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.

US flag with camouflage cap combat hat

Defense Tries to Bar Expert in Murder Hate Crime Trial

The defense team in the trial of a man who has been charged with a murder and hate crime has filed a motion to bar the testimony of an expert on white supremacy.

The Crime

In May 2017,  U.S. Army Lt. Richard Collins III, a Bowie State University student, was visiting his friends at the College Park campus of the University of Maryland.  It was just a few days before his graduation and he had just recently received his commission as a U.S. Army second lieutenant.

Collins was stabbed to death at around 3AM while he was waiting for an Uber at a bus stop with two of his friends.  Surveillance video footage shows Sean Urbanski, who is white, stabbing Collins, who is black.

Urbanski was charged with first-degree murder and for a hate crime resulting in death.  If convicted, Urbanski would face up to life in prison with no chance of parole for first-degree murder and 20 years for the state hate crime resulting in death charge.

The Investigation

Following the stabbing, search warrants were executed for Urbanski’s phone, truck, apartment, and parents’ phone.  An investigation by the FBI pulled together Urbanski’s online group chats, racist memes, and social media activity—including a now-deleted “Alt-Reich: Nation” Facebook Page.

While Urbanski’s defense team argued that the material was “extremely prejudicial, highly inflammatory, irrelevant, and not otherwise admissible,” Prince George’s County Circuit Court Judge Lawrence Hill Jr. ruled that all of this evidence was admissible.

White Supremacy Expert

On November 13, 2019, Urbanski’s defense attorneys William Brennan and John McKenna filed a motion arguing that Prince George’s County prosecutors waited until 30 days before Urbanski’s December 9, 2019 trial to disclose they intend to call Jessie Daniels as an expert witness “to testify about the Alt-Reich, its history, origins, ideology and members.”

Daniels is a professor at The City University of New York.  According to her biography, she “has spent the last 25 years calling attention to white supremacy.”  She is currently working on a book, “Tweetstorm: The Rise of the ‘Alt-Right’ and the Mainstreaming of White Nationalism.”

Urbanski’s defense team argued that the state’s motion to include expert testimony was “inexcusably late”—given that this trial has already been postponed four times. The attorneys wrote, “The State has no justifiable reason for withholding this notice of intention to present expert testimony for more than two years.”  They claim that they will be unable to properly prepare a defense or seek their own expert witness to rebut Daniels.  They also noted that the state failed to provide any of Daniels’ findings, opinions and conclusions, leaving them unable to prepare for her testimony.

They wrote, “The State’s proposed expert testimony does little more than dress up a lay, albeit highly qualified, witness as a so-called ‘expert’ in order to call the Defendant a racist.”

Judge Hill has yet to rule on this motion.

Urbanski’s trial is set to begin on December 9, 2019 and is scheduled to take ten days.

Court room

Discredited Nurse Causes Review of Sexual Assault Cases

The firing and discrediting of a Hennepin County, Minnesota nurse who examined sexual assault victims and was a prosecution expert witness has prompted the independent review of all of the criminal cases she was involved in.

Hennepin County Medical Center (HCMC) Nurse Jarvis

Kristi J. Jarvis was a Hennepin County Medical Center (HCMC) nurse.  Jarvis was hired by HCMC in 2014.  The following year, she was promoted to “program coordinator” for the Hennepin Assault Response Team (HART), which was then known as Sexual Assault Resource Service, or, SARS. The HART organization is staffed 24 hours a day and investigates allegations of sexual assault, human trafficking and sexual exploitation involving adults and children.  Jarvis served as the forensic program coordinator from late 2017 until her firing.

During her tenure at HCMC and HART, Jarvis examined sexual assault victims and was listed as an expert witness for prosecution.

Jarvis’ Firing for Lying About Educational Background

On May 8, 2019, Jarvis was fired for falsely reporting in documents that she had a bachelor’s of science in nursing.  Her personnel file obtained by the Minnesota Star Tribune also showed that Jarvis “ inappropriately took $4,050 in personal checks from participants who attended a class she taught, was disciplined in 2017 for altering official HCMC documents and contributed to a work environment rife with dysfunction.”

According to her termination letter, Jarvis was fired for claiming on official documents related to the International Association of Forensic Nursing’s approval process for sexual assault nurse examiner (SANE) classes that she had a bachelor’s of science in nursing.

