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.

Scales, law books

Legislative Committee Passes Bill to End Bad Convictions from Faulty Expert Testimony

A bill to end wrongful convictions due to faulty expert witness testimony has passed the California Senate Public Safety Committee.

SB 243

California Senate Bill 243 is a criminal justice reform bill that was authored by Senator Scott Wiener, a Democrat from San Francisco, and introduced on January 21, 2021. The bill proposes to add Section 806 to the Evidence Code and amend Section 1473 of the Penal Code. It relates to trial testimony.

Wiener has stated that the bill will “help exonerate innocent people across California, by strengthening the grounds for those wrongfully convicted based on faulty expert testimony to seek ‘post-conviction relief.’”

According to Wiener, currently

courts have discretion over which expert testimony is admissible. Studies show that courts accept most forensic science and expert testimony without sufficient scrutiny, leaving significant room for imprecision and human error. This error leads to the high rate of wrongful convictions. Expert testimony that fails to rely on sound logic should not be considered expert testimony at all.

SB 243 amends the standards for evaluating expert testimony and forensics in courts both in the pre- and post- conviction phases. SB 243 updates the definition of false testimony to include opinions that are based upon “flawed scientific research or outdated technology that is now unreliable or moot, and opinions about which a reasonable scientific dispute has emerged regarding its validity.”

Wiener stated,

Faulty ‘expert’ witness testimony is one of the main reasons innocent people are sent to prison for crimes they did not commit. That is an unacceptable miscarriage of justice. Even one innocent person in prison is too many. SB 243 will ensure that when expert witness testimony is given, the science behind it is reliable. This is an important criminal justice reform measure that will help many innocent people.

Melissa Dague O’Connell, Staff Attorney and Policy Liaison for the Northern California Innocence Project, has said, “The Committee’s vote to move SB 243 forward recognizes how important it is for our criminal courts to stay lockstep with the advancements in and scrutiny of forensics and expert testimony to not just prevent wrongful convictions, but to intervene and restore justice when a wrongful conviction occurs.”

SB 243 is sponsored by the California Innocence Coalition, which includes the Northern California Innocence Project, Loyola Project for the Innocent, and the California Innocence Project. The bill was passed by the Senate Public Safety Committee in a unanimous vote. The voting members were Senators Bradford, Kamlager, Ochoa Bogh, Skinner, and Wiener. The bill will now move on to the Senate Appropriations Committee.

Other Reform Bills

SB 243 is part of a larger group of California Innocence Coalition reform bills. Another bill is SB 923, which was also authored by Senator Wiener. SB 923 ensures that law enforcement must use evidence-based procedures when obtaining eyewitness identification. Before this bill was signed into law in 2018, California had no statewide standards or best practice for eyewitness identification.

Idaho Justice Legal System Concept

Idaho Court Affirms Role as Gatekeeper of Expert Testimony

An Idaho federal district court has affirmed its role as the gatekeeper of expert witness testimony, by granting in part and denying in part a defendant’s motion to exclude expert witness testimony.

The Incident

Maria Elosu and Robert Brace owned a vacation cabin in McCall, Idaho. The cabin was part of a homeowners’ association called Middlefork Ranch, Incorporated (MFR). The cabin had a wrap-around deck with a propane-fired refrigerator on the north side.

On the day before the incident, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Brace and Elosu used rags to clean up the excess oil from the deck. An MFR employee changed the propane on the refrigerator and relit the pilot light.

At 4pm, a fire started in or around the cabin when no one was home. A group of contractors discovered the fire and testified that the fire was isolated to the east side of the cabin when they first arrived. One witness testified that there were no flames around the propane-fired refrigerator. The fire destroyed the cabin and its contents.

