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.

California DA Raises Questions with Choice of Police Shooting Expert Witness

A District Attorney in Sonoma County, California has come under fire recently for declining to file charges against a police officer who fatally shot a toy-gun carrying 13-year-old last October.  At particular issue is the DA’s choice to consult psychology expert witness William Lewinski, an authority on “reaction times and shooting dynamics” who consults with police officers and frequently testifies on their behalf in police shooting trials.

Police Officer Fatally Shoots Teenager

The tragic origins of the case occurred last October when Sonoma County Detective Erick Gelhaus fired seven shots into Andy Lopez, a teenager carrying a plastic AK-47 with the distinctive orange cap removed.  Believing the weapon was real, Gelhaus shot the 13-year-old Lopez after the boy started to run towards him ignoring instruction to drop the gun.  District Attorney Jill Ravitch was called on to review the Lopez shooting in order to determine if Detective Gelhaus would face any criminal charges, and reached out to Mr. Lewinski for his expert testimony on the subject of police shooting.

Police Shooting Expert Witness finds No Wrongdoing

District Attorney Ravich reached out to Mr. Lewinski because his experience developing and researching the field of police shooting psychology would help her make the decision about whether or not to press charges in the shooting death of Andy Lopez by Detective Erick Gelhaus.  Lewinski’s research incorporates behavioral science principals to situations in which police officers are place in a potentially life threatening situation in order to explain why officers fire their weapons in an effort to help prosecutors or jurors determine whether or not the shooting was justified, or if it was negligent or criminal.

After reviewing witness statements, interviewing Officer Gelhaus, and examining the case files, Mr. Lewinsky produced a 14-page expert witness report that found Gelhaus’ explanation of the shooting “supportable to a high degree of scientific certainty.”  Noting that Gelhaus had good reason to believe his life was in danger when Lopez ran at him with what reasonably appeared to be a real gun, Mr. Lewinksy wrote, “From a behavioral science perspective and an action / reaction paradigm, Gelhaus couldn’t wait until the gun was pointed at him, but had to fire, and keep firing, until the perceived threat was removed.”  Mr. Lewinsky’s expert report remains a significant factor in DA Ravich’s decision to not file criminal charges against Officer Gelhaus.

Police Shooting Expert has History Siding with Officers

Critics of Ravich’s decision to not file charges point to the selection of Mr. Lewinsky as an expert witness likely to side with Officer Gelhaus.  Mr. Lewinsky has earned a reputation as being a police psychology expert witness who consistently supports the actions of officers in police shooting situations.  In 2010, Lewinsky was called as an expert witness in the shooting trial of police officer Johannes Mehserle after he shot unarmed train passenger Oscar Grant on an Oakland transit platform.  Informing the jury that “in-attentional blindness” and “muscle memory” can cause a police officer under stress to mistake his gun for his Taser – carried on the opposite hip – and mistake a potential suspect as being armed and dangerous, Lewinsky’s testimony explaining Mehserle’s actions were key in having charges reduced from murder to involuntary manslaughter.

Throughout his career, Mr. Lewinsky has offered similar testimony in a large number of police officer shooting cases, frequently telling judges and jurors that police are justified in opening fire as soon as they perceive a potential threat, which can occur before a gun is pointed at them.  Lewinsky’s ‘shoot-first doctrine’ is, he claims, the result of years of research and is held in high regard by “top experts in the legal, academic, and criminal justice communities worldwide.”  His research on police reaction times and perception of violent resistance has been called upon in several criminal and civil trials, and his prominent expert witness status makes him a fixture in the psychology of police shooting.  District Attorney Jill Ravich certainly knew of Mr. Lewinsky’s history as an expert witness when selecting him, however, critics of her choice have yet to offer reliable expert testimony countering Lewinsky’s report.

Expert Public Adjuster’s Testimony Regarding Insurer’s Bad Faith Rejected in Texas Court

A Texas couple suing State Farm for bad faith and unfair dealings was struck a blow last week when the trial judge determined their expert witness was not qualified to opine on State Farm’s behavior at trial.  Andrew and Donna Falcon filed the lawsuit alleging State Farm owed more than $112,000 for damages to their home covered by their home insurance policy, and attempted to call Stephen Hadhazi, a public adjuster, to testify that the insurance company denied their claim in bad faith.

