A chemist who helped design HIV testing technologies will testify as an expert witness in criminal trial of a man accused of engaging in sexual relations without disclosing his HIV positive status.  EWorldWire.com reports on the upcoming trial of Craig Lamar Davis in Clayton County, GA who has been accused of having unprotected sex with three partners after he had been diagnosed as HIV positive.

Mr. Davis asserts that he is not HIV positive, and disputes the accuracy of tests administered to him between 2009 and 2012.  Enter Dr. Rodney Richards, whose expert witness testimony will explain that none of the HIV diagnostic tests approved by the FDA can confirm the actual presence of the virus in any blood sample.  Supporting Dr. Richards’ testimony is a medical expert witness, Dr. Nancy Banks, whose testimony will directly challenge Mr. Davis’ positive tests.

This case provides a good example of a defense team seeking out expert witnesses to not only challenge a procedure broadly, but also to criticize the specific application of the procedure to the defendant.  By breaking down the process of HIV testing, and then attacking Mr. Davis’ particular HIV results, his defense attorney has utilized expert witness testimony to present the best possible defense.

Several medical expert witnesses have testified for the defense team of former Pennsylvania State Senator, Raphael Musto, who faces federal corruption charges.  Defense lawyers claim that the aging Musto, who is 84, is physically and mentally unfit to undergo the rigors of trial. As reported by the Associated Press, Musto’s defense attorneys had an expert witness testify to Musto’s psychological health, and another two medical expert witnesses offer medical diagnosis that suggest the elder statesmen cannot survive a trial.

Being declared unfit for trial, for either mental or physical reasons, is a rare defense in criminal trials, and is typically restricted to defendants who cannot comprehend the charges they face and the consequences of a conviction.  In this case, Mr. Musto’s psychological expert witness testified that the defendant was unable to sustain a conversation, and could likely not testify on his behalf due to his deteriorating mental condition.  Supplementing this testimony, medical expert witnesses indicated concerns over liver disease and other physical ailments that have kept the former lawmaker bedridden.  Medical and psychological expert witness testimony are critical to successfully arguing a defendant is unfit to withstand trial, and it appears that Mr. Musto’s defense team has taken exhaustive measures to satisfy the need for expert opinion.

A ruling from the US Court of Appeals for the 11^th Circuit provides helpful guidance for individuals and companies that want to ensure communications with expert witnesses are protected from the eyes of opposing counsel during trial.  In Republic of Ecuador v Hinchee, No. 12-16216, the 11^th Circuit Court determined that evidentiary privilege rules do not protect an expert witness’s notes or his or her communications with non-attorneys from being used during trial.

Facts of Republic of Ecuador v Hinchee

The Hinchee case arises from a complicated litigation between the Republic of Ecuador and energy giant, Chevron.  A portion of the dispute between Ecuador and Chevron is scheduled to proceed to international arbitration at The Hague, and, in preparation for the arbitration, Ecuador subpoenaed documents from one of Chevron’s expert witnesses, Dr. Hinchee.

Dr. Hinchee refused to produce two types of documents: 1) his personal notes compiled during his review of the case, and 2) communications he had with Chevron employees and other expert witnesses hired by Chevron, none of whom were members of the company’s legal team.  Hinchee, and Chevron, argued that these notes and communications were protected under Federal Rule of Civil Procedure 26(b)(3)(A) as work product.  The work product privilege rule keeps private any material “prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).”

11^th Circuit Declines Work Product Privilege to Expert Witness Material

Disagreeing with Dr. Hinchee, and Chevron, the 11^th Circuit noted that the work product rule articulated in 26(b)(3)(A) declined to specifically mention expert witnesses.  Pointing to an amendment to Rule 26 that does specifically protect certain expert work product – such as drafts of expert reports or communications between experts and attorneys – the Court found that the absence of the term “expert” in the work product privilege protection was significant.

Finding that experts are required to produce “all materials considered by the testifying expert except the core opinion work-product of attorneys,” the 11^th Circuit opened the door to discovery for the notes and communications of expert witnesses.  An expert witness, and his employers, should expect that anything the expert does, with the exception of report drafts and communications about the case with attorneys, will be subject to discovery by the opposing party.

