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.

Expert Witnesses Key in Detroit Teen Murder Verdict

Earlier this month, jurors in Detroit found homeowner Theodore Wafer guilty of second-degree murder, manslaughter, and a felony firearm charge for fatally shooting 19-year-old Renisha McBride when she banged on his door after crashing her car. Throughout Wafer’s trial, a variety of expert witnesses testified by explaining the issues that were critical in helping jurors understand how the fatal incident transpired.

Homeowner in Detroit Porch Shooting Guilty of Murder

Last November, 19-year-old Renisha McBride approached the home owned by Theodore Wafer at around 4:30 AM and began banging on his door. Wafer, who lives alone, responded to the loud pounding on his door by getting his shotgun, approaching the doorway, and eventually firing a shot that killed McBride. During testimony, a visibly shaken Wafer claimed that he had grabbed the gun out of fear for his safety, and he did not know it was loaded before it discharged. Wafer also testified that the shotgun discharged accidentally, reinforcing his argument that he did not mean to kill McBride.

Prosecutors argued that Wafer’s actions were unreasonable and unnecessary considering the level of threat that McBride presented, and Wafer’s defense team countered that his actions were driven by fear of being attacked and that he did not intentionally discharge the gun. After nearly two days of deliberations, jurors agreed with the prosecution and convicted Wafer of second-degree murder, manslaughter, and felony firearm usage. Both parties relied heavily on expert witnesses familiar with gun safety, forensic pathology, and police investigations during the trial.

Expert Witnesses Key to McBride Murder Verdict

During Wafer’s trial for the murder of Renisha McBride, both parties leaned heavily on expert witnesses to support, or refute, Wafer’s recollection of the events and to interpret the evidence gathered by police at the scene. Prosecutors, attempting to demonstrate that Wafer fired intentionally in an unreasonable response to the perceived threat, called the following:

  • Shawn Kolonich, a forensic firearms expert witness, testified that the 12-gauge shotgun used by Wafer was in good condition and did not have any defect that would have caused it to fire accidentally. Part of Wafer’s testimony was his claim that he had not intentionally fired the gun, but Kolonich’s expert opinion indicated that it is unlikely that the gun misfired. Kolonich further testified that the gun’s safety mechanism had been released, which enabled Wafer to fire it.
  • Detective Stephen Gurka, lead investigator in charge of the case, offered expert testimony on the evidence gathered at the scene of McBride’s death. Det. Gurka testified that the police found no evidence of attempted entry into Wafer’s home, and nothing to suggest that a second individual was attempting to enter through the home’s side door – a claim Wafer made to reinforce his perception of the threat. Gurka’s work was criticized by defense attorneys who argued the police investigation was botched, resulting in tainted evidence.
  • Dr. Kilak Kesha, MD was the final prosecution expert witness. Dr. Kesha performed the autopsy on Renisha McBride and testified that he did not observe swelling or injuries on her hands – supporting the prosecution’s claim that she was not the aggressor.

In response, the defense presented two expert witnesses to support Wafer’s claim:

  • Dr. Werner Spitz, MD is a widely recognized expert on forensic pathology, and he directly contradicted Dr. Kesha’s assessment that McBride did not have wounds on her hands. Dr. Spitz testified that there was evidence of bruising on McBride’s hands that would suggest she banged violently on Wafer’s door. Dr. Spitz also testified that McBride was severely intoxicated at the time, an assessment Dr. Kesha agreed with. Prosecutors challenged Dr. Spitz, getting him to admit he had based part of his testimony on Wafer’s own statements rather than the condition of McBride’s body.
  • David Balash is a firearms expert witness who was called to testify about the condition of Wafer’s screen door at the time he fired the shot that killed McBride. Mr. Balash testified that the angle of the gun at the time it fired suggested that the screen door was dislodged from the force of McBride’s banging. Balash also testified that Renisha was very close to the door – less than a foot – at the time she was shot.

Wafer’s guilty verdict is not necessarily an indication that his expert witnesses were unconvincing. Despite evidence that McBride aggressively banged on his doorway, jurors determined that Wafer’s response was unnecessary and sufficiently out of line to justify a murder conviction. Expert testimony in support of the prosecution demonstrated flaws in Wafer’s story, and contributed to a guilty verdict.

 

Sheriff’s Racial Profiling Trial Features Expert Witness Testimony

The Department of Justice (DOJ) has filed a civil lawsuit against Sheriff Terry Johnson, who operates in Alamance County, NC, for racially profiling minority drivers in traffic stops throughout his jurisdiction. The trial in the case of United States v Sheriff Terry Johnson will depend heavily on expert witness testimony, and both sides have made motions to exclude opposing experts from taking the stand.

