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.

Remote Expert Testimony Via Skype Embraced in Australia

An Australian court has embraced the age of digital communications by allowing expert witness testimony to be delivered via Skype or other teleconferencing applications. Called remote witness evidence, the experimental practice has been utilized in select criminal courts over the past 12-months. Feedback on the procedure seems positive, particularly from expert witnesses who do not have to travel, but remote witness testimony is a long way from becoming widely accepted – particularly in the US.

Remote Expert Witness Testimony Useful in Australian Criminal Trials

Initiated to end the hours spent by police officers and other expert witnesses waiting at the courthouse, the driving force behind Australia’s experiment with remote testimony is efficiency in the legal system. Deputy Police Commissioner Catherine Burn touted the advantages of remote testimony by saying that time spent as a witness was “something that police have had a real frustration with for decades” before teleconferencing provided a solution. Prosecutors must notify the court that expert witnesses or police intend to present testimony remotely, and if the judge determines that the evidence is too contentious, the witness must still report to court in person.

In addition to trimming the time spent by expert witnesses, allowing remote testimony has two other notable advantages:

  • Cost: Paying an expert witness to travel to a courthouse for testimony can get expensive – particularly if the expert is not local. Hiring an expert witness can be expensive, and costs such as flights, rented cars, meals, and hotel rooms can easily make the use of some experts too pricey for a number of criminal defendants.
  • Expanded Access: With concerns over travel costs effectively eliminated, clients in a remote testimony environment have expanded access to a variety of experts. Over the course of Australia’s experiment with remote testimony, some cases featured testimony by experts in other parts of the country and even as far away as England.  With remote testimony in place, clients can rely on expert witnesses from virtually anywhere – providing the internet connection allows for easy teleconferencing.

Australian courts making use of remote testimony reported little to no problems with connectivity or communication quality, meaning introducing expert witness testimony via teleconference was not significantly different than doing so in person.

United States Unlikely to Welcome Remote Expert Witness Testimony

The concept of remote witness testimony is not uncontemplated by American jurisprudence.  The Supreme Court spoke directly to the issue in 2004’s Crawford v Washington, and directly rejected widespread use of remote testimony as being in violation of the Confrontation Clause of the Constitution. The Confrontation Clause gives every criminal defendant the right to physically confront, in court, any witness – including an expert witness – who offers evidence during trial. The Crawford opinion echoed the Court’s decision to reject a 2002 amendment to the Federal Rules of Evidence that would have allowed remote witness testimony based on concerns over the Confrontation Clause. The Supreme Court, setting the tone for the American legal system, has declined the opportunity to allow widespread use of remote expert witnesses, and it is unlikely the thinking will change dramatically despite technological advances that have made teleconferencing more affordable and reliable since the Court last weighed in.

Although the issue of remote testimony seems stagnant in the United States, it is not necessarily dead. Courts already allow limited use of teleconference testimony, typically reserved for situations in which the witness is intimidated by the defendant and unable to confront him in court – none of which would apply to use of experts. As technology improves teleconferencing – an innovation clearly not considered by the Constitution – Courts may begin to recognize that defendants are still able to confront a witness who testifies remotely. Legal scholars continue to keep the issue fresh (see articles here, here, and here), and it is possible, even likely, that a younger generation of judges who are more familiar with technology will be willing to open the door for remote testimony across the U.S.

Pennsylvania Supreme Court Rejects Use of False Confessions Expert Witness

Criminology research indicates that approximately 1/3 of people accused of crimes issue a false confession – a troubling statistic considering how valuable confessions are in criminal trials. Behavioral scientists have conducted years of research into the matter, and recently the Pennsylvania Supreme Court was called upon to decide on whether a social scientist expert witness could offer testimony regarding false confessions during a criminal trial. Unconvinced by social science research, the Court rejected behavioral expert testimony regarding false confessions, contradicting a similar opinion it issued the same day.

Pennsylvania Court Rejects False Confession Expert

In Commonwealth v Alicea, a divided Pennsylvania Supreme Court reversed a lower court decision that allowed a nationally renowned behavioral science expert to testify about false confessions during a criminal trial. Murder trial defendant Jose Alicea, accused of a 2005 killing, confessed to the crime after five hours of intense police interrogation. Lawyers for Mr. Alicea, whose IQ of 64 is well below the traditional threshold for intellectual disability, argued that expert testimony regarding the tendency for certain defendants to falsely incriminate themselves was critical to jurors’ analysis of their client’s confession.

