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.

Florida Supreme Court

Florida Supreme Court Refuses to Reconsider Expert Issue

The Florida Supreme Court recently rejected a request for rehearing by the Code and Rules of Evidence Committee of The Florida Bar and Jacksonville attorneys Howard Coker and James Holland to reconsider whether it should adopt the Daubert standard for expert testimony admissibility.

Daubert in Florida

Florida is one of the states that until very recently followed the Frye standard for whether a court should allow an expert witness’ testimony into evidence.

Numerous business groups had lobbied for the change to the Daubert standard.  They argued that “junk science” was being allowed into cases under the Frye standard.

The Frye standard only requires that the party seeking to admit expert testimony establish the general acceptance of the underlying scientific principle and the testing procedures.

In 1993, following a revision to the Federal Evidence Code, the United States Supreme Court adopted a new standard for the admission of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc.

Daubert is considered by some to be a stricter standard for allowing expert witness testimony than Frye. Under Daubert, a trial court judge must ensure that scientific testimony or evidence admitted is not only relevant, but also reliable.

Under Daubert, a trial court judge must consider:

  • Whether the theory or technique in question can be and has been tested
  • Whether it has been subjected to peer review and publication
  • Its known or potential error rate
  • The existence and maintenance of standards controlling its operation
  • Whether it has attracted widespread acceptance within a relevant scientific community

Essentially, a trial court is required to analyze not only the relevance of the expert’s opinion, but also whether the manner in which the expert arrived at her conclusion is reliable.

Federal courts and the majority of state courts have adopted the Daubert standard. Today, thirty-six states are currently using some form of Daubert instead of Frye.

As recently as 2018, the Florida Supreme Court affirmed that Frye was the appropriate standard in Florida.  In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court stated that “Frye, not Daubert, is the appropriate test in Florida.”

Requests for Rehearing

In May, after Florida governor Ron DeSantis appointed three new justices to fill vacancies, the Florida Supreme Court decided to move to the Daubert standard.

In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and stated that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.

The court stated, “Daubert amendments remedy deficiencies of the Frye standard.” The court also noted that Daubert will create consistency across Florida’s state and federal courts and “promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

In June, the Code and Rules of Evidence Committee of The Florida Bar committee filed a motion for rehearing. The Committee argued that the Supreme Court had made the change without going through a typical process for setting rules.

The Florida Supreme Court ruled 6-1 to reject the requests for rehearing. The court did not explain its reasoning. Justice Jorge Labrga was the lone dissenting justice.

DNA

DNA Testing Delays Murder Trial

The murder trial of a man who has been charged in the death of a Chesterton bartender will be delayed for three weeks so that DNA testing can be conducted on a strand of hair that was found at the crime scene. 

The Murder

On April 19, 2017, 23-year-old bartender Nicole Gland was found stabbed to death in her vehicle in a parking lot behind her place of work.

Christopher Dillard, 53, of Hobart was arrested in connection with Gland’s death. Dillard was a bouncer at the Upper Deck Lounge in Chesterton where Gland worked as a bartender.

Dillard was picked up by the police on the same day that Gland’s body was found. According to his charging information, Dillard allegedly told his girlfriend, “I killed that girl. I didn’t mean to.” The police have said that Dillard had indicated to his girlfriend “that the drugs had a hold of him.”

Authorities said that Dillard also admitted to the crime during an interrogation by the Chesterton police. However, Dillard’s alleged confession was subsequently tossed out by the Indiana appellate court because the Chesterton police ignored Dillard’s repeated requests to speak to an attorney.

Dillard pleaded not guilty and has been held in Porter County Jail while he awaits his trial.

The DNA Evidence

Investigators recovered one strand of hair from Gland’s vehicle that prosecutors want to have DNA-tested. The hair was found on the rear passenger door window trim of the vehicle in which Gland was found stabbed to death.

