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.

Seal of State of Florida and Gavel

University Task Force Explores Controversial Denial of Professor Expert Witness Testimony

University of Florida President Kent Fuchs has assembled a task force in the wake of recent controversy after three tenured political science professors were denied requests to serve as expert witnesses in a voting rights lawsuit that has made national headlines.

A High-Profile Voting Rights Case

Plaintiffs in the Florida voting rights case are challenging a new elections law, alleging that it discriminates against Black and Latino voters. The new law (SB 90) will make it harder for Florida Residents to vote by mail. Governor Ron DeSantis signed SB 90 this spring, after approval by Florida’s Republican-controlled Legislature. Secretary of State Laurel Lee and Attorney General Ashley Moody along with supervisors of elections have been named as defendants.

Changes include Florida’s restriction of voting drop box hours, resubmission of vote-by-mail requests for each election cycle, and increased voter identification requirements and limitations on who can deliver vote-by-mail ballots (which is problematic for elderly, disabled or house-bound voters). Critics of the law, including voting rights organizations like the ACLU and the NAACP, are calling SB 90 a voter suppression law. 

University Decision to Block Professors from Testifying Garners National News, Leads to  Professor Lawsuit

Professors Sharon Austin, Michael McDonald and Daniel Smith were to testify in the federal lawsuit as plaintiffs’ witnesses. However, according to a court document filed by the plaintiffs, the University of Florida told the professors that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict” for the school, and prohibited Austin, McDonald and Smith from testifying. This decision attracted national criticisms. 

University leadership subsequently took steps to walk the decision back, stating that professors could work as paid expert witnesses in the case on their own time and with their own resources. Fuchs created a task force and scheduled seven meetings to assess the University’s practices “regarding requests for approval of outside activities involving potential conflicts of interest and conflicts of commitment.”

Around this time, the professors filed a lawsuit against Fuchs and other university leaders, citing a stifling of First Amendment rights. They stated in their 18-page complaint that the job role of “public university professors and researchers is not to be mouthpieces for a particular administration—or any administration’s—point of view. It is to develop and share their knowledge with the people of Florida while upholding the university’s values.” 

“I don’t think there are clear definitions right now in the written policies at least, about what is a conflict of interest, what is an ‘outside activity,’ and I think some clarity would be helpful going forward,” stated Laura Rosbury, Dean of the school’s Levin College of Law and task force member.

What Does this Mean for Expert Witnesses in Higher Education? 

While most institutions of higher education have policies recognizing the value of academic freedom, the future of academic expert witness testimony remains unclear.  The result of the professors’ lawsuit may set some precedent. 

Closeup of a bloody knife with blood dripping

Defendant Tries to Exclude Expert Who Used Electric Knife to Carve Up Human Cadaver

The legal defense team of a woman accused of murder is attempting to exclude a forensic anthropologist from testifying, stating that prosecutors did not disclose an expert report which examined whether or not a human body could be dismembered by an electric carving knife. 

The Crime

Kimberly Kessler is accused of the May 2018 murder of her former coworker, Joleen Cummings. Forty-three-year-old Cummings, a Yulee, Florida hairstylist and mother of three, was initially reported missing by her mother after no contact or response from her daughter for over 48 hours. Since that time, various agencies including the Nassau County Sheriff’s Office and the FBI have been conducting an ongoing search for her body. 

Nausea County Walmart surveillance footage has shown Kessler purchasing an electric carving knife, along with black trash bags and ammonia, around the time of Cumming’s disappearance. At the time of her arrest, Kessler was found with a variety of scratches on both her face and hands. Cummings, last seen on May 12, 2018, is presumed to be dead, although her body has still not been found. Kessler has pleaded not guilty to first-degree murder with a trial date scheduled for December 6, 2021. 

Pre-Trial Proceedings

During the recent pre-trial hearing, Kessler became agitated and was quickly removed from the courtroom after a verbal outburst. She has demonstrated a pattern of verbal outbursts and subsequent removals from the courtroom. Kessler’s mental competence has been an ongoing question and concern during the case. Kessler reportedly does not communicate or work with her public defenders.

Kessler’s defense attorneys want the expert testimony in question, which was submitted by forensics anthropologist and Florida Gulf Coast University professor Dr. Heather Walsh-Haney, to be excluded. Kessler’s defense attorneys say that the prosecution failed to appropriately disclose the testimony. 