Writing for the majority, Judge Seamus McCaffery was unconvinced that jurors needed a behavioral science expert witness to evaluate the legitimacy of confessions. Wishing to avoid a battle of experts arguing social science generalities, the court wrote, “Ultimately, we believe that the matter of whether a confession is false is best left to the jury’s common sense and life experience.” Cleary, Judge McCaffery and the rest of the 4 – 2 majority were unconvinced that the value of behavioral science research outweighed the potentially overwhelming use of social science experts during criminal trials – leaving dissenting judges with a strong counterargument.

Dissent Argues Value of Behavioral Science Expert Witnesses

Dissenting members of Pennsylvania’s high court took issue with the majority’s approach to social science research. Writing for the minority opinion, Judge Thomas Saylor criticized the majority’s “blanket exclusion of social science research based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science.”

Judge Saylor’s argument is echoed by defense attorney organizations and social scientists who seek acceptance by the judiciary of established behavioral science research. It also represents a position the Pennsylvania Supreme Court was willing to accept in a related case – leaving the overall place for behavioral science expert witnesses in Pennsylvania criminal trials somewhat unclear.

Alicea Decision Contradicts Earlier Ruling on Use of Behavioral Science Experts

The Court’s decision in Alicea is somewhat puzzling considering that earlier in the day it accepted the use of behavioral science in Commonwealth v Walker – blogged about here. In Walker, the Pennsylvania Supreme Court accepted testimony by a behavioral science expert witness who explained to jurors the inaccuracies common across eyewitness testimony. Like Walker, the defendant in Alicea relied on expert testimony based on advances in social science to explain general patterns of human behavior that could influence a criminal investigation and trial, however, Pennsylvania’s Court was unwilling to broadly welcome behavioral science by accepting it in both cases.

While it is difficult to reconcile the two outcomes from Pennsylvania’s Supreme Court, the combination of Walker and Alicea are useful case studies of the integration of behavioral science expert witnesses into the legal system. Although it is clear by the dissent in Walker and the majority opinion in Alicea that some judges are unwilling to buy into the conclusions advanced by social science research, the partial acceptance in Walker is an encouraging step for behavioral science proponents. The expanding use of expert witnesses with behavioral science expertise will force more state courts to consider similar issues, and, while Pennsylvania may not offer a model of consistency, the Walker and Alicea decisions highlight the types of arguments judges will consider in future cases.

Federal Fourth Circuit Forces Experts to Separate Opinions from Fact During Testimony

Expert witnesses are often used by attorneys to analyze facts and circumstances of a case and offer opinions to help jurors better understand the relevant issues. Federal evidentiary rules, which reflect the widely accepted Daubert standard, permit expert opinion testimony providing it is reliable and supported by scientific knowledge. Recently, the Fourth Circuit Court of Appeals issued a ruling that reminds attorneys that an expert’s opinion must also be clearly distinguishable from fact.

Government Witness Improperly Mixed Fact with Expert Opinion

In United States v Garcia, the Federal Fourth Circuit Court of Appeals reversed the criminal conviction of an alleged drug dealer due to improper testimony from an FBI expert witness. During trial, the prosecution relied on an FBI special agent to testify both as a factual witness, based on her work during the criminal investigation, and an expert witness, based on her years of experience decoding drug related conversations. In dismissing the conviction, the Fourth Circuit held “there were inadequate safeguards to protect the jury from conflating [the agent’s] testimony as an expert and fact witness,” reminding attorneys that there must be a clear line between fact and opinion testimony.

In its decision, the Fourth Circuit determined that the Government’s expert witness “moved back and forth between expert and fact testimony with no distinction,” which allowed the prosecution to submit evidence under the guise of expert opinion. For example, the agent testified that the phrase “one hundred forty five point” referred to 145 grams of heroin – a fact she gleaned from the investigation that was presented to the jury as an expert decoding of a drug related conversation. By mixing facts and expert opinion testimony, the prosecution was able to insert evidence into the trial without going through the proper channels.

Improper Connection Drawn Between Facts and Conclusions

The Fourth Circuit also took issue with the prosecution’s drug investigation expert witness for drawing the connection between facts and conclusions – essentially giving the Government’s case additional credence by tying her expert opinion to it. During trial, it is up to the prosecutor to establish facts that are sufficient to convict, and, although experts may opine on the meaning of facts, it is inappropriate for an expert witness to make the prosecution’s argument by connecting evidence to the underlying argument. The Fourth Circuit determined that such testimony falls outside of the evidentiary rule which “contemplates that an expert’s opinion testimony will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.”