Homeowner Calls Public Adjuster as Expert Witness

The Falcon’s trouble started in 2011 when a wildfire threatened their home and forced evacuation. Unable to return to the property, and believing their home had been destroyed, the Falcons contacted State Farm, with whom they had a home insurance policy, to begin the process of filing a claim. State Farm assisted the Falcons while they were unable to return to their home, and, when the threat of fire had been neutralized, went to inspect the property to assess damage. Although the home had not been destroyed, State Farm issued payments of close to $20,000 to help the Falcons clean and repair fire and smoke damage to the home and property and pay for expenses accrued while they were unable to return to their residence.

The Falcons disagreed with State Farm’s damage assessment, and called upon the expert analysis of Stephen Hadhazi to independently examine their home and provide an estimate. Following Hadhazi’s review, the Falcons sent State Farm a letter claiming that they were entitled to $112,766.59 to pay for all the damages caused by the fire to the property. When State Farm rebuked the Falcons’ claim, they filed a lawsuit alleging the company failed to investigate their claims in good faith and had paid an unfairly low settlement. Mr. Hadhazi, a public adjuster, was called as an insurance expert witness to comment on bad faith practices.

Judge Rejects Testimony of Bad Faith Expert Witness

In response to the Falcons’ attempt to use their independently consulted public adjuster as an expert witness on bad faith and unfair dealing, State Farm moved to strike Hadhazi’s testimony because: 1) it was only based on the fact that his estimate differed from State Farm’s; 2) it was incomplete because he did not review the claims file, the Service Master’s estimate of damages, or the depositions taken in the pre-trial phase; and 3) Mr. Hadhazi could not properly define bad faith. The Falcons countered that Hadhazi’s experience as a public adjuster qualified him to “assess the physical loss of or damage to structural or personal property, and structural or personal property values,” and thus serve as an expert witness in a dispute over a home insurance settlement.

While the trial court agreed that Mr. Hadhazi was qualified in the area of public adjusting and assessing property damage, it ultimately rejected his testimony as an expert witness. First, the court found that Mr. Hadhazi was not acting as a public adjuster in this case, but was performing as an independent consultant for the Falcons – an important distinction because his testimony was driven by guesswork and unsupported statements he made in defense of the damage estimate he provided for the Falcons. Second, the Court was unimpressed with the vague and expansive definition of bad faith Mr. Hadhazi provided during deposition. Hadhazi was unable to clearly identify bad faith behavior, but instead offered a generic analysis that ended with the unhelpful suggestion that the court “look up” the term bad faith. Since expert witnesses are tasked with assisting the jury, Hadhazi’s attempt to point to bad faith were unconvincing and irrelevant. Finally, the court found that because Hadhazi hadn’t even reviewed any of the documents associated with the Falcon’s claim, he could not comment on bad faith practices in the particular case at issue.

The court’s order, found here, also denied the Falcon’s use of a smoke analysis expert witness because his methodology for examining the smoke damage to their home was unreliable and not representative of the damage the residence suffered. State Farm’s expert witness on smoke damage, called to refute the Falcons’ claims regarding the extent of their losses, was accepted for the trial. Given that the Falcons have lost the early battle over expert witnesses, chances of success in their lawsuit against State Farm have been reduced dramatically.

 

Detroit Pays $500,000 in Financial Expert Fees for Bankruptcy Filing

Detroit has added more than $500,000 in expert witness fees to its growing short term debt accrued as a result of the city’s bankruptcy filing. Massachusetts financial advisor Marti Kopacz will receive payment of $514,736.71 for work performed in April and May that resulted in a financial expert witness report that assesses the feasibility of Detroit’s bankruptcy plan. Detroit will present its bankruptcy plan to US Bankruptcy Judge Steven Rhodes in a trial this summer in an effort to have the restructuring strategy approved.

Detroit Pays for Financial Expert Witness

Marti Kopacz, manager of Boston’s Phoenix Management Services, has a background in public-sector turnarounds and was appointed by Judge Rhodes as the court’s expert witness. Judge Rhodes hired Kopacz to give him the information he needs to understand the “issues of municipal finance and viability” that will come into play while he oversees Detroit’s bankruptcy restructuring. Kopacz’s primary responsibility is to present an expert witness report analyzing the city’s plan for addressing its $18 billion in debt in order to determine whether or not the strategy is feasible, and she may also be called upon to testify during the bankruptcy proceedings.