The Lawsuit

Brace and Elosu sued MFR for negligently starting the fire. They claimed that the employee knew of the hazard when he lit the refrigerator pilot light on the oil-stained deck. Brace and Elosu hired a fire investigator, Michael Koster, and a mechanical engineer, Richard Mumper, to support their claims. Koster inspected the scene ten months after the fire. Mumper conducted lab tests. Both experts opined that the fire started on the north deck when the pilot light from the refrigerator ignited excess oil vapors.

MFR filed a motion to exclude Koster’s testimony as speculative and not supported by evidence. The court agreed. It found that Koster failed to meet the standards set by Daubert and Federal Rule of Evidence 702 because his conclusion was speculation or contrary to or unsupported by evidence. The court noted that Kosted admitted that there was no concrete physical or testimonial evidence to support his theory that the fire started on the north side of the deck.

MFR also filed a motion to exclude Mumper’s opinion because he is not a certified fire investigator. Brace and Elosu hired Mumper to examine the remnants of the appliances, including the propane refrigerator. Mumper conducted lab tests and examined the evidence. He concluded that there was no mechanical malfunction and opined that the pilot light started the fire.

While Mumper was not a certified fire investigator, the court noted that he worked for a firm that specializes in forensic fire investigations, so he might be qualified to offer opinions about the origins of the fire. However, the court ruled that Mumper could not testify about the origins of the fire in this case because his opinions lacked a proper foundation. Here, Mumper’s role was limited to investigating whether any of the appliances malfunctioned. He did not independently look into any other possible causes.

Georgia

Georgia Supreme Court Rules State Can Pay Expert Witness Costs for Pro Bono Defense Lawyers

The Georgia Supreme Court has ruled that the state can pay expert witness costs for indigent defendants who are using pro bono private defense lawyers.

The Crime

In October 2005, Tara Faye Grinstead went missing. Her disappearance remained unsolved for two years until Bo Dukes reported that his friend Alexander Duke had confessed to the murder. Dukes eventually confessed to authorities that he was responsible for the murder. He was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.

The Expert Witness Funding Dispute

Duke was initially represented by a public defender from the Tifton Judicial Circuit’s Public Defender’s Office. Seventeen months later, the public defender withdrew and new defense counsel filed an entry of appearance, indicating that they were representing Duke pro bono.

Defense counsel filed motions seeking funds from the county to hire an expert in false confessions and an investigator. The trial court denied those motions, ruling that the Indigent Defense Act did not require local government to fund such requests.

Duke’s attorney’s appealed and the Georgia Supreme Court heard oral argument on the issue in January 2021. Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act (IDA) in order to protect his Sixth Amendment rights to counsel and a fair trial. The State argued that indigent defendants do not have a constitutional or statutory right under the IDA to state-funded investigators or experts.

The Georgia Supreme Court Ruling

The Georgia Supreme Court found that the trial court erred by adopting the Georgia Public Defender Council (GPDC) and circuit public defender’s interpretation that Duke is not indigent under the IDA because he is represented by pro bono counsel. It also found that the trial court erred by concluding that the IDA did not provide a mechanism for an indigent defendant represented by pro bono counsel to obtain state funds from the GPDC or the circuit public defender.

The court noted that the IDA defines an indigent person as “[a] person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or her parents or the parent’s dependents.”

The trial court had agreed with the GPDC’s and circuit public defender’s interpretation that Duke had “other resources that might reasonably be used to employ a lawyer” because he had obtained a pro bono attorney. The Georgia Supreme Court determined that this was incorrect. The plain meaning of “other resources” when used in content would mean resources other than earnings that would be usable to pay for a lawyer. In contrast, a pro bono attorney is one who represents a client without pay. The fact that a defendant has pro bono counsel does not mean that he has “other resources that might reasonably be used to employ a lawyer” for the purpose of determining indigence.

The court also noted that the IDA requires the director of the GPDC to “work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons.”

The Georgia Supreme Court remanded the case to trial court to allow Duke to seek access to state-funded ancillary services from the GPDC or the circuit public defender.