An analyst with the Indiana State Police laboratory has determined that the strand of hair “has sufficient root material for DNA testing”; however “the potential genetic material from the hair strand will be completely consumed” by the test.

The district attorney’s office wants to conduct DNA testing on the hair, which will destroy it.  Because the testing will destroy the evidence, Dillard’s defense team wants its own expert to be present for the testing. Obtaining the results of the test will take about six weeks.

New Trial Date

Dillard’s defense team requested that the trial date be pushed back because of the amount of time that the DNA test will take. Chief Deputy Prosecutor Armando Salinas objected to the requested delay.

Dillard’s public defender, Russell Brown, said that the delay was also necessary because he just received additional evidence in the case this week. Brown received this case last month after Dillard’s former public defenders, Bob Harper and then Bryan Truitt, had to step aside.

Porter Superior Court Judge Jeffrey Clymer told Brown, “The reason, in part, the evidence hasn’t been tested is because of your expert. … Your expert and the state have to communicate.  There has to be a trial.” However, Judge Clymer granted the request for a new trial date.

Dillard’s new trial date is set to begin on October 21, 2019.  It was previously set to begin on September 30. The trial is anticipated to take three weeks.

Dillard just recently made a motion to be released from jail while he was awaiting trial because he has exceeded the six-month limit that he could remain jailed without going to trial. However, his public defender, Russell Brown, acknowledged, that his client “admits this delay is chargeable to him.”

Last will

Aretha Franklin’s Will to be Examined by Handwriting Expert

The Queen of Soul passed away almost a year ago, but a drama is ongoing as the courts determine how she intended to dispose of her estate.

The Conflicting Wills

When Aretha Franklin passed away in August 2018, her family believed that she hadn’t left a will.  However, in May 2019, her family found three handwritten wills that gave conflicting direction on how to dispose of her estate. Two wills were found in a locked cabinet and the other was found in a spiral notebook that was stuffed underneath a couch cushion.

Each of the three documents states that her assets should be divided equally between her three younger sons and outlines instructions for the care of her eldest son, Clarence, who has special needs. Two of the wills were dated 2010 and one will was dated March 2014. All of the pages of the wills appear to be signed.

The purported wills are handwritten pages that were filled with scratched-out phrases and notes in the margins. They were not notarized or signed; however, this is not necessarily a problem because Franklin died in Michigan, which allows for “holographic” or handwritten wills. Handwritten wills are valid as long as they are signed and dated and the material portions of the document are in the testator’s handwriting. See MCL 700.2502(2). 

David Bennett, who was Franklin’s attorney for more than 40 years, filed the wills in probate court in Oakland County, Michigan. Bennett told the judge that he was unsure if the will was valid. Franklin’s estate released a statement saying the two of her sons objected to the wills.

In the will that was supposedly written in 2014, Franklin named her son Teddy the executor of her estate. Teddy’s name was then crossed out and Kecalf’s name was written in. Kecalf’s name was followed by the name of Franklin’s niece, Sabrina Owens. Owens’ name was also crossed out.

Probate Hearing

At a probate court hearing, it was revealed that the estate has already distributed $350,000 to Franklin’s four sons and $178,000 was stolen from the singer via bank fraud months before her August 2018 death.

Attorneys for Franklin’s heirs argued over the estate, leading Judge Jennifer Callaghan to place the estate administration under court supervision. While Franklin’s niece Sabrina Owens will remain the personal representative for the estate, the court will now have a hands-on role in decisions such as the sale of any property.

Handwriting Expert

Franklin’s son Kecalf Franklin hired forensic document specialist and handwriting expert Erich Speckin to examine the wills. Spreckin testified that it would take him about three hours to analyze the documents with equipment including a microscope and electrostatic device.