Last week, Judge Rhodes ordered the city to pay the over $500,000 in fees that Kopacz and her firm have accrued in two months of work. Kopacz’s financial management team have reviewed financial documents, interviewed current and former city officials, consulted with judges and other financial professionals, and compiled the report requested by Judge Rhodes at the time he appointed Kopacz as his expert witness. How Judge Rhodes will use Kopacz’s report and potential testimony remains to be seen, but her work will undoubtedly influence the outcome of Detroit’s bankruptcy trial as the judge has indicated he will rely heavily on her expert analysis to understand municipal finance.

Judge Rhode’s use of Kopacz and her financial management team comes as no surprise – courts often rely on the reports of independent expert witnesses to evaluate strategic and financial planning before approving a course of action. Given that a city of Detroit’s size has never filed for bankruptcy protection, it is expected that the presiding judge would need to tap a top-dollar expert witness to assist him through relatively uncharted territory. Detroit, which is responsible for the administrative and court costs of its bankruptcy filing, has little say in the matter and must pay Kopacz’s expert fees as part of its bankruptcy proceedings.

Detroit’s Bankruptcy Costs Rise

The expert witness fees owed Kopacz and her financial team are added to the over $36 million in costs Detroit has accrued as part of its bankruptcy filing. The bulk of the fees have been paid to its legal restructuring firm, Jones Day, which has billed over $17 million in fees and expenses accrued while creating the city’s bankruptcy plan. Fifteen other consulting firms and bankruptcy professionals filled out the remaining balance, and now Kopacz’s expert report adds another 1/2 million to the total.

Although the fees associated with Detroit’s bankruptcy are substantial, the law firm appointed by Judge Rhodes to track the costs has found every dollar spent to be justified. The Fee Examiners at Chicago-based bankruptcy law firm Shaw Fishman Glantz & Towbin wrote, “Due to the magnitude and complexity of the Case, the novelty of the legal issues, the extremely tight time frames imposed by the Court and the strong differences in opinion between the various parties about what to do and how to do it, it was (and continues to be) inevitable that the costs associated with the services provided by the various Professionals were going to be significant.” Finding that the unprecedented nature of Detroit’s bankruptcy has created a unique situation, Judge Rhodes seems to be taking all the necessary steps to ensure the process is properly managed, regardless of the costs. Marti Kopacz’s financial expert witness report is simply the latest in a growing use of financial, legal, and bankruptcy professionals who have been tapped to assist the bankruptcy court in approving Detroit’s massive restructuring strategy.

Florida Judge Advocates for Increased Use of Eyewitness Experts in Criminal System

A Florida Supreme Court Justice issued a strong argument for the use of eyewitness testimony expert witnesses in the state’s criminal system – supporting the growing field of social and behavioral science that has called to question the accuracy of eyewitness identification. Justice Barbara Pariente issued her comments imploring the use of eyewitness experts as a concurring opinion in the court’s recent decision to reject the appeal of a Death Row inmate, opening the door for supporters of the issue to push for expanded use of behavioral science studies in Florida courtrooms.

Florida Supreme Court Justice Calls for Eyewitness Expert Witnesses

Justice Pariente saw the opportunity to make her opinion on the use of behavioral science experts known when Charles Peterson filed an appeal to his Death Row conviction on the grounds that his trial lawyer’s failure to use an eyewitness identification expert constituted ineffective assistance of counsel. Although Pariente joined the unanimous ruling dismissing Mr. Peterson’s appeal, she, joined by Justice Peggy Quince, wrote a strong concurring opinion that championed the use of such experts in future trials. Her 8-page opinion noted that the outcome of Peterson’s appeal should not lead courts to conclude that the use of eyewitness identification experts is inadmissible, but instead encouraged judges to welcome such testimony to help juries decide on the reliability of eyewitness identifications.

Currently, Florida courts rely on a 31-year-old standard for eyewitness experts which rejects their use, arguing, “a jury is fully capable of assessing a witness’ ability to perceive and remember…without the aid of expert testimony.” Justice Pariente disagreed, pointing out that advances in social science have identified a number of factors that can result in misidentification and misremembering by eyewitnesses, and jurors are unable to tell when a witness is mistaken. Pariente wrote, “As the burgeoning body of scientific research indicates and courts across the country increasingly recognize, expert witness testimony on the reliability of eyewitness identifications can be a “powerful tool in helping the criminal justice system achieve its goal of convicting the guilty while acquitting the innocent.”