Hennepin Healthcare, the umbrella organization for HCMC, confirmed that Jarvis had the credentials to perform her job duties.  It said in a written statement, “The reason for termination was ‘failure to comply with Hennepin Health System’s Code of Conduct.’”

HCMC documents reveal that Jarvis self-reported conducting more than 400 forensic exams in her career and wrote that she has provided “expert witness consultation and testimony for numerous county attorney’s offices” and defense attorneys.

Jarvis’ Defense

Jarvis’ attorney, Christa Groshek, said in a written statement, “Ms. Jarvis denies any allegations that she misrepresented her title or credentials…A subordinate in her office misstated her title.”

Jarvis was first licensed as a nurse in Minnesota in 2006, and is actively licensed with an expiration date of February 2020, according to the Minnesota Board of Nursing. A bachelor’s degree in nursing is not required for licensure as a nurse.

Jarvis is a registered nurse, has a bachelor’s of science in criminology and criminal justice, a master’s certificate in forensic nursing and is certified as a sexual assault nurse examiner (SANE), Groshek said.

The Aftermath

Jarvis worked on cases in Hennepin and Ramsey counties while at HCMC.  Public defenders in Hennepin and Ramsey counties could not immediately say how many of their past or pending cases involve Jarvis as an examiner or witness.

“We’ll find out which cases she’s been pivotally involved in and see what can be done,” said Jim Fleming, chief Ramsey County public defender. “This certainly is going to perk interest.”

Fleming stated that Jarvis’ involvement in a case wouldn’t necessarily result in an automatic challenge, adding that many other variables have to be considered.

Chief Hennepin County Public Defender Mary Moriarty said, “Every case is unique…We’re looking at each one individually to make sure our clients’ rights were protected.”

stock market

Exxon Expert Challenges Authorities’ Claims as “Circular”

An expert for Exxon Mobil Corporation has opined that the authorities’ claims that the company hid the financial risks of climate change are “a tad circular.”

The Securities Fraud Trial

New York Attorney General Letitia James filed a complaint against Exxon Mobil Corporation, alleging that Exxon intentionally misled investors about the way it planned for the expected future impact of climate change on its business. According to the complaint, investors lost between $476 million and $1.6 billion when the alleged scheme was exposed.

New York also claims that former Exxon Chief Executive Officer Rex Tillerson spearheaded a plan to dupe investors into thinking it was applying a high “proxy cost” for carbon to its investment decisions, while secretly using a lower figure to evaluate projects, including those in the Alberta oil sands.

Irving, Texas-based Exxon responded there weren’t any losses from the alleged scheme because there was no deception. Tillerson testified the allegations regarding a plan to dupe investors were false.

Expert Witness Testimony

The state retained Eli Bartov, an accounting professor at New York University, and Peter Boukouzis, an assistant professor of business management at the University of Saint Katherine in San Marcos, California, to testify on its behalf.

Bartov testified that Exxon had inflated its stock by lying to concerned investors starting in 2014. Boukouzis testified about the resulting stock drops tied to the news events.

Exxon Mobil Corporation hired Allen Ferrell, a Harvard Law School professor who is also a senior consultant at Compass Lexecon, to testify on its behalf. Ferrell was the last witness to testify in the three-week trial in Manhattan.

Ferrell refuted Bartov’s testimony by saying that Bartov’s study of Exxon’s share-price movements hadn’t controlled for fluctuations in the energy industry.  Ferrell said that Boukouzis wrongfully cited two news-related stock movements that don’t qualify as statistically significant.

The News Events Used in Damage Calculations

Ferrell also argued that New York’s claim that investors lost as much as $1.6 billion after authorities accused the company of hiding the financial risks of climate change was “a tad circular.”

Ferrell said that it was somewhat convenient for an authority to cite news about its own fraud investigation as the cause of a company’s losses. He stated, “You don’t shoot the arrow and then draw a bulls-eye around it.”

The complaint outlines three news events that allegedly resulted in Exxon’s stock dropping:

  • Two events that relate to climate probes in 2016 by the California attorney general and the U.S. Securities and Exchange Commission.
  • New York’s June 2017 claim that it uncovered evidence of a “sham.”

The state plans to use these three events to calculate the alleged losses. Exxon’s stock did dip on the days of the three news events. The state’s calculation of losses would become crucial if it wins the trial.