Sheriff Terry Johnson Accused of Racial Profiling

In 2010, the DOJ began investigating Alamance County Sheriff Terry Johnson due to allegations of “discriminatory policing and unconstitutional searches and seizures.” Johnson and his officers allegedly stopped a disproportionate number of Latino drivers, and were more likely to arrest Latinos rather than issue citations. After a 2-year investigation, the DOJ filed a federal civil rights lawsuit against Sheriff Johnson in December of 2012. As the case has worked its way through pre-trial discovery, both sides have leaned heavily on expert witnesses to conduct independent investigations of the Alamance County Sheriff’s office in preparation for the upcoming trial.

DOJ Requests Expert Witnesses Be Excluded

Prior to the start of the trial against Johnson, the DOJ filed a motion last week to have two of the Sheriff’s expert witnesses removed:

  • First, the DOJ asked for removal of Mark Dockery, Jr., who is a crime analysis expert witness working with the Alamance County Sheriff’s office. According to the DOJ motion to exclude Mr. Dockery, Johnson “neither provided an expert nor disclosed the subject matter on which Mr. Dockery will present evidence and a summary of the facts and opinions to which he will testify as required.” Without adequate notice about Dockery’s qualifications or the specific testimony he would offer, the DOJ argued that Johnson’s defense team had failed to demonstrate that his testimony satisfied the Daubert standards for expert witnesses.
  • The DOJ also requested that expert witness David Banks be excluded. Dr. Banks is an expert in statistical analysis, and was hired by Johnson to analyze the Alamance County Sheriff’s records of traffic stops and arrests of Latino drivers. Dr. Banks concluded that “there is no statistical evidence that checkpoints were sited in ways that targeted the Latino population,” which counters results of the DOJ’s investigation. In its motion to exclude, the DOJ argued that Dr. Banks could not offer reliable testimony, saying his experience as a statistician is “irrelevant [because] Dr. Banks lacks knowledge and experience to design analyses to test whether bias influences law enforcement activities.” The DOJ took umbrage with Dr. Banks applying general statistical analysis techniques in crafting his expert witness testimony because doing so did not adequately address the question of whether or not the Alamance County Sheriff’s office was employing discriminatory practices. As expert witnesses must provide testimony that is relevant, the DOJ argued Dr. Banks’ opinion is out of the trial’s scope.

Sheriff Johnson’s defense team responded to the DOJ’s objections to both of the planned expert witnesses by directly refuting the reasons to exclude. Additionally, the Defense presented arguments against a key expert for the Department of Justice.

Sheriff Johnson Seeks Exclusion of Key DOJ Expert Witness

Not to be outdone by the DOJ’s scrutiny of Defense expert witnesses, Johnson’s team filed a motion to exclude the testimony of the man responsible for the studies supporting allegations of discriminatory practices. DOJ expert John Lamberth conducted a field study on three major roadways in Alamance County from 2008 to 2013, concluding, “the probability that ASCO will stop and cite a Hispanic motorist is about twice as high” in Johnson’s jurisdiction. The Defense, in its motion to exclude, argued that Lamberth selected the roads to monitor in an effort to dictate his study’s results, making his test “fatally flawed,” and not reliable enough to present at trial. Expert witness testimony must be supported by reliable science, and Johnson’s Defense team presented an argument that Lamberth influenced his results to support the DOJ’s allegations of discrimination.

The DOJ responded that Lamberth is “a leading authority on the study of biased traffic enforcement whose carefully devised study of the Alamance County Sheriff’s Office easily surpasses the threshold for reliability.”  US District Judge Thomas Schroeder, who is hearing the case without a jury and will be solely responsible for the decision, will rule on the motions as the trial against Johnson progresses.

McDonnell Corruption Trial to Rely on Expert Witness Testimony

The high profile corruption trial of former Virginia governor Bob McDonnell and his wife Maureen is underway, and will feature critical testimony from expert witnesses. Both sides will present expert testimony on a range of topics including computer data, finances and accounting, and Virginia’s laws of gift disclosure required by public servants. Although the jurors will primarily be exposed to first-hand testimony regarding the McDonnell’s behavior, experts will be called to offer factual analysis that supplements, supports, or refutes the key eyewitness accounts.

Former Virginia First Family Charged with Corruption

The McDonnells are charged with receiving over $165,000 in gifts in exchange for using Bob’s political influence to assist Star Scientific in promoting the company’s dietary supplements. Former Star CEO, Jonnie Williams, developed a relationship with Maureen McDonnell, and, according to the prosecution, used his connection to the governor’s wife to pitch widespread distribution and use of Star’s anti-inflammatory product, Anatabloc. In exchange for lavish gifts, shares in Star Scientific, and surreptitious cash payments, Mr. Williams was able to use the governor’s mansion to launch Anatabloc in 2011 and take advantage of the McDonnell’s influence to promote the drug to doctors and pharmacies across Virginia.

