Author Archives: Kimberly DelMonico

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

Siberian Husky

Prosecutor Requests Admission of Evidence Without Expert

A Lapeer County Prosecutor has requested that he be allowed to admit evidence relating to an animal’s genetics into court without presenting an expert to testify about this evidence at trial.

The Incident

On July 7, a black husky and another dog owned by Geuorgui Shopov were running loose in Attica Township, Michigan.  The two dogs killed four roosters, four fully-grown guineafowl, and two rabbits belonging to an Attica resident.  The reported damages were $260.

On July 11, the Lapeer County Animal Control Dept. took custody of the black husky. Shopov was charged with violation of the Wolf-Dog Cross Act.  In relevant part, the act prohibits owning, possessing, breeding, or offering a wolf or wolf-dog hybrid for sale.

CHAPTER 287. ANIMAL INDUSTRY. WOLF-DOG CROSS ACT.

Sec. 4. (1) A person shall not possess 1 or more wolf-dog crosses unless all of the following apply:

(a) The person owns the wolf-dog crosses or has temporarily been given possession of the wolf-dog crosses by the owner.

(b) The owner was in possession of those individual wolf-dog crosses on the effective date of this act.

(c) The owner applies for a permit for those wolf-dog crosses within 4 months after the effective date of this act, and obtains a permit for those wolf-dog crosses. The permit applies only to those individual wolf-dog crosses. The permit is not transferable to another person except through testate or intestate succession. The permit is valid in any local unit in which the possession of the wolf-dog cross is not prohibited by ordinance.

Violation of the Wolf-Dog Cross Act is a misdemeanor that is punishable by up to 93 days in prison, 500 hours of community service, the loss of the privilege to own any animal, and a $250-1000 fine.

Expert Testimony

The Lapeer County Animal Control sent a genetic sample from the animal to the Veterinary Genetics Laboratory at the University of California-Davis for forensic analysis.  The lab determined that the animal is a wolf-dog hybrid.  Introduction of this evidence normally requires an expert witness to substantiate it.

Assistant Prosecutor Tom Sparrow filed a motion with the court requesting that the court allow the introduction of this evidence without the need of an expert witness. The cost to secure the testimony of the Veterinary Genetics Laboratory Director, Dr. Christina Lindquist, as an expert witness at trial would be $2,000 per day of testimony, plus $50 per hour of travel, plus the costs of travel, meals, and lodging.  However, Sparrow stressed that the Board should consider spending the money on the expert if the court does not allow the introduction of the testimony without an expert.  The motion with the court is still pending,

Lapeer County Board of Commissioners would like to achieve the conviction without the use of an expert witness.  County Commissioner Ian Kempf stated, “I think it’s clear we don’t want a wolf-dog hybrid in our community, but if we can achieve that with the information in front of us without spending taxpayer money (we should).”

Mental Capacity

Experts Clash Over Defendant’s Mental Capacity

Expert witnesses cannot agree about whether a man who pleaded guilty to murder is mentally fit to face the death penalty.

The Crime

In February 2010, a group of six men held 30-year-old Jennifer Daugherty captive for more than two days.  Daugherty was beaten and tortured, bound with Christmas lights, and stabbed to death. Her body was then stuffed into a garbage bin and thrown in a snow-covered parking lot.

Melvin Knight pleaded guilty to first-degree murder for his role in Daugherty’s death. He was sentenced to die by lethal injection, but the sentence was overturned and a new trial was ordered to determine his fate.

Sentencing Testimony

Defense expert Christine Nezu, a clinical psychologist from Philadelphia, testified that Knight was not able to function in society and “profoundly adaptively impaired.”  She said, “I believe Melvin has severe deficits and trouble adapting to the real world.”  Nezu maintains that Knight did not have the capacity to appreciate his conduct, his emotional and mental ages ranged between 9 and 12, and he was very susceptible to domination by another person.

Knight’s defense team has argued that he was under the influence of his co-defendant Ricky Smyrnes when he participated in the beating, torture, and stabbing of Daugherty.

