in its environmental lawsuit against British Petroleum (BP) took the stand this week in the debate over how much of the potential $13.7 billion in Clean Water Act penalties the oil giant should pay for its role in the 2010 Gulf oil spill. The ongoing legal dispute is reaching its final stages, and the US Justice Department is turning to environmental experts to convince Judge Carl Barbier to find the company legally responsible for the maximum fine.

BP Oil Spill Trial Enters Final Penalty Phase

The civil lawsuit filed by the Department of Justice against BP has been in process since 2013, and unfolded in three acts.  First, Judge Barbier found the company to be “grossly negligent” in the spill and mostly to blame for the disaster; second, the Judge determined that 3.19 million barrels of oil were spilled, and capped the potential damage at $13.7 billion ($4,300 / barrel); and now, in the third phase, Judge Barbier must determine whether or not BP should pay the full damage award.

The Justice Department, citing the earlier decisions that identified the company as “grossly negligent,” has argued that the company should pay $11.7 – $13.7 billion of the fine for its role in the spill.  DOJ Attorney Steve O’Rourke argued, “The penalty is going to have to be high enough for companies of this size to even notice, but not so high as to be ruinous to their operations,” and asked the court to impose a significant portion of the fine.  BP, in response, has pointed to lower oil prices and diminished value of BP production to argue that the amount the DOJ is requesting would be more than the company could afford at this time.  Further, BP has argued that it was heavily involved in the efforts to clean the spill which should mitigate damages it is legally responsible for.

DOJ Presents Environmental Expert Witnesses

In support of its claim that BP should face the maximum punishment available under the Clean Water Act, the DOJ has called expert witnesses to testify to the significant negative impact the spill had on the Gulf coast region.  Dr. Stanley Rice, a toxicology expert retired from the National Oceanic and Atmospheric Administration, took the stand to criticize a BP expert report on the level of toxicity in the Gulf waters following the spill.  According to Dr. Rice, the BP report did not focus on the surface waters or a deep-sea plume of oil and thus underestimated the negative effect of the disaster.

The DOJ also called Donald Boesch, an environmental expert witness from the University of Maryland Center for Environmental Science, who testified that the harm to sea-life and microbes could leave a lasting impact on the Gulf ecosystem and food chain.  Like Dr. Rice, Boesch argued that BP had underestimated the negative effect the spill had on the environment.

DOJ Calls Experts on Community Impact

In addition to its environmental experts, the DOJ called witnesses to explain the cost to the Gulf coast communities.  Diane E. Austin, an Anthropology director and professor at the University of Arizona, also took the stand to speak on the effect of the spill.  According to Austin, the spill not only had a significant negative effect on the environment, but also had a negative economic impact on the Gulf coast communities that many residents could not rebuild from.

Richard Clapp, an environmental health professor from Boston University, offered expert testimony supplementing Austin’s by noting that in addition to economic concerns, the Gulf coast residents are at risk for illness or other health effects.  Testifying that a number of serious health problems among responders and community members have already surfaced, Clapp warned that the issue could potentially worsen over time.

Across its expert witnesses, the DOJ attempted to construct a narrative that demonstrated BP’s negative impact on the environment and on the Gulf coast communities.  By painting the full picture of the aftermath of the Deepwater Oil Spill, the government argues that the company should be forced to pay near the maximum fine allowable under the Clean Water Act.  BP will present its own expert witnesses next week as the trial continues.  A ruling is not expected until April.

Forensic Video Expert Witness Testifies in Murder Trial

A forensic video analyst served as a crime scene expert witness in a murder trial this week in an effort to aid defense attorneys reconstructing the circumstances leading up to a deadly shooting incident. Grant Fredericks, a teacher at the FBI National Academy, took the stand as an expert witness in the murder trial of Antonio Hutchins who argues that he shot the victim in self-defense and should not be found guilty of murder.

Defense Attorneys Turn to Video Evidence

On June 25, 2013 a shooting outside of Save More Foods killed Cederick “Joe” Matlock and William Burt of Waterloo, Iowa. While Hutchins and his attorneys do not deny that he was responsible for the shooting, they have countered that he acted in self-defense after Matlock threatened him with a rifle the previous week in the Save More parking lot and made a threatening motion to him directly before the shooting began. In an effort to demonstrate that Hutchins was defending himself at the time of the shooting, defense attorneys compiled footage from nearby surveillance cameras for a display to the jury.