A judge

Colorado AG Warns Requiring Experts to Testify Could Prevent Reporting

The Colorado Attorney General has warned that requiring a state agency to testify as experts in a criminal case may have an adverse effect on its ability to gather important information.

The Avalanche

On March 25, 2020, an avalanche buried a service road above the west portal of the Johnson Eisenhower Memorial Tunnels near Denver, Colorado.The avalanche deposited as much as 20 feet of debris on the road and destroyed an avalanche mitigation device.

After the avalanche, snowboarder Evan Hannibal handed over his helmet video to the Colorado Avalanche Information Center. The video shot the avalanche that triggered below his snowboard. Hannibal hoped that the video and his first-person account would help to educate other skiers and snowboarders.

The Colorado Avalanche Information Center is a program within the Colorado Department of Natural Resources that provides avalanche information and education. This agency produces weather and backcountry avalanche forecasts. The Colorado Avalanche Information Center relies upon people who cause avalanches to report information for its investigations and reports.

The Criminal Case

Summit County prosecutors used Hannibal’s video to file a criminal case against him and his backcountry partner Tyler DeWitt, seeking restitution for the avalanche mitigation device. The snowboarders face charges of reckless endangerment and restitution of $168,000.

The county filed a motion announcing that it intended to call Colorado Avalanche Information Center Director Ethan Greene to testify as its expert witness at trial.

Hannibal and DeWitt have opposed the introduction of the video evidence and the use of the avalanche center’s director as an expert, arguing that the charges against them could cause other backcountry travelers to stop sharing information with the avalanche center and its investigators.

Colorado Attorney General Phil Weiser, acting as attorney for the state’s avalanche center, agreed with Hannibal and DeWitt. Weiser’s office filed motions to quash subpoenas requiring Greene and avalanche center forecaster Jason Konisberg to testify as experts at the trial of Hannibal and DeWitt.

Weiser argued that the county’s plan to call avalanche center employees as experts “could have an unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information.”

Weiser’s motion states, “There is genuine concern by CAIC that if CAIC employees appear as an expert witness in a criminal matter it could adversely impact their ability to gather relevant information from persons involved in an avalanche. . . . The more involved CAIC is in this criminal matter, the more it looks like they are working in coordination with law enforcement, rather than in cooperation with local law enforcement, resulting in a chilling effect to the detriment of CAIC’s mission.”

Weiser also argued that requiring the state avalanche center employees to testify for two days is “unduly burdensome, unreasonable and oppressive.” He argued, “To command that Mr. Greene step away from his diverse responsibilities, during the CAIC’s busiest month of the winter season, is unreasonable and impactful to the important work of this agency generally and Mr. Greene specifically.”

Criminal Forensics, word cloud concept 11

Forensic Doctor Testifies That Flawed Evidence Led to Capital Murder Conviction

A forensic doctor has testified that the science used in the capital murder conviction of Robert Leslie Roberson III was flawed.

The Death

In February 2002, two-year-old Nikki Curtis was taken to a Dallas hospital. She died of blunt force injuries to the head.

Curtis’ father, Robert Leslie Roberson III, said that she died after landing on her head during a fall from her bed. Prosecutors theorized that Roberson instead shook his daughter so hard that she slipped into a coma and then left her on her bed for hours. Roberson was charged with capital murder in connection with his daughter’s death.

The Trial

In February 2003, a twelve-person jury found Roberson guilty of murder and sentenced him to die by lethal injection.

In 2007, Roberson appealed to the Court of Criminal Appeals, but each of his 13 claims of error was rejected.

New Expert Testimony

In June 2016, the Texas Court of Criminal Appeals stayed his June 21, 2016 execution and sent the case back to trial court to consider four different claims, including the claim that “junk science” was introduced at Roberson’s original trial.

An evidentiary hearing initially began in August 2018 but was continued after a district clerk found 15-year-old evidence, including lost CAT scans. The hearing was delayed to give the prosecutors and defense teams time to review the evidence and develop expert witnesses.

