An expert pathologist has testified that executed inmates in Tennessee suffered symptoms similar to those who died by drowning, which may constitute unconstitutional torture under the Eighth Amendment.

The Eighth Amendment to the United States Constitution

The Eighth Amendment of the United States Constitution was adopted as part of the Bill of Rights in 1791. It states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The United States Supreme Court has ruled that the Eighth Amendment also applies to the states through the Fourteenth Amendment.

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.” First, the “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture. Second, “a severe punishment that is obviously inflicted in wholly arbitrary fashion.” Third, “a severe punishment that is clearly and totally rejected throughout society.” Fourth, “a severe punishment that is patently unnecessary.”

Because of the Eighth Amendment, the Supreme Court has ruled that certain punishments are forbidden regardless of the crime, some punishments are forbidden for certain crimes, and special procedures must be followed in death penalty cases.

Planned Execution of Billy Ray Irick

Billy Ray Irick is a 59-year-old man from Knox County, Tennessee who has been convicted of the 1985 rape and murder of a 7-year-old girl. Irick is the next person who is scheduled to be executed by the state of Tennessee. Irick’s scheduled execution was on August 9, 2018.

Irick’s attorneys hired expert pathologist Dr. Mark Edgar to explain why they believe that certain lethal injection drugs constitute unconstitutional torture. Dr. Edgar is a pathologist at Emory University. Dr. Edgar analyzed 27 autopsies of inmates who were executed using a drug called midazolam. Tennessee plans to use midazolam as part of the three-drug cocktail that will be used to execute Irick.

Dr. Edgar testified that his analysis of the autopsies showed that inmates were able to feel immense pain throughout their executions. Dr. Edgar said that 23 of the 27 autopsies that he reviewed showed signs of pulmonary edema. Someone who suffers from pulmonary edema will show signs of bubbles, froth, or foam in the lungs or airways.

Dr. Edgar said that “I was struck by the abnormalities in the lung… In addition to that, the majority of them — over 85 percent of them — showed pulmonary edema… It’s a medical emergency, and it’s a state of extreme discomfort.”

The Tennessee Department of Correction disagrees with Dr. Edgar’s finding. The state argues that midazolam renders an inmate unconscious and unable to feel pain. The state plans to call a different medical expert who will testify that Tennessee’s proposed three-drug protocol does not constitute unconstitutional torture. In the state’s brief, they cited a 2015 United States Supreme Court ruling arguing that, “Inmates challenging a state’s method of execution must meet a ‘heavy burden’ … so much so that the Supreme Court has never invalidated a state’s chosen method of execution as cruel and unusual punishment.”

A forensic pathologist and forensic entomologist offered important timeline testimony in the trial of a man who is charged with killing two dogs.

The Dogs’ Death

On November 22, 2014, a landscaper found a black trash bag on top of a pile of leaves that he had collected. The landscaper was curious about the contents, so he opened the bag. Inside, he found the bodies of two 20-week-old dogs.The landscaper immediately called the police, who began an investigation.

The police investigated the death of the dogs by sharing photos on Facebook. A series of tips led the police to Jason Gentry, who ran an unlicensed North Shore kennel and Dominick Donovan, who had created the mixed breed of guard dog that the dogs belonged to.

Criminal Charges

Gentry and Donovan were arrested and charged with two counts of cruelty to animals and two counts of malicious killing of animals. Gentry was also charged with five additional counts of animal cruelty and one count of operating an unlicensed kennel. Both men initially pleaded not guilty and blamed the other for the death of the dogs. Gentry later pleaded guilty to animal cruelty and other charges under a cooperation agreement. Donovan’s case went to trial.

Trial Testimony

At Donovan’s trial, Gentry testified that during Donovan’s trip to Salem on November 1 and November 2, 2014, he watched Donovan kill the two dogs by hanging them from a garage door railing. Gentry said that he watched Donovan drive away with the dogs’ bodies in a trash bag in the trunk of his car. The bodies of the dogs were not found for almost three weeks.