Critical to the prosecution’s case against the former governor and his wife are email histories and financial records, some of which have been hidden in concealed electronic files. Throughout the month-long trial, prosecutors are expected to integrate computer and financial expert witnesses into the case to help identify misappropriated funds and illegal gifts given from Williams to the McDonnells.

Computer Expert Witness Testifies Against McDonnell

During the second week of the McDonnell corruption trial, FBI computer expert witness Timothy Huff was called to the stand to explain how metadata – which he called “data about data” – can be used to identify the source of emails and electronic calendar events. Huff was asked to identify whose email account set up certain calendar events that prosecutors argue represent meetings between Maureen McDonnell and Mr. Williams during which she received improper payments. Mr. Huff’s computer expertise was used to connect Maureen to Mr. Williams in an effort to corroborate other testimony about the relationship between the two.

McDonnell Prosecutors Plan More Expert Witnesses

Another computer forensic expert witness will likely be called to testify to dive into the details of an iPhone photo of the governor’s Rolex watch which prosecutors argue was a gift from Williams to the Governor. The defense claims Maureen gave the gift, and Governor McDonnell knew nothing of William’s involvement. The date, time, and origins of the iPhone photo will shed light on how much Bob McDonnell knew, and a computer forensic expert like Mr. Huff will be called to enlighten the jury.

Additionally, the prosecutors will have legal and financial experts explain to the jury what laws the Governor and his wife violated, and how the McDonnell’s financial records are indicative of corruption. As the prosecution presents emails, financial statements, brokerage accounts, and communications regarding Star Scientific and Anatabloc, expert witnesses will be required to simplify what the documents mean and how they relate to the corruption allegations at issue.

McDonnell Defense Team Loses Expert Witness Challenge

Before the trial began, attorneys for the McDonnells unsuccessfully attempted to submit an expert witness who was called to explain the benefits Mr. Williams enjoyed by agreeing to testify against the McDonnells in the criminal trial. Williams, who took the stand under immunity this week to explain his relationship with Maureen McDonnell and detail the gifts he provided to her in exchange for the Governor’s support, is facing a potential civil lawsuit over Star Scientific’s illegal involvement with the McDonnells.

Defense attorneys asked that the judge allow an attorney and forensic accountant to testify as expert witnesses who would explain how Williams would benefit – presumably in an effort to raise the authenticity of his statements into account. Judge James R. Spencer, however, found that testimony to be irrelevant because the jury can apply its “own collective common sense” on how Williams may benefit from the delay in civil litigation, and, further, whether or not that benefit cast doubt on his truthfulness.

Governor McDonnell, who is represented separately, has maintained throughout the trial that he was unaware of the details of his wife’s interaction with Mr. Williams and did not know that Star Scientific was giving her money and buying her gifts. Legal and financial expert witnesses will be asked to explain what Governor McDonnell’s obligations were given his claimed ignorance, and support his statements that he was not personally involved in the corrupt activities of his wife.

DOJ Requests EPA Expert Witness Be Removed Over Conflict of Interest

The Department of Justice (DOJ) has requested that former Environmental Protection Agency (EPA) official Jeffrey Holmstead be barred from testifying in a federal trial against utility company, Ameren Missouri. Holmstead, who has knowledge of EPA enforcement proceedings, has been accused of having confidential information resulting in a conflict of interest that, according to the DOJ, should preclude him from serving as an expert witness.

Former EPA Official an Environmental Enforcement Expert Witness

Ameren Missouri is a utility company charged by the EPA for allegedly failing to obtain proper construction permits and declining to install the best available pollution control technology when the company updated two coal-fired electricity units. Ameren is contesting the EPA, and hired Mr. Holmstead as an environmental enforcement expert to offer his opinion during trial. In an expert witness report filed earlier this year, Holmstead outlined his intent to testify:

  • That the regulations Ameren allegedly violated did not apply to the company’s renovation of its coal-fire units because they only apply to new construction or significant modifications
  • Missouri state regulations have jurisdiction over the case – not the EPA
  • The EPA’s expert witness used improper methodology when predicting the long-term emissions from Ameren’s new coal-fired units
  • The method for analyzing emission increases applied by the EPA was not considered at the time the regulations were created, and therefore the EPA cannot now use it to enforce the rule

Mr. Holmstead, who helped develop the EPA regulations while he was working for the agency, submitted his report after analyzing the government’s case against Ameren. With years of experience working with the EPA, Holmstead’s qualifications as an expert witness are not in dispute, however, his former position with the agency have created questions of a conflict of interest that may prohibit him from being further involved in the litigation.