In it memorandum, New York wrote, “The evidence will show that when the deception uncovered by the state’s investigation and related investigations was revealed, Exxon Mobil’s stock price fell, injuring investors who must now be made whole.“

The case is being heard by New York Justice Barry Ostrager, who will decide the case without a jury.

Defense Attorneys Request Approval of Sleep Deprivation Expert

The defense attorneys of a man charged with killing an Iowa woman are now requesting the state to pay for a sleep deprivation expert and that the state pay for that expert’s fees.

The Killing

On July 18, 2018, 20-year-old University of Iowa student Molly Tibbetts disappeared after going on a run in her hometown of Brooklyn, Iowa.

While investigating Tibbitts’ death, investigators found a home surveillance video that showed a car following a woman running.  After watching it for hours, investigators found clues that led them to Cristhian Bahena Rivera, 24, an undocumented immigrant.

Rivera, who did not resist when police detained him, told authorities that he saw Tibbits and pursed her. He got out of his car and started running beside Tibbetts. She warned him she would call the police, which angered him. According to the police, Rivera said that he blacked out at some point and later woke up at an intersection. He realized that he had put the woman in the trunk of his car and when he took her out, he saw blood on the side of her head.

Rivera led the police to Tibbets’ body, which was in a cornfield, covered with corn leaves. Investigators determined that Tibbets had been stabbed to death.

Rivera was charged with the first degree murder of Mollie Tibbetts.  Bail was set at $1 million.

Because Rivera is an undocumented immigrant, this story made national news.  President Trump even made reference to the case at a rally in Charleston, West Virginia.  President Trump said, “You heard about today with the illegal alien coming in very sadly from Mexico. And you saw what happened to that incredible beautiful young woman. Should have never happened. Illegally in our country.  We’ve had a huge impact but the laws are so bad, the immigration laws are such a disgrace. We’re getting it changed but we have to get more Republicans.”

Vice President Mike Pence also made a statement about Tibbitts’ death.  He wrote a tweet stating, “Heartbroken by the news about Mollie Tibbetts. Mollie was an amazing young woman and we are praying for her parents, brothers & friends in this time of unimaginable grief. … We commend the swift action by local, state, & federal investigators working in Iowa in apprehending an illegal immigrant, who’s now charged with first-degree murder. Now, justice will be served. We will never forget Mollie Tibbetts.”

Unfortunately, neither the president nor the vice president noted that most violent crime in the United States is committed by American citizens. The crime rate for undocumented aliens is lower than the rate of crime committed by native-born citizens, but that isn’t the kind of information that stokes passions at political rallies.

Defense Pretrial Motions

Cristhian Rivera’s defense attorneys filed a motion to request the court’s approval to appoint expert witness Dr. Kimberly Fenn of Michigan State University.  Dr. Fenn is an expert in the area of sleep deprivation and its effects on the actions and statements of the sleep-deprived. The motion also requested that the state pay Dr. Fenn’s fees.

In the motion, the defense team wrote, “Defendant has raised the issue of voluntariness of his statement to law enforcement as well as whether any waiver of a purported advisement of Miranda rights was knowing and voluntary.”

Rivera’s attorneys are also asking that the interpreter who was court-appointed to assist their client be given expert witness status, in order to allow her to be compensated. The motion claims “neither the State Public Defendant nor State Court Administration want to compensate Ms. Gardner for the services she has rendered to date. Citing various bureaucratic reasons, Ms. Gardner is being characterized as simply providing interpreter services and thus cannot be compensated.” The defense team states that Gardner’s translation of Rivera’s interview with police allows the defense to challenge the accuracy of officers’ Spanish and the accuracy of the transcript that was provided by the government.

The motion asks for a $2,500 for Dr. Fenn, $3,000 for DNA expert Dr. Michael Spence, and for the interpreter to be given expert witness status and her previous claims for compensation be approved.

Attorneys to Appeal Decision to Not Allow State of Mind Expert Testimony

The attorneys for a man who is accused of shooting a youth football coach have announced that they plan to appeal a trial court judge’s decision not to allow an expert witness to testify regarding the defendant’s state of mind.

The Crime

At around 11:20am on December 12, 2017, a shooting was reported around outside the Huntington Mart Marathon along Hal Greer Boulevard in West Virginia. KaFrederick “Bae Bae” McEachin was shot and killed in broad daylight.

According to Huntington Detective Chris Sperry, surveillance video and eyewitness accounts revealed that the shooting began inside of the store and then moved to the parking lot.