The landscaper who found the dogs and other witnesses testified that the dogs showed no signs of decomposition. A veterinarian who testified for the prosecution suggested that it was possible that the dogs had not started to decompose. The temperature during November had been cool and had dipped below freezing several times.

Donovan’s defense team presented its own witnesses who testified that it was unlikely that the dogs could have been dead for 20 days without showing some signs of decomposition.

Forensic Expert Testimony

Dr. Priya Banerjee, a forensic pathologist and assistant medical examiner for the state of Rhode Island testified as a defense witness. Dr. Banerjee said that it would be unusual for any body to not show signs of decomposition such as an odor or bloating within a day or two of death. Dr. Banerjee acknowledged that the decomposition process could have been slowed by cold temperature, but said decomposition still should have occurred. The temperature at the time had averaged 48 degrees. Dr. Banerjee testified that the fact that the bodies did not have an odor suggested that the bodies had been found “much closer to the time of death” than the three week time period that had passed from when Donovan had allegedly killed the dogs.

The defense team also called Maria Gemmellaro, a forensic entomologist from Rutgers University to testify. Gemmellaro has previously done training and consulting for the FBI. Gemmellaro testified that it would take just minutes for flies to find and lay eggs on a body once exposed. The necropsy that was performed on the dogs showed no evidence of flies, fly eggs, maggots, or beetles.

A state judge will not allow a cancer-risk expert to testify about the amount of exposure to glyphosate that California has determined causes cancer in the trial over whether Monsanto’s weed killer is carcinogenic.

The Lawsuit

In 2016, DeWayne Johnson sued Monsanto after he developed non-Hodgkin lymphoma. Johnson, 46, is the father of three and a former school groundskeeper. Johnson began developing lesions and rashes on his skin after he was regularly exposed to Monsanto’s weed killer Roundup. Johnson claims that Monsanto has known for decades that Roundup causes cancer, but that it has hidden this from the public.

Johnson’s suit is one of thousands of plaintiffs who have filed suit against Monsanto, alleging that exposure to Roundup caused them or their loved ones to develop non-Hodgkin lymphoma. These suits challenge Monsanto’s claim that its herbicides are safe. The lawsuits argue that Monsanto has known about the dangers of their products, but have hidden them from the public. Johnson’s case will be the first to go to trial and is considered the bellwether for other cancer cases that have been filed against Monsanto.

Expert Testimony

Johnson’s attorney Brent Wisner hired Christopher Portier, a highly regarded expert in cancer-risk assessment to testify at trial. Judge Suzanne Ramos Bolanos ruled that Portier will be restricted from testifying about the amount of exposure to the active ingredient in Roundup that California has determined causes cancer. Judge Bolanos agreed with Monsanto’s lawyers who argued that Johnson’s attorneys were trying to sneak the topic into evidence, despite a pretrial ruling that barred testimony about California’s Proposition 65.

Proposition 65 requires manufacturers to put warning labels on products that contain chemicals that the state believes cause cancer. California added glyphosate to its Proposition 65 list last year based on the World Health Organization’s International Agency for Research on Cancer finding that glyphosate is a probable carcinogen.

Judge Bolanos said that “Monsanto was never put on notice for that…To introduce this now is highly prejudicial, because they didn’t have the opportunity to cross-examine him [the expert] and they didn’t have the opportunity to call their own expert to discuss the significance or the lack of significance of the NSRL listing, which can be misleading to the jury unless it is completely explained to them.”

The NSRL (or No Significant Risk Level) is the daily intake level that California regulators have determined will result in no more than one excess case of cancer in a population of 100,000 exposed people. The NSRL for glyphosate is 1,100 micrograms per day.

Portier was permitted to testify about 13 rodent studies that led him to conclude that glyphosate causes non-Hodgkin lymphoma in humans. Portier described one study where mice developed kidney adenomas, carcinomas, malignant lymphomas, and malignant tumors. Portier noted that some studies found tumors in tissue in which they didn’t belong. Portier said that the occurrence of this is so rare that “the causation argument — ‘did this chemical cause this tumor’ — is very high.”