Roberson’s legal team retained Dr. Janice Ophaven, a forensic pathologist with expertise in pediatric deaths. Dr. Ophaveen has been practicing since 1971. Judge Deborah Evans certified Dr. Ophaven as an expert in pediatric forensic pathology.

Ophaven explained that Curtis had “died because her brain died from cranial pressure that created a lack of oxygen and blood to the brain.” She testified that homicide could not be concluded from a post mortem exam, but said that it was “[h]ard for pathologists to be objective because they rely on law enforcement and, in some cases, law enforcement gives them information to get a confession.”

Openhaven testified,

Science does not tell us what happened to Nikki. . . . At the time of trial in 2003 it was believed a short fall could not create death, that is no longer the science. Shaken baby does not apply to children of Nikki’s age. Blunt force trauma absolutely can cause the type of injury Nikki had. In this case lack of oxygen to brain cells caused fluid to exit out of the cells and that fluid continued to build and created a sequence of events that caused her death. At the time of trial, the science was that blood in the eyes was a sign of shaken baby. It is no longer the science.

This is just another in the series of cases where experts are questioning the legitimacy of shaken baby convictions. For more ExpertPages coverage on this issue, see “Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions” and “Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction.”

Police Expert Witness

Experts Examine Cause of Tiger Woods’ Crash

Forensic car accident experts have offered theories on how the recent car crash involving famed golfer Tiger Woods took place.

The Accident

Tiger Woods, 45, was traveling north outside of Los Angeles when his 2021 Genesis SV80 SUV left its lane, crossed the median into the southbound lane, went off the road, hit a tree, then rolled over. Woods broke multiple bones in his right lower leg and his car sustained major frontal damage. He was alone at the time of the incident.

The Experts

Jonathan Cherney, a former police detective who provides car accident analysis as an expert witness in car cases, examined the Woods’ crash site in person. Cherney told USA Today Sports that, “To me, this is like a classic case of falling asleep behind the wheel, because the road curves and his vehicle goes straight.” Cherney continued, “It’s a drift off the road, almost like he was either unconscious, suffering from a medical episode or fell asleep and didn’t wake up until he was off the road and that’s where the brake application came in.”

Los Angeles County Sheriff Alex Villanueva said that there were no skid marks on the road to indicate braking. He said that he didn’t know the vehicle’s speed yet, but it may have been a factor. Inattentiveness may have also been a factor. Villanueva said, “This stretch of road is challenging, and if you’re not paying attention, you can see what happens.” He noted that the crash was “purely an accident” and that there was no evidence of impairment or medication. Woods was “lucid” at the time a sheriff’s deputy arrived at the scene.

Felix Lee, an accident reconstruction expert, noted that Woods’ vehicle did have anti-lock brakes, so “you wouldn’t necessarily see tire marks” at the crash scene even if Woods did slam on the brakes. Lee also noted that the vehicle did not change direction when it entered the curve. Lee opined, “My feeling is that speed wasn’t that much of an issue… It was just some kind of inattention that caused the curb strike.”

Rami Hashish, a principal at the National Biomechanics Institute, a company that analyzes the cause of accidents, said that the fact that Woods’ vehicle went about 400 feet before stopping without evidence of steering input suggests a “very delayed response” or that Woods was not paying attention at all. Hashish noted that Woods’ injuries would have been greater if he had been traveling at excessive speed. The speed limit at the site of the crash was 45 mph. Hashish said, “You can walk away with a broken leg from 45 to 50 mph… If you’re hitting 60, 65 and you’re hitting a stationary object, your likelihood of death increases exponentially.” If he was going 80 mph, “he wouldn’t be having an open fracture in this leg, he’d be dead.”

The LA Sheriff’s Department has said, “The traffic collision investigation is ongoing, and traffic investigators have not made any conclusions as to the cause of the collision.”