Speckin’s role is to affirm to the court that the will was written by Franklin in 2014 and that it has not been altered since. The other parties involved in Franklin’s estate (her sons Teddy and Clarence and her niece Sabrina) will also have the right to hire their own handwriting experts if they choose.

court

Psychiatrist To Testify in NXIVM “Cult” Trial

The prosecution in the case against NXIVM leader Keith Raniere has filed notice that it plans to call psychiatrist Dr. Michael Welner as an expert witness at trial to help establish that NXIVM is similar to a cult.

NXIVM

NXIVM is a multi-level marketing company based in Albany, New York, that offers personal development seminars. NXIVM has been accused by former members of the organization of being a recruiting platform for a cult operating within it that was known as DOS or The Vow where women were branded into sexual slavery.

In early 2018, NXIVM founder Keith Raniere and his associate Allison Mack were arrested and indicted on charges including racketeering conspiracy, forced labor conspiracy, wire fraud conspiracy, sex trafficking conspiracy, sex trafficking, attempted sex trafficking, and conspiracy to commit identity theft.

Dr. Michael Welner’s Background

Dr. Welner is a clinical and forensic psychiatrist and Chairman of the Forensic Panel. He has acted as a lead forensic psychiatric examiner in many criminal proceedings. Dr. Welner is also known for innovations in forensic science, forensic psychiatry and justice, and protocols for prospective peer review in forensic medicine consultation.

Dr. Welner is best known for his work on cases including the Etan Patz disappearance and murder, the Elizabeth Smart kidnappers, the Xerox mass murders in Hawaii, and Andrea Yates’ trial for the murder of her five children.

Dr. Welner has also consulted for courts and examined defendants who have been involved in mass shooting and attempted mass shooting cases including Colorado’s James Holmes; NBC gunman William Tager; corrections officer George Banks, who killed 13; Tavares Calloway; and bias-hatred mass shooters Richard Baumhammers, Ronald Taylor, and Ronald Crumpley.

The Filing  

The prosecution’s filing indicates that Dr. Welner will testify about how Raniere and his associates engaged in practices that are similar to other cult-like groups. These practices include: aggressive recruiting tactics that are intended to lure recruits and foster their dependence, grooming the members’ moral and value systems to comply with the group, undermining the members’ senses of self, leveraging emotional vulnerability and trust to control the member, creating extreme power imbalances, isolating members from friends and family, and controlling the sex lives of members.

The filing states, “Dr. Welner has studied … cult-like organizations, large-group awareness trainings, the ‘human potential movement’, religious sects and chain-marketing organizations (the ‘comparative groups’), including financial and sexual exploitation and the psychological dynamics within the comparative groups. This includes the techniques of how intense attention and recruitment contributes to special relationships within which such exploitation takes place, and then to isolation through which recruits are controlled and exploitation perpetuates. As a clinical psychiatrist, Dr. Welner also has experience treating people who have left organizations like those described above.”

The prosecution also indicated that it is planning to call other expert witnesses to testify about: the psychiatric and physiological effects of social, perceptual, and occupational isolation; the behavior of victims of sex crimes including common misconceptions about victim behavior; and the psychiatric and physiological effects of lack of sleep and severe calorie restriction.

Expert Has Performed Autopsy on Jeffrey Epstein

New York City’s chief medical officer has performed an autopsy on Jeffrey Epstein, but the results were inconclusive.

Jeffrey Epstein’s Apparent Suicide

On Saturday, August 10, the U.S. Federal Bureau of Prisons announced that Jeffrey Epstein was found unresponsive in his cell at the Metropolitan Correctional Center in Manhattan. The agency called Epstein’s death an apparent suicide. Epstein, 66, was being held on sex trafficking charges.

Federal prosecutors charged Epstein with sex trafficking girls who were as young as 14 and orchestrating a sex trafficking conspiracy.  The indictment noted Epstein’s connections to numerous prominent figures including President Donald Trump, Bill Clinton, and Prince Andrew.

In 2008, Epstein avoided federal criminal charges after prosecutors allowed him to plead guilty to state charges of solicitation of prostitution from a minor and serve just 13 months in jail. While Epstein was in jail, he was allowed to leave for 12 hours a day, six days a week, to go to work at his office.