Finally, the Government’s FBI expert witness failed to lay an adequate foundation for either her factual or her expert opinion testimony. Under Daubert standards that have been codified by the federal rules of evidence, expert witnesses must demonstrate their testimony is based on reliable, scientific knowledge. This requires attorneys to ask questions during testimony that give the expert the opportunity to support her opinion with reliable methodology or theory. By failing to do this, the prosecution further blurred the lines between fact and expert opinion, and further allowed the FBI expert’s testimony to make the Government’s argument rather than help the jury understand the facts.

Garcia’s Guide for Expert Opinion Testimony

The Garcia opinion clarified that attorneys must be careful when presenting expert opinion testimony. Expert witnesses are permitted to offer their opinion in order to assist the jury in understanding the facts, but an expert cannot be used to tell the party’s story. Expert opinion testimony offers insight into complex issues that jurors may not be able to properly comprehend, but it is up to attorneys to integrate the facts of the case with the expert’s opinion in order to make a convincing argument. As the Fourth Circuit demonstrated in United States v Garcia, judges will hold parties accountable for properly separating expert opinion from fact by dismissing expert testimony that crosses the line between assisting the jury and making the attorney’s argument.

Arizona Supreme Court Allows “Cold” Expert Witness Testimony

The Arizona Supreme Court issued a landmark ruling last week, changing the way criminal trials in the state can make use of expert witness testimony. Rejecting an appeal of a lengthy prison sentence, the Court admitted testimony of a “cold” expert witness – meaning an expert who has not interacted with the victims.

Arizona Admits Cold Expert Witness Testimony

Martin Salazar-Mercado appealed his conviction of multiple counts of child abuse to the Arizona Supreme Court due to the prosecution’s use of an expert witness who knew nothing about the particular victims involved in the case. At trial, the state presented testimony of a forensic interviewer who discussed a condition known as Child Sexual Abuse Accommodation Syndrome in order to explain the behavior of Salazar-Mercado’s victims. Many of the child victims delayed reporting the abuse, had trouble recalling the timing of events, and even changed stories during the course of investigation – symptoms common among young victims of sexual abuse. Salazar-Mercado’s attorney objected to use of the expert witness because she had not interviewed any of the children or connected personally with the case.

In a unanimous decision, the Court rejected Salazar-Mercado’s appeal and set a lasting standard for the use of experts in Arizona criminal trials. Holding that the state’s forensic interviewer expert testimony was admissible, the Court found that, “Expert testimony about general behavior patterns of child sexual abuse victims may help the jury understand the evidence.” In this case, the state’s expert helped the jury understand reasons for the delayed and inconsistent reporting. In its conclusion, the court was careful to limit cold expert witness testimony to “general principles of social or behavioral science,” and reminded judges that cold testimony must still satisfy legal standards for admissibility.

Understanding Cold Expert Witness Testimony

Expert witness testimony is often used to analyze facts of the case and explain how professional or scientific knowledge applies directly to the particular issues jurors must decide. Experts are called upon to conduct investigations, write reports, and offer pointed testimony that help judges or jurors answer questions about the facts of the case. Traditionally, experts who have not interacted with the particulars of the case have not been used to speak to victim behavior, however the continued advances in social and behavioral science have made the use of cold expert witnesses possible.

A cold expert witness is so termed because she has not connected personally to the facts of the case, but instead is called upon to offer testimony on general principals – often relating to behavior. Courts make use of cold experts in order to understand why the parties involved behaved in a particular manner, but their testimony is limited in scope. In the Salazar-Mercado appeal, the Arizona Supreme Court properly restricted cold expert testimony by forbidding one to testify about “the accuracy, reliability or credibility of a particular witness,” because an expert who has not personally investigated the facts cannot comment on specific issues. As with any expert, a cold expert witness speaking to social or behavioral science must be able to show her testimony is supported by reliable and scientific knowledge before being admitted at trial.