Government Asks for Removal of Environmental Expert Witness

After reading Holmstead’s report, the DOJ immediately prepared a motion to dismiss him as an expert witness because of the confidential information he obtained while working for the EPA. Although Holmstead is a private attorney now, his time as a government employee gave him access to behind-the-scenes meetings and discussions regarding the creation and enforcement of EPA regulations. Throughout his expert witness report, Holmstead cites his experience with the creation of the regulations Ameren is charged with violating, causing the DOJ to request his removal.

Expert witnesses are usually not permitted to testify if there is, or was, a confidential relationship between the expert and one of the parties to the suit. In this case, the EPA is claiming that Holmstead had, over the course of his tenure with the agency, developed a confidential relationship, particularly regarding the creation and administration of the regulations relevant to the government’s case against Ameren. Holmstead, who held the highest position within the EPA’s Office of Air and Radiation, was privy to internal communications regarding the program Ameren is allegedly in violation of, and the DOJ argued that it is therefore objectively reasonable to disqualify him from testimony.

DOJ Leaves Gaps in Request to Disqualify EPA Expert Witness

As the court considers the government’s request to disqualify Holmstead due to his access to confidential information, it is worth noting that the DOJ”s motion does not specify what that information may be. The DOJ simply points to “internal communications” and “privileged information concerning the issues about which he now seeks to testify on behalf of Ameren,” without going into specific details. Further, Holmstead left the EPA in 2005, which is a full six years before the government’s investigation began in 2011 – removing him from years of communications that may have specifically addressed the Ameren case.

While the DOJ is correct that an expert witness with access to confidential information may be disqualified, it is unclear if the government made enough of a case to connect Holmstead’s prior EPA experience with confidential knowledge of its case against Ameren.

6th Circuit Admits Contradictory Expert Witness Testimony

Last week, the federal 6th Circuit Court of Appeals issued an interesting ruling on expert witness testimony when it approved of an expert who directly contradicted the party who hired him. In Lee v Smith & Wesson Corp., the 6th Circuit determined that if an expert witness satisfies the Federal Rule of Evidence 702 qualifications, as articulated in Daubert v Merrell Dow, then testimony that conflicts with his client does not preclude his involvement in the trial.

Expert Witness Contradicts Plaintiff in Personal Injury Lawsuit

In 2006, plaintiff Mark Lee was seriously injured when his Smith & Wesson revolver discharged improperly, causing damage to his face, eye, and nose. While shooting his revolver, Mr. Lee fired three times, with the third shot causing an injurious blast to expel from the weapon into his face. Lee filed a personal injury lawsuit against the gun manufacturer, and testified that before the third shot the gun cylinder swung open – causing the blast that knocked off Lee’s safety glasses and resulted in his facial injuries.

To support his case, Lee reached out to mechanical engineer Roy Ruel as a gun expert witness. Ruel was asked to examine the revolver and testify that it was the cause of Lee’s injuries. Although Ruel concluded that the gun was faulty in its manufacture and design, he determined that the gun cylinder did not swing open as Lee had testified. Instead, Ruel concluded that the accident occurred because the cylinder did not fully lock into place between shots, resulting in high pressure gas expelling from the revolver into Lee’s face. Finding that the gun’s design allowed for the trigger to be pulled even with the cylinder not fully closed, Ruel concluded that Lee’s injuries were created by a Smith & Wesson design defect.

Trial Court Dismissed Contradictory Expert Testimony

Smith & Wesson requested the trial court dismiss Ruel’s testimony because of the critical inconsistencies between his expert opinion and Lee’s account of the accident. The district court granted the motion, and determined that Ruel’s expert testimony failed to satisfy the relevancy requirement of the Daubert test for the following reasons:

  • Lee testified he had no difficulty firing the gun the third time, but Ruel testified that the gun had not fired immediately because the cylinder did not close fully
  • Lee claimed the cylinder swung open after firing, but Ruel concluded that it was closed – however not locked into place
  • Lee’s demonstrated hand grip on the gun showed that he did not touch the thumb latch, but Ruel stated that Lee pushed on the thumb latch prior to pulling the trigger

The differences in victim and expert witness testimony were not minor – in fact Ruel’s expert testimony drastically altered the account of the incident that caused Mr. Lee’s injuries. After the trial court determined that the inconsistent expert would be excluded, Lee dismissed the case contingent on the 6th Circuit’s opinion on Ruel’s ability to offer expert testimony.