According to the defense motion, prosecutors hired the expert witness to explore the hypothesis that a “Black + Decker 9-inch electric carving knife would not cut through human bone at the neck and extremities due to the weakness of the knife motor and the fragility of the blade.” Walsh-Haney “perform[ed] an experiment on a human cadaver,” and created a report, “Postmortem Dismemberment Experiment Using a Human Cadaver.” The video-recorded experiment confirmed that the electric knife could dismember a corpse. 

Walsh-Haney completed the report in May 2019. However, the state did not disclose Haney as a witness or provide a copy of the report until recently. The defense team motion states that this was “less than 5 weeks before this case is set to begin a jury trial” and that this left the defense lawyers without appropriate time to “properly review and challenge” the expert report nor to employ “an expert of its own to review her methodology and conclusions.” The defense’s motion requests that the court punish the State Attorney’s Office for these failures and argues that Walsh-Haney’s expert testimony should be disallowed. 

Kessler’s case is before Judge James H. Daniel in Nassau County Circuit Court in Florida.

False Confession Expert Can Testify During Kowalski Murder Trial

A man’s conviction for double murder was vacated when concerns were raised about the relationship between the judge who presided over his case and the murder detective involved in investigating the murders. Now, an appeals court has ruled that a false confession expert, who was not allowed to testify at the first trial, will be allowed to testify at the new trial.

The Underlying Case

In 2008, Richard and Brenda Kowalski were found murdered in their home. In separate interviews with the police, Richard’s brother, Jerome Kowalski, both confessed to and denied murdering his brother and sister-in-law. 

At trial, Kowalski’s attorney, Wally Piszczatowski, attempted to call a false confession expert to testify. The American Psychological Association (APA) filed an amicus brief arguing there was an empirical evidence base for admission of false witness expert testimony based on review of the scientific research on false confessions. 

Judge Theresa Brennan denied this request. Kowalski was convicted in 2013 and sentenced to life. Brennan’s decision was affirmed on appeal. 

Vacated Conviction and New Trial

In January 2019, Michigan Supreme Court officials discovered that Judge Brennan, who had presided over Kowalski’s case, had failed to disclose a previous relationship with Michigan State Police Sgt. Sean Furlong, who had acted as lead homicide investigator on the Kowalski case. Kowalski’s conviction was vacated and he was granted a new trial. Judge Brennan was removed from the bench by the Michigan Supreme Court and charged with three felonies: perjury, tampering with evidence, and misconduct in office in connection with her failure to disclose her relationship.

At Kowalski’s new trial, Judge Matthew Stewart of Shiawassee County Circuit Court ruled that expert witness Richard Ofshe could testify. Ofshe, a Sociology Professor Emeritus at University of California in Berkeley, is an internationally recognized expert on influence interrogation. His work on coercion in interviews, confessions, groups and interrogations have made him a sought-after specialist. Ofshe also serves on the advisory board for the False Memory Syndrome Foundation.

Judge Stewart ruled that Ofshe’s testimony would be limited to generalities on false confessions, with no case-specific testimony. Mark Gatesman and Heather Nalley, Kowalski’s attorneys, appealed the decision, as did the prosecution. Kowalski’s attorneys argued for unlimited testimony and the prosecution argued that no false witness expert testimony be allowed at all. 

New Court of Appeals Ruling

The Michigan Court of Appeals agreed with Judge Stewart’s decision. It ruled, “The trial court did not abuse its discretion by finding that Dr. Ofshe was qualified to give expert testimony on police interrogation techniques and that his methodology was sufficiently reliable to admit his testimony.”

Reacting to the decision, Kowalski’s attorney Nalley stated, “We are thankful that the court ruled Dr. Ofshe will be allowed to testify as to how interrogation techniques such as the ones used in this case can be coercive.”

Kowalski had been awaiting a pending new trial since January of 2019. If convicted as originally charged, he faces a sentence of up to life in prison without the possibility of parole. 


Expert Accuses Munsch Hardt Of Reusing His Old Reports

A telephone systems expert witness and a telecommunications company have accused a Texas-based law firm of reusing expert witness reports to deceive Telephone Consumer Protection Act plaintiffs. 