Florida’s Third Circuit Issues First In-Depth Treatment of Daubert

A recent decision from Florida’s Third District Court of Appeal provided an in-depth discussion on the differences between the old Frye standard of expert witness admissibility and the currently used Daubert test. In Perez v Bell South, the Court considered expert witness testimony in a personal injury claim, and clarified for future litigants how the Daubert requirements differed from the state’s previous Frye test. Although the decision applies only to Florida, analyzing the case is useful to attorneys who need to be aware how Daubert expert witness admissibility rules compare to the older standard.

Perez v Bell South Emphasizes Use of Daubert

Maria Perez filed a personal injury claim on behalf of her developmentally disabled son, Osmany, against her former employer for negligently creating a stressful work environment that resulted Osmany being born 20 weeks early. Ms. Perez alleged that Bell South caused her such significant difficulty that she suffered a placental abruption, which led to Osmany’s premature birth and subsequent developmental deficits. As part of her case, Maria called upon the medical expert testimony of Dr. Isidro Cardella, a board-certified obstetrician and gynecologist. Dr. Cardella testified that, in his opinion, Bell South’s refusal to allow Ms. Perez frequent bathroom breaks or limit her working hours to 40 created such stress on her body that she suffered the placental abruption.

The trial court dismissed Dr. Cardella’s expert testimony and Ms. Perez’s case because it was based solely on his opinion as a medical expert. Applying the Frye test, the trial judge determined that an opinion not supported by medical evidence or research is inadmissible.  Ms. Perez appealed, arguing that “pure opinion” testimony does not fall within the guidelines of Frye. On appeal, Florida’s Third District Court correctly made the dispute over Dr. Cardella’s testimony moot by analyzing under the state’s newly adopted Daubert standard – clarifying for attorneys, and judges, how expert witness testimony, including opinion, is to be evaluated in the future.

Daubert Test v Frye Test

Created by the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, the Daubert standard sets forth an evidentiary rule that determines whether or not expert witnesses are permitted to testify at trial. Over the last two decades, all federal jurisdictions and over half of the states have implemented the Daubert test, however, a number of states, including California and Illinois, have yet to make the switch. Relevant to the Perez case, Florida’s legislature enacted a law that made the Daubert standard the official state rule as of July 2013.

Prior to Daubert, courts analyzed expert witness testimony under a test established in the 1923 case, Frye v United States. The Frye test simply required courts to determine if an expert witnesses testimony was based on scientific methods that are “sufficiently established” in, and generally accepted by, the scientific community to which the expert belongs. As the Perez Court pointed out, the Daubert standard, as adopted by Florida’s legislature in 2013, requires additional analysis. Ensuring that an expert’s methods are accepted and established by the greater scientific community is one of many factors that a court must consider under Daubert, as now codified in Florida’s rules of evidence.

Florida courts must consider a number of factors to ensure expert witness testimony is scientifically reliable – most notably determined by analyzing an expert’s methodology and scientific knowledge. In addition to an expert’s approach being generally accepted, courts must also consider the level of peer review it has been subjected to, the error rate that can influence his results, and the existence of professional standards that govern the operation of an expert’s investigation. The Daubert standard requires courts to look at a variety of factors, and the Perez case noted that a simple Frye evaluation of expert witness testimony is no longer sufficient in Florida.

Understanding the Daubert Standard

Reviewing Dr. Cardella’s testimony through a Daubert lens, Florida’s Third District Court of Appeal arrived at the same conclusion – his testimony was inadmissible. The pathway to the correct decision is important, however, because, as Ms. Perez’s attorneys pointed out, a Frye analysis is not sufficient to evaluate a pure opinion testimony. Using the Daubert test, which applies to any expert witness testimony, Florida courts can determine the admissibility of an expert’s analysis of facts and his opinion of the case. Under Daubert, Dr. Cardella’s testimony still fell short because he did not back his conclusions with scientifically reliable support.

Attorneys who intend to use expert witnesses must understand the proper application of the Daubert standard and be prepared to use an expert who can provide reliable, scientific knowledge to support testimony. With limited exception, the Daubert standard controls expert witness admissibility, and, as Florida’s Perez v Bell South demonstrates, Daubert is more comprehensive and thorough than the once widely-used Frye test.

Accident Reconstruction Expert Testimony Rejected by Oklahoma Court of Appeals

An interesting expert witness case out of Oklahoma this past week, as the state’s Court of Appeals dismissed expert testimony regarding the cause of an accident that injured a 12-year-old boy who was struck by a car while walking in the street. On an appealed decision, Oklahoma’s second highest court rejected two accident reconstruction expert witnesses for taking their testimony beyond the facts, and speaking directly to the key determination of negligence.

