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.

Death Row Inmate Freed After Bite Mark Evidence Discredited

A Mississippi man that sat on death row for over a quarter of a century has been freed and exonerated after the bite mark evidence that was used to convict him was discredited.

The Crime

In 1992, 84-year-old Georgia Kemp was found dead in her home in Lowndes County, Mississippi.  Her autopsy revealed that she had died from two stab wounds.  Kemp also had injuries consistent with rape, but no visible bite marks.

Prosecutors retained Dr. Michael West as an expert witness.  West is a forensic dentist known for his analysis of bite marks.  Over a period of 15 years, West testified in 71 trials in 9 states.  Dr. West examined Kemp’s body with ultraviolet light and found bite marks, which he testified matched the teeth of Eddie Lee Howard.

Court Proceedings

Howard was indicted on the charge of capital murder with the underlying felony of rape.  He was convicted in 1994 and sentenced to death.  In 1997, Howard’s conviction and sentence were reversed and remanded for a new trial.

In May 2000, Howard’s second trial began.  Dr. West testified again, stating that he was certain to a reasonable degree of medical certainty that Howard had left the bite marks found on Kemp’s body.  Howard was convicted of capital murder and sentenced to death.  The conviction was upheld in numerous appeals and post-conviction relief proceedings.

Exoneration

In December 2010, the Mississippi Supreme Court allowed Howard to file another post-conviction petition for relief due to new DNA testing of physical evidence that had excluded Howard as a source.

The court reviewed the DNA evidence and also Dr. West’s bite-mark testimony. Dr. West’s techniques have come under criticism for overstating his findings and testifying on subjects where he had limited expertise.  Dr. West’s practices were investigated and he was eventually suspended by the American Board of Forensic Odontology.  Dr. West has also stated in a 2012 deposition that he no longer believes in bite-mark evidence and that it should not be used in court cases.

The court noted that there has been a change in the scientific understanding of the reliability of identification through bite marks since Howard’s conviction.  Today, bite mark testimony would be inadmissible evidence.  The court also concluded that Dr. West’s identification of Howard was the most important evidence presented at trial.  Given the inadmissibility of bite mark evidence and the fact that that the DNA of another man was present on the murder weapon, the court found that a jury would probably not find Howard guilty beyond a reasonable doubt.

In August 2020, the Mississippi Supreme Court vacated Howard’s conviction and sentence and remanded his case for a new trial.

In December 2020, Howard was released from death row and on January 8, 2021, Howard was officially exonerated.   Lowndes County District Attorney Scott Colom decided not to retry Howard’s case, noting that there was not enough evidence to convict Howard “beyond a reasonable doubt” and stating that “My ethical and legal responsibility requires that I dismiss the case.”

 

Court

Judge Rules Gender Equality Expert’s Opinion is Credible and Reliable

An Iowa federal judge has ruled that a gender equality expert’s opinion is both credible and reliable and has temporarily blocked the University of Iowa from cutting its women’s swimming and diving program.

The Dispute

On August 21, 2020, the University of Iowa announced its decision to eliminate women’s swimming and diving as a varsity intercollegiate sport for the 2021-22 academic year.  Six students, Sage Ohlensehlen, Christina Kaufman, Alexa Puccini, Kelsey Drake, Miranda Vermeer, and Abbie Lyman, who are female student-athletes on the women’s swimming and diving team were torn between remaining at the school and pursuing their athletic careers elsewhere.

The students filed a class-action lawsuit against the University of Iowa, its president, and its athletic director, claiming that the University failed to provide equal participation, equal treatment, and equal scholarship opportunities for female athletes as required under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

District Court

The students filed their lawsuit in the U.S. District Court for the Southern District of Iowa. On December 3, 2020, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction.  The court denied emergency injunctive relief, but ordered that the matter proceed on an expedited basis.  The court reviewed each party’s written briefs, affidavits, and documentary evidence and held a hearing on the matter.

The Equity in Athletics Disclosure Act requires universities that receive federal funding to submit an annual report detailing the total number of full-time male and female undergraduate students enrolled at the university, the varsity intercollegiate athletic teams it sponsors, and the number of participants on each team on the date of that team’s first competition.

According to the information that the University provided in response to the Equity in Athletics Disclosure Act, the University of Iowa has been increasing its percentage of women undergraduate students over the past 10 years.  Currently, the University offers 24 intercollegiate athletic programs; 13 are women’s teams and 11 are men’s teams.