A total of 11 surveillance cameras were positioned near the shooting, however only one of them was in a position to record the shooting. The one camera able to document the incident was from an auto repair shop across the street from the parking lot, making the action difficult to follow and the people on camera difficult to discern. In order to maximize the effectiveness of the surveillance footage display, the defendant called upon forensic video expert witness Grant Fredericks.

Video Expert Witness Aids Murder Trial

Fredericks, who operates Forensic Video Solutions in Spokane, WA, is a video analyst expert with extensive background in forensic camera work. During his expert testimony, Fredericks broke down the compiled video footage using a variety of camera angles to recreate the scene for jurors. Defense attorneys for Hutchins requested that Fredericks identify the key figures in the shooting before, during, and after the incident and explain to the jury what the video tape showed.

While breaking down the video footage, Fredericks identified Hutchins and a friend of his speaking to someone in a car in the Save More parking lot at 6 PM and 13 seconds before being approached by Matlock, Burt, and some other acquaintances at 6 PM and 34 seconds. Moments later, at 6 PM and 47 seconds, everyone begins to flee when Hutchins begins shooting. Although the cameras were able to provide a video recreation of the homicide, the audio was difficult to sync up due to the use of several different cameras. While the defense attorneys for Hutchins did not ask Fredericks to identify the threat that the defendant perceived, such a factual conclusion is impermissible from an expert, they did have the video expert demonstrate to the jury that the surveillance footage captured a scene that fit with the defendant’s story of the crime: Matlock and his friends approached him, made threatening overtures (not clear on the video), and he began shooting.

Prosecutors Question Usefulness of Video Expert Witness

In response to the testimony by the defense team’s video expert witness, prosecutors focused on two main points in cross-examination. First, the video provided by Fredericks did not indicate that Matlock was an aggressor in the situation. Although Fredericks was able to piece together complete footage of the event from the 11 available security cameras, the footage was too blurry and distant to allow for jurors to get a clear view of how the incident transpired.

Second, and perhaps most importantly, prosecutors had Fredericks concede that the video he compiled did not show any obstacles or blocks to Hutchins’ path that would have prevented the defendant from running instead of opening fire. By having Fredericks confirm that his footage told a second story – that Hutchins could have run away to avoid a violent encounter – prosecutors were able to take advantage of the defense team’s expert witness.

Ultimately, the Hutchins murder trial will likely turn on other, more significant, evidence, but by calling Fredericks as a video expert witness, the defense attorneys were able to set a scene that makes their narrative plausible. Whether or not the rest of their evidence can fill in the gaps that Fredericks’ video leaves open remains to be determined, but using an expert to establish the credibility of the defendant’s story lays a good foundation for the rest of the case.

Police Tactics Expert Witnesses Testifies During Cop Criminal Trial

A police tactics expert witness testified at the trial of an officer accused of excessive and unnecessary use of force in the death a 95-year-old man during a nursing home incident.  The incident taking place in a Chicago suburb gained national attention in 2013, and the resulting criminal trial featured expert police testimony this week that supported the prosecution’s case that the officer in question went too far in exercising his authority to use force.

Officer in Beanbag Shooting Death Faces Trial

Officer Craig Taylor came to trial for shooting John Wrana with 5 beanbag bullets during a confrontation in 2013.  The unfortunate incident between the World War II veteran and the Park Forest, Illinois officer started when Taylor was one of several officers to respond to a 911 call from staff at the Victory Center Retirement home.  According to Victory Center staff, Wrana resisted a risky surgical procedure due to fear of ending up on life support, becoming agitated, combative, and threatening before striking an EMT on the scene.  The first officers arriving on the scene confronted Wrana in his nursing home apartment in an effort to calm him down, but retreated after the 95-year old threatened them with what appeared to be a knife.

As the confrontation escalated, the responding officers called for backup, and Officer Taylor joined the scene along with Commander Michael Baugh, who brought a riot shield and a 12-gauge beanbag shotgun.  After Wrana’s continued refusal to resolve the situation, the officers entered the apartment using Baugh’s riot shield and attempted to neutralize Mr. Wrana by use of a Taser.  When the Taser charge failed, Officer Taylor directly ordered Wrana to drop the weapon before firing five beanbag rounds at him from a distance of 6 – 8 feet.  After refusing surgery, Wrana died from his wounds at a local hospital.

Officer Taylor testified that he was afraid for his life and the life of his fellow officers, and believed that it was reasonable to discharge his less-lethal weapon at a suspect who was threatening violence and refusing to comply with police orders.  Prosecutors disagreed during trial, and presented evidence in the form of expert witness testimony that argued that the confrontation was escalated by Officer Taylor unnecessarily.