Defense Accident Reconstruction Witnesses

The incident in Moore v Blackwell occurred in September of 2007 when 12-year-old Jerrit Moore was walking alongside an interstate service road in Norman, Oklahoma. The boys were walking at night without reflective clothing or lights of any kind, and decided to cross the street in order to walk with traffic. As they crossed, the defendant, Robert Blackwell, was driving along the road. Blackwell swerved to avoid the boys, who were in the middle of crossing, and clipped Jerrit, causing him injury. Jerrit’s father filed a negligence claim seeking $10,000 in damages for Jerrit’s injuries.

As part of his defense, Blackwell called the investigating police officer, Michael Thomson, and an accident reconstruction expert, Terry Harrison. Thomson testified that his investigation concluded that Jerrit, who was in the middle of the road, was more at fault than Blackwell. Officer Thomson did not issue a citation to Blackwell for the accident because, in his opinion, the driver had not acted inappropriately considering the circumstances.

Accident reconstruction expert Harrison reaffirmed Officer Thomson’s investigation by testifying that he found no negligence on the part of Blackwell. According to Harrison’s expert analysis of the accident, Blackwell was driving within the speed limit, recognized a danger in the road, and reacted appropriately considering the circumstances. Although striking Jerrit was unfortunate, accident experts Thomson and Harrison testified that, in their opinion, Blackwell was not negligent in striking the young man.

Oklahoma Court Rules Accident Reconstruction Expert Testimony Inadmissible

At trial, Moore unsuccessfully attempted to have both experts prevented from testifying before a jury ruled in favor of Blackwell due to lack of negligence. On appeal, the Oklahoma Court of Appeals agreed with Moore and sent the case back to trial without the specific testimony offered by Thomson and Harrison. Finding that the experts spoke to the ultimate issue in the case – negligence and the cause of the accident – the Oklahoma court found that both experts had failed to provide the type of testimony that was permissible for expert witnesses.

Judge Jane Wiseman wrote, “The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore’s negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.” Neither expert offered an analysis of the facts that required their particular expertise, but instead spoke only to which party’s negligence caused the accident. According to the Court, Oklahoma law requires experts to limit their testimony to opinions of the facts and not speak to issues of negligence or fault.

Dissent Supports Use of Accident Reconstruction Experts

The difference between testifying to negligence, and offering expert accident reconstruction opinion seems difficult to comprehend, and dissenting members of the Oklahoma Court of Appeals voiced a strong argument against the decision. Judge John Fischer claimed that the majority had misinterpreted the law, and under the Daubert standard, which has been adopted in Oklahoma, both of Blackwell’s experts offered reliable and scientifically sound testimony that interpreted the facts and allowed jurors to make the necessary decision regarding negligence.

Accident reconstruction experts walk a fine line between diagraming an accident and offering their opinion on which party is negligent. Attorneys in car accident negligence cases must be acutely aware of the relevant state law, and ensure that their accident reconstruction experts carefully word testimony to explain the cause of an accident without offering conclusions that experts are not permitted to make. In Moore v Blackwell, the defendant’s attorneys allowed his experts to drift away from offering technical analysis and instead speak directly to the ultimate question of negligence – violating Oklahoma’s standards for expert witness admissibility.

Pennsylvania Supreme Court Allows Expert Testimony on Eyewitness Identification

Pennsylvania’s Supreme Court made a significant ruling on expert witnesses this week when it determined that juries may hear experts testify to the reliability of eyewitness identification.  Social scientists have dedicated years of study that casts doubt on the ability of eyewitnesses to accurately recall events – meaning that juries may be making decisions based on incorrect accounts. Many state jurisdictions and federal courts already allow expert witnesses to inform jurors about the unreliability of eyewitnesses, making Pennsylvania the latest in a long list of courts to take this step.

Eyewitness Testimony is Questionably Reliable

Study of the human brain has revealed that we have difficulty accurately recalling information, and often fill in the memory gaps with embellishment or fiction to produce a false account of what occurred. Much of this is subconscious, meaning that eyewitnesses may believe they are telling the truth, but, regardless of intent, scientists suggest that many eyewitness reports are tainted by untruths that could significantly alter a juror’s perception of what occurred. From misidentification of a defendant, to inaccurate recollection of events, experts on eyewitness testimony have identified a number of concerning legal consequences of the human brain’s inability to accurately recall information.