At issue is whether the University of Iowa will comply with Title IX after eliminating the women’s swimming and diving team alongside three men’s teams.  The students retained Dr. Donna Lopiano, Ph.D., to testify on their behalf.  Dr. Lopiano reviewed the participation data and compared it with University-sponsored website rosters and raw competition data and opined that she was confident to a high degree of certainty that women’s intercollegiate athletics at University of Iowa was likely to lack sufficient proportionality to female student enrollment.

The University dismissed Dr. Lopiano’s opinions as “unduly speculative” and characterized them as “conspiracy theories.”  The University made a motion that Dr. Lopiano’s opinions should be stricken from the record.

Upon review, U.S. District Court Judge Stephanie Rose determined that Dr. Lopiano was a highly credible expert and that her opinion was “exceedingly reliable.”  Judge Rose noted that Dr. Lopiano is a highly accomplished expert on gender equity in intercollegiate athletics and Title IX compliance.  Her opinion demonstrated that the students had a fair chance of demonstrating that the University is not in compliance with Title IX by providing its female athletes with athletic participation opportunities substantially proportionate to their representation in the student body.

Judge Rose granted the motion for a preliminary injunction, which prevents the University of Iowa from eliminating the women’s swimming and diving team or any other women’s intercollegiate athletic team until there is a full trial on the merits.

Election Experts Testify in Virginia Voter ID Case

Virginia Supreme Court Allows in Evidence of Expert’s History of Testifying as an Expert

The Supreme Court of Virginia has ruled that evidence of an expert witness’ past testimony as an expert is admissible evidence.

The Accident

In December 2015, Deborah Graves was driving her vehicle when she was hit from behind by Samantha Shoemaker.  Graves experienced back, hip, and neck pain, along with increased depression and anxiety in the months following the crash.  Graves sought medical care and physical therapy that cost over $26,000.  Graves filed a lawsuit against Shoemaker, seeking $150,000 in damages.

The Expert Witness

Shoemaker’s insurer, State Farm, hired attorney John P. Cattano to represent her in the lawsuit.  Cattano retained Dr. William C. Andrews, an orthopedic surgeon who specializes in medicolegal work to testify as a defense expert witness.

Dr. Andrews reviewed Graves’ medical records and prepared an expert report.  Dr. Andrews opined that much of the pain that Graves complained of after the crash was caused by preexisting conditions.  Dr. Andrews also found that most of the treatment that Graves received was not medically necessary or reasonable to treat her minor injuries.  State Farm paid Dr. Andrews $3,362 to issue this report.

Shoemaker’s attorney deposed Dr. Andrews and discovered that Dr. Andrews had been hired by Cattano or his firm 30 to 35 times over the past 10 to 12 years and that he only testified on behalf of a plaintiff one of those times.  Dr. Andrews admitted that State Farm had paid him $793,198 for testimony he provided for their insureds from 2012 to 2018.  However, he claimed that he was not aware that State Farm was the insurer until he was told at the deposition.

Trial Court

Shoemaker admitted her fault, so the case went to trial on the issue of damages only.  Graves made a motion to introduce evidence of Dr. Andrews’ previous relationship with Cattano’s firm and State Farm.  After hearing arguments on the issue, the trial court allowed in evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30 to 35 times in the past. She was not allowed to ask about prior work for State Farm because they were not in a “direct relationship.”

The jury returned a verdict in favor of Graves for $3,000 plus interest.  Graves moved for a new trial based upon the ruling that prevented her from introducing evidence of Dr. Andrews’ previous relationship with State Farm.  The court denied her motion and she appealed.

The Supreme Court of Virginia

On appeal, Graves argued that the trial court’s ruling went against the Supreme Court of Virginia’s ruling in Lombard v. Rohrbaugh, 262 Va. 484 (2001) by interpreting it to mean that a party must demonstrate a “direct relationship” between an expert and an insurance company before cross-examining the expert on previous payments from that insurance company.  The Supreme Court of Virginia agreed.

The court emphasized that its decision in Lombard only required that there be a “substantial relationship” between an insurer and an expert.  The court emphasized that the central issue is not “artificial labels.”  Instead, the focus should be on the potential for bias because of the witness’ interest in the case.