The video shows McEachin opening the door of the store for Antwon Starkey, who then walked through the doors and passed by a few people before pulling a gun out of his jacket pocket and shot McEachin twice. An unarmed McEachin ran out of the store and collapsed on the pavement. Starkey followed after McEachin and shot him again — once in the head and once in the back.

A few hours later, Starkey called 911, identified himself as the shooter, and said he was going to turn himself in. Starkey was arrested a few hours later, just two blocks from where the shooting took place.

According to authorities, Starkey said he had shot McEachin after he heard the victim was connected with the shooting of his 14-year-old stepdaughter two weeks prior to the shooting. Starkey also stated that he believed McEachin had also targeted both Starkey and his wife.

Antwon Starkey, 32, was charged with murder and being a felon in possession of a firearm in connection with the death of KaFrederick “Bae Bae” McEachin, 25.

Pretrial Motions

Starkey’s defense attorney filed a motion to have an expert witness testify about Starkey’s state of mind during the shooting. Cabell Circuit Judge Gregory Howard denied the motion. Defense attorney Abe Saad stated that he plans to appeal that decision to the West Virginia Supreme Court of Appeals. Because of Saad’s intent to appeal this decision, the trial date for Starkey has been pushed back.

At a hearing announcing his intent to appeal the decision, Saad argued that Judge Howard had twice reversed decisions that had originally given him full access to detective notes and would allow an expert witness to testify regarding Starkey’s state of mind at the time of the slaying and whether the previous shooting provoked him to shoot McEachin.

Orders issued by the court reflect that a redacted version of the detective notes had been turned over to the defense and that the expert would not be allowed to testify.

Judge Howard said he had wrestled with the decisions for a long time to try to keep a fair trial for both sides and did not issue signed orders until the final decision had been made. Judge Howard stated, “What I do recall is allowing the defense to have those notes, which I wrestled with that decision to some degree, but ultimately erred on the side of allowing the defendant to have them, but also doing some mild redaction.”

Judge Howard also noted that defense failed to object to his decision to not allow the expert witness to testify until almost 30 days after the order was issued. He said, “Obviously the defense will argue provocation, and that is certainly within their right. . . . But to have an expert say that — my ultimate decision is that that’s not appropriate and it does step into the jury’s (duty).”

Starkey was set to go to trial the last week of October; however, the trial has now been pushed back until February 10, 2020 to give Saad and his co-counsel time to familiarize themselves with the case and to appeal the rulings to the Supreme Court.

Flag of the state of New Jersey

NJ Tax Court Prohibits Assessors from Acting as Experts

A New Jersey Tax Court judge has ruled that a municipal tax assessor should not have served as an expert in a case challenging the property value set by another municipal tax assessor, effectively stopping municipal experts from accepting certain side jobs as appraisal experts.

The Tax Dispute

A Hazlet, New Jersey property owner, VNA 1105 State Hwy 36, LLC, appealed its tax assessments for the period of 2013 to 2017.  Hazlet had valued the property at issue at $4.2 million to $4.7 million over that five-year period.

The Expert Dispute

VNA hired Ted Lamicella, who is also the tax assessor in Wall Township, New Jersey, to appraise its property in suport of its argument that its property value should be lowered. Hazlet’s attorney, James Gorman, challenged Lamicella’s appointment, citing the New Jersey rule that prohibits municipal assessors from appearing as an expert witness against another assessor.

“No assessor shall appear before the board as an expert witness against another assessor or taxing district within the State except to defend the assessment of his taxing district.”  N.J.A.C. 18-12A-1.9(l).

However, VNO’s attorney, David Wolfe, argued that this rule only applied to appeals before county tax boards, not in tax court. He also argued that this prohibition would unfairly prejudice property owners because it would significantly limit the pool of experts that are available to them in their appeals.

The Tax Court Ruling

New Jersey Tax Court Judge Mala Sundar decided that the prohibition against municipal assessors working as appraisal experts also applied to state tax court. Judge Sundar reasoned that tax assessors are supposed to act as impartial judges of property values so that taxpayers trust that the system is fair. Judge Sundar explained that when municipal tax assessors work for someone besides the government, it could undermine the public trust in the system or give the impression that assessors give preferential treatment to the attorneys who hire them as experts in tax appeals.