In preparation for the trial, the prosecutors hired New York mitigation specialist Jennifer Wynn to research Knight’s background in preparation for the trial. Wynn is an associate professor of criminal justice at City University in New York.  Wynn was paid $7,117 for her work.

Prosecution expert Bruce Wright testified that Knight knew right from wrong, could function adequately, and is not intellectually impaired.  Wright testified that Knight has been working in the prison cafeteria, taking classes to learn skills, and regularly visiting the prison law library.  His intelligence scores range between 77 and 97, which indicate that he is not disabled.

Wright testified that Knight was diagnosed with depression, psychosis, substance abuse, attention deficit disorder, and antisocial behavior.  He said, “He had the capacity to appreciate his criminal conduct. He chose not to, but he had the capacity.”

District Attorney John Peck described Knight as a mean, vengeful, and vindictive man that deserved to die.  He argued that Knight’s actions were to protect his own self-interest and hide the crimes that he had committed against Daugherty, including allegations that he raped her.  Peck told the jurors, “The defendant crossed the line. He knew if he didn’t keep this darkness to himself, all his actions were motivated to prevent this rape from being discovered by anyone.”

Jurors also heard testimony from Knight’s mother, Yolanda Rue.  Rue testified that her son had been dealing with mental health issues since the age of six.  She said that she enrolled Knight in special education classes and special schools to deal with his special needs.  Rue testified, “He couldn’t be without supervision because of poor choices he made. He could be talked into anything if he thought it was fun.”

After the sentencing hearing, a jury of six men and six women deliberated several hours before determining that Knight should be sentenced to death for his role in Daugherty’s killing.

Perjury

Former Cop and Expert Witness Pleads Guilty to Perjury and Theft

A former Flagstaff Police Officer and expert witness for the Northern Arizona Healthcare’s Safe Child Center has pleaded guilty for perjury and theft of between $4,000 and $25,000.

The Investigation

Carli Moncher was retained as an expert witness to testify in cases involving children, including cases of child abuse for the Northern Arizona Healthcare’s Safe Child Center.

The Arizona Department of Public Safety led an investigation into Moncher’s actions. The department determined that Moncher would falsify her reports to the Safe Child Center and the courthouses where she worked, allowing her to be paid twice for one job.  According to her indictment, Moncher received $8,148.15 from the Safe Child Center while also doing private work.

Moncher was fired from her position in April 2017 when Northern Arizona Healthcare confronted her with evidence of her “violation of Northern Arizona Healthcare’s ethical standards and unprofessional conduct.”

The investigation revealed that Moncher had forged official subpoenas to support her employer’s expense and travel reimbursements.

Guilty Plea

Moncher pleaded guilty to one count of theft and one count of perjury.  Those crimes carry a penalty of anywhere from 1 to 5 years in prison.  Her plea deal showed that 22 of Moncher’s original 24 charges were dropped as a result of her plea deal.  The charges that were dropped include one count of fraud, one count of perjury, and 20 counts of forgery.

Moncher submitted a sealed statement that detailed her history of sexual and physical abuse by her stepfather, her lack of paid leave after several surgeries related to her Cushing’s syndrome, and an instruction from her bosses to reduce the services she provided to the surrounding counties as her motivation for turning to theft and the alleged forgery and fraud.

At her sentencing hearing, Moncher admitted wrongdoing for her crimes and said, “I deeply regret my actions, and any fallout that may have occurred from them.”  She also said that, “This is where my child abuse history influenced my judgement and created a skewed view of the situation and how to handle it.”

La Paz County Judge Matthew Newman sentenced Moncher to four months in prison and three years of supervised probation.  Newman explained that this mitigated sentence was because “I believe your remorse is real…I don’t believe anything this court could do to you can possibly measure up to or accomplish what you [can do to yourself].”

The Fallout

Because Moncher testified as an expert witness in many cases, her perjury charge may be problematic to other cases.  Attorneys in the cases where Moncher testified may try to utilize her perjury plea to try to overturn or appeal convictions.