6th Circuit Permits Expert Witness Contradiction

In its review of the case, the Court of Appeals for the 6th Circuit looked to the text of Daubert for guidance and pointed out that, “The Rule 702 inquiry is a flexible one… [and its focus] must be solely on principles and methodology, not on the conclusions that they generate.” With that mindset, the court determined that Mr. Ruel had adequately demonstrated that his opinion was relevant to the issues at trial, and was therefore admissible despite being contradictory to Lee’s account. In preparing his expert report, Ruel analyzed the gun, reviewed multiple accounts of Lee’s accident, read Lee’s medical records, and looked over several photos of the revolver immediately after the incident. Finding that “a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him,” the 6th Circuit looked at Ruel’s testimony in a vacuum and determined that it was relevant to determining the cause of Lee’s injuries and should have been admitted.

The 6th Circuit concluded that a reasonable jury could determine that Mr. Lee may have been wrong in his account of the incident, but Smith & Wesson would still be liable for the cause of his injuries based on Ruel’s expert testimony. An expert witness questioning or contradicting testimony he is called upon to support is not unheard of, and the 6th Circuit’s analysis in Lee v Smith & Wesson reminds attorneys and judges that the Daubert criteria, independent of other testimony, controls the analysis of the admissibility of expert testimony.

Expert Witness Approves Detroit’s Bankruptcy Plan

Earlier this month, the financial expert witness hired to review the City of Detroit’s bankruptcy restructuring plan approved of the strategy, but reminded city officials there is a long way to go.  Marti Kopacz, the financial expert hired by US Bankruptcy Judge Steven Rhodes to analyze Detroit’s recovery strategy, finalized her assessment in late July.

Detroit’s Bankruptcy Expert Witness Approves Restructuring Strategy

Ms. Kopacz and her team of financial analysts were brought in to the case by Judge Rhodes to help him understand whether or not Detroit’s bankruptcy plan was feasible.  As we blogged about here, Detroit was ordered to pay Kopacz $500,000 for her expert witness report that helped Judge Rhodes determine the right course of action in the city’s bankruptcy.  With Detroit venturing into unknown territory, Judge Rhodes relied on Kopacz’s expert opinion to ensure the unique restructuring process went as smoothly as possible.

After reviewing the city’s financial situation and reading its plan to address the more than $36 million in debt, Kopacz and her team issued a report that approves of Detroit’s bankruptcy emergence strategy.  In a 226-page assessment, Kopacz provided the critical go-ahead on the city’s $1.4 billion reinvestment plan compiled by emergency city manager Kevyn Orr and his army of bankruptcy consultants and attorneys.  Although Kopacz’s expert opinion reflected optimism that Detroit could achieve its financial goals, she noted reasons for concern and reminded city officials that the work has just begun.

Expert Witness Calls for Unified City Leaders in Detroit

In Kopacz’s report, she strongly emphasized that Detroit’s bankruptcy plan is only possible if the city’s labor force and politicians work together to take advantage of the influx of cash to improve upon services.  Sending a message to city employees, Kopacz expressed some criticism that public union workers don’t always grasp “that their job is to provide a service to the taxpayers versus the taxpayers owing them a job.”  Although she praised the city’s employees for their willingness to work and knowledge, Kopacz’s expert report pointed out that differences between public workers and city officials could derail Detroit’s bankruptcy plan.

In Kopacz’s expert opinion, Detroit also needs to update its technology infrastructure as it works through the bankruptcy plan.  Without better technology to streamline the supply of public services, Detroit could easily slip back into costly bad habits that would stunt the city’s planned revitalization.  Overall, Kopacz repeatedly pointed to the need for strong leadership and cooperative government as Detroit worked through its bankruptcy, conditioning her approval of the strategy on the city officials who will take the lead after Judge Rhodes approves the plan.

Other Recommendations from Detroit’s Bankruptcy Expert Witness

In addition to approving the plan and reminding city officials of the importance of quality management in the coming months, Kopacz and her financial team:

  • Recommended that Michigan hire full-time financial experts to monitor Detroit’s bankruptcy and provide oversight reports that ensure the plan is moving along smoothly.
  • Suggested additional efforts to raise funds to remove the blight that plague’s Detroit’s neighborhoods. Currently the city has plans to secure $300 million in loans to combat blight, and Kopacz recommended there be other funding efforts.
  • Offered the suggestion that Detroit lease or sell the city’s airport, which is “currently a cash drain on the city’s budget.”
  • Called to question the city’s expectation of a 6.75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} return on investment for worker pension funds.  Saying that number could be too high, she cautioned city officials about relying on it.
  • Questioned the planned speed of the bankruptcy, which is something that both Mr. Orr and Judge Rhodes have pushed for during the bankruptcy process.  Kopacz warned officials from rushing the bankruptcy at the expense of city improvement.

Ms. Kopacz and her financial expert witness team compiled her analysis after reviewing the city’s financial documents and conducting over 200 interviews and fact-finding meetings with Detroit officials and public employees.  Kopacz also worked closely with Mr. Orr and his bankruptcy consultancy team to understand the strategy before approving of the plan.  As Detroit moves forward, Kopacz and many of the bankruptcy experts will remove themselves, leaving the daunting task ahead up to Mayor Mike Duggan and the other elected officials.