Complicating the inaccuracies that plague eyewitness testimony is the value that jurors place on that type of evidence. Jurors find eyewitnesses to be strongly convincing, which means that trials are heavily influenced by information that is potentially unreliable given the source. Further study has demonstrated that jurors are not able to tell when an eyewitness is lying, so there are few safeguards in place to prevent reliance on inaccurate testimony. Although the effect of an eyewitness expert testifying to the unreliability of personal recollections at trial is unknown, many legal jurisdictions have recognized the importance of having an expert inform the jury of the scientific community’s investigation into eyewitness accounts.

Pennsylvania’s Eyewitness Identification Expert Ruling

Pennsylvania’s Supreme Court considered the case of Benjamin Walker, a man convicted of a 2005 robbery of two college students in Philadelphia. Walker, who is serving 35 years in prison, was convicted because the victims identified him during their testimony. Walker and his attorneys brought the challenge in an attempt to allow him to present a psychology expert witness who would explain to jurors that eyewitness identifications are potentially unreliable.

The four-justice majority in the case agreed with Walker’s argument, and determined that Pennsylvania jurors will now be allowed to hear expert testimony on the reliability of eyewitness identification. Writing for the majority, Justice Debra Todd stated, “Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present.” Finding that the statistical evidence suggesting the inaccuracy of eyewitness testimony is “substantial,” Justice Todd supported the use of expert testimony to inform jurors of concerns of eyewitness identification.

Eyewitness Expert Testimony Ruling Not Unanimous

Two judges on Pennsylvania’s Supreme Court dissented from the majority, writing that a better approach would be to allow the judge to inform jurors about the potential issues with eyewitness identification during juror instruction. Arguing that allowing expert witnesses to testify about eyewitness identification would open the door to allow experts to confuse jurors with testimony questioning all aspects of eyewitness accounts. Chief Justice Ronald Castille went on to defend jurors’ ability to understand the problems with eyewitness identification, saying that social science experts are not needed to inform juries about “matters affecting human perception and recall.”

Despite the dissent, which seems to ignore convincing study on the value of social science experts on eyewitness testimony, many criminal defense attorneys consider the Pennsylvania decision to be a step in the right direction. Defense attorney organizations argue that allowing eyewitness experts to testify about recall problems will help reduce wrongful convictions, and Pennsylvania’s decision to join other jurisdictions in allowing social science expert witnesses to contribute testimony is a positive outcome for the integrity of criminal prosecutions.

Damages Expert Testimony Rejected in Patent Infringement Case

It is well established that expert witnesses who offer their opinions to juries must build testimony from a solid foundation of reliable methodology that supports their conclusions.  The Daubert standard of evaluating the reliability of testimony applies to any expert, including, as a recent federal decision highlights, expert witnesses whose testimony is focused strictly on determining appropriate damage awards. In Sloan Valve Company v Zurn Industries, a federal judge in the Northern District of Illinois showed that damages expert witnesses must base their testimony on credible methods of collecting and investigating data – holding damage testimony to a high standard that all experts must satisfy.

Case Background

Sloan Valve filed a lawsuit against Zurn Industries for an alleged patent infringement on its toilet plumbing fixtures. According to Sloan, Zurn copied flush toilet designs that allows users to alter the volume of flush water by changing the direction of the handle. During expert witness discovery, Sloan presented the testimony of Richard Bero to identify the damages Zurn’s patent infringement cost Sloan in terms of lost business.

As part of his analysis, Mr. Bero analyzed the market value of the valve assembly to calculate Zurn’s potential profits from Sloan’s lost sales. After hearing the damage analysis, Zurn moved to exclude the expert testimony for a number of reasons stemming from Bero’s failure to demonstrate that he used reasonable and reliable calculations during the course of his investigation. Applying a Daubert review of Bero’s methodology, the judge agreed and Sloan’s damages expert was precluded from testifying at trial.