The Dispute

Telephone systems expert witness Aaron Woolfson and the telecommunications company that he founded, TelSwitch, Inc., claim that Texas-based law firm Munsch Hardt Kopf & Harr PC misused recycled testimony in order to mislead complainants into cheap settlements. Woolfson claims that Munsch Hardt reused his old expert reports to convince complainants that Texan retail furniture and appliance outlet company Conn had retained Woolfson’s for its bill collection arbitration cases. Woolfson argues that this violates the confidentiality of arbitration proceedings and constitutes an infringement of protected work.

Woolfson’s allegations include copyright infringement, unfair business practices, and quantum meruit.

Prior Expert Opinion

Woolfson is the founder of telecommunications company TelSwitch. He has over 25 years of experience as an innovator in his field and is often consulted as an expert in issues related to allegations of violation of the Telephone Consumer Protection Act of 1991 (TCPA). The Telephone Consumer Protection Act was passed by Congress and signed into law by George H. W. Bush as an amendment to the Communications Act of 1934. The TCPA prohibits most “robocalls,” including unsolicited and pre-recorded telemarketing calls made to landline home phone lines. It also prohibits autodialed and prerecorded calls and text  to your personal  cell phone numbers.

Woolfson has consulted or testified as an expert in over 1,000 largely TCPA related cases. In 2016, he was retained by Conn in a lawsuit in which former customers alleged harassment via Conn debt collectors. His November 2016 expert opinion in an arbitration case concluded that the calls made from Conn calls did not constitute a TCPA violation. 

Woolfson has stated that no expert report had been given to the defendants since April 2017 and permission to reuse these previous expert reports was never granted. 

Reusing the Expert Opinions

In July 2020, over three years after Woolfson provided an expert report to Conn, Woolfson received an email from attorney David McGlothin of the Kazerouni Law Group, APC inquiring as to whether Woolfson was available for deposition. Woolfson was shocked to find that his previous report had been altered and submitted as a new expert report authored by him in the “Hernandez Matter.” Woolfson had no knowledge of the case, nor had had any contact with Conn or knowledge of their updated phone systems. However, Munsch Hardt claimed that Woolfson had granted Conn full rights to his expert opinion for use “in any future matters.”

Woolfson and Telswitch have since found reason to believe that Munsch Hardt Kopf & Harr PC may have submitted outdated expert reports in dozens or even hundreds of cases — without permission — for their own profit. 

Woolfson and Telswitch have filed a lawsuit against Conn Appliances and Munsch Hardt in United States District Court Northern District of California alleging that they deliberately committed copyright infringement. Woolfson and Telswitch are seeking an injunction against further false reporting of testimony, payment of damages, lost consultation pay, and legal fees.

#9867034 Mallet And Stethoscope Over Sound Block In Court

Ohio Supreme Court Rejects Hospital Executive as Expert Witness

The Ohio Supreme Court has ruled that a hospital executive who does not directly oversee treating physicians does not meet the requirements to testify as an expert witness in a medical malpractice suit.

Trial Court

Mark Johnson, Glenda Johnson, and Gary Johnson filed a medical malpractice suit on behalf of their brother, David Johnson. The lawsuit claimed that Dr. Anthony Abdullah was negligent in his treatment of David in 2011.

At trial, Dr. Abdullah called Dr. Ron Walls to testify as an expert witness regarding the standard of care. The Johnsons objected to Dr. Walls’ testimony, arguing that he was not involved in the active clinical practice of medicine. The trial court determined that Dr. Walls was competent to testify and he testified on Dr. Abdullah’s behalf. A jury found that Dr. Abdullah was not negligent in treating David.

Court of Appeals

The Johnsons appealed to the First District Court of Appeals. Upon review, the court addressed only the trial court’s decision to admit the testimony of Dr. Walls. The court noted that Dr. Walls was the chief operating officer of a hospital system, but that his job was “almost entirely administrative.” The court rejected Dr. Abdullah’s argument that Walls was engaged in the active clinical practice of medicine and determined that the trial court should have prevented Dr. Walls from testifying. The court reversed the trial court’s judgment and ordered a new trial.