Peanut Contamination Criminal Trial to Rely on Expert Witnesses

The trial of three former Peanut Corporation of America (PCA) executives for allegedly causing a salmonella outbreak that killed 9 people and sickened over 700 more begins this week, and will feature key expert witness testimony in support of federal prosecutors.  Brothers Stewart and Michael Parnell, along with former PCA quality control manager Mary Wilkerson, are charged with felonies for distributing contaminated peanuts, and experts from the Center for Disease Control (CDC) as well as private food laboratories look to aid the government’s case.

CDC Expert a Late Addition to PCA Trial

Key to the government’s prosecution of PCA’s executives is expert witness, Dr. Ian Williams, chief of the Outbreak Response and Prevention Branch at the CDC.  Dr. Williams is the head of the CDC department that works with epidemiologists and other public health officials who investigate outbreaks of foodborne illnesses in the United States, and has a PhD in Infectious Disease Epidemiology from the Johns Hopkins School of Hygiene and Public Health.

In addition to his education and career qualifications, Dr. Williams has been chosen as a food contaminant expert witness due to his involvement in numerous multistate illness outbreaks since he began working with the CDC in 1994.  Defense attorneys took exception to Dr. Williams because he was a late addition to the government’s witness list, but his qualifications and experience will contribute to the trial and he looks to be an important expert witness during the upcoming proceedings.

Additional Expert Witnesses to be reviewed during Trial

The government will call other food safety expert witnesses to demonstrate the PCA executives were aware of the peanut contamination, including Tracey Buchholz, the corporate director of quality for Deibel Laboratories Group.  Deibel Labs is a food safety organization, and Mr. Buchholz has been called to testify about food quality in an effort to show that PCA either knew, or should have known, its peanuts presented a serious health risk – thus aiding prosecutors build the argument that PCA’s leadership team’s failure to prevent the salmonella outbreak is a criminal offense.

Buchholz and other potential expert witnesses will be reviewed for admissibility during the course of trial by presiding judge, W. Louis Sands.  Judge Sands has cleared a total of 8 expert witnesses to offer testimony bolstering the government’s prosecution, and will allow for additional time during trial to hear arguments about other experts whose testimony may prove valuable.  Expert witnesses must not only be qualified, but also be prepared to offer testimony that is both reliable and relevant to the issues at hand.

Defense Expert Witness Rejected

As blogged about here, the approval of the government’s expert witnesses comes shortly after Judge Sands rejected Mr. Parnell’s request for a neuropsychologist’s expert testimony explaining that the defendant’s ADHD prevented him from having the necessary mental capabilities to be aware of the extent of the peanut contamination.  After a seven hour Daubert hearing regarding expert witness admissibility, Judge Sands determined that Dr. Joseph Conley’s unique expert testimony regarding the impact of ADHD lacked “a link with the allegations” in the PCA trial, and was therefore not relevant to the criminal proceedings.

With the PCA criminal trial set to begin, jurors will hear testimony from several expert witnesses that the government has prepared to explain the nature of contaminated food outbreaks, and connect the defendants’ behavior with the fatal peanut-born salmonella incident.  Prosecutors hope to use the testimony of food safety experts to demonstrate that the three PCA executives knowingly distributed the unhealthy peanuts in violation of federal law, and are consequently guilty of causing the deadly salmonella outbreak.

Racetrack Expert Witness Confirms Speedway Safety in Injury Lawsuit

Former sprint-car racer John Westbrook filed a lawsuit seeking financial compensation for injuries that confined him to a wheelchair he suffered during an accident at nationally renowned dirt-car track, Williams Grove Speedway.  As the adequacy of Williams Grove’s safety measures were a key point of contention, the trial featured testimony of racetrack safety expert witnesses who provided opinions regarding the conditions of the track in order to aid jurors in assigning liability for Westbrook’s injuries.

Racetrack Expert Witness Defends Track Safety Measures

On the last day of trial, a racetrack safety expert witness testified that the Williams Grove’s safety procedures were sufficient and satisfied the industry standards of dirt-track racing.  Martyn Thake, a designer and inspector of racetracks, was called by Williams Grove to as an expert witness on racing safety.  During his expert testimony, Thake made a point to counter two of Westbrook’s arguments against the racetrack:

  1. Williams Grove did not provide adequate instruction on neck safety equipment:  Earlier in the trial, an expert witness in head and neck safety testified on behalf of Westbrook by explaining that a HANS head and neck restraint would have prevented the injury to his neck.  Westbrook then argued that Williams Grove failed in its duty to recommend HANS restraints, but Mr. Thake pointed out that the racetrack did recommend equipment listed as “neck collar,” which, in the parlance of the dirt-track industry, includes the HANS system.
  2. Williams Grove should have had a “catch fence” to prevent Westbrook’s car from falling down the incline:  Westbrook’s vehicle flipped between two turns on the Williams Grove track, and rolled down an incline, with the resulting damage causing his paralysis.  Central to Westbrook’s argument was the claim that a catch fence – a protective fence above the racetrack wall – would have stopped his car and should have been installed for safety reasons.  Mr. Thake explained that a standard catch fence is not designed to catch cars, but to prevent debris from flying out of the racetrack onto spectators – thus having one would not have impacted Westbrook’s crash.