A report from the Department of Public Safety shows that Moncher has testified in cases in multiple northern Arizona counties and in federal courts.

Katie Conner, a spokeswoman for the Arizona Attorney General’s Office, said the plea would affect “a number” of cases that Moncher was involved with.

Gun

Court Rejects Expert Testimony on Race-Related Trauma

A court has rejected the expert testimony of a Texas clinical psychologist who was brought in to testify on race-related trauma in the sentencing trial of a man who was convicted of first-degree murder.

The Shooting

On August 1, 2015, Marquis Wright stepped out of his relative’s house to smoke and noticed a relative’s car in front of the house parked in the wrong direction. A few minutes later, a Memphis police cruiser pulled up and shined a light on the car. Wright testified that his relative jumped out of the car, leaving the door open and ran away on foot. The police officer pulled Tremaine Wilbourn out of the passenger side of the car.

Wright would testify that Wilbourn and the police officer began to fight. Wright said, “He tried to push the officer off, pulled his gun out and started shooting.” The officer, Sean Bolton, died that night. An autopsy showed that he was shot eight times.

Wilbourn was charged with first-degree murder in connection with Officer Bolton’s death and the state sought the death penalty.

The Trial

A jury convicted Wilbourn on charges of first-degree murder, using a firearm in the commission of a dangerous felony, being a convicted felon in possession of a handgun and carjacking.

At Wilbourn’s sentencing hearing, a member of his legal team and a mitigation specialist, Laurie Hall, testified about Wilbourn’s traumatic childhood. Hall told the jurors about his mother who had multiple arrests for prostitution and drugs and about an incident where his mother dropped him off at a children’s hospital and never came back.

Hall also detailed Wilbourn’s mental health history. He asked for mental assistance, but didn’t receive an appointment until July 2015, when he was diagnosed with depression with psychotic features and post traumatic stress disorder.

Wilbourn’s defense team also presented a Texas clinical psychologist to testify about race-related trauma. Psychologist Erlanger Turner was questioned by Judge Lee Coffee when the jury was out of the courtroom. Under questioning, Turner acknowledged that race-related trauma is not recognized by the scientific community. Turner also said that his research focuses on police shootings, but admitted that he was not aware that this case did not involve a police shooting, that Officer Bolton never fired at Wilbourn, and that Bolton’s gun never left his holster.

Judge Coffee ruled that Turner’s testimony was inadmissible. He said that he would not create a new section of the law that says “if you are a black male, you have the right to shoot a police officer, kill a police officer and then say, ‘I did this because I am suffering from racial-induced trauma.’” Of course, that is a mischaracterization of the testimony that the expert would have given.

After hearing all of the mitigating evidence, the jury sentenced Wilbourn to life in prison without parole. Following the sentencing hearing, Officer Bolton’s brother released a statement saying, “ We would like to thank the men and women of the jury, Judge Coffee, officers of the court and the Shelby County District Attorney’s Office. We would also like to thank the men and women of law enforcement in Shelby County who work so diligently to serve and protect. We see the sacrifices you and your families make to keep our community safe. Nothing can bring Sean back to us, but we take comfort in the fact that his murderer can never cause harm to anyone else in our community.”

Black Lungs

Fourth Circuit Rules Expert Has Immunity

The Fourth Circuit has dismissed a lawsuit filed by the families of coal miners who were denied benefits for black lung disease after a doctor insisted that X-rays did not show the disease.

The Johns Hopkins Black Lung Program

Miners who were diagnosed with black lung disease were eligible for benefits through a federal program. Black lung is an incurable and potentially fatal disease that is triggered by breathing coal dust.

The Johns Hopkins Black Lung Program was headed by Dr. Paul Wheeler. In the over 1,500 cases where he offered an opinion, Dr. Wheeler did not find a single case of black lung. In 2013, the Center for Public Integrity and ABC News published an investigation that reported hundreds of cases where Dr. Wheeler or staff said a miner did not have black lung after other doctors confirmed a diagnosis.

Johns Hopkins has since terminated its program.