The Supreme Court of Ohio

Dr. Abdullah appealed to the Supreme Court of Ohio. On appeal, Dr. Abdullah argued that the First District improperly reweighed Dr. Walls’ credibility. The Supreme Court disagreed. It determined that the First District did not find that Dr. Walls’ testimony was untruthful; instead, it had concluded, based on Dr. Walls’ testimony, that Dr. Abdullah had failed to establish that Dr. Walls devoted at least one-half of his professional time to the active clinical practice of medicine.

Evid.R. 601(B) provides in relevant part that a person is disqualified to testify as a witness when the court determines that the person is

(5) …giving expert testimony on the issue of liability in any medical claim, as defined in R.C. 2305.113, asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless: . . .

(b) The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.

In Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio3697, 871 N.E.2d 557 (plurality opinion), the court explained that the purpose of the active clinical practice requirement was to prevent testimony from physicians who spend most of their time testifying as professional witnesses and lack experiential background in the area at issue in the case. The key issue in Celmer was not whether the expert’s professional activities constituted the active clinical practice of medicine; the key issue was whether a trial court may permit an expert to testify when they did not meet the requirements of Evid.R. 601 at the time the trial took place, but did meet those requirements when the trial was originally supposed to start, but then the trial was delayed by the request of the opposing party. Dr. Abdullah argued that this Celmer exception should apply here to consider the expert’s duties at the time of the alleged malpractice.

The Supreme Court declined to expand the Celmer exception. The court noted that the facts of this case are significantly different from those in Celmer. There, the court carved out a limited exception to consider the expert’s activities at the time the trial was originally scheduled to begin. Here, Dr. Abdullah asked to extend that limited exception to consider an expert’s activities long before this case was even filed.

The court noted that Dr. Walls testified that about 90 percent of his work would be considered purely executive or administrative. It determined that Dr. Abduallah failed to show that Dr. Walls was involved in the active clinical practice of medicine at the time of the trial and affirmed the ruling of the First District Court of Appeals.

Pennsylvania Justice

Pennsylvania Supreme Court to Determine “Cause of Death” in Medical Malpractice Cases

The Pennsylvania Supreme Court is set to determine the legal definition of “cause of death” in medical malpractice cases.

The Death

On April 28, 2010, Mary Ann Whitman died as the result of a ruptured abdominal aortic aneurysm. Five days prior to her death, her primary care physician, Dr. Conaboy, requested that Whitman have a CT scan, which was reviewed by Dr. Charles Barax. Dr. Barax reviewed the scan and drafted a report that stated that Whitman had an abdominal aortic aneurysm that was “poorly visualized.” His report did not mention any possible rupture.

The Underlying Case

In April 2011, the administratrix of Whitman’s estate, Linda Reibenstein, filed a Wrongful Death Act and Survival Act lawsuit against Dr. Barax and his employer, Mercy Hospital, Scranton. During discovery, Reibenstein made many attempts to depose Dr. Barax. She was finally able to depose Dr. Barax in February 2015, with the intervention of the court. At Dr. Barax’s deposition, he testified that he had spoken with Dr. Conaboy about the CT scan, told him that it showed a previously undocumented abdominal aortic aneurysm, that he could not visualize it very well, and that he could not confirm whether it was bleeding or rupturing.

In March 2016, following Dr. Barax’s deposition, Reibenstein initiated a separate wrongful death and survival suit against Dr. Conaboy and his medical practice. The trial court consolidated the two lawsuits.

The Conaboy defendants filed a motion for summary judgment, arguing that the two-year statute of limitations for personal injury actions prevented the lawsuit. Initially, the trial court denied the motion, concluding that there were genuine issues of material fact. On reconsideration, the court granted summary judgment because it found “no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death.” Reibenstein appealed.

Appeals Court

Reibenstein appealed to the Superior Court of Pennsylvania. There was one issue on appeal: whether the trial court erred in granting summary judgment in favor of the Conaboy defendants on the ground that the statute of limitations governing the wrongful death claim could not be equitably tolled because Whitman’s medical cause of death was correctly identified on her death certificate.

Specifically, Reibenstein argued that Dr. Barax’s concealment of his communications with Dr. Conaboy regarding Whitman’s aneurysm is directly related to her death; therefore, the two-year statute of limitations should have been equitably tolled according to subsection 40 P.S. § 1303.513(d). She noted that the statute did not define “cause of death” or explain how the defendant must conceal the cause of death for equitable tolling to be applied.