Expert Witness Takeaway from Hinchee Case

The Hinchee decision provides two important takeaway points for expert witnesses and the companies or individuals who hire them: 1) remember that expert witness notes are not protected from discovery, and limit content accordingly, and 2) make sure that all expert witness communications go through legal counsel.

An expert witness can avoid having privileged information shared by restricting the content of her notes and by ensuring attorneys are always involved in communications with the client or employees of the client.  The Hinchee case makes it clear that not everything an expert witness compiles is privileged, and by following a few simple steps an expert, and client, can make sure that sensitive information stays out of opposing counsel’s hands.

In a hearing to determine if a teenage boy accused of attempted murder for shooting his parents will be tried as an adult, two expert witnesses offered defense testimony to recommend the youth be treated rather than sentenced to adult prison.  The Columbia Basin Herald reports on the story of the Moses Lake, a Washington teen who, after being grounded from playing video games and using electronic devices, used the family’s .22 caliber pistol to shoot his parents.

Two defense expert witnesses testified that the teenager was not best served by being tried as an adult and sentenced to time in adult prison. Citing concerns that the boy would not receive the treatment he needed for psychological problems and that he would adopt the behavior of his fellow inmates, the defense team’s two psychological expert witnesses claim that the consequences of trying the boy as an adult could be detrimental both to him and to society as a whole.

The prosecutor called its own psychology expert witness to testify that the teenager did not demonstrate enough signs of depression to warrant a medical diagnosis, leading the prosecution to argue that society is best protected if the boy is tried as an adult and rehabilitated in a prison environment.  The ruling is expected sometime next week, giving the judge time to consider both arguments and all the available expert witness testimony.

In a standoff between the Florida judicial and legislative branches, the Florida Supreme Court recently refused to adopt new rules of evidence designed to establish tight standards limiting who could serve as medical expert witnesses. According to the Insurance Journal, although the Florida Court did not actually strike down the law – there was no official challenge of it – but merely refused to honor the requirements it set on medical expert witness testimony.

The Florida legislature would have limited the physicians who can serve as medical expert witnesses to testify against doctors in medical malpractice cases only to doctors who practice the exact type of medicine as the defendant doctor. The present standard – which will remain in effect – allows testimony by a doctor in a similar but not identical field. The legislature would also have eliminated the ability of judges to exercise discretion for admitting expert witness testimony and required that they follow a strict set of narrow rules. The Florida Supreme Court, at the recommendation of the Florida bar’s Board of Governors, refused to amend the state evidence. According to many observers the reason the Supreme Court did so was that they found the law was unconstitutional.

Critics of the Florida legislature’s medical malpractice expert witness law claim that it would have  unfairly limited the options available to plaintiffs who need expert opinion to support their claim, and it appears the Florida Supreme Court has similar concerns with the law’s strict regulations.  Expert witnesses must be found to be qualified to serve as experts by the trial judge before they can offer testimony.

In a story that drew national attention, and outrage, last week, 16 year old Ethan Crouch received the 10 years probation after he caused a fatal accident when driving under the influence. Families of the four deceased, including Eric Boyles who lost his wife and daughter, were shocked and angered that Crouch escaped prison time, and believe that the teenager received such a light punishment because of his family’s wealth and influence.

The sentence may have been heavily influenced by a psychology expert witness who testified that Mr. Crouch was a victim of “affluenza” – a term used to describe children of wealthy families who have a sense of entitlement that results in irresponsible and sometimes dangerous behavior – and therefore he did not deserve a prison sentence. Mr. Crouch’s expert witness testified that the young man grew up in a family that was too preoccupied to properly raise him, and as such he did not have a sense of accountability or respect that would have prevented him from drinking and driving during the night of the fatal crash.

In a piece by USA Today, the affluenza defense has been widely criticized by psychology experts across the country. Calling the defense a double standard for rich and poor, and saying the tactic is laughable because it simply reinforces the belief that the defendant is entitled to special protection, psychology experts have denounced Mr. Crouch’s expert witness. The affluenza defense testified to by the psychology expert witness in this case has drawn national attention, and derision, leaving many members of the psychology and legal fields to wonder if the system is truly blind to external, and irrelevant, factors such as the defendant’s wealth and social status.