Judge Sundar wrote, “It is reasonably foreseeable that the public would consider such an appearance as evidence of a lack of confidence in an assessment by an assessor, or an elevation of personal financial interest, which would impugn the integrity of any assessment and the significance of any assessor’s role as a quasi-legislative agent of the State.”

It could also be argued that limiting appraisers to giving pro-government testimony undermines faith in their integrity. In any event, VNO will be allowed to find a new appraiser who is not a municipal tax assessor to represent it in its appeal.

This is the second time that Lamicella’s outside work as an expert witness in tax appeal cases has been called into question. In 2017, the Monmouth County Tax Board of Commissioners questioned whether Lamicella had violated state rules for his role as an expert in a tax appeal that was filed in Ocean Township.

Tax assessors do not need approval before taking outside employment; however, they are required to disclose outside employment on financial disclosure forms.

Wall Township administrator Jeff Bertrand has stated that he’s discussed the issue with Lamicella and he will no longer be working as an expert.

Judge in courtroom

United States Supreme Court Allows Court of Appeals Assessment of Expert Testimony Stand Over Jury’s

The United States Supreme Court has denied a petition for certiorari filed by Imperium IP Holdings (Cayman) Ltd, allowing a Court of Appeals’ opinion regarding an expert to stand over the assessment by the jury.

Original Lawsuit

Imperium IP Holdings (Cayman) Ltd. is a holding company for intellectual property rights that were owned by ESS Technology. In the early 2000s, ESS was a leader in developing and manufacturing digital cameras for cell phones. ESS sold its products across the globe to companies such as Motorola, Ericsson, LV, Nokia, and Samsung.

ESS patented its own digital camera innovations and also acquired the portfolio of another company called Pictos Technologies, Inc., which was the owners of U.S. Patent No. 6,271,884, or the ‘884 Patent. The ‘884 Patent enables proper video imaging under fluorescent lighting by eliminating the flicker that is undetectable by the human eye, but captured by video recordings.

Beginning in 2010, Imperium began enforcing its patent rights against a number of multinational corporations that had used its technology in video recording devices, single-lens reflex cameras, automobiles, and cellphones. Seven of the eight largest cell phone manufacturers entered into a licensing arrangement to use Imperium’s technologies, including the ‘884 Patent. The total value of these licenses exceeded $22 million. Only Samsung refused to enter into a licensing agreement.

In June 2014, Imperium sued Samsung in the Eastern District of Texas, alleging that Samsung willfully infringed three patents related to digital camera technology.

After a six-day trial, a jury found that Samsung had willfully infringed Imperium’s patent rights. The jury found Samsung liable for a judgment of $4.84 million. The district court awarded treble damages in light of Samsung’s knowing and willful infringement, discovery misconduct, and repeated false statements and misrepresentations.

U.S. Court of Appeals for the Federal Circuit

Samsung appealed. The U.S. Court of Appeals for the Federal Circuit reversed the verdict. In its decision, the court stated that it agreed with Samsung that “that the only reasonable finding on this record is that the ’884 patent claims at issue here are invalid for anticipation.”

The court noted that it came to this decision based upon the court’s interpretation of the expert witness testimony during the jury trial.

Imperium IP Holdings Petition

In July 2018, Imperium Holdings petitioned the United States Supreme Court for a writ of certiorari, arguing that the Court of Appeals for the Federal Circuit had usurped “the Constitutionally-mandated role of juries to find the facts and decide issues of witness credibility.”

The question presented to the Supreme Court was “Whether an appellate court may reverse a jury verdict based on its own view that expert testimony was credible, ‘unrebutted,’ and ‘uncontradicted,’ or instead whether the Seventh Amendment requires the jury to make determinations about credibility and the weight of the evidence in determining whether a party has properly carried its burden of proof.”

The United States Supreme Court denied the petition, which allows the decision by the U.S. Court of Appeals for the Federal Circuit to stand.

Stick Shift Manual Transmission

California Judge to Hold Daubert Hearing in Ford Defective Transmissions Suit

A California district court judge has denied a motion for summary judgment in a Ford defective transmissions lawsuit and will hold a Daubert hearing to determine the reliability of the plaintiff’s automotive technician expert.

The Defective Transmission Lawsuits

Dozens of plaintiffs filed separate lawsuits against Ford Motor Company, alleging that the power shift transmissions in some Ford Focus and Ford Fiesta models were prone to delayed acceleration and downshifting. The plaintiffs claimed that some of these vehicles have crashed.