Dr. Conaboy responded that the statutory language was clear, Whitman died of a ruptured abdominal aortic aneurysm, the cause of death was correctly recorded on her death certificate, and that the statute of limitations should not be tolled.

Upon review, the Superior Court noted that “cause of death” was never defined in the statute and there was a question as to whether it meant the immediate medical cause of death listed on a death certificate or whether it also included conduct leading up to the decedent’s death. The Superior Court reasoned that both interpretations were reasonable.

The Superior Court noted that the stated purpose of the Medical Care Availability and Reduction of Error Act was to ensure that high quality health care is available and to provide compensation to persons who sustain injury as the result of medical negligence, while controlling the costs of medical malpractice insurance rates. The court adopted the broader interpretation of “cause of death” and found that the trial court erred in concluding that no equitable tolling applied. Reibenstein v. Barax, 236 A.3d 1162 (Pa. Super. 2020).

Reaction to the Case

The American Medical Association and other physician advocacy groups heavily criticized the Superior Court’s opinion. They argue that “cause of death” is a term so common in the medical community that it is unambiguous and should not be subject to the court’s interpretation.

The case is currently pending before the Supreme Court of Pennsylvania, where it will be up to the highest court in the state to determine the legal definition of “cause of death.”

Maryland AG Names Team to Review Ex-Chief Medical Examiner’s Work

The Maryland Attorney General has selected an independent panel of experts to investigate the police custody deaths that took place during the tenure of the state’s former chief medical examiner, Dr. David Fowler.

Fowler’s Judgment Called into Question

Fowler served as a key witness in the trial of Derek Chauvin, whose high-profile trial ended with a jury convicting the former Minneapolis police officer of murder and manslaughter in connection with the death of George Floyd.

At trial, Dr. Fowler testified that Floyd died of cardiac arrhythmia due to his heart disease while being restrained by the police and that Floyd’s cause of death was “undetermined” and not a homicide. Dr. Fowler’s testimony was contradicted by several other experts who testified that Floyd died due to a lack of oxygen.

Fowler testified that his “opinion was formulated after the collaboration of thirteen other highly experienced colleagues in multiple disciplines” and wrote that “our evaluation set an ethical standard for the work needed in sensitive litigation.”

Following Dr. Fowler’s testimony at Chauvin’s trial, the former medical director of Washington, D.C., Roger A. Mitchell wrote a letter to Maryland Attorney General Brian Frosh, saying that Dr. Fowler’s testimony and conclusions were so far outside the bounds of accepted forensic practice that all his previous work could come into question.  This letter was signed by 431 doctors from around the country.

After receiving this letter, Maryland Attorney General Brian Frosh made the decision to review all cases from 2002 to 2019, which fell under Dr. Fowler’s tenure.

The Panel of Experts

As the first step of this review process, Maryland Attorney General Brian E. Frosh has selected a panel of experts to decide how to investigate the police custody deaths that were overseen by former Maryland chief medical examiner David Fowler.

The panel of experts will be composed of seven members, who have national and international expertise in the fields of forensic pathology and behavioral science. The panel will develop its own process for reviewing the in-custody death determinations.

According to Raquel Coombs, a spokeswoman for Frosh, the panel will “shape the scope and methodology of the audit, including the manner in which cases for review will be selected.” Once the panel has designed the audit, Frosh will select the team members who will conduct it.

The members of the panel are:

● Stephen Cordner, a retired professor of forensic pathology who heads the international program of the Australia-based Victorian Institute of Forensic Medicine.

● Jack Crane, the former state pathologist for Northern Ireland.

● Deborah Davis, a professor of psychology at the University of Nevada at Reno who has served for decades as an expert witness on eyewitness memory, interrogation and confession, sexual consent communications, and forensics.

● Itiel Dror, a Harvard-educated expert in human cognition and decision-making who serves at University College London.

● Michael Freeman, a consultant in forensic medicine and forensic epidemiology and a professor at Maastricht University in the Netherlands.

● William C. Thompson, professor emeritus at the University of California at Irvine, where he has held academic appointments in criminology, psychological science and law.

● Alfredo E. Walker, a registered forensic pathologist in Ontario.

Mental Health

Death Sentence Thrown Out Due to Misleading Expert Testimony

A federal judge has thrown out a death sentence for a man who was convicted of murder due to misleading experts and insufficient investigation into the defendant’s mental health.