Damages Expert Witness Testimony is Dismissed

The Court in Sloan v Zurn determined that the plaintiff’s damages expert witness presented a flawed testimony for a number of reasons. When analyzing the damages caused by Zurn’s alleged patent infringement, Mr. Bero:

  • Failed to narrowly tailor his analysis to the specific parts at issue in the patent dispute
  • Improperly included lost profits from related products sold by Sloan
  • Predicted, with no reliable method to his analysis, that Sloan would have been able to sell the parts at a higher price than Zurn had the patent infringement not occurred
  • Conducted his investigation without using any accepted method of royalty analysis, instead choosing to formulate a basic calculation that contrived an unsupported damages figure based on the biased testimony of Sloan executives and broad assumptions of the effect Zurn’s infringement had on Sloan’s sales

Mr. Bero’s testimony predicting Sloan’s damages from lost business lacked reliable and professionally verified methods for identifying the cost of patent infringement. The Court was unconvinced that Mr. Bero’s economic prediction was sufficiently supported by proven royalty analysis, and as such rejected his financial expert witness testimony.

Sloan Decision Demonstrates Importance of Daubert Standards

The Sloan decision serves as a reminder that the methodologies of data collection and investigation used by damages expert witnesses must be just as sound as that used by experts who help juries determine the outcome of a lawsuit. As with any expert witness, financial professionals hired to testify to damages have available an established set of methods that a court will look to when verifying the reliability of testimony, and a party hiring a financial expert must be sure the expert is incorporating them. The Daubert standards of expert witness testimony apply to all professionals called upon to inform judges and juries – including those who focus solely on calculating damages.

 

Medical Experts Shed Light and Cast Doubt On Shaken Baby Syndrome

The tragic death of 4-month-old Lincoln Wilber in 2007, initially determined to be the result of child abuse, is getting a second look by a handful of nationally renowned medical expert witnesses. At the behest of Northwestern University’s Medill Justice Project, experts in abusive head trauma, pathology, and Sudden Infant Death Syndrome (SIDS) reviewed the facts of the incident and cast doubt on the criminal prosecution of Lincoln’s care-giver.

Lincoln’s care provider, Jennifer Hancock, was tried and convicted of causing death by child abuse, in large part with the assistance of four medical experts specializing in shaken baby syndrome and head trauma. Hancock, who is serving 13 years in prison for the crime, was alone with Lincoln for 5 ½ hours prior to his death and convicted on the strength of a head and leg fracture that experts believed were indicative of abusive behavior.

Medical Experts Skeptical over Cause of Infant’s Death

Medical experts approached by the Medill Project examined Lincoln’s autopsy report, MRIs, CT scans, and medical history before providing several alternative theories to the infant’s death:

  • Lincoln had a blood clot:  Dr. Michael Laposata, the head pathologist at Vanderbilt University Hospital and an expert in blood clotting, examined Lincoln’s case and said that because his mother had a history of Lupus and blood clotting, it is likely that Lincoln had similar issues. Dr. Laposata pointed out that a blood clot could lead to higher blood pressure, rupturing vessels and causing a subdural hematoma.
  • Lincoln had an existing brain injury:  Dr. Ronald Uscinski, a neurosurgeon who also teaches at Georgetown University, served as an expert witness for Jennifer Hancock during her trial. He testified, and still believes, that Lincoln’s birth caused a subdural hematoma – brain bleed – that made him susceptible to the problem arising again. Dr. Jan Leestma, who has testified for defendants in infant death cases, reaffirmed the possibility by pointing out that Lincoln’s behavior and recent illness could have been the result of a chronic brain injury that could have become aggravated before the boy was alone with Hancock.
  • Lincoln’s Death the Result of SIDS:  Dr. Michael Stier, the forensic pathologist who conducted Lincoln’s autopsy and declined to testify for the defense at trial, has rethought the case after further examination. Upon looking closer and Lincoln’s injuries and the timeline of his brain bleed, Dr. Stier believes that the death is surrounded by uncertainty and could have been the result of Sudden Infant Death Syndrome – an unexplainable cause of infant death.

Key to the medical experts’ analysis of Lincoln’s death is the timing of his brain bleed and his physical injuries. Dr. Julie Mack, a radiologist in Hershey, Pa. and experienced defense expert witness, examined Lincoln’s medical charts and concluded that his brain began bleeding 24 hours prior to his death – supporting any of the above theories. Dr. Mack was unconvinced by Lincoln’s leg and skull injuries, claiming that the injuries likely occurred during attempts to revive him.