Specifically, the lawsuits alleged that transmissions in the 2012-2016 Ford Focus and the 2011-2016 Ford Fiesta are defective. The lawsuits claim that dual-clutch DPS6 PowerShift transmissions tend to shudder, slip, jerk, hesitate and suffer other problems.

These lawsuits were consolidated into one multi-district litigation case held before U.S. District Judge Andre Birotte Jr. in the Central District of California.

Motion for Summary Judgment

In the case of Mary Cannon, Ford filed a motion for summary judgment, arguing that the plaintiff failed to respond to written discovery, could not prove claims for intentional or negligent misrepresentation, and could not prove any alleged transmission defects. Ford also argued that claims for punitive damages should be dismissed because plaintiffs did not “have clear and convincing evidence that any act that harmed her was committed, authorized, or ratified by a Ford officer, director, or managing agent.”

Judge Birotte denied the motion.

Daubert Hearing Scheduled

Ford has argued that the plaintiffs’ expert witnesses are unreliable.  In the case of Christi Brown, Ford filed a motion to exclude plaintiff’s proposed expert, automotive technician Randall Bounds.

Ford wrote, “…Bounds…has experience fixing cars, but he is not qualified to opine on value and safety, and his ‘opinions’ are nothing more than pure guesswork with no valid basis.”

Ford continued, “His opinions are not supported by any facts or analysis, and he does not cite a single source to support whatever ‘methodology’ he applied…. In addition to being unreliable, his opinions would not be helpful to the jury, as they amount to little more than thinly veiled legal conclusions on ultimate issues and are not based on any specialized knowledge or expertise. Bounds does not come close to employing the ‘level of intellectual rigor that [Rule] 702 requires’ for the admission of expert testimony.” 

Ford argued that Bounds does not have the scientific knowledge that is required by Daubert to be an expert witness.

Under Daubert, an expert witness may only offer opinion testimony if “(1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods to the facts of the case.”

Ford argues that to be admissible under Daubert, the testimony must be given by an expert witness who is qualified “by knowledge, skill, experience, training, or education” —and that Bounds lacks the requisite scientific knowledge.

Judge Birotte is scheduled to hold the Daubert hearing on October 24, 2019 to determine if Bounds and other proposed experts will be allowed to testify at trial.

Baby powder

J&J Undercuts Testimony of Plaintiff’s Star Witness in Ongoing Asbestos Trial

The defense team for Johnson & Johnson attempted to undercut the testimony of the plaintiff’s expert witness; however, Dr. William Longo maintained his position. 

The Asbestos Controversy

Johnson & Johnson is currently on trial to determine if its baby powder, which was allegedly tainted with asbestos, caused Carolyn Weirick to develop mesothelioma.  Mesothelioma is a deadly cancer of the linings of the lungs.

Weirick is a former school counselor who reportedly used Johnson & Johnson’s baby powder and its adult Shower to Shower powder for approximately 40 year. Weirick was diagnosed with mesothelioma and her doctors have given her little chance of survival.

Weirick’s case is one of hundreds of similar cases that are pending against Johnson & Johnson across the country.  Most of the cases involve women who claim that Johnson & Johnson’s powder caused them to develop ovarian cancer.

Plaintiff Expert Witness Testimony

Weirick and her defense team hired Dr. William Longo to testify as an expert witness at trial.

According to his website, Dr. Longo is a Material Scientist/Electron Microscopist who specializes in the analysis of asbestos containing materials. In 1983, he founded Micro Analytical Laboratories, which became one of the first commercial labs in the country to provide Transmission Electron Microscopy (TEM) analysis of asbestos-containing air and dust samples.  Under Dr. Longo’s guidance, MAS has grown “into a leading laboratory in the fields of chemical analysis and materials characterization for a number of industries including: occupational health safety, environmental, engineering services, industrial hygiene, and building and construction materials.”

Dr. Longo has served as an expert witness in numerous talc powder trials involving asbestos.

Johnson & Johnson’s Attempt to Discredit Dr. Longo

Johnson & Johnson’s defense team challenged Dr. William Longo’s testimony, attempting to use his own words against him.

Johnson & Johnson attorney Warrington Parker questioned Dr. Longo regarding whether Johnson & Johnson had exceeded industry testing standards during the 1970s with its use of high-powered microscopes.