The Crime

In November 2003, Dru Katrina Sjodin, a 22-year-old University of North Dakota student, was abducted while walking to her car after finishing her shift working at the mall. Sjodin had been on the phone with her boyfriend at the time, who heard her say “Okay, okay,” before the phone call ended. Sjodin’s body was later found in Minnesota on April 17, 2004.

On May 11, 2004, Alfonso Rodriguez Jr. was charged with the kidnapping and killing of Sjodin. Rodriguez had a history of sexual assault and had been released from prison about six months before Sjodin’s murder. A jury found Rodriguez guilty and sentenced him to death for his role in Sjodin’s death.

The Appeals

Rodriguez appealed to the Eighth Circuit Court of Appeals in 2009 and lost his case. The U.S. Supreme Court refused to hear his case. In October 2011, his attorneys filed a federal habeas corpus motion, which is considered the last step in the appeals process. Rodriguez’s habeas corpus motion came before Judge Ralph Erickson.

Death Sentence Thrown Out

Judge Erickson ruled that the misleading testimony of the coroner, the failure of defense counsel to outline the possibility of an insanity defense, and the evidence of severe post-traumatic stress disorder had violated Rodriguez’s constitutional rights. Judge Erickson threw out Rodriguez’s death sentence and ordered a new sentencing hearing be conducted.

In his ruling, Judge Erickson characterized Ramsey County Medical Examiner Michael McGee’s testimony as “unreliable, misleading and inaccurate” about the cause of Sjodin’s death. Judge Erickson pointed to McGee’s interpretation of the sexual assault evidence. The judge noted that McGee had offered opinions at trial that were not in his autopsy report — specifically that semen was found during his examination of the body and that it had been deposited in the body within 24 to 36 hours of Sjodin’s death.

Judge Erickson noted that new evidence had demonstrated that McGee was simply guessing and that his opinions were not scientifically supported by literature or any other expert who testified at trial. He wrote, “Few trials are perfect. Admittedly, even fewer trials are riddled with error because expert testimony is later proven to be so unreliable that had all the circumstances been known it would have been inadmissible. … But, these post-conviction relief proceedings have uncovered credible evidence demonstrating that in the trial of this case, the truth was obscured.”

Judge Erickson further noted that if the jury had been made aware of the “severity of Rodriguez’s mental health condition,” then it was likely that at least one of them would have voted against the sentence of death.

He wrote, “An adequate investigation would have exposed a possible insanity defense, and, at a minimum, information indicating that Rodriguez suffers from post-traumatic stress disorder (‘PTSD’) so severe that he sometimes has dissociative experiences. … Because this evidence was not developed for trial, during the trial the government was able to discount and dismiss any possibility that Rodriguez suffers from PTSD.” 

He continued, “The government told the jury repeatedly that this case was about Rodriguez’s intentional and deliberate choices. A choice to search for a female on November 22, 2003; a choice to sexually assault that female; and a choice to kill that female. That may not be the truth.”

Patent law

USPTO Cannot Shift Expert Witness Fees

The U.S. Court of Appeals for the Federal Circuit has issued a precedential decision denying the U.S. Patent and Trademark Office’s request to shift expert witness fees.

The Underlying Dispute

Gilbert Hyatt is an individual who has filed and litigated many U.S. patents. In 1995 alone, Hyatt filed hundreds of lengthy and complex patent applications. Four of the many patent applications that Hyatt filed in 1995 included 1:05-CV-2310-RCL, 1:09-CV1864-RCL, 1:09-CV-1869-RCL, and 1:09-CV-1872-RCL.

After adverse results at the U.S. Patent and Trademark Office (PTO) regarding the four patents at issue, Hyatt sued the PTO under 35 U.S.C. § 145, which allows a patent applicant to challenge a PTO decision in district court. The PTO filed a motion to dismiss Hyatt’s suit, arguing that his patent should be unenforceable because of the unreasonable and unexplained delay in prosecuting his patent, which was an abuse of the patent system. The district court rejected the PTO’s arguments and ordered it to issue a patent covering some of Hyatt’s claims. The PTO appealed.