In a Pennsylvania products liability case, an expert witness report and testimony has been disallowed by the judge because the expert failed to cite proper scientific authority to support his conclusions. According to law360.com, plaintiff Anne Snizavich hired expert Dr. Thomas Milby to show that exposure to air condition units gave her husband fatal brain cancer. Critical to a products liability claim is the proof that connects a defective product to the injury suffered, and Dr. Milby was tasked with demonstrating that Mr. Snizavich contracted terminal cancer because of his work with the air conditioning units.

Although Dr. Milby cited a report that demonstrated a statistically higher occurrence of brain cancer among employees of the facility where Mr. Snizavich worked, there was not sufficient evidence of a link between the chemicals in the air condition units and the illness. Despite the report, Dr. Milby concluded that Mr. Snizavich’s cancer was caused by working in close proximity to the air condition units; however, the Pennsylvania Court was unconvinced.  Stating that Dr. Milby had failed to provide scientific data and analysis that directly linked the chemicals to brain cancer, the court ruled that the expert witness report was inadmissible during trial. The case, which will go through a round of appeals before finally settling the matter, demonstrates the importance of expert witnesses supporting their conclusions with scientific study or data analysis.

Before a court can accept the report or testimony of an expert witness, the judge must determine that the expert is qualified to offer his opinion.  In 1923, the Federal Court in the District of Columbia determined in Frye v United States that in order for an expert witness to testify, he must demonstrate that his research and methods from which the testimony is based are sufficiently supported by accepted scientific practice.  The Frye standard for expert witness qualification dominated the legal landscape until the Supreme Court changed the rules in federal courts with its decision in Daubert v Merrell Dow Pharmaceuticals in 1993.  The Daubert standard requires judges to evaluate the quality of expert witness testimony with a more critical eye than the Frye test by looking at three factors: 1. the expert’s testimony is based on sufficient facts, 2. the expert’s method of analysis is grounded and supported by his profession, and 3. the facts of the case were correctly applied using the expert’s analysis.

Under Daubert, a judge must look deeper into the quality of an expert witness’s testimony and analysis in order to determine if he qualifies – something that many states have embraced since it became the federal standard in 1993.  In July of this year, Florida joined the growing number of states to make the switch from Frye to Daubert, but, according to a recent story in the Orlando Sentinel, not everyone is happy with the change.  Florida prosecutors are concerned with the potential cost in time and money required to evaluate expert witnesses, and are unsure if the new law is beneficial for the system.  Although critics of Daubert correctly point out that it adds time and effort to the process of qualifying an expert witness, the test is better than Frye at weeding out questionable expert testimony which could improperly influence a jury.

A contentious legal battle over possession of a famous Andy Warhol painting of actress Farrah Fawcett featured an expert witness appraiser to determine the value of the work. The University of Texas filed a lawsuit against Fawcett’s on-again off-again lover, actor Ryan O’Neal for possession of the painting which currently hangs in O’Neal’s Malibu home. Before her death in 2009, Fawcett gave her entire art collection to the university, her alma mater, but O’Neal claims that the Warhol work was his and therefore not part of the collection given to Texas. According to CNN coverage of the issue, O’Neal had been given the painting by Warhol, but had asked Fawcett to keep it for him, leaving it in her possession at the time of her death. O’Neal retrieved the painting shortly after her death, and now contends that it belonged to him and is not part of the collection that Fawcett left to UT.

As part of the lawsuit, the University of Texas called art appraiser Lee Drexler as an expert witness testifying to the value of the painting. Should a court agree that O’Neal improperly retained possession of the painting, the expert witness appraisal will be used to determine damages.  Drexler, who received $36,000 in expert witness fees, testified that the painting was an above average Warhol work and valued at $12 million. The Associate Press reports that attorneys for Ryan O’Neal challenged Drexler’s appraisal by pointing out that a 2009 valuation placed the painting’s worth at less than $1 million, a fact supported by UT’s decision to insure a similar painting for only $600,000.

Whether or not the university’s expert witness appraisal is relevant will depend on who is in legal possession of the work, but should the court rule in favor of Texas, the disputed appraisal value will become critical to determine damages. O’Neal has not presented an expert witness to dispute Drexler’s appraisal, but will instead focus on proving he properly possessed the painting and does not owe damages to the university. Should the case go in UT’s favor, O’Neal will likely rely on the cross-examination challenge of Drexler’s expert appraisal that argued the value was closer to $1 million than $12 million.