Here, State Farm’s past payments of nearly $800,000 to Dr. Andrews over the course of 7 years created a substantial relationship that had potential to create bias in the witness.  The court ruled that Graves should have been able to introduce this evidence to the jury.  The court vacated the trial court’s verdict and remanded the case for further proceedings.

 

GEICO Expert Cleared to Testify in Insurance Fraud Case

A GEICO expert has been cleared to testify in an insurance fraud case where a physician has been accused of improperly certifying certain healthcare services for payment.

The Alleged False Statements

Dr. Luis Mas is a family medicine specialist with a practice in Coral Gables, Florida. Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. filed a suit against Dr. Mas, alleging violations of the Racketeer Influenced and Corrupt Organizations Act, the Florida Deceptive Unfair Trade Practices Act, the Florida Civil Remedies for Criminal Practices Act, common law fraud, and unjust enrichment.

Specifically, the lawsuit alleged that Dr. Mas submitted thousands of fraudulent insurance charges, misrepresented coding levels on billing statements, and changed which medical provider administered treatment on the examination reports. The lawsuit claimed that unsupervised massage therapists and physical therapist assistants performed services that were billed as doctors.

The Daubert Motion

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. retained Dr. James Dillard to testify on their behalf.

Dr. Mas’s defense team filed a Daubert motion seeking to exclude Dr. Dillard’s testimony.  They sought to exclude Dr. Dillard because his testimony could not be used to prove that Dr. Mas falsified any medical examinations or billing records.  Instead, Dr. Dillard opined that healthcare providers committed fraud in three ways: (1) that Dr. Mas falsified his clinical judgment on the medical necessity of the treatment protocols, (2) that Dr. Mas and others falsified the examination results for the purpose of inflating medical bills, and (3) that the therapeutic care at each facility was performed without supervision.  Dr. Mas’s attorneys argued that, under Florida law, opinions were not actionable for fraud and Dr. Dillard needed to instead rely on statements of fact to undermine Dr. Mas.

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. argued that Dr. Mas’s motion had no merit because it contained conclusory arguments and failed to question Dr. Dillard’s qualifications or helpfulness to the jury.

The United States District Court for the Southern District of Florida ruled that even if Dr. Mas only gave a statement of opinion, he was a person with superior knowledge on the subject and he knew or should have known from the facts in his possession that the statement of opinion was false.  Because of this, Dr. Mas fell under the exception to the Florida rule that an action for fraud generally may not be predicated on statements of opinion.

The district court noted that Dr. Mas’s motion had three weaknesses.  First, it made the assumption that Dr. Mas rendered an opinion.  Second, the motion “cherry-picked” portions of cases to support its reasoning. Third, it did not take into account that an exception could apply in this case. Based on the allegations and the evidence in Dr. Dillard’s report, an exception may apply because there is a factual dispute on Dr. Mas’s involvement with how the medical facilities handled treatment and billing records.

Accordingly, the district court denied the motion and allowed Dr. Dillard to testify.

NRA Files Motion to Exclude “Mouse Brain” Expert

The NRA has filed a motion to exclude a developmental neuroscience expert in a gun rights suit, arguing that the expert on “mouse brains” is not qualified to offer testimony in this case.

The Lawsuit

The National Rifle Association (“NRA”) filed a lawsuit against Pam Bondi, the Attorney General of Florida, and Rick Swearingen, Commissioner of the Florida Department of Law Enforcement, based on their administering and enforcing Florida laws relating to the sale of firearms.  The NRA sought declaratory and injunctive relief. The NRA wanted a declaration that Florida’s law banning adult, law-abiding citizens under the age of 21 from purchasing firearms was unconstitutional under the Second and Fourteenth Amendments. It also wanted an injunction that prevented Florida from enforcing that law.

Proposed Expert Testimony

The Florida Department of Law Enforcement retained Dr. Pradeep G. Bhide to testify on its behalf.  Dr. Bhide is a Professor and Jim and Betty Ann Rodgers Eminent Scholar Chair of Developmental Neuroscience and Director of the Center for Brain Repair at Florida State University College of Medicine.

Dr. Bhide’s proposed testimony included the statement that “Modern neuroscience establishes what parents have known for generations, that ‘on average 18-year old individuals are more likely to engage in behaviors that are impulsive, emotional, risky and that offer immediate or short time reward compared to 21-year old individuals, on average.’”