While the appeal was pending in the U.S. Court of Appeals for the Federal Circuit, Hyatt filed a motion to recover his attorney’s fees under the Equal Access to Justice Act. The district court granted this motion in part because Hyatt had won his case in district court. The U.S. Court of Appeals for the Federal Circuit vacated and remanded this decision, ruling that the PTO had met its initial burden of proving its case, therefore, Hyatt was not the prevailing party and not entitled to attorney’s fees.

The PTO simultaneously filed a motion to recover its expert witness fees under 35 U.S.C. § 145, which states that “[a]ll the expenses of the proceeding shall be paid by the applicant.” The district court noted that there was no precedent dealing with the American Rule presumption against fee-shifting and denied the award of expert witness fees. The PTO appealed.

The U.S. Court of Appeals for the Federal Circuit

The court immediately vacated the district court’s award of attorney’s fees to Hyatt because, after it had remanded the case, he could not be considered a prevailing party. It then examined whether 35 U.S.C. § 145’s language that “[a]ll the expenses of the proceedings shall be paid by the applicant” requires that the applicant pay the expert witness fees of the PTO. 

The court noted that the U.S. Supreme Court has upheld the “American Rule,” which requires that litigants pay their own fees “unless a statute or contract provides otherwise.” For a law to overcome the presumption set by the American Rule, “Congress must provide a sufficiently ‘specific and explicit’ indication of its intent to overcome the American Rule’s presumption against fee shifting.”

The court then interpreted the language of § 145 and determined that it was not sufficiently specific to overcome the presumption against fee-shifting. It affirmed the decision of the district court.

California Law Legal System Concept

California Court Limits Rule that Expert Can’t Give Declaration Contrary to Prior Discovery Responses

A recent California court decision has limited a rule that an expert witness cannot give a declaration that is contrary to prior discovery responses.

The Underlying Dispute

From August 1973 to May 1974, Michael Harris worked on the U.S.S. San Jose as a hull maintenance technician for the United States Navy. Thomas Dee Engineering Company performed repairs on the boiler aboard the U.S.S. San Jose during the fall of 1973.

Michael Harris was diagnosed with mesothelioma in March 2014. Two months later, he and his wife Beth filed a complaint against Thomas Dee Engineering Company and other defendants for negligence, strict liability, and loss of consortium. The complaint alleged that Thomas Dee’s work on the U.S.S. San Jose had exposed Harris to asbestos. 

Michael passed away in October 2014. In July 2015, Beth and her children amended the complaint to include wrongful death and survival claims.

Motion to Dismiss

In June 2017, Thomas Dee filed a motion for summary judgment on the issue of asbestos exposure. The company argued that Harris had testified that he had not seen anyone working on the boilers and Harris’ expert had testified that Harris would not have been exposed to asbestos if he was not present when the work was being done.

To oppose the motion, the Harrises offered their expert’s “re-entrainment theory,” an opinion which was not previously disclosed and contradicted by his deposition testimony. Under the re-entrainment theory, Harris would not have needed to be present during Thomas Dee’s work to be exposed to asbestos. The trial court granted Thomas Dee’s motion for summary judgment. The Harrises appealed.

Court of Appeal of the State of California, First Appellate District

On appeal, the Harrises argued that the trial court erred by refusing to give weight to their expert’s declaration and that the declaration raised a triable issue as to whether Thomas Dee’s activities exposed Harris to asbestos.

The court of appeals noted that the trial court should not have disregarded the Harrises expert’s declaration simply because it wasn’t mentioned in his deposition. Prior cases had prevented experts from testifying at trial about opinions that exceeded the scope of deposition testimony. The court distinguished the current case — here, the introduction of the re-entrainment theory came in a motion in opposition to summary judgment, not at trial. If the theory was new, there was nothing that prevented Thomas Dee from re-deposing the expert prior to trial.

The court also noted that the fact that the expert’s declaration and his deposition testimony contradicted each other did not necessarily eliminate the declaration’s evidentiary value. Here, the expert’s declaration related to a scientific theory he had not mentioned in his deposition and his statement did not directly contradict any prior testimony regarding facts that he had observed. 

The court noted that it was a decision for the ultimate factfinder to decide what weight to give to the expert’s testimony in light of his previous deposition testimony. Therefore, the trial court erred by refusing to give the expert’s declaration any weight and granting summary judgment. The court of appeals reversed the order granting summary judgment in favor of Thomas Dee.