The Class-Action Lawsuit

In 2016, the family members of coal miners who were denied benefits for black lung disease filed suit against Johns Hopkins Health System, Johns Hopkins Hospital, Johns Hopkins Imaging, Johns Hopkins University, and Dr. Paul Wheeler. Dr. Wheeler is a radiologist and agent of Johns Hopkins who acted as an expert witness in administrative hearings for the Federal Black Lung Program.

The lawsuit included a federal claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) as well as state law claims for fraud, tortious interference with economic interests, negligent misrepresentation, and unjust enrichment.

The families’ attorney argued that Wheeler and the black lung unit at John Hopkins believed that they were “above the law” when Wheeler disregarded regulations on how to interpret X-rays to diagnose black lung disease.

The district court dismissed each of the claims on the basis of the Witness Litigation Privilege, which protects witnesses who testify in judicial and quasi-judicial proceedings from later civil liability.

The Appeal

The appeal went before a three-judge panel of the 4th Circuit Court of Appeals. In a 2-1 decision, the panel upheld the ruling of the trial court, finding that expert witnesses are shielded from civil liability under Maryland and federal law.

The panel noted that “Immunity for witnesses ― commonly known as the Witness Litigation Privilege ― is a longstanding and necessary part of the common law’s approach to adversarial adjudication. In fact, ‘the immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.’”

The panel stated that, “When a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages. The vital protection afforded all participants in litigation is unwavering. It is a bedrock of our law today just as it was centuries ago.”

The panel then ruled that the allegations against Dr. Wheeler and his team fell squarely within the scope of the Witness Litigation Privilege because the hearings were quasi-judicial in nature and the allegations related to Dr. Wheeler’s testimony and opinions that he offered in the BLBA proceedings.

Mirena, IUD

Federal Judge Excludes All Plaintiffs’ Testimony in Mirena MDL

A New York federal judge has excluded testimony from all expert witnesses for the women in the multi-district litigation that alleges that Bayer’s contraceptive Mirena causes a rare disease involving spinal fluid.

Mirena Device Controversy

The Mirena contraceptive device is a hormone-releasing intrauterine device. It is placed into the uterus by a trained healthcare provider during an office visit. It works by releasing levonorgestrel (LNG), a synthetic steroid hormone.

The plaintiffs claim that LNG causes idiopathic intracranial hypertension (IIH), or pseudotumor cerebri. This is a rare disease that causes increased cerebrospinal fluid pressure in the brain. If left untreated, IIH can cause headaches, vision problems, or blindness. IIH has been described as “the clinical syndrome of raised intercranial pressure, in the absence of space-occupying lesions or vascular lesions, without enlargement of the cerebral ventricles, for which no causative factor can be identified.”

First Lawsuit

In 2016, the Southern District of New York dismissed a multi-district litigation of approximately 1,300 plaintiffs who claimed the Mirena caused injuries to the uterus or surrounding tissues. The trial court excluded all of the plaintiffs’ expert witnesses under Daubert because of numerous problems with their testimony. The U.S. Court of Appeals for the Second Circuit affirmed the dismissal and the United States Supreme Court denied the writ of certiorari.

Second Lawsuit

In the current suit, more than 800 women allege that Mirena causes idiopathic intracranial hypertension. The plaintiffs and Bayer agreed that the outcome of the suit would depend on the plaintiffs’ ability to prove general causation, or whether Mirena can cause intracranial hypertension, so the district court ordered expedited briefing on Bayer’s motions to exclude the testimony of the plaintiffs’ general causation experts.

Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York excluded the testimony of all seven of the plaintiffs’ general causation experts. The court found that the expert testimony was inadmissible under the Daubert standard. The court said, “In brief, although plaintiffs’ experts in this litigation have now so opined, outside of this litigation, no medical organization, regulatory agency, article in peer-reviewed scientific literature, or other research has found that use of Mirena is a cause of IIH [idiopathic intracranial hypertension].”