Expert Witness Investigation Used in Appeal of Conviction

It is unsure if reexamining Lincoln’s death will have any impact on the criminal conviction of Jennifer Hancock, who is not involved in the Medill Justice Project’s investigation. The medical expert witnesses offering their opinion have only been able to conclude that Lincoln’s death was suspicious, and not necessarily the cause of head trauma or shaken baby syndrome, but none were able to definitively point to an alternative theory. Attorney Carrie Sperling, co-director of the Wisconsin Innocence Project, is preparing an appeal for Hancock and will rely on the several alternative theories to cast doubt on Hancock’s guilt – hoping to overturn her conviction.

Even if the expert investigation into Lincoln’s death is too vague to contribute to Hancock’s defense, the case is worth noting. Medical expert witnesses are critical to understanding the tragic deaths of infants, and criminal or civil cases in the future will benefit from the type of analysis made available by the experts who reevaluated the cause of Lincoln’s death.

Sixth Circuit Dismisses EEOC’s “Race Rating” Expert

The US Court of Appeals for the Sixth Circuit issued a ruling that dismissed an unreliable expert witness, demonstrating the strict requirements that must be met by parties seeking to admit expert testimony into a trial. In EEOC v Kaplan Higher Education Corp, the Sixth Circuit criticized the EEOC for calling an unreliable expert to bring a case “on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted by only the witness himself.”

EEOC v Kaplan Higher Education Uses Unique Expert Witness

Kaplan, a for-profit educational company noted for its college and graduate school test preparation programs, was sued by the EEOC for requiring a credit check from potential applicants as part of the hiring process. The credit check, according to the EEOC, violated Title VII of the Civil Rights Act because it had a disparate impact on African American applicants – meaning more black candidates were eliminated due to the check than white.

In order to prove the disparate impact, the EEOC relied on data from one of the third-party credit-check services used by Kaplan in its hiring process. Since the credit-check service did not have data on the race of each applicant, the EEOC combined the credit data with information on each applicant obtained from the candidate’s state department of motor vehicles. Most states also did not include information on race, however, each provided a color copy of the applicant’s driver’s license – which included a photograph.

Completing the link between credit-check data and the race of each applicant required the EEOC to hire an expert witness who created a process known as “race rating.” The expert’s process, created specifically for the litigation, required five “race raters” to independently identify the race of each applicant based on a visual inspection of the driver’s license photo. If at least four of the five raters agreed, the EEOC’s expert determined that the applicant was a member of the identified race.

Sixth Circuit Dismisses EEOC’s Race Rating Expert Witness

Upon reviewing the EEOC’s race rating expert report, the trial court refused to allow him to testify against Kaplan. On appeal, the Sixth Circuit agreed, finding that the race rating process created specifically for the lawsuit did not meet the Daubert requirements for expert witness testimony. Under Daubert standards, an expert witness may only present testimony to the court if his opinion is based on reliable and scientifically supported knowledge – a standard that the EEOC race rating process failed to satisfy.

In its ruling, the Sixth Circuit identified several reasons to disallow testimony on racial identification by the EEOC’s race rating expert witness:

  1. The EEOC expert did not demonstrate that his newly created race rating system had been tested or that it had an acceptable rate of error. Although the EEOC cross-checked the results with other external sources identifying the Kaplan applicants’ race, the Sixth Circuit determined that cross-checking a sample of the results was insufficient.
  2. The expert’s methodology, invented specifically for the litigation, was not subject to peer review or “submission to the scrutiny of the scientific community.” Courts are often unfamiliar with the subject matter expert witnesses testify about, so when an expert’s methodology has undergone review and critique from his peers, his investigation is more likely to be accepted by the legal community.
  3. The EEOC race rating system did not have a standardized methodology for determining race. Instead, the process relied on the visual assessment of five independent raters who knew the names of each applicant – a fact the court felt could impact the racial analysis.
  4. Without peer review from the scientific community, there was no evidence that the race rating methodology had been generally accepted as reliable.
  5. The court determined that the sample of 1,090 applicants was not representative of Kaplan’s applicant pool as a whole. Of the EEOC expert’s sample, 23.8{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed the credit-check, however, only 13.3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed overall – meaning that the EEOC expert’s results were skewed to favor the plaintiffs’ claim.

The Sixth Circuit’s opinion clearly identified reasons why the EEOC’s rate rating expert witness failed to satisfy the Daubert standard for scientific expert testimony. The unique and highly specific review process created for the purpose of the EEOC’s case against Kaplan was not reviewed or critiqued by the scientific community, and was not created using a sound or objective methodology. As such, the Sixth Circuit refused the EEOC’s expert testimony.