Police Expert Witness Testifies Officer Used Excessive Force

To bolster its case that Officer Taylor used excessive and unnecessary force, the prosecution called to the stand Frank Murphy, a former New Jersey cop who now works as a police tactics expert witness.  After reviewing the facts of the Wrana shooting, Murphy testified, “There was no threat until Officer Craig Taylor and the others confronted him.”  Finding that Officer Taylor and his colleagues went too far, Murphy’s expert testimony criticized the police for not choosing to rely on their riot shield, which could block a knife attack, to approach Wrana and subdue him without use of beanbag bullet shotgun.

Defense attorneys for Officer Taylor offered a vigorous cross examination of the prosecution’s police tactics expert witness, using the opportunity to point out that Taylor believed he had been following procedure and that there were risks of injury to Wrana by Murphy’s proposed use of the riot shield.  Murphy maintained that, in his opinion, the situation was only elevated to the level of violence due to Taylor’s unnecessary use of the beanbag shotgun that led to Wrana’s death.  The use of a beanbag weapon was, according to Murphy’s expert testimony, an excessive and unnecessary use of force.

Defense Argues Victim Declined Life Saving Procedure

An interesting side note to the trial that may minimize the impact of Murphy’s police tactics expert testimony is the defense’s argument that ultimately Wrana’s refusal of surgery after the shooting was what caused his death.  During testimony from one of the doctors on scene at the Victory Center home, it was revealed that Wrana repeatedly denied life-saving measures to remedy the injuries sustained during his confrontation with police.  Defense attorneys for Officer Taylor will likely present a medical expert witness to establish Wrana could have survived, meaning the actions of the police were not the ultimate cause of the 95-year-old’s death.

If a jury accepts Murphy’s expert testimony that Officer Taylor acted with excessive and unnecessary force, and also accepts that Wrana would have lived if he had accepted medical attention, then the officer on trial would likely face lesser consequences.  While he still may have acted excessively, which is a matter of debate considering Wrana’s role in the incident, Officer Taylor may not have been ultimately at fault for causing death.  As with all police-use-of-force trials, the prosecution’s case rests heavily on its police tactic expert witness, but in this particular case a medical expert will also impact the outcome.

 

Federal Court Rejects Asbestos Expert Witness Testimony

A federal court in Chicago dismissed expert witness testimony in an asbestos lawsuit last month due to insufficient scientific support for the “Any Exposure” theory relied upon by the expert. The “Any Exposure” theory, discussed among asbestos and medical experts, argues that any level of asbestos exposure, no matter how minute, could cause long term medical harm. The US District Court for the Northern District of Illinois ruled that the expert theory was insufficiently supported by medical science and dismissed the testimony from trial.

Asbestos Lawsuit Argues “Any Exposure” Theory

Charles Krik filed a lawsuit against several companies alleging that he developed lung cancer as a result of his exposure to asbestos-containing products. The defendant looking to dismiss the “Any Exposure” theory, ExxonMobil, argued that its role in Mr. Krik’s injury was too small to justify inclusion in the lawsuit. As part of his evidence, Krik sought to introduce asbestos expert testimony from Dr. Arthur Frank who was prepared to opine that each instance of exposure to asbestos, regardless of duration, is a medically significant factor in causing conditions such as lung cancer.

The theory relies on scientific studies that indicate there is not a known threshold for safe levels of asbestos exposure, and argues that a single dose of asbestos is dangerous. Mr. Krik argued that his lung cancer was caused by cumulative exposure to small doses, and looked to the “Any Exposure” theory to demonstrate that each exposure, regardless of dosage, was a contributing factor to the cumulative effect the asbestos had on his body. Had this theory been accepted, ExxonMobil could be found liable despite its argument that the Plaintiff could not demonstrate he had been exposed to asbestos on company property.

Federal Court Denies “Any Exposure” Theory

This “Any Exposure” or “Each and Every Exposure” theory has been adopted by some medical experts who study the effects of asbestos, but the theory had not been advanced in federal court until Krik’s case. The Chicago federal court was tasked with applying the admissibility standards of expert witness testimony outlined in Federal Evidence Rule 702 and Daubert v Merrell Dow to determine if the “Any Exposure” theory is scientifically reliable enough to be used in legal cases.  After reviewing the theory and its possible application to Krik’s asbestos lawsuit, the court denied portions of the expert testimony that attributed cause of the plaintiff’s lung cancer to any small dosage.