Justice Pariente Not Alone in Legal Community

As she noted in her opinion, Justice Pariente is not alone in welcoming the use of eyewitness expert testimony to help judges and juries analyze eyewitness identification. As blogged about here, Pennsylvania recently welcomed the use of eyewitness experts, joining courts in New Jersey, Utah, Oregon, and Connecticut. Justice Pariente pointed to Connecticut’s stance on the matter, suggesting that Florida “adopt the rationale of the Supreme Court of Connecticut … and conclude that this Court’s precedent, which suggests that factors affecting eyewitness testimony are within the common experience of jurors, is ‘out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.’”

Justice Pariente also pointed to work on the issue submitted by the Innocence Project, a nationwide organization that seeks to combat wrongful convictions in part by informing jurors about the common errors that plague eyewitness identification. Pariente noted research by the Innocence Project which found that 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongful convictions later exonerated by DNA were the result of eyewitness misidentification – evidence that not only are eyewitnesses frequently unreliable, but that jurors are not able to identify when misidentification has occurred.

Although Justice Pariente’s analysis represents a progressive use of eyewitness experts that is supported by a growing number of behavioral science studies, the legal community has not widely embraced the change. Judges across the country still believe in the ability of jurors and attorneys to ferret out unreliable testimony, and are hesitant to open the courtroom doors to social science experts like those who offer analysis of eyewitness accounts. Because Justice Pariente’s argument was unrelated to the outcome of the case in which she wrote it, Florida judges are not compelled to welcome eyewitness expert testimony, however, Pariente’s words are encouraging to advocates of behavioral science experts and may prove significant should the Florida Supreme Court have the opportunity to set a new standard in the near future.

ADHD Expert Witness Testimony Rejected in Criminal Case Alleging Fraud

Last month, US District Court Judge W. Louis Sands rejected testimony from a neuropsychology expert witness in the criminal trial of Stewart Parnell, accused of defrauding customers of his now defunct Peanut Corporation of America (PCA) by selling them peanut products filled with harmful contaminants. Throughout 2008 and 2009, PCA distributed peanut products that led to a widespread outbreak of Salmonella that sickened 700 people and killed 9. Parnell, responsible for PCA quality control, hired Dr. Joseph Conley, Jr. to testify that his Attention Deficit Hyperactivity Disorder (ADHD) made it impossible for him to comprehend the problems leading up to the contamination – a unique, but ultimately unsuccessful approach.

Defendant Hires ADHD Expert Witness

Parnell is charged with fraud for knowingly selling peanuts with harmful microbiological content, and shipping a product that did not meet customer’s specifications. Central to the government’s case against him are several email correspondences between Parnell and other members of PCA which indicate that he was aware of the potential contamination and distributed the peanut products regardless. If the government can connect the contents of his emails to knowledge about the Salmonella contaminant, Parnell could be found guilty of intentionally defrauding customers by knowing the risks associated with distributing the tainted peanuts and withholding safety information.

In his defense, Parnell called upon Dr. Conley to testify that his ADHD prevented him from formulating the knowledge necessary to defraud because it left him incapable of understanding or appreciating the nature of the communications regarding the peanut contamination. Dr. Conley’s expert findings report that Parnell suffers from being restless, distracted, and inattentive – depriving him of the neurocognitive capacity to function in the role of quality control manager. According to Conley, “Mr. Parnell was and remains cognitively incapable of fielding, delineating, organizing, and integrating the daily plethora of phone calls and E-mails required in managing three companies.”

Dr. Conley explained that his expert witness testimony was not designed to defeat intent, but rather to demonstrate that Parnell did not, and could not, acquire the knowledge assigned to him in the indictment. Arguing that his ADHD made Parnell unlikely to create a scheme to defraud customers because he could not read or understand the necessary emails, Dr. Conley’s testimony represents a unique approach to the use of medical expert witnesses at criminal trials.

Judge Rejects ADHD Defense

In response to Dr. Conley’s ADHD testimony, the prosecution called Dr. David J. Schretlen to point out flaws in both his methodology and conclusions regarding the effect of Parnell’s alleged disorder. Dr. Schretlen testified that Parnell’s condition did not render him incapable of understanding emails because his responses to work communications demonstrated that he was able to comprehend the significance of the correspondence. Further, Parnell was not diagnosed with ADHD as a child, even though it is mostly commonly diagnosed in childhood, which called into question Dr. Conley’s research methods and diagnosis.