Expert Witness

Expert Witness Report Rule Relaxed in Expedited Litigation

A Virginia district court has relaxed the expert witness report rule in the case of expedited litigation.

The Abduction

Bryce Gerald Randall Nowlan and Nina Lynn Nowlan were married and had a daughter, “AEN.” Bryce Nowlan is a Canadian citizen who resides in Canada. Nina Nowlan is an American citizen who currently resides in Virginia. Bryce Nowlan alleges that Nina Nowlan wrongfully took their daughter from his custody in Canada to Virginia.

Bryce Nowlan filed a petition for AEN’s return to Canada under The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the International Child Abduction Remedies Act. He also filed a motion to expedite the proceedings under the Hague Convention.

Court Proceedings

The parties submitted a proposed scheduling order. The parties agreed on all matters with one exception. Bryce Nowlan proposed that both parties should provide “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure” and “full and complete rebuttal expert disclosures, which shall also comply with Rule 26(a)(2)(A)-(C). Nina Nowlan objected to “importing the strict disclosure requirements of Rule 26, particularly since this matter is proceeding on an expedited basis.” Rule 26 requires that a witness prepare and sign a detailed report at the expense of the disclosing party. Since Nina Nowlan is indigent, she requested that the court instead require counsel for each party to provide summaries of each expert’s anticipated opinions.

The court granted Nina Nowlan’s request and required each party to provide “detailed written summaries of their experts’ opinions and conclusions.” The court noted that it was “cognizant of the onerous burden imposed by Rule 26 regarding expert witness disclosures and Ms. Nowlan’s objection to complying with the strictures of the rule due to both time and expense. The court agrees and notes that this, at bottom, is a summary proceeding with expedited deadlines, modified procedures, and relaxed standards for the admissibility of evidence. Given these unique factors, respondent’s objection is persuasive. The court will grant the parties latitude during the cross examination of any expert witness as necessary to account for any expert report that is less than fulsome than a standard Rule 26 report.”

Bryce Nowlan objected to the “truncating” of expert-disclosure obligations under Rule 26(a)(2)(B) in light of Nina Nowlan’s claims that he had sexually abused AEN. His objection stated that the court’s order did not provide him with the opportunity that he would have had under Rule 26 to note any Daubert challenges or move in limine to exclude a proposed expert in advance of trial.

Court Ruling

The court noted that district courts are “afforded substantial discretion in managing discovery.” It also noted that Rule 26(a)(2)(B) contemplated deviations from the typical requirements for expert witnesses’ written reports by including the language “unless otherwise stipulated or ordered by the court.”

The court noted that its order still required the parties to produce “detailed, written summaries” and that it had granted the parties “latitude during the cross examination of any expert witness as necessary.”

The court was satisfied that the parties were able to adequately prepare for the bench trial and bring any purported insufficiencies or shortcomings of the other party’s expert witnesses at trial and overruled Bryce Nowlan’s objections.

Discrimination

Pratt & Whitney Wants Experts Disqualified in $1 Billion Soil Toxins Suit

An aerospace and defense company wants a Florida federal judge to disqualify the expert witnesses presented by property owners who have accused it of contaminating their water supply and devaluing their homes.

The Lawsuits

Five married couples who have children who are members of a pediatric brain tumor cluster designated by the Florida Department of Health and two property owners who claim their land is far less valuable because of soil contamination filed two consolidated suits against United Technologies Corporation, which does business as Pratt & Whitney. The parties claim that the company sent toxic and carcinogenic chemicals into the porous underground aquifer that their properties share.

The cases are Cotromano et al. v. United Technologies Corp. et al., case number 9:13-cv-80928, and Adinolfe et al. v. United Technologies Corp., case number 9:10-cv-80840, in the U.S. District Court for the Southern District of Florida.

The total claims are estimated at $1 billion.  The cases were initially dismissed by the trial court, but were reinstated by the Eleventh Circuit, which ruled that the trial court had erred in requiring excessive factual proof at the dismissal stage of litigation.