The court’s primary issue with the “Any Exposure” theory presented during pre-trial expert reports was its lack of toxicological basis and disregard for the scientifically held belief that the “dose makes the poison.” Declining to address the issue about the level of asbestos exposure required to cause lung cancer was part of the plaintiff’s strategy, and the court found this to be a fatal flaw in the effort to connect the defendant’s actions to the plaintiff’s injuries. The court was not persuaded by the approach taken by Krik’s expert witness, who merely argued that the “Any Exposure” theory generally suggested that any and all exposure to asbestos was sufficient to cause harm and declined to provide specific evidence about the doses Mr. Krik had been exposed to from the defendant’s products, and found the proposed expert testimony to be “unacceptable” as evidence of cause.

Expert Witnesses on Asbestos Exposure Allowed

Although Mr. Krik failed to present an expert witness that offered acceptable testimony on the “Any Exposure” theory, the court would allow experts to discuss how his specific exposure level could contribute to lung cancer. Mr. Krik will be permitted to have fact witnesses testify about his exposure to asbestos while at the ExxonMobil facility, and then use expert testimony to connect the particular exposure he suffered to the cause of lung cancer. Unlike the “Any Exposure” testimony, Krik’s acceptable expert testimony would specifically attempt to link his asbestos exposure to his lung cancer.

The “Any Exposure” theory is not necessarily left outside of the courtroom looking in after this ruling.  While plaintiffs should be cautious about advancing a theory that has questionable scientific support, the court left open the possibility of an asbestos expert witness using the “Any Exposure” theory to explain case-specific facts in an effort to link exposure to a medical harm. The Krik expert witness failed largely because he spoke too generally and did not provide enough specific evidence identifying the defendant’s actions as cause of the plaintiff’s harm, but a carefully crafted expert opinion could remedy this misstep by better incorporating the “Any Exposure” theory into the facts of the case in question.

 

 

Vehicular Manslaughter Trial Turns to DNA Expert Witnesses

A vehicular homicide trial in Fayette County, Georgia featured DNA expert witness testimony focused on determining whether or not the Defendant was behind the wheel at the time of a fatal one-car accident. Serene Richter, 46, stands accused of causing the accident while under the influence of alcohol, but has disputed the prosecution’s ability to prove that she was driving the car and caused the crash that killed Samuel McKnight, 44.

Driver Uncertain in Vehicular Homicide Trial

On June 6th, 2011 a Hummer H3 carrying both Richter and McKnight careened off Bute Road in North Union, Georgia, rolled several times, and killed the 44-year-old McKnight after striking a telephone poll. After investigation into the accident, police charged Richter with homicide by vehicle, homicide by vehicle while driving under the influence, driving under the influence, and several traffic violations. Prosecutors claim that Richter was driving with a blood alcohol level of 0.142 at the time of the accident, making her guilty of all charges.

Richter’s attorney, in response, contends that it was Samuel McKnight, whose blood alcohol level was 0.255, who was driving the car and Richter was the passenger. In an effort to settle the dispute over which occupant was behind the wheel of the vehicle, two forensic expert witnesses were called to discuss DNA evidence on the driver’s side airbag that could identify who caused the accident.

Vehicle Manslaughter Case Uses DNA Expert Witnesses

Amy Irwin, a forensic DNA expert witness from the police crime lab, took the stand to explain that she and another scientists studied DNA profiles of samples taken from the driver’s and passenger’s side airbags of the H3. According to Irwin, the passenger airbag did not provide sufficient DNA to identify either Richter or McKnight as the passenger, but aided prosecutors by testifying that there was substantial DNA on the driver’s side but none of it belonged to McKnight – indicating that he had not been driving at the time of the accident.

Sara Harner, another DNA expert witness working as a police forensic scientist, supported Irwin’s findings by testifying that Richter’s DNA was on the driver’s side airbag but not on the passenger side. Both expert witnesses withstood rigorous questioning from Richter’s attorneys regarding the reliability of the DNA evidence due to the fact that the samples were not collected from the vehicle until a week after the crash, and spent more than two years in storage before laboratory testing.  Harner, however, told the court that the DNA was properly stored and untainted.

DNA Expert Testimony Tells Partial Story

While the testimony by DNA expert witnesses Irwin and Harner bolster the prosecution’s argument by indicating that Richter was on the driver’s side while McKnight was not, both forensic experts acknowledged that the DNA did not definitively align the occupants. Attorneys for Richter concluded the cross examination by inquiring whether or not it was reasonable that the placement of DNA was the result of unrestrained occupants shifting places while the vehicle rolled, and the experts had to concede that possibility.