Citing a number of factors, including Dr. Schretlen’s expert analysis, Judge Sands rejected the use of Dr. Conley and his ADHD expert witness testimony. Pointing out that a defendant must “show a valid scientific connection” between testimony and the facts at issue in order have an expert witness admitted, Judge Sands found that Parnell had failed to forge the link between his alleged ADHD and the inability to understand the information regarding the contaminated peanuts. In Judge Sands’ opinion, Dr. Conley’s expert witness testimony designed to establish diminished capacity was not relevant because the case alleged Parnell formed a complex scheme to defraud customers, not that he had made errors in processing information contained in emails.

The case has gained attention for Parnell’s uncommon use of expert witness testimony to attempt an ADHD defense. Although ultimately unsuccessful because it was not relevant, the use of Dr. Conley to attempt a diminished capacity argument due to the neurocognitive deficiencies caused by ADHD is an interesting approach and one worth noting.

Mental Health Experts Key in Legal Bid to Remove Donald Sterling as Clippers Co-Owner

A trial to enforce the sale of the NBA’s Los Angeles Clippers may turn on expert witness reports regarding the mental health of recently disgraced owner, Donald Sterling. Following racist and disparaging comments made by Sterling, the league banned him from any basketball related activities before issuing an order for him to sell the team. With Sterling’s refusal to agree to a $2 billion sale of the Clippers negotiated by his estranged wife, who has an ownership stake in the franchise, a California court will determine if Sterling’s mental health justifies his removal as a trustee.

Expert Witnesses Key to Determining Sterling’s Mental Health

Shelley Sterling negotiated a $2 billion deal selling the Clippers to Microsoft mogul Steve Balmer within weeks of the NBA’s decision to force Sterling out of the league. Shelley, by virtue of California’s law on marital property, has an ownership stake in the franchise, but cannot finalize the agreement without Donald Sterling’s consent. With Mr. Sterling refusing to sign the deal, Shelley has taken the matter to court by asking a judge to declare Donald mentally unfit to act as a team trustee.

Central to the legal battle regarding the sale of the Clippers are reports from three different medical expert witnesses who found that the 80-year-old Sterling has shown symptoms of Alzheimer’s disease and dementia. Shelly Sterling hired doctors to conduct an analysis of her husband’s mental health because a clause in the trust both spouses signed in December allows for one to remove the other if two board-certified doctors offer a written report indicating mental incapacitation. Claiming that the $2 billion sale is in the best interests of all parties, Shelly is taking action to remove her husband in order to close the deal without requiring his involvement.

Donald Sterling Seeks Mental Health Expert Witness

Despite the expert medical reports diagnosing him with early signs of Alzheimer’s and dementia, Sterling maintains that he is of sound mind. He has promised to defend himself in the lawsuit for control over the Clippers, and recently requested the Court delay the hearing until he can present testimony from his own medical expert witness who is prepared to contradict reports regarding his mental condition. Sterling has hired Dr. Jeffrey Cummings, a neurologist from the Cleveland Clinic, to conduct a preliminary assessment and offer testimony that he is mentally sound and capable of running his franchise and estate.

Whether or not Donald Sterling’s expert witness will matter is still unclear as Judge Michael Levanas has already indicated that the case seems pretty clear. With two medical expert reports certifying Sterling’s incapacity to make decisions regarding the trust he and Shelly co-own, the language of the trust agreement may clearly control matters regardless of what Sterling offers in his defense. Sterling’s attorneys responded to Judge Levanas by arguing that the parties unintentionally omitted a provision in the trust that permitted reinstatement if a certificate of mental capacity is submitted – making the use of Dr. Cummings’ expert testimony critical.

Matters of mental incapacity are delicate, and competing expert witnesses are not uncommon – particularly when billions of dollars are at stake. As the Donald Sterling situation continues to escalate into increasingly contentious waters, how Judge Levanas uses the medical expert witness reports at his disposal will be critical in the decision to remove Sterling’s control of the Clippers and allow the $2 billion sale to proceed despite his objections.

Merck Seeks Sanctions Against Expert in Vioxx Case

An expert witness in high dollar litigation over Merck’s discontinued Vioxx pill faces potential sanctions from a federal judge for disclosing confidential information regarding the case to The Wall Street Journal. Professor David Egilman of Brown University testified as an expert witness for plaintiffs alleging Merck misled consumers about the dangers of Vioxx, and recently came under fire for violating a 2005 confidentiality order issued by a federal court when the litigation was in its early stages.