Update

Jury awards $289M to former school groundskeeper who blames weed killer Roundup for cancer

The Texas Attorney General’s Office has spent over $500,000 on experts to defend the state’s abortion restrictions.

Texas Abortion Restrictions

In 2013, the state of Texas began enacting a series of abortion laws and restrictions. Texas banned abortions after 20 weeks, limited the use of an abortion drug, required doctors who perform abortions to have admitting privileges at a nearby hospital, and required abortion clinics to meet the standards of ambulatory surgical centers. The 2013 laws caused about half of the state’s 41 abortion clinics to close. In 2017, Texas enacted additional restrictions, mandating that health care facilities bury or cremate fetal remains from abortions.

Planned Parenthood and Whole Woman’s Health, the largest abortion providers in Texas, have sued the state five times challenging these restrictions. In four cases, the laws were temporarily blocked and the rulings are on appeal. The fifth case ended up in the United States Supreme Court, where the Court struck down the laws as unconstitutional.

Writing for the majority, Justice Stephen Breyer wrote that the regulations which required abortion providers to obtain hospital admitting privileges and comply with the standards of surgical centers, were medically unnecessary and placed an unnecessary burden on the right to obtain an abortion. Justice Breyer wrote:

We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes…. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.

Attorney General’s Experts

The Houston Chronicle reported that the Texas Attorney General’s Office has paid 21 expert witnesses to testify in these abortion cases since 2013. According to the court records, six of these experts were disregarded by the judges who were presiding over the cases. The judges dismissed some of the state’s experts for lack of medical or scientific credentials, unfamiliarity with the laws at issue, or for expressing personal opinions rather than expert opinions.

In the case regarding the state’s attempt to require the burial of fetal remains, the attorney general’s office hired Jeffrey Bishop, a philosophy professor at Saint Louis University, to testify in its support.  Bishop testified that, “The state has the responsibility to uphold the dignity of human beings… It seems to me that grinding and washing tissue down the drain that was at one time part of human life is not a dignified way of disposing of those materials.”  Bishop said that he had not read the rule because it was “very complicated to read.” U.S. District Judge Sam Sparks disregarded Bishop’s opinion, saying “He has no credibility with me whatsoever. He didn’t have any substantive knowledge at all about this case…. He’s just giving an opinion.” And an uninformed opinion, at that.

A spokesperson for Attorney General Ken Paxton defended the office’s choice of experts. Paxton said that the office chooses “an array of highly qualified and esteemed experts — some with pro-choice views — with multiple Ivy League degrees, numerous published articles, and years of hands-on practice in clinical and academic settings.”

A federal district court in California has denied a plaintiff’s motion for reimbursement of expert witness fees in a trial over excessive fees in a company’s 401(k) plan.

Lawsuit for Breach in Fiduciary Duties

In 2007, beneficiaries of the Edison 401(k) Savings Plan sued Edison International and the plan’s fiduciaries, claiming that the losses suffered by the plan were from breaches in their fiduciary duties. The plaintiffs took issue with specific mutual funds that were added to the plan that were priced higher then materially identical institutional-class mutual funds that were available at the time.

The district court dismissed the claims regarding funds added to the plan in 1999 as untimely because ERISA requires that breach of fiduciary duty claims be brought no more than six years after “the date of the last action which constitutes a part of the breach or violation” or “in the case of an omission the latest date on which the fiduciary could have cured the breach or violation,” 29 U.S.C. §1113. The Ninth Circuit affirmed, but the Supreme Court vacated and remanded, holding that a fiduciary duty is a continuing duty and plaintiffs could allege that a fiduciary breached that duty by failing to properly monitor investments and remove imprudent ones. On remand, the Ninth Circuit dismissed those claims, ruling that the beneficiaries had failed to raise the argument in lower courts.