Parker pointed to the fact that Dr. Longo had previously complimented the McCrone Group for being the best materials testing lab in the country.  The McCrone Group, located in Illinois, has supplied expert witnesses for Johnson & Johnson in its recent trials and has claimed that no asbestos has been found in its baby powders.

Parker said, “You said literally it (McCrone) was the best lab in the country.”  Dr. Longo acknowledged that he had made that statement.

Parker also questioned Dr. Longo about the Food & Drug Administration’s audit of his Georgia-based MAS lab. Parker asked, “The FDA identified deficiencies, correct?” Parker asked. “They called them objectionable practices,” Longo said.

Parker asked Longo if the FDA audit identified contamination at the lab. Dr. Longo replied that the problem was simply a bureaucratic error in that forms had not been signed and that an unopened container was found.

Parker continued to question Longo, “You would agree attorneys for Johnson & Johnson asked you under oath about your lab that was found to be (FDA) un-compliant?” Dr. Longo agreed.

Continuing Trial

The trial against Johnson & Johnson is being held in Los Angeles Superior Court and is presided over by Judge Cary Nishimoto.  It is live streamed courtesy of Courtroom View Network.

Update: After spending decades assuring the public that its baby powder is not contaminated with asbestos, J&J just recalled a batch of baby powder after FDA testing found asbestos in the product.

accountant

AICPA’s New Standard Expected to Boost CPA Expert Credibility

The American Institute of CPAs (AICPA) has issued a new forensic accounting standard that is expected to give CPAs a credibility boost when they serve as expert witnesses at trials.

Role of the AICPA

The American Institute of CPAs (AICPA) is the world’s largest member association for the accounting profession. The organization was founded in 1887 and today has a membership of over 429,000+ members in 122 countries and territories.

The Forensic and Valuation Services (FVS) Executive Committee supports the AICPA by providing its members with information, advocacy, and leadership to enable them to perform valuable forensic and valuation services in the highest professional manner.

The AICPA Council has designated the FVS Executive Committee as a body to establish professional standards for its members. These standards are known as the Statements on Standards for Forensic Services (SSFSs). Members of the AICPA should be prepared to justify any departures from the SSFSs.

New Standard

The AICPA recently released its Statement on Standards for Forensic Services No. 1 (SSFS 1) to clarify the definitions of “litigation” and “investigation” for accounting purposes, detail key considerations for client and provider relationships, and establish boundaries on the services members can provide.

According to SSFS 1,

  • “Investigation” is a service performed in response to concerns of wrongdoing in which the member is engaged to perform procedures to collect, analyze, evaluate or interpret certain evidential matter to assist the stakeholders (for example, client, board of directors, independent auditor or regulator) in reaching a conclusion on the merits of the concerns.
  • “Litigation” is an actual or potential legal or regulatory proceeding before a trier of fact or a regulatory body as an expert witness, consultant, neutral, mediator or arbitrator in connection with the resolution of disputes between parties. The term litigation as used herein is not limited to formal litigation but is inclusive of disputes and all forms of alternative dispute resolution.

Annette Stalker, chair of the AICPA’s Forensic and Valuation Services Executive Committee,  stated, “These new forensic standards are the first time we are codifying best practices for litigation and investigation consulting work. . . . Forensic accounting is a diverse practice, and this standard is unique because it is applied based on why a service is provided — litigation or investigation — rather than what skill set is employed.”

SSFS 1 applies to all AICPA members, AICPA member firms and employees of AICPA member firms. The new standards take effect for new engagements accepted on or after January 1, 2020, with early adoption permitted.

Effect of the New Standard

According to Dave Duffus, a partner in the global forensic and litigation services practice at Top 15 Firm Baker Tilly, who also chairs the AICPA’s Economic Damages Task Force and sits on the AICPA’s Forensic and Litigation Services Committee, there are two big changes that the standard requires. First, “when we as CPAs are retained as expert witnesses, there are specific prohibitions in terms of doing that work under a contingent fee arrangement. That was not a specific callout before under the consulting standards, although I think tacitly most CPAs would recognize that it would not be appropriate to do expert work under a contingent fee arrangement.”

Duffus continued, “the second thing is it very explicitly states that we should not be rendering opinions about whether fraud has or hasn’t been committed. That’s a role for the trier of fact in a case, so we can present evidence that may be related to indicia of fraud but ultimately it’s up to a trier of fact to make that decision as to whether fraud has actually occurred.”