Expert Witness in Vioxx Litigation Challenges Confidentiality Order

Vioxx was an anti-inflammatory pill manufactured by Merck that was withdrawn from the market after studies linked its usage to increased risk of heart attack and death. Millions of Americans used Vioxx, and thousands of deaths were allegedly linked to side effects caused by its use before the drug was recalled. In litigation filed by the Kentucky Attorney General, who alleged Merck violated consumer protection laws by failing to disclose the risks associated with Vioxx, Professor Egilman was called to offer his expert testimony on the quality and integrity of the drug’s clinical tests. As part of his investigation, Dr. Egilman was given access to internal emails, research reports, and other documents from Merck that allowed him to testify about what the company knew before releasing Vioxx to the market.

The lawsuit settled for $23 million in November, but as part of the agreement Merck was not required to admit that the company did anything wrong in the manufacture, testing, and distribution of the drug. Shortly after the case in Kentucky was resolved, Dr. Egilman sought, and was granted, legal permission to challenge the confidentiality order protecting documents from Merck that he believed included information about the testing and distribution of Vioxx, about which the public had a right to know. In describing his decision to seek the release of Merck’s documents, Dr. Egilman stated that he was privy to information that suggested the company misrepresented the health effects of the drug and engaged in fraudulent studies during Vioxx clinical testing.

Merck Seeks Sanctions Against Expert Witness

Although Merck has declined to comment on Dr. Egilman’s legal efforts to declassify Vioxx documents, the company has taken legal action against the expert witness over comments he has made about the case. Merck claims that Dr. Egilman’s description of the alleged contents of the confidential documents was sufficient to violate a 2005 protection order precluding expert witnesses from revealing the details of the case. Even though Dr. Egilman did not specifically describe the documents in question, Merck argues that it could be harmed by his comments regarding their contents.

In defense, Dr. Egilman has responded that the statements he made were already publically known, and that he did not provide sufficient detail to violate the confidentiality order. Dr. Egilman claims that he is not precluded from offering his thoughts on what the documents contain, and has not violated the confidentiality order by simply talking about the investigation he conducted while preparing to be an expert witness. While the US District Court Judge Eldon Fallon considers Merck’s petition, he has issued a restraining order against Dr. Egilman preventing him from making any additional comments about the case.

Case Highlights Confidentiality Concerns for Expert Witnesses

The consequence of breaking confidentiality is something that Dr. Egilman should be sensitive to already. In 2007, he agreed to pay $100,000 to drug manufacturer Eli Lilly after he released information learned while testifying as an expert witness for plaintiffs in litigation over the company’s anti-psychotic drug, Zyprexa. Even though Eli Lilly later settled the criminal investigation over Zyprexa by pleading guilty to promoting the drug for inappropriate use and paying $1.4 billion, Dr. Egilman was not entitled to break court-imposed confidentiality as he saw fit. As the legal action against Dr. Egilman demonstrates, any expert witness who believes that the public has a right to know information contained in court protected documents can expect potentially serious, and expensive, consequences if confidentiality is violated.

 

Experts Analyze Traffic Stops and Citations in Federal Lawsuit Against North Carolina Sheriff

A federal anti-discrimination lawsuit filed by the US Justice Department against a North Carolina sheriff has been held up due to a dispute over expert witness testimony.  Alamance County Sheriff, Terry Johnson, has been sued by the DOJ following accusations that he and his department engaged in discrimination against Latinos, and expert witnesses have been retained by both sides to offer statistical analysis of traffic stops and citations among the Latino population. After reviewing two drastically different expert witness reports, Judge Thomas Schroeder delayed the proceedings to better analyze the information presented.

DOJ Expert Witness Finds Evidence of Discrimination

The Justice Department submitted the research of John Lamberth, an expert police consultant, who conducted field analysis of police traffic stops in Alamance County to determine if the sheriff’s office was issuing citations to a disproportionately high number of Hispanics. Lamberth, who operates his own consulting company which provides services to police departments, local governments, and civil rights groups, focused his study on traffic stops on three major roadways between 2008 and 2013.

Lamberth’s expert testimony informed the court that 37{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all individuals stopped by the Alamance County Sheriff’s Office were Latino – a troubling statistic considering the fact that Latinos only make up 8.7{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the driving population in the county. Attorneys for the Department of Justice point to Lamberth’s study as “strong evidence of intent” by Sheriff Johnson and his office of carrying out institutionalized discrimination against the county’s Latino population. Attorneys retained by Sheriff Johnson countered Lamberth’s study with a statistics expert witness who argued the methodology and results were flawed and misleading.