The NRA filed a motion in limine to exclude Dr. Bhide’s testimony.  In its motion, the NRA argued that Dr. Bhide had not offered any hard evidence that young adults from age 18 to 20 are more likely to commit criminal violence with a purchased firearm than other adults. The NRA claimed that Dr. Bhide’s opinion would consist only of “secondhand pseudoscience.”

The NRA argued that Dr. Bhide failed to meet the requirements of Daubert.  Specifically, it claimed that while Dr. Bhide may be an expert in the broad area of neuroscience or brain development, this was not a substitute for expertise in the area of adolescent brain development. The NRA argued that even if Dr. Bhide had academic credentials in neuroscience and taught in that area, it did not demonstrate that he was competent to give an expert opinion in every area of neuroscience.

The NRA argued that Dr. Bhide was not qualified to give the opinion that 18-to-20-year-olds were more likely to commit crimes with purchased firearms because he had not personally studied human brain development. iWhen questioned whether he had published any peer-reviewed articles that distinguished between the development of a teenage brain and an adult brain, Dr. Bhide responded that he had not written articles about the human brain, he had only written about mouse brain development.

The NRA also argued that Dr. Bhide should be excluded as an expert because his opinions were not based on any reliable methodology. Dr. Bhide’s opinion was not based on his own research, his opinion was based upon the research of others that did not relate to the risk of firearm purchase by 18-to-20-year-olds.

The motion in limine is currently under advisement in the United States District Court for the Northern District of Florida.

 

Prison, Barbed Wire

Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction

A Mississippi woman who pleaded guilty in 2007 to shaking an infant to death will be allowed a hearing to argue that her life sentence should be overturned.

The Infant’s Death

On July 18, 2005, Amy Wilkerson was 29-years-old when she was caring for an 8-week infant child, Tristan Chinn.  At 2 pm on that day, Wilderson called 911 and told the authorities that Tristan had stopped breathing.

Investigators questioned Wilkerson after the boy’s injuries turned out to be consistent with those of other victims of shaken baby syndrome. Court records showed that “Wilkerson gave several conflicting accounts of the events surrounding Tristan’s death. At the hospital, Wilkerson told Tristan’s mother that Tristan had been injured while riding in the car. Wilkerson later told police detectives that Tristan’s injury occurred when he fell from the couch and hit his head. Wilkerson eventually confessed that her ‘couch story’ was false and that she had shaken Tristan to death.”

The Legal System

Wilkerson was indicted for capital murder. Wilkerson initially pled not guilty, but later entered a guilty plea for depraved-heart murder. Following her guilty plea, Wilkerson was sentenced to life in prison, with eligibility for parole after 30 years.

Three years later, Wilkerson filed a motion for post-conviction relief, arguing that her trial attorneys were ineffective. The circuit court denied her claim. Wilkerson appealed the dismissal of her motion, arguing that her guilty plea was involuntary and that her trial attorney was ineffective. The Court of Appeals of Mississippi affirmed the lower court’s decision.

The Innocence Project

Wilkerson brought her case to the Innocence Project. The Mississippi Innocence Project and the Wisconsin Innocence Project took her case.

With the help of her Innocence Project lawyers, Wilkerson argues that new evidence has arisen since the date of her trial. New scientific evidence has increasingly discredited shaken baby syndrome as a cause of death and an expert who had originally consulted on her case has been discredited.

Wilkerson’s original defense attorneys had consulted with pathologist Dr. Steven Hayne before trial. Dr. Hayne had opined that the cause of death was shaken baby syndrome. Dr. Hayne has since been discredited. In 2008, the Mississippi public safety commissioner removed Hayne from the state’s list of authorized medical examiners.

Four medical experts on Wilkerson’s legal team, two forensic pathologists, a pediatric neuropathologist, and a neuroradiologist, reviewed the records and believe that Tristan likely died from a stroke. Defense expert forensic pathologist Janice Ophoven wrote, “Tristan’s brain reflects a longstanding pathology that eventually led to collapse while in Ms. Wilkerson’s care, for reasons having nothing to do with intentional trauma.”

Wilkerson’s defense team presented this new evidence to the court. In 2018, Circuit Court Judge Dale Harkey denied Wilkerson a hearing. However, the Mississippi Court of Appeals reversed Judge Harkey’s ruling and decided to allow an evidentiary hearing in Wilkerson’s case.