In its 156-page ruling excluding the experts, the court examined the factual background of the Mirena product; LNG; IIH; risk factors and characteristics; the state of scientific research regarding the causes of IIH; and whether contraceptive devices that use LNG, like Mirena, can cause IIH. The court spent over 100 pages of the opinion examining each expert’s background, methodology and theories, and reviewed the extent to which each experts’ theories used the Bradford Hill criteria, or “the metrics that epidemiologists use to distinguish a causal connection from a mere association.”

Judge Engelmayer noted that several of the plaintiffs’ experts failed to adequately explain their conclusion that Mirena causes intracranial hypertension. He suggested that the failure of the experts to explain the weight that they gave to each of the Bradford-Hill factors was one of the reasons that he doubted the objectivity and reliability of their opinions.

Shark

Shark Expert Testifies in Animal Cruelty Case

A world-renowned expert has testified in an animal cruelty case that the blacktip shark that was dragged behind a boat in a viral video was dead before it was dragged.

The Viral Video

In late July 2017, a viral video of three Florida boaters dragging a shark at high speed went viral on social media. The video showed a shark tied to a rope being violently dragged behind a boat at a high rate of speed. The video caused public outcry by animal activists and prompted an investigation by the Florida Fish and Wildlife Conservation Commission. In the video, one of the men appears to say “look it’s almost dead,” as he points to the shark that is flopping behind their speeding boat.

Following an investigation, Michael Wenzel, 21, Robert Lee Benac, 28, and Spencer Heintz, 23, were each charged with two felony counts of aggravated animal cruelty. Wenzel and Benac also face a misdemeanor charge of illegal method of taking a shark. A separate video taken earlier that day showed Wenzel shooting a black-tip shark in the left side of the head near the gills with a .38 caliber handgun while Benac pulled it close to the boat, according to court documents. The charges carry penalties of up to five years in prison and $10,000 in fines if convicted.

After reviewing the case, the Office of the State Attorney for the 13th Judicial Circuit decided to dismiss the charges against Heintz. Sammecia Bagley, spokeswomen for the state attorney’s office said, “Based on additional case files that were presented, they didn’t have sufficient evidence to proceed with charges.”

Expert Witness Testimony

During the investigation, investigators showed the video to three shark experts, who all concluded the shark was still alive during the incident. The experts told investigators that they saw the shark making voluntary movements, which indicated that it was alive while being dragged, but they couldn’t say with a reasonable degree of scientific certainty.

However, two defense attorneys have reported that one of the state’s experts has now testified that the shark was dead at the time of the incident.

Stephen Kajiura of Florida Atlantic University is a world-renowned shark expert who testified on behalf of the state. Kajiura holds a Ph.D from the University of Hawaii and is a professor of biological sciences at FAU.

Kajiura watched four or five videos of the trip and testified that the blacktip shark was dead before it was dragged behind a boat. When Kajiura had given his first deposition, he had only seen one video of the incident.

Attorney Charles Britt III, who represents Michael Wenzel, said, “The plain language of the statute is that it has to be alive.” The relevant animal abuse statute reads in part, “A person who intentionally commits an act to any animal … which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty.”

Sexual Assault

Judge Allows Psychologist Testimony in Sexual Assault Case

A judge has denied a request to exclude the testimony of a psychologist who is expected to testify on behalf of a man who is scheduled to be tried for third-degree sexual assault in Thermopolis, Wyoming.

The Alleged Assault

In June 2017, a 20-year old woman claimed that she was assaulted at Tony Cercy’s home at Alcova Lake. The woman claimed that she woke around 3 a.m. on June 25, 2017 to find Cercy performing oral sex on her. The woman testified that she immediately pushed him away and that Cercy told her that he had been trying to wake her by performing sexual acts on her. The woman said that she fell asleep fully clothed but awoke with only a bra on and found Cercy naked from the waist down. The woman told authorities that Cercy threatened to kill her if she told anyone about the incident.