Expert Witness Criticizes DOJ Finding of Discrimination

Countering Mr. Lamberth’s research, attorneys for Sheriff Johnson called David Banks, a professor of statistics at Duke University. Banks, sitting as a statistics expert witness, evaluated data from the Alamance County Sheriff’s Office, the U.S. Census Bureau, and the North Carolina state government to reach his conclusion that Lamberth’s study did not accurately reflect the frequency of which Latinos were pulled over.

Professor Banks argued that Lamberth’s study was flawed because it focused only on citations issued and not the total number of stops, and also included citations from outside the Alamance jurisdiction. Banks pointed out that the flaws in Lamberth’s analysis suggested that there is no statistical evidence that Sherriff Johnson or his staff engaged in discriminatory behavior. After analyzing the conflicting expert witness reports, Judge Schroeder delayed the start of the trial in order to give him time to analyze the evidence and rule on a handful of motions filed by each side.

Conflicting expert witnesses are nothing unusual, but this case is interesting in that both sides make use of statistical experts to analyze potentially discriminatory behavior, demonstrating yet another type of expert testimony attorneys seek out. Statistical analysis can be useful to judges and juries who are asked to identify trends in behavior, and expert researchers are called upon to conduct investigations and parse through data to make statistics useful during trial. As the DOJ accusation of discrimination against Sherriff Johnson plays out, the use of statistical expert testimony will have a significant impact on the outcome.

Experts Play Critical Role in Shaken Baby Cases

A New York father has been acquitted of charges stemming from the tragic death of his 4-month old son, whose suspicious death led prosecutors to believe that Adrian Thomas had caused his child’s death by violently shaking him. As has become common in trials following suspicious death of infants, the Thomas verdict was heavily influenced by expert witnesses whose testimony assisted jurors in understanding the circumstances of the case.

Adrian Thomas Acquitted of Second Degree Murder Charges

Adrian Thomas received attention from police and prosecutors after his 4-month old son, Matthew, was found dead in September of 2008. After a 2009 guilty verdict that was dismissed on appeal due to an improperly obtained confession, prosecutors in Troy, NY again brought Mr. Thomas to trial, this time relying on testimony by medical experts to prove that Matthew’s death was caused by traumatic brain injury suffered as a result of being shaken. In response, Thomas’ attorneys argued that a bacterial infection in Matthew’s blood was the cause of his death, clearing their client of wrongdoing.

After both sides presented a number of medical expert witnesses to offer opinion on the cause of Matthew’s death, jurors determined that there was insufficient evidence to conclude that Mr. Thomas shook his son and cause his fatal injuries.

Prosecution Experts Argue Injuries Point to Shaken Baby Syndrome

New York prosecutors called medical examiner Michael Sikirica as an expert witness to testify that Matthew Thomas suffered from traumatic brain injury commonly seen in shaken baby syndrome. Dr. Sikirica noted that a subdural hematoma like the one Matthew experienced are most often caused by head injuries. Sikirica went on to testify that such injuries can be caused by rapid change in velocity that moves the brain back and forth, often indicating the infant is the victim of shaken baby syndrome.

Prosecutors argued that Dr. Sikirica, who performed Matthew’s autopsy, told the most important part of the story because he identified a cause of the child’s death. Arguing in closing that Dr. Sikirica’s testimony was “consistent with blunt force trauma,” prosecutor Christa Book pointed to her medical expert witness as a critical voice in the trial. To reinforce Dr. Sikirica, Ms. Book called on Dr. Carole Jenny to provide expert testimony after reviewing medical records. Dr. Jenny agreed with the medical examiner’s opinion, and testified to jurors that Matthew died of head trauma.

Defense Medical Expert Claims Bacterial Infection Led to Death

Defense attorney Stephen Coffey countered the prosecution’s argument by attempting to show that Matthew died after going into septic shock due to a bacterial infection in his brain. Dr. Jerome Klein, a medical expert from Boston University, was called to analyze Matthew’s injuries and provide opinion on his death. Dr. Klein acknowledged the possibility of head trauma, but pointed out that a brain infection could have caused the same symptoms and death. Dr. Klein’s testimony was designed to present a viable alternative theory of Matthew’s death, and he did so by explaining that the injuries the child suffered were not necessarily the result of shaken baby syndrome.