Although DNA results carry gravitas as convincing physical evidence, the Richter trial demonstrates that it cannot make an open-and-shut case, particularly in a criminal trial where prosecutors must convince jurors of guilt beyond a reasonable doubt. Whenever DNA traces are left behind, attorneys must investigate the circumstances of the incident to piece together the puzzle explaining exactly how and why the DNA was present at the scene. Given the weight attached to DNA, attorneys opposing the evidence must be prepared to question forensic experts in such a manner that casts doubt on the strength and integrity of the evidence. Whether or not Richter’s attorney poked sufficient holes in the prosecution’s DNA expert testimony by casting doubt on the evidence’s ability to affirmatively place the defendant behind the wheel remains to be seen as the trial is expected to go to jury in the coming weeks.

Spanish Soap Opera Copyright Trial Features Expert Witnesses

A federal judge in Florida will hear competing expert witnesses explain the finer points of Spanish telenovelas in a copyright legal battle between two Spanish-language TV networks.  Telenovelas, a popular Spanish-language day-time drama similar to American soap operas, are at the center of a lawsuit between Latele Television, C.A. and Telemundo Communications Group, and Miami Federal Judge Jonathan Goodman has agreed to hear telenovela expert witnesses from both sides during trial.

Spanish-Language Channels Battle over Telenovela Similarities

Latele Television, copyright holder for Maria Maria filed the lawsuit against Telemundo for copying the show in its El Rostro de Analia.  Maria Maria, which began its run in 1989, and El Rostro de Analia, which first aired in 2008, are both about a case of mistaken identity between two women who look alike.  The plots, which both involve health doses of affairs, amnesia, love triangles, and illicit activity, arguably share similarities beyond the conventional soap opera elements, causing Latele Television to sue in an effort to collect royalties it argues Telemundo obtained by copying the 1989 show.  Pointing out that the lead writer from Maria Maria is the same man responsible for the story in El Rostro de Analia, Latele argues that Telemundo’s recent version goes beyond the standard practice of borrowing story and plot elements from other telenovelas and enters the realm of copyright infringement.

Telenovela Expert Witnesses Set to Take Stand in Copyright Case

The Plaintiffs plan on using Dr. Tomas Lopez-Pumarejo, a Brooklyn College professor who has written a book on television serial dramas, as a telenovela expert witness.  Dr. Lopez-Pumarejo conducted a literary analysis of both Spanish-language dramas and found what he called “substantial and striking similarities” between the two.  During a Daubert hearing deciding which experts would be permitted to testify in the upcoming trial, Dr. Lopez-Pumarejo stated that the similarities between the two shows, “leaves – in my opinion – no doubt that [El Rostro de Analía] is a remake of [María María].”

In an effort to counter Dr. Lopez-Pumarejo, the Defendant has called as an expert witness Dr. Carolina Acosta-Alzuru.  Dr. Acosta-Alzuru, who is a professor at the University of Georgia, has written a book on Venezuelan telenovelas and is prepared to testify that there are substantial differences between the two shows that refute a copyright claim.  Dr. Acosta-Alzuru has said of the dissimilarities between El Rostro de Analia and Maria Maria, “in terms of core plot development, triangle structure, character design, telenovela subgenre, and qualitative characteristics of dialogue far outweigh the limited similarities in the triggering plot.”

In the early stages of the lawsuit, both parties submitted Daubert motions requesting the other’s expert witness be disallowed from participating in trial.

Federal Judge Admits Telenovela Expert Witnesses

Defendant Telemundo argued that Dr. Lopez-Pumarejo had not conducted sufficient investigation of the two shows before coming to his conclusion that they were similar.  The Plaintiff’s expert witness watched 33 episodes of Maria Maria and 53 episodes of El Rostro de Analia to formulate his opinion, which only equates to 23{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the combined aired programming.  Arguing that an expert who has only been exposed to less than a quarter of the material in question cannot possibly offer adequate commentary on the matter, Telemundo asked Judge Goodman to dismiss Dr. Lopez-Pumarejo before trial began.

In its own motion, the Plaintiff requested that Dr. Acosta-Alzuru be disqualified because her qualifications to comment on the issue were insufficient.  Pointing out that Dr. Acosta-Alzuru is not a literary expert or a copyright infringement expert, Latele Television argued that she lacked the authority to come to an expert conclusion despite the fact that Dr. Acosta-Alzuru watched all 376 hours of aired content and wrote synopses of each episode of both shows.