During his expert testimony, Mr. Thake explained to the jury that there are no written regulations for sprint-car racetracks, requiring inspectors to apply a set of industry accepted guidelines for safety.  Going further, Mr. Thake commented that in his opinion, supported by years of building and inspecting tracks, the Williams Grove Speedway operated under acceptable conditions and provided adequate safety recommendations to its drivers.  Based on the industry standard for sprint-car racing, Mr. Thake’s expert opinion supported William Grove’s position that its racetrack was safe and that it had provided sufficient safety precaution to Westbrook prior to his race.

Expert Witness Testimony Proves a Non-Factor

Last week, the Cumberland County, North Carolina jury determined Williams Grove Speedway was not liable to Westbrook because the former driver had signed a waiver of liability prior to taking part in the race.  Racetracks like Williams Grove require all drivers to sign a waiver-release that clears the track of legal liability for injuries sustained during accidents, and the Cumberland Country jurors determined that the document precluded Westbrook from recovering financial damages.

Although the decision did not rely on the testimony by racetrack safety expert witnesses, the analysis of the Williams Grove Speedway provided during trial will no doubt catch the eye of other tracks concerned over scrutiny on safety measures.  Ultimately, the strength of racetrack waivers proved sufficient to the trial jury, but should an appeals court disagree, the testimony of racetrack expert witnesses may become a factor in Westbrook’s lawsuit.

Expert Witnesses Debated Bryan Stow Life Expectancy

Earlier this month a Los Angeles jury awarded injured baseball fan Bryan Stow $13.9 million in a civil suit brought on his behalf.  Significant in determining the appropriate damages was the jury’s assessment of Mr. Stow’s life expectancy, a decision that was aided by use of medical expert witnesses who diagnosed Bryan’s condition and projected how long he could survive with the injuries suffered.

Bryan Stow’s Civil Lawsuit against the LA Dodgers

Bryan Stow’s story gained national attention after he was seriously injured during a fight outside of Dodgers Stadium, home of the Los Angeles Dodgers baseball team, on MLB’s Opening Day, 2011.  Stow, a fan of Dodgers’ rival San Francisco Giants, was viciously beaten by two men in the parking lot of Dodgers Stadium after engaging in a verbal altercation following the game.  Stow was left with permanent brain damage preventing him from ever working again and ensuring that he will require round-the-clock medical care for the rest of his life.

Bryan’s attorneys filed a lawsuit against his assailants and the Los Angeles Dodgers seeking over $65 million to compensate him for injuries suffered, wages lost, and the cost of lifetime care.  In addition to pursuing the two men who beat him, Stow alleged the Dodgers organization failed in its duty to provide adequate parking lot security which, his attorneys argued, would have prevented the grisly attack that left Stow permanently disabled. The Dodgers argued that Stow, whose blood alcohol level was .18 percent, played a significant role in instigating the fight – which reduced the team’s liability.

In mid-July, a jury returned a verdict of $13.9 million, with the Dodgers responsible for only 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of that total.  In addition to testimony regarding Stow’s blood alcohol level and eyewitness accounts of the incident, jurors were influenced by expert witness testimony which projected how long Bryan would live – an important determination given that the damage award was heavily influenced by the anticipated costs of his lifetime medical care.

Expert Witnesses Debate Bryan Stow’s Life Expectancy

Featured during the trial were medical expert witnesses debating Bryan Stow’s life expectancy given his condition.  Attorneys representing Bryan Stow retained medical expert witnesses to testify that the 45-year-old did not suffer a severe drop in his life expectancy as a result of his permanent brain damage.  Four physicians testified that they had analyzed Stow’s injuries and taken his previous lifestyle into account to determine that Bryan’s life expectancy had only dropped 2 – 5 years as a result of his condition.  After Stow’s attorneys presented expert witnesses arguing he would not experience a significant decrease in life expectancy, defense attorneys presented an expert countering the assessment.