Just one day prior, thousands of documents from a civil suit had been released, implicating Epstein of sexually abusing underage girls. Epstein had previously tried to commit suicide and had just been released from suicide watch 11 days earlier. Epstein was on suicide watch from July 23 to July 29, which required him to have extra security.  There was no immediate explanation as to why Epstein had been taken off of suicide watch. The FBI said that it was investigating and Attorney General William P. Barr said that he would conduct a special inquiry into what happened.

Barr said, “I was appalled to learn that Jeffrey Epstein was found dead early this morning from an apparent suicide while in federal custody. … Mr. Epstein’s death raises serious questions that must be answered.”

According to the jail policy, Epstein was supposed to have been checked on by two guards every 30 minutes. The New York Times reported that the guards “fell asleep, failed to check on him for about three hours and falsified records to cover up their mistake.” Epstein was also supposed to be housed with a cellmate, but his cellmate had recently been transferred. This decision was another violation of the jail’s procedures.

Epstein’s defense team declined to comment on the circumstances of his death, but released a statement saying, “We are enormously sorry to learn of today’s news. No one should die in jail.”

The Autopsy

Dr. Barbara Sampson is the chief medical examiner in New York City. Dr. Sampson released a statement saying that a city medical examiner performed an autopsy on Epstein while a private pathologist observed; however, more information is needed before a cause of death determination is made.

The private pathologist, Dr. Michael Baden, observed the autopsy at the request of Epstein’s representatives. Dr. Baden was the chief medical examiner in New York City in the late 1970s and has been an expert witness in such high-profile cases as O.J. Simpson’s 1994 murder trial.

The Medical Examiner concluded that Epstein’s death was caused by hanging and that his death was a suicide. While the Medical Examiner’s conclusion refutes unfounded conspiracy theories that have surrounded the death, the private expert who observed the autopsy has not yet made a public statement about the cause of death.

Texas flag and gavel

Expert Witness List Released in Texas Police Murder Trial

The expert witness list has been publicly released in the murder trial of a former Dallas Police Officer who shot and killed a man in his own apartment after mistaking him for an intruder.

The Killing

On September 16, 2018, Amber Guyger, 30, was off-duty but in her police uniform when she shot and killed Botham Jean, 26, as he sat and watched football in his apartment. Guyger said that she mistook his apartment for hers and thought that he was an intruder.

Guyger was fired from the Dallas Police Department and was charged with murder. If convicted, she faces five years to life in prison.

Guyger’s trial is scheduled to begin on September 23 of this year in a Texas state district court that is presided over by District Judge Tammy Kemp.

Jean’s death received coverage by the international news media. Guyger’s attorneys now say that she cannot get a fair trial in Dallas because of the inflammatory and prejudicial nature of the media coverage. Judge Kemp has signed a gag order that prevents defense attorneys and prosecutors from commenting publicly on the case while she is deciding whether to move the trial.

Expert Witness List

While the attorneys for each side cannot speak about the case, the state’s expert witness list has become a public record. This list offers some insight into the type of information that the prosecutors have and the evidence that they plan to present at trial.

The state’s expert witness list contains 25 names. The expert witnesses include forensic video analysts, cell phone data experts, and crime scene reconstruction experts.

Former Judge David Finn examined the list and said that the presence of a forensic video analyst means that the prosecution likely has video evidence that they would like to play for the jury. He said, “That would indicate to me that the prosecution has a video or videos that they want to play for the jury. … And they want an expert to come in and say, ‘This is the real deal. It hasn’t been altered.’”

The state’s expert witness list names a company called Cellebrite as a potential expert. Cellebrite is a company that is known for unlocking cell phone data. Finn explained that law enforcement agencies frequently use Cellebrite because they are experts in this area.

The state expert list also includes crime scene reconstruction experts who often testify in officer-involved shootings.