At this hearing, Wilkerson will be allowed to present expert testimony showing that the infant’s brain injury happened before the baby was placed in her care and that the brain bleeding may have begun at the time of the infant’s birth.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Court Reinstates Sexual Assault Conviction After Dismissing Expert Witness Objections

The Texas Court of Criminal Appeals has reinstated the sexual assault conviction of former Baylor University football player Sam Ukwuachu after dismissing claims that defense witnesses had been improperly impeached by false evidence.

The Crime

In October 2013, a female Baylor University student-athlete alleged that Sam Ukwuachu raped her at his Waco apartment. The victim alleged that Ukwuachu took her to his apartment following a homecoming party and forced himself on her. The following day, she went to the hospital and had a rape examination. Her injuries were consistent with sexual assault.

In June 2014, Ukwuachu was indicted on two felony charges. Following a trial, he was convicted of one count of sexual assault. In 2015, Ukwuachu was sentenced to ten years of felony probation, 180 days in county jail, and 400 hours of community service.

First Appeal

Ukwuachu appealed his case. Waco’s 10th District Court of Appeals overturned his conviction because the trial court had not allowed in some text messages that could have shown that the sex was consensual. However, the Texas Court of Criminal Appeals reversed the lower appeals court and reinstated the conviction. The ruling allowed Ukwuachu to continue to appeal his case, but not on the text messaging issue.

Second Appeal

Ukwuachu appealed his conviction a second time. This time, his lawyers argued that prosecutors had improperly used cell phone record evidence to impeach two defense witnesses, which was a violation of Ukwuachu’s due process rights.

At trial, prosecutors had presented cell phone records with time and data location that showed that Ukwuachu’s roommate was across town at the time of the alleged assault, rather than in their apartment. Because the phone records were shown in UTC (Coordinated Universal Time), which was five hours different from local time, Ukwuachu claimed that the records could not show that his roommate’s testimony was not true. The trial court did not allow the admission of the phone records but allowed prosecutors to ask questions about making phone calls.

At a motion for a new trial hearing, Ukwuachu presented an affidavit from an expert in computer forensics that opined “that it was impossible to accurately verify location data solely from the records without additional review by an expert, that the latitude and longitude given on this type phone records was rarely precisely accurate, and that it would take many hours for an expert to accurately provide the location of where an individual was when a call was made.”

Waco’s 10th Court of Appeals agreed with Ukwuachu’s arguments and reversed his conviction.

The Texas Court of Criminal Appeals reversed the decision of the lower court. The court ruled, “The phone records at issue were never admitted into evidence nor made part of the record. Further, no expert testimony was introduced to establish that the state misled the jury regarding any particular information shown in the records. Without these phone records or such expert testimony, Appellant cannot prove that the state actually elicited witness testimony that conflicted with the substance of those records.”

The court remanded the case to Waco’s 10th Court of Appeals for consideration of the remaining appeal issues.

 

Fourth Circuit Allows Recovery of Expert Witness Fees

The Fourth Circuit Court of Appeals has allowed the recovery of expert witness fees in Maryland where a fee=shifting provision specifically used the word “fees” separately from “attorney fees.”

The Underlying Dispute

In November 2005, Lennar entered into a contract with three companies (Settlers Crossing, Washington Park Estates, and Bevard Development Company) to purchase 1,250 acres of land in Prince George’s County for $200 million. Lennar paid $20 million in deposits. Sandler, the sole owner of a seller company, personally guaranteed the return of the $20 million deposit if the seller companies breached the contract.

In 2006, Lennar asked the seller companies to renegotiate the contract because of the decline in the residential housing market. The companies agreed and in May 2007, the purchase price of the property was reduced from $200 million to $134 million. All parties agreed to a guarantee of specific performance by Lennar. During this time, the seller companies received a $100 million loan from iStar, which was partially secured by the property and the sellers’ rights under the purchase agreement.

In 2008, following a series of disputes, Lennar notified the companies that it elected to terminate the contract and demanded a refund of its $20 million deposits. The seller companies refused. During this time, the seller companies defaulted on their loan to iStar and iStar foreclosed upon the property.

The District Court Case

In July 2018, Lennar filed a lawsuit against iStar, Sandler, and the three seller companies in the United States District Court District of Maryland. Lennar alleged breach of contract, fraudulent inducement, concealment breach of environmental representations and warranties, and claim for declaratory judgement. The seller companies and iStar filed a joint counterclaim for declaratory relief and specific performance of the contract.