The Adrian Thomas case is yet another example of the questions debated by medical expert witnesses who are faced with a mysterious infant death that displays signs of head trauma. As blogged about here, shaken baby syndrome can result in hotly contested medical expert testimony, and in this particular case jurors were unconvinced that Matthew Thomas’ injuries were clearly caused by blunt force trauma. Prosecutors and defense attorneys faced with a shaken baby case need to be aware of the different types of expert witness testimony available, and employ a full array of medical experts to provide useful analysis to jurors.

Education Expert “Misunderstood” in Landmark California Teacher Tenure Case

Earlier this month, a California judge made national headlines by striking the state’s teacher tenure laws on the grounds that the legislation violates students’ rights to equal protection guaranteed by California’s Constitution. As attorneys and scholars debate the soundness of Judge Rolf Treu’s legal conclusions, his factual foundation was shaken this week when a key expert witness claimed the Court misinterpreted statements he made during deposition – giving opponents further reason to believe the ruling will not survive the inevitable appeal process.

Teacher Tenure Ruling Relies on Expert Witness Testimony

Finding that tenure laws keep ineffective teachers on the job, thus depriving poor and minority students of quality education, a basic breakdown of the point-by-point reasoning in Judge Treu’s teacher tenure opinion is as follows:

  1. Quality education demands quality teachers;
  2. Laws of teacher tenure prevent dismissals – leaving bad teachers;
  3. Because laws produce bad teachers – particularly amongst poor and minority populations – they are subject to strict scrutiny;
  4. Tenure laws fail strict scrutiny because there is no compelling reason for a state to protect bad teachers.

The strength and validity of the legal conclusions supporting points 3 and 4 are left for scholars and higher courts to debate, but the factual meat of Judge Treu’s opinion that makes his conclusion possible rests in point 2: the assertion that teacher tenure laws produce bad teachers by protecting them from dismissal. In support of his position, Judge Treu cited testimony from Dr. David Berliner, an education expert witness who testified that “1 to 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of teachers in California are grossly ineffective.”

Finding that the percentages quoted by Dr. Berliner represented a startlingly high number of ineffective teachers, Judge Treu concluded that tenure laws have created a low quality educational environment that has a “negative impact on a significant number of California students,” making the tenure protection illegal under the state’s constitutional guarantee of equal treatment across all racial and ethnic groups.

Education Expert Witness Claims He Was Misunderstood

In the wake of the controversial teacher tenure ruling, Dr. Berliner publicly provided opponents the opportunity to undercut the factual foundation on which Judge Treu based his legal conclusions by claiming his estimates of “grossly ineffective” teachers were misunderstood by the court. As an expert witness, Dr. Berliner was questioned during a deposition about ways his “value-added model” of teacher effectiveness could identify bad teachers. When pressed by lawyers about whether or not 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of educators had strong negative effect in the classroom – and were thus “grossly ineffective” – Dr. Berliner responded in the affirmative.

After realizing that Judge Treu relied on his conclusion that 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of California teachers could be classified as grossly ineffective, Dr. Berliner clarified that he “never said that,” and that he was misquoted as an expert witness. Claiming that he estimated the figure when pressed by attorneys, Dr. Berliner stated that he has never met a grossly ineffective teacher, and his expert opinion about the overall quality of California’s educators was misrepresented in the landmark decision.

Misunderstood Expert Witness Testimony May Affect Outcome

A spokesperson for Students Matter, the organization that filed the lawsuit claiming teacher tenure laws were unconstitutional, was undeterred by Dr. Berliner’s claims that his expert opinion was misunderstood, saying that “nothing in the opinion hinges on that number.”  Although the legal basis for Judge Treu’s opinion can stand independently of Dr. Berliner’s testimony, and is undoubtedly the aspect of the decision that will receive the brunt of the criticism and scrutiny on appeal, downplaying the effect of an expert witness countering his testimony can be dangerous for the plaintiffs.

Judge Treu supported his position that teacher tenure laws produce grossly ineffective educators with Dr. Berliner’s expert testimony, so even if an appeals court agrees with his legal conclusion that such laws can unconstitutionally deprive students of quality education – an outcome which is far from assured – an expert witness recanting testimony can cast doubt on the judge’s factual conclusion and influence the future of the litigation. Whether or not an appeals court places significant stock in Dr. Berliner’s efforts to clarify his testimony, the embarrassing circumstance of a misquoted expert serves as a reminder to judges and attorneys that it is critically important to properly understand exactly what expert witnesses say during trial.