Former judge Finn opined that this trial will likely be a battle of experts. He said, “In a jury trial like this where there are only two witnesses and one of them is deceased, you’re gonna rely on experts to reconstruct the crime scene.” 

Finn explained that “The state’s gonna have crime scene reconstruction experts that are gonna say one thing”  — the defense team “will have experts to say, ‘Not so fast. There’s another side to this coin.’ So you’re gonna have the jury giving conflicting information as experts.”

Baby powder

JNJ Expert Testifies No Link Between Talc and Ovarian Cancer

A New Jersey federal court judge will determine the fate of almost 12,000 lawsuits that claim that Johnson & Johnson’s talc-containing baby powder causes women to develop ovarian cancer and mesothelioma. 

The Lawsuits

Plaintiffs from all around the United States have filed lawsuits against Johnson & Johnson, alleging that the talc that is contained in the company’s baby powder causes cancer.  The plaintiffs believe that the powder contains carcinogenic asbestos and/or asbestiform fibers, which led them to develop cancer.

Johnson & Johnson denied all claims.  The company argued that the plaintiffs could not show that its baby powder causes cancer.

Some of the lawsuits have been litigated with varying results.  Juries have awarded several verdicts to cancer victims in the tens of millions of dollars, with a $4.7 billion award last year.

More than 12,600 of the remaining lawsuits were combined into a multidistrict litigation that is currently being litigated in New Jersey federal court before U.S. District Court Judge Freda Wolfson.

The Daubert Hearings

Johnson & Johnson made a motion to exclude 11 of the plaintiff’s experts, arguing that their methodologies on general causation were unreliable.

Counsel for Johnson & Johnson wrote, “Plaintiffs’ experts’ general causation opinions are methodologically unsound and should be excluded under Daubert, because they misapply scientific principles, engage in unsupported leaps of logic, and distort epidemiology in a results-oriented manner that transforms an important tool for advancing public health into an unprincipled weapon for litigation. … In a nutshell, this is science for the courtroom, not science for the laboratory.”

Judge Wolfson ordered a Daubert hearing to determine if the experts should be allowed to testify.

In the Daubert hearing, the district court heard testimony from Johnson & Johnson’s expert witness, Dr. Benjamin Neel, who is the director of the Laura and Issaac Perlmutter Cancer Center and a Professor of Medicine at New York University. Dr. Neel is a prolific author, having written more than 234 peer-reviewed articles. His work has been cited more than 45,000 times in scientific research articles.

Dr. Neel’s testimony was centered on cellular biology. Dr. Neel stated that he believed that there was a lack of current evidence to suggest that application of talc powder in the genital region would cause inflammation that would lead to ovarian cancer.

The day before Dr. Neel testified, plaintiff’s expert Dr. Ghassam M. Saed testified that talc application to cells for 72 hours can result in a global change in a specific DNA sequence.  Defense counsel Susan M. Sharko of Drinker Biddle & Reath asked Dr. Neel whether Dr. Saed’s opinion was correct.  Dr. Neel stated, “That is completely inconsonant with everything we know about modern molecular biology.” Dr. Neel testified that Dr. Saed’s opinions had no relevance to ovarian cancer, that he had “flawed methodologies,” and that his conclusions “do not comport with modern pathogenesis.”

Plaintiffs’ attorney John M. Restaino of The Sanders Law Firm cross-examined Dr. Neel. Restaino asked Dr. Neel what causes cancer. Dr. Neel replied that cancer can be caused by inherited predisposition, abnormal errors in genomic replication, and environmental agents. However, Dr. Neel also emphasized that “There is no evidence of epidemiological studies alone that say perineal talc application causes cancer.”

Oat fields

Toxicity Experts Debate the Risk of Glyphosate Found in Children’s Cereal

The Environmental Working Group, a non-profit organization dedicated to protecting human health and the environment, recently published the results of a study that revealed that the herbicide Roundup was detected in all 21 