Following pretrial proceedings, two main issues remained for trial: (1) whether the seller companies denial of Lennar’s access to the property constituted a breach of contract; and (2) whether the seller companies had breached the environmental representations and warranties in the purchase agreement. A bench trial was held to resolve these issues.

The majority of the trial was spent on the environmental representations claim. Lennar presented three expert witnesses to testify on this issue. iStar called four experts to testify on this issue.

Following the bench trial, the district court determined that Lennar had failed to satisfy its burdens and iStar was entitled to specific performance of the contract. The district court entered judgment in favor of iStar. Lennar appealed and the Fourth Circuit affirmed the judgment.

The Fee-Shifting Agreement

Following the Fourth Circuit’s affirmance, iStar sought reimbursement of its costs, fees, and expenses in accordance with a fee shifting provision in the purchase agreement. Specifically, iStar requested $14,880,227.82 in attorneys’ fees, $656,002.12 in expert witness fees, and $553,712.56 in costs.

The relevant provision stated:

In the event of any litigation arising under or pursuant to this agreement . . .
the parties hereby agree that . . . the prevailing party in such matter shall be
entitled to recover from the non-prevailing party[] such party’s costs, fees
and expenses incurred in such litigation, including actual and reasonable
attorneys’ fees and court costs.

Lennar challenged the reasonableness of the attorneys’ fees and the entitlement to expert witness fees.

The district court determined that the plain language of the provision entitled authorized the recovery of all attorney fees, fees, and costs. Lennar contested the awarding of expert witness fees, arguing that Maryland law does now allow the recovery of expert witness fees under a fee-shifting agreement. Lennar cited two district court cases where the district court determined that the recovery of “all costs” and “expenses” did not provide for the recovery of expert witness fees.

The Fourth Circuit noted that the fee-shifting provision in this case was broader than the provision in the other cases. Here, the provision specified “attorney fees” as a separate item from “fees.” The court determined that the plain language of the contract indicated that attorney fees were only a subset of that total fees that may be recovered. Accordingly, the Fourth Circuit determined that the awarding of expert witness fees was proper.

a doctor and a child

Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions

A growing number of experts are challenging the existence and symptoms of Shaken Baby Syndrome/Abusive Head Trauma — a medical diagnosis that has sent many people to prison over the years.  This is leading to a rise in appeals and overturned convictions.

The Science

In the early 1970s, pediatric neurosurgeon A. Norman Guthkelch first hypothesized Shaken Baby Syndrome/Abusive Head Trauma as a way to explain infants who had bleeding on the brain but showed no external signs of trauma.

Throughout the 1970s and 1980s, pediatricians published numerous studies on Shaken Baby Syndrome, finding that it could be diagnosed through three distinct symptoms: subdural or subarachnoid hemorrhages (bleeding on the brain), cerebral edema (brain swelling), and retinal hemorrhaging (bleeding in the eye). By the mid to late 1990s, Shaken Baby Syndrome was a widely accepted medical diagnosis.

Pediatricians and researchers hypothesized that caregivers would become frustrated with a baby’s crying, then pick up the child and shake him or her back and forth.  This motion would cause the brain and retina to bleed, brain swelling, and then death.

The American Academy of Pediatrics has released numerous consensus statements on Shaken Baby Syndrome/Abusive Head Trauma over the years. It advised, “While physical abuse has in the past been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support a medical presumption of child abuse when a child younger than 1 year of age has intracranial injury.” It has also advised that short falls are incapable of producing the same symptoms.

Dr. Michael Baxter, a Tulsa child abuse pediatrician, assistant professor of pediatrics at University of Oklahoma in School of Community Medicine in Tulsa and medical director of the Children’s Advocacy Center, has said that, “There’s been multiple consensus statements done — Abusive Head Trauma is an accepted medical diagnosis.”  On average, Dr. Baxter sees between six and eight cases of Abusive Head Trauma per year and two to three cases involving a death.

Questions Regarding Legitimacy

However, a growing number of experts has begun to question the legitimacy of Shaken Baby Syndrome/Abusive Head Trauma diagnosis.  These experts have offered other explanations to explain the symptoms that were previously found to be only attributable to Shaken Baby Syndrome/Abusive Head Trauma.