The Experts

The plaintiffs retained numerous experts to help them prove their claim. Pratt & Whitney filed motions arguing that each of those experts should be excluded.

The plaintiffs presented Dr. Marco Kaltofen as an expert to testify that there is evidence that the plaintiffs had been exposed to contaminants that originated at the Pratt & Whitney facility. Pratt & Whitney argued that Dr. Kaltofen’s testimony should be excluded because he failed to apply or identify a methodology that would allow him to conclude that there was radioactive contamination in the property. Pratt & Whitney also claimed that Dr. Kaltofen’s testimony failed to identify any actual source of materials or address how the materials were allegedly transported to the plaintiffs’ properties.

The plaintiffs presented toxicologist Dr. William Sawyer to support their claims. Pratt & Whitney argued that Dr. Sawyer’s opinions should be excluded as lacking in fit because they are “fundamentally unreliable.” Pratt & Whitney noted that Dr. Sawyer had not issued an expert report in support of the plaintiffs’ property claims; instead, the plaintiffs relied upon Dr. Sawyer’s previously-disclosed cause opinions from three personal injury cases. Pratt & Whitney argued that because none of the other personal injury cases dealt with the cancer cluster designation, Dr. Sawyer’s opinions were not relevant here. Pratt & Whitney also argued that Dr. Sawyer’s methodology was unreliable. The company noted that for two plaintiffs, Dr. Sawyer had no calculation of the alleged dose of Thorium-230 to which they were exposed. For another plaintiff, Dr. Sawyer relied upon a flowed dose calculation that was based on samples taken from her spine years after she was diagnosed with brain cancer.

The plaintiffs presented Dr. Bernd Franke as a radiological researcher to support their claims. Pratt & Whitney argued that Dr. Franke’s testimony should be excluded because there was no fit between his analyses and any issue to be resolved at trial, he relied upon improper and unjustified assumptions, and his methodology was not reliable. Pratt & Whitney noted that Dr. Franke’s testimony was only related to one individual who was not part of the cancer cluster identified by the FDOH.

The parties participated in a seven-hour hearing on the issues, but the matter remains unresolved. The hearing was continued and the parties were instructed to contact the court with their available dates in the next two weeks.

Georgia

Georgia Supreme Court Hears Argument on Paying Expert Witness Fees for Defendant with Private Attorney

The Georgia Supreme Court has heard oral argument of the issue of whether Georgia’s Indigent Defense Act allows for public funding for expert witnesses when a defendant is represented by a private attorney.

The Crime

In October 2005, high school teacher Tara Faye Grinstead was reported missing. Her disappearance remained a mystery until 2017, when Bo Dukes reported that his friend Ryan Alexander Duke had confessed to the murder. Dukes told the authorities that Duke told him that he had broken into Grinstead’s home to rob her, but that he ended up strangling her to death. Dukes claimed that he helped Duke to transport Grinstead’s body and assisted him in burning it.

On February 22, 2017, Duke confessed to authorities that he was solely responsible for Grinstead’s murder. Duke was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.

Expert Witness Funding Issue

Duke was initially represented by the Tifton Judicial Circuit Public Defender. In 2018, private attorneys offered to take on his case pro bono. Duke’s attorneys filed a pretrial motion requesting state funding to pay for an investigator and defense expert witnesses. The trial court denied the motion. It stated, while Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State.” Duke’s attorneys appealed.

The Georgia Supreme Court granted an appeal to answer the question, “Did the trial court err in holding that an indigent defendant in a criminal case who is represented by private, pro bono counsel does not have a constitutional right or a statutory right under the Indigent Defense Act…to state-funded experts and investigators?”

The Georgia Supreme Court heard oral argument on the issue on January 12, 2021.

Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act in order to protect his Sixth Amendment rights to counsel and a fair trial. His attorneys pointed out that a trial court judge made a specific finding that Duke is indigent and that his need for experts in this case was “compelling.” The attorneys argued that if the trial court’s ruling is allowed to stand, indigent defendants will be forced to choose between having an attorney with sufficient time, knowledge and skill to defend the case or work with a potentially overworked attorney with little time to devote to the case to have the benefit of working with experts.

The State argued that indigent defendants do not have a constitutional or statutory right under the Indigent Defense Act to state-funding investigators or experts. The State also claimed that Duke does not even qualify as indigent because of his evidence of “other resources,” such as his ability to pay for private counsel. The State argued that under the Indigent Defense Act, an indigent who opts out of public representation also opts out of public defense resources.

The Georgia Supreme Court took the matter under advisement. The court typically makes its ruling on cases within six months of oral argument. After its ruling, Duke’s case will be sent back to Irwin County court to schedule a new date for trial.

 

Texas flag and gavel

Texas Law Firm Claims Allstate Uses Unqualified Experts to Drive Up Litigation Costs

A Texas law firm has filed a class-action complaint, claiming that Allstate Fire and Casualty Insurance Company has been using unqualified expert witnesses to drive up litigation costs.

The Complaint

The Estes Law Firm is a Texas law firm that practices personal injury law.  Estes Law claims that Allstate has been putting forth unqualified expert witnesses, “knowing they will put out fraudulent information with the intention of preventing justice for the injured citizens of Texas.” Estes Law alleges that Allstate is knowingly conspiring with unqualified “experts” that have repeatedly demonstrated that they have given untrue and fraudulent information.

Estes Law argues that Allstate has the intent to drive up the cost of litigation for Texas citizens and to enhance its own profitability at the expense of injured people.

Estes Law brought its complaint on behalf of itself and all law firms in the state of Texas who represented clients in cases against Allstate and Allstate’s counsel and spent time and resources responding to improper controverting affidavits filed by Allstate’s unqualified experts. Estes Law believes that the number of members in this proposed class exceeds $10,000.

The firm is suing for actual and punitive damages.

The Proposed Experts

Estes Law takes issue with three specific experts that Allstate has hired for its cases: Marc Chapman, Jana Schieber, and Rhonda Guitreau.

Marc Chapman has a background as a reimbursement manager at a hospital and runs a consulting firm. Chapman is not a doctor. Allstate has repeatedly hired Chapman to prepare controverting affidavits and offer opinions that medical bills for plaintiffs are too high. Chapman has only sent out bills for hospitals in the Austin area. He has no experience in billing outside of hospitals or experience billing in any other city in Texas. Estes Law listed 13 cases as an example of a few of the cases that have stricken Chapman as an unqualified expert. Estes Law claims that Allstate continues to hire Chapman to prepare controverting affidavits to harass and delay lawyers who represent plaintiffs.

Jana Schieber worked as a nurse in the Dallas area in the 1990s. Allstate has retained Schieber to opine about billing rates for orthopedic surgeons, orthopedic doctors, primary care doctors, chiropractors, radiologists, diagnostic testing facilities, and other medical providers. Estes Law listed 10 cases as an example of the many cases where Schieber’s opinion has been stricken. Estes Law notes that all of Schieber’s controverting affidavits are nearly identical and they rely upon an online database called “Context4 Healthcare.” Estes Law claims that Allstate continues to hire Schrieber to harass and delay lawyers for plaintiffs.

Rhonda Guitreau is a former hospital administrator from the Dallas area who Allstate has presented as an expert medical billing consultant. Guitreau had no experience billing outside of the hospital setting or working in any area outside of Dallas. Estes Law listed 10 different cases where Guitreau’s affidavit was stricken. All of Guitreau’s controverting affidavits are nearly identical and rely upon an online database called “Context4 Healthcare.” Estes Law argues that the only reason that Allstate continues to hire Guitreau is to harass and delay the lawyers who represent plaintiffs.