Cercy denied having any sexual contact with the woman. He claimed that he went to sleep at 2 a.m. and did not wake until 8 a.m. the next morning and the alleged victim had left his house at some point during the night. However, data from a cell phone health app indicates that Cercy took 21 steps ending at 3:36 a.m. and another 41 steps ending at 3:41 a.m.  Cercy’s phone also contains two videos and four photographs taken at 3:46 a.m. on the morning of the alleged assault.

First Jury Trial

In February, Cercy went to trial for one count of first-degree sexual assault, one count of second-degree sexual assault, and one count of third-degree sexual assault. The jury acquitted Cercy of the first-degree and second-degree assault charges but could not reach a verdict on the one count of third-degree sexual assault, or sexual contact without penetration. Natrona County District Court Judge Daniel Forgey declared a mistrial.

Natrona County District Attorney Mike Blonigen filed a motion to retry that count. Judge Forgey granted that motion, but also granted Cercy’s motion to move the trial to Hot Springs County.

Second Trial

For Cercy’s second trial, his defense team retained Dr. William O’Donohue to testify in his defense. Dr. O’Donohue is an expert on sexual assault and the director of a clinic for treating sexual abuse victims at the University of Nevada-Reno.

The defense team wanted Dr. O’Donohue to rebut Dr. Sherri Vanino’s testimony about the relationship between alcohol and sexual assault reporting, the effects of trauma on recounting experiences of sexual assault, and fabricating a serious allegation like rape.

District Attorney Blonigan objected to Dr. Donohue’s testimony, saying that his proposed testimony “during the upcoming trial would speak directly to and illegally to this specific case; that the proposed testimony would amount to profiling, that ‘certain people do certain things’; and that he would essentially determine the truth or falsehood of witnesses, which is the job of the jury.” The prosecutor’s argument might just as easily apply to the testimony of its own expert witness.

Judge Forgey decided to allow O’Donohue’s testimony. He said that “O’Donohue is properly qualified to testify in response to Vanino’s previous testimony about issues such as consistent reporting of alleged sexual assault victims, the role of trauma and fear, and the effects of alcohol.” The judge said that he would deny some of the testimony that O’Donohue and the defense team wanted to enter, including blaming victims, about whether wives of alleged sexual abusers support their husbands, and false allegations.

Update: After nine hours of deliberation, the jury found Cercy guilty of third-degree sexual assault.

Harvard Library

Expert Economists Testify in Harvard Admissions Trial

Expert economists are offering testimony in the trial of Harvard University as it defends itself against allegations that its admissions quotas discriminate against Asian Americans.

The Lawsuit

Students for Fair Admissions, or SFFA, sued Harvard University in federal district court, alleging that the university set admission criteria that discriminated against Asian American students.

SFFA is a nonprofit association whose stated mission is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means.” Its true mission, according to Alex Beam, is to end racial preferences in college admissions and employment that provide greater opportunities for nonwhite applicants.

Members of SFFA applied to Harvard and were denied admission. They claim that Asian American students must outperform students from other minority groups in order to gain admission to Harvard. SFFA alleges that Harvard uses a “personal rating” system that is biased against Asian American students.

SFFA’s complaint against Harvard referenced its history of discrimination. SFFA noted that under Harvard’s president Abbott Lawrence Lowell (1909-1933), the Harvard administration restricted the numbers of Jewish students who were admitted to Harvard. SFFA alleges that the Harvard College Admissions Program plan that is currently used in the admissions process was created for the specific purpose of discriminating against Jewish applicants.

President of Harvard University Lawrence Bacow wrote a letter to the university community stating, “The College’s admissions process does not discriminate against anybody…. I am confident the evidence presented at trial will establish that fact. The Supreme Court has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.”

Expert Economists

Harvard retained UC Berkeley economics professor David Card to serve as its expert witness at trial. Card determined that there was no evidence that Harvard intentionally discriminates against Asian American students. Card’s research indicated that if Harvard eliminated the challenged admission practice and the consideration of race, “the resulting class would have significantly fewer students who identify as Asian-American, Hispanic, or Other.”