Dr. John Plunkett, a forensic pathologist who initially supported the theory, published a paper showing that retinal hemorrhaging was present in four out of six children whose eyes were examined after people witnessed them suffering short falls.

As opposition to the Shaken Baby Syndrome/Abusive Head Trauma diagnosis rises, so does the number of appeals for those who have been convicted of this offense.

Andrea Miller, legal director of the Oklahoma Innocence Project, has said that child abuse pediatricians who testify in Shaken Baby cases often make claims for which there is no scientific backing. She said, “You often hear in the prosecution of these cases that a head injury like this could only be caused in a car accident going 70 miles per hour or a drop from a 20-story building — all of which is unprovable because you can’t subject a 2-month-old to any of those circumstances.”

In recent years, the Oklahoma Innocence Project has taken up multiple shaken baby case appeals.  There have been several recent shaken baby cases nationwide that have been overturned on appeal, including at least five cases in Oklahoma and one death penalty case in Texas.

dollar bills

Expert Testimony Causes Monsanto to Ask Ninth Circuit to Dismiss $20M Verdict

Agrochemical and agricultural giant Monsanto has asked the Ninth Circuit to overturn a $20 million jury verdict, arguing that the district court judge allowed the jury to hear from an unreliable expert witness.

The Injury

Ed Hardeman and his wife spent many years living in Sonoma County on 56 acres of land. In the 1980s, Hardeman began using Roundup products to treat the poison oak, overgrowth, and weeds on his property. Hardeman continued to use Roundup products regularly until 2012.

In February 2015, Hardeman was diagnosed with B-cell non-Hodgkin lymphoma (NHL). The following month, the International Agency for Research on Cancer (IARC) classified glyphosate, one of the key ingredients in Roundup, as a “probable human carcinogen.”

The District Court Case

In 2016, Hardeman filed a lawsuit against Monsanto in federal district court, claiming that Roundup was a substantial factor in causing his non-Hodgkin lymphoma. Numerous other plaintiffs also filed similar suits against Monsanto. These cases were consolidated. The judge presiding over the cases, Judge Vince Chhabria, chose Hardeman’s case as the lead case in this matter.

Monsanto disputed Hardeman’s claims, arguing that his non-Hodgkin lymphoma was more likely caused by his prior history with Hepatitis C, cirrhosis of the liver, and two different forms of skin cancer.

At trial, Hardeman’s attorney’s presented expert witnesses to strengthen his case. Monsanto challenged the admissibility of these experts. Following a week of hearings, Judge Chhabria ruled that three of Hardeman’s experts on the causal connection between glyphosate and cancer were “shaky but admissible.”

One of Hardeman’s witnesses was Dr. Dennis Weisenberger, a Southern California pathologist who specializes in cases of non-Hodgkin lymphoma. Dr. Weisenberger testified that the lack of protective gear combined with heavy Roundup use for almost three decades meant that Hardeman had high exposure to Roundup, which increased his risk for developing non-Hodgkin lymphoma. Dr. Weisenburger testified, “Roundup was a substantial contributing cause for him with regard to his developing non-Hodgkin lymphoma.”

A six-person jury awarded Hardeman about $5 million in compensatory damages and $75 million in punitive damages. Judge Chhabria later reduced the punitive damages award by $50 million, finding it to be excessive.

The Appeal

Monsanto appealed the decision to the Ninth Circuit Court of Appeals. On appeal, Monsanto argues that Dr. Weisenberger should not have been allowed to testify because he failed to meet the standard set in Daubert v. Merrell Dow Pharmaceuticals.

A three-judge panel heard argument on the matter. Attorney for Monsanto, Seth Waxman, argued that the trial should have never taken place. He argued that Judge Chhabria applied a more lenient standard than other circuits. Waxman noted that 70% or more of non-Hodgkin’s lymphoma cases have no known cause.

Attorney for Hardeman, David Wool, argued that Dr. Weisenberger was uniquely qualified to testify about causation because of his work studying the cause and effect of non-Hodgkin lymphoma as it relates to pesticides for over 30 years. Wool noted that Daubert does not require that an expert prove causation beyond a reasonable doubt. Wool argued that Dr. Weisenberger’s testimony would pass any interpretation of Daubert’s expert standard. He noted, “We had statistically significant, fully adjusted epidemiology showing an odds ratio of over 2.0, which Monsanto concedes is sufficient infer specific causation.”

The panel took the arguments under submission.