On the remaining claims, the district court ruled that Edison was liable under ERISA, because it was imprudent to include 17 mutual funds in its 401(k) plan that could have been obtained at a lower cost. The parties agreed that the damages between 2001 and 2011 were about $7.5 million and Edison was ordered to pay over $7.5 million in compensation. The parties later agreed that Edison would pay $5.6 million in additional damages and $5.8 million for attorneys’ fees and costs.

Denial of Motion for Expert Witness Fees

Attorneys for the plaintiffs, Schlichter, Bogard & Denton LLP, filed a motion seeking $964,212 in reimbursement for experts that it utilized during the ten years that it litigated the case. The law requires that a losing party must pay attorneys’ fees but does not require them to pay the expert witness’ fees unless they can show that the expert was “crucial or indispensable in establishing the prevailing party’s case or defense.” Judge Stephen V. Wilson of the United States District Court for the Central District of California denied the plaintiffs’ motion, ruling that the plaintiffs hadn’t met the requirement to show which of the experts’ work was “crucial or indispensable” to their successful claim.

Wilson wrote that “Plaintiffs’ partial victory last year represented only a fraction of Plaintiffs’ damages claims.” He noted that “Plaintiffs’ motion concedes that much of the expert work was unrelated to the sole claim.” Wilson also noted that the court did not rely on any particular expert in reaching its decision.

A former councilman from Fletcher, North Carolina has been convicted of obstruction of justice after falsely representing himself as a medical doctor with additional doctoral degrees in order to provide expert testimony in court.

Expert Witness Appearance

Milton LeRoy Byrd, 66, appeared as an expert witness on behalf of Monroe Gordon Piland, a doctor and medical marijuana activist who was convicted of several drug crimes, including trafficking opium or heroin. Byrd testified on Piland’s behalf in a Buncombe County Civil District Court matter in 2016 and in a bond hearing in April 2017.

Byrd had claimed to be a medical doctor with three additional degrees. Byrd’s curriculum vitae, which was submitted by Piland’s counsel during discovery, showed that Byrd obtained degrees from the University of Chicago Pritzker School of Medicine in respiratory therapy along with degrees in religion and two bachelor degrees.

Red Flags

The case against Byrd began when Assistant District Attorney Alex Bass, who was prosecuting Piland, was researching defense witnesses. Bass became suspicious when he saw Byrd’s resume. He noticed that Byrd had misspelled the name of the medical school that he had supposedly attended and that he had listed a few things that a doctor wouldn’t normally put on their CV. Bass said, “I had no idea who Byrd was until discovery, but immediately there were some red flags…. He always misspelled the name of the medical school he supposedly attended…. There were a couple other things you wouldn’t think a doctor would put in a CV, too, like ‘being a shaman’…. It was just weird.”

Bass contacted the University of Chicago – Pritzker School of Medicine to inquire about Byrd. Representatives from the university told Bass that they had no record of Byrd graduating from the school and that they did not offer degrees in respiratory medicine. The office of the district attorney turned the information over the the Buncombe County Sheriff’s Office, which investigated Byrd and charged him with felony common law obstruction of justice.

Obstruction of Justice Conviction

The district attorney turned the case over to the North Carolina Attorney General. Assistant Attorney General Nick Benjamin tried the case, which resulted in Byrd’s conviction. Byrd was sentenced to three years supervised probation, a fine of $5,000, and to pay the cost of his court-appointed attorney, $3,440. Superior Court Judge Gary Gavenus also ordered that Byrd cannot include on his CV “or any other medium whatsoever” any reference to his false medical doctorate or falsified degrees in philosophy, divinity, and metaphysics.

Byrd’s court-appointed attorney, Kathy Lamotte, said that she believed that her client lacked the intent required for a felonious obstruction of justice conviction. Byrd’s case is headed to the North Carolina Court of Appeals. Lamotte said, “I think, sitting in the chair I sat, there are some grounds for appeal, but it will be entirely up to the office of the appellate defender to review the case and make their own decisions about what was there.”