In response to both motions, Judge Goodman found that both experts had passed the basic Daubert requirements of reliability necessary to admit expert testimony.  Telling the parties that their complaints go to the weight of the expert testimony rather than the threshold question of admissibility, Judge Goodman determined that any weaknesses evident in the expert testimony should be exposed during trial for the jury to consider.  As the telenovela copyright trial moves forward in the coming months both sides will not only be required to incorporate expert testimony into their argument, but also prepare to dismantle an opposing expert opinion during cross-examination.

10th Circuit Dismisses ADA Claim for Lack of Expert Witness

Earlier this month, the U.S. Court of Appeals for the 10th Circuit upheld the dismissal of a lawsuit because the plaintiff failed to provide an expert witness connecting a diagnosed medical impairment to the harm she allegedly suffered.  In its decision, the 10th Circuit clarifies the standard for proving a medical condition in an ADA claim and reinforces the need for medical expert witnesses.

ADA Plaintiff Alleges Injury Caused Failure to Work

In Felkins v City of Lakewood, Plaintiff Cynthia Felkins, formerly an employee for the City of Lakewood, Colorado, claimed that a medical condition called avascular necrosis caused two significant injuries that prevented her from working for long stretches during the early part of 2009.  In late 2008, Felkins suffered from a broken femur causing her to miss over 466 hours in the first 10 months of her job as an emergency call-center dispatcher.  After being fired in early April of 2009, Ms. Felkins filed a discrimination lawsuit with the Equal Employment Opportunity Commission (EEOC) that alleged the City of Lakewood failed to accommodate for her disability of avascular necrosis.

The City responded that Ms. Felkins had failed to demonstrate that she had a disability that qualified her for a claim under the Americans with Disabilities Act (ADA).  Arguing that Ms. Felkins had not provided documentation or testimony from a medical expert as is required by the ADA, Lakewood attorneys requested the case be dismissed.  The trial court agreed with the City and dismissed the claim because Ms. Felkins’s only proof of her disability was her own testimony, which was not sufficient to prove that her avascular necrosis was the cause of the injuries that kept her from working.

10th Circuit Requires Expert to Prove Medical Condition in ADA Case

On appeal, the 10th Circuit affirmed the trial court’s dismissal after finding that Ms. Felkins’s own testimony that her avascular necrosis caused her injuries was insufficient to prove an ADA claim.  A necessary component to winning an ADA lawsuit is demonstrating the existence of a physical or mental impairment that “substantially limits one or more major activities.”  Throughout her complaint, Ms. Felkins argued that her avascular necrosis created abnormal cell growth and blood flow that prevented her from lifting, walking, and standing normally, and, most importantly to her lawsuit, caused her a long-term injury that kept her away from her job.

Despite repeated insistence that her avascular necrosis led to her medical impairment, Ms. Felkins did not provide any professional medical evidence from an expert witness that the condition affected her major life activities.  Citing relevant case law, the 10th Circuit opinion found the Plaintiff’s allegations that she suffered from an ADA qualifying impairment unconvincing due to lack of an expert.  Writing, “[W]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts,” the Court pointed to the need for an expert to verify Ms. Felkins’s claims that her avascular necrosis caused her injury.

Without an expert witness proving her condition caused limitations that the City of Lakewood needed to consider, the 10th Circuit could not allow the case to proceed on Ms. Felkins’s personal testimony alone.  The case serves as a reminder that, while there is a place for lay-testimony, the word of an expert witness is required when medical conditions are the center of debate in ADA claims.

Medical Expert Witnesses in ADA Claims

While lay-testimony such as Ms. Felkins’s declarations is admissible to describe symptoms of a disease or medical impairment, the 10th Circuit reminded plaintiffs that an expert witness is required to not only diagnose a medical condition but also identify the illness as a cause of limitation on major life activities.  Although the ADA was amended in 2008 to loosen the burden of proving the existence of an ADA qualifying injury, the 10th Circuit found that plaintiffs are still required to connect symptoms and other evidence of impaired life activity to a diagnosed medical condition.

In this case, Ms. Felkins case failed because she could not demonstrate that her alleged avascular necrosis caused her physical limitation.  Without evidence of the necessary cause, she could not demonstrate that she qualified for an ADA claim.  Plaintiffs reading the Felkins case can note that a medical expert witness should be part of any ADA claim in order to connect a diagnosed condition to limitations that require accommodation by employers.