Robert Shavelle, the technical director of the Life Expectancy Project, was called as a defense expert witness to challenge Stow’s medical experts’ conclusion that his life expectancy was not significantly reduced.  Shavelle testified that Stow’s life expectancy would drop by at least 10 years, and concluded that he expected Bryan to only live 23 more years – countering the 28 – 30 more years that Stow’s experts predicted.  Mr. Shavelle based his calculation on scientific studies and reports about the effect traumatic brain injuries have on life expectancy, and on medical records of the complications Stow has suffered since the 2011 attack.

Stow’s attorneys challenged Mr. Shavelle for not taking Bryan’s physical health prior to the injury into account, but the defense expert witness stood firm that he expected Bryan’s life to be 10 years shorter due to his injuries.

LA Jury Reduces Bryan Stow’s Damages Award

After several days of deliberations, jurors in the Bryan Stow civil suit determined that he was due some damages, but significantly reduced the amount he sought.  Although $13.9 million is not a small figure, jurors clearly felt that Stow’s claims for $65 million overvalued the damages he suffered and the projected costs of his lifetime care.  While there were likely a number of factors in the jury’s decision to limit Stow’s available damages, expert witness testimony that his life would be drastically shortened as a result of the injuries likely played a part in the outcome.

Federal Appeals Court Reinforces Importance of Reliable Expert Testimony

Earlier this year, the Sixth Circuit Court of Appeals issued a ruling on expert witness testimony that reminds parties that an expert must not only be qualified, but must be prepared to offer reliable testimony.  In dismissing a defective drug lawsuit, the 6th Circuit pointed out that the plaintiff’s expert, although capable, failed to present evidence relevant to the facts of the case.

Plaintiff Files Defective Drug Lawsuit

In Rodrigues v Baxter Healthcare Corp, the 6th Circuit affirmed the trial court’s refusal to admit an expert witness submitted by Fernando Rodrigues, who sued Baxter after allegedly receiving a contaminated dose of the company’s muscle relaxant, heparin.  Mr. Rodrigues was administered heparin, which was recalled in 2008 due to a spike in adverse reactions, prior to bypass surgery.  During his surgery, Mr. Rodrigues experienced severe swelling and drop in blood pressure that required he spend three days in the ICU, sedated, with his chest still open until the surgeons could close the incision.  Claiming the heparin he was administered was defective and the cause of his ordeal, Mr. Rodrigues filed a lawsuit against Baxter seeking damages for his bypass surgery complication.

Rodrigues Expert Witness Rejected by 6th Circuit

The district court judge ruled before trial that any expert witnesses in the case must be prepared to offer testimony linking heparin use to “one or more symptoms [that] were apparent within the sixty minute period” of the patient receiving the drug.  The trial court made this ruling because the available scientific evidence, notably data from the Center for Disease Control (CDC), on the side effects of contaminated doses of heparin indicated that adverse reactions only occurred within sixty minutes of a patient receiving the drug.  Without evidence to support a causal link between heparin and surgical complications after sixty minutes of receiving the dose, the trial court determined that limiting expert witnesses was an appropriate measure.

Rodrigues was prepared to offer the testimony of Dr. Debra Hoppensteadt, a qualified physician, who claimed that the side effects of heparin could emerge after the sixty minute time window established by the CDC.  Despite Dr. Hoppensteadt’s qualifications, the 6th Circuit agreed with the trial court and found her expert testimony inadmissible because her supporting evidence was unreliable.  Dr. Hoppensteadt based her expert opinion about the side effects of heparin on one study, which only gave her enough support to speculate about the possibility that heparin could create complications more than sixty minutes after being ingested.  Without strong evidence to forge a causal link between heparin use and symptoms arising more than 60 minutes after dosage, the 6th Circuit determined that Rodrigues’ medical expert witness could not provide reliable testimony.

With Rodrigues’ only expert witness testifying that his symptoms arose more than sixty minutes after he received the drugs, his case was dismissed by the lower district court.  On appeal, the 6th Circuit agreed that the trial court had appropriately limited expert witness testimony under Daubert by only allowing experts who could rely on existing scientific evidence to link contaminated heparin to adverse medical complications.

Sixth Circuit Points to Expert Witness Reliability

In Rodrigues, the 6th Circuit reminded parties that the Daubert standards for admitting an expert witness require experts be qualified and be prepared to provide reliable testimony.  Determining whether or not expert testimony is reliable is measured on a number of factors, but reliance on established science and proven research is of particular importance to judges.  In Rodrigues, the 6th Circuit faulted Mr. Rodrigues for failing to recognize that professional qualifications are not the singular factor in admitting expert witnesses.  Pointing out that Daubert, which interprets Rule of Evidence 702, requires an expert have “more than subjective belief or unsupported speculation,” the 6th Circuit’s opinion reinforced the importance of expert witnesses satisfying all the necessary qualifications by providing qualified and reliable testimony.