Card concluded that there is no verifiable racial bias inherent in the use of personal ratings. His research showed that Harvard’s personal ratings included relevant data on the applicants’ non-academic attributes that are “not captured by other factors.” Card also concluded that there are no statistical models that can reliably estimate how race affects the personal rating.

Professor Peter Arcidiacono was retained by SFFA as their expert. Arcidiacono is a labor economist and Professor of Economics at Duke University. Arcidiacono concluded that Harvard’s admission process penalizes Asian American applicants. His report stated that “race plays a significant role in admissions decisions”; “Asian Americans are the primary group hurt by preferences given in Harvard’s Admissions Office”; there is an “artificial floor for African-American admit rates”; and, moreover, his “findings are consistent with Harvard’s own internal analyses before this lawsuit.”

SFFA also retained Richard Kahlenberg, a senior fellow at The Century Foundation and an author who has written several books on affirmative action. Kahlenberg’s report concluded that Harvard has failed to fully consider any of the numerous race-neutral alternatives that could achieve the educational benefits of diversity and that there are race-neutral alternative available that could provide Harvard with the educational benefits of diversity without the use of racial preferences.


By Joseph Williams (originally posted to Flickr as Harvard) [CC BY 2.0 ], via Wikimedia Commons

$1.5 Million Verdict Attributed to Excessive Expert Witness Payments

A Florida jury has ruled in favor of a plaintiff who filed a suit against his insurance company to receive what he believed to be the full amount owed to him under his policy. The plaintiff believes that the $1.5 million jury verdict in his favor is attributable to the insurance company’s hiding its excessive payments to an expert witness.

The Injuries

On November 12, 2015, Jeffrey Wolfson was in a car crash in Fort Lauderdale.  Wolfson  experienced a number of debilitating injuries in the crash. Wolfson underwent neck surgery as a result of his accident, in addition to one that he had previously had. Wolfson’s attorney, William Ruggiero, argued that these surgeries are likely to hasten the wear and tear on surrounding discs. Wolfson also suffered a fracture on the vertebra in his lumbar spine, an eye injury, and a mild concussion.

Because the other driver was not insured, Wolfson made a claim against his insurance carrier, Liberty Mutual Insurance, based on his uninsured motorist coverage. Wolfson and Liberty Mutual were unable to come to an amicable settlement, so Wolfson filed a complaint against them in Broward Circuit Court.

The Lawsuit

Wolfson alleged that Liberty Mutual “failed, refused and otherwise neglected” to compensate Wolfson according to the terms of his policy. His policy states that Liberty Mutual is responsible to “pay all covered losses resulting from the negligence of an uninsured and/or underinsured driver.”

Liberty Mutual argued that Wolfson’s injuries were not as severe as he alleged and presented evidence that the medical treatment he obtained was unnecessarily expensive. The company also suggested that plaintiff’s injuries were due to aging and degradation, rather than caused by the accident.

Liberty Mutual hired a neurologist, ophthalmologist, radiologist, and two orthopedic doctors to bolster its case. Ruggiero says that the radiologist, Dr. Steven Brown, may have played a large role in the favorable verdict for his client.

Initially, Dr. Brown, was deposed by video because he said that he was not available to give testimony at trial. Ruggiero subpoenaed the doctor to appear in court in-person. Dr. Brown said he was unavailable. Ruggiero then asked how much Dr. Brown was being paid for his services. When the court ordered the parties to reveal the amounts, Liberty Mutual revealed that it was paying Dr. Brown $58,000 to testify at trial.

Ruggiero says that the jury’s verdict is largely attributable to the size of Liberty Mutual’s payment to Dr. Brown and its subsequent concealment. Ruggerio said, “I think people were turned off by that number… I’ve been doing this for 28 years and have never seen anything like that number; it was just too big!” Ruggiero noted that Liberty Mutual had paid the ophthalmologist $23,000 and the neurologist $7,000.

The jury awarded Wolfson $1,579,629 total damages: $219,629 in past medical expenses, $150,000 in future medical expenses, $450,000 for past lost earnings, and $360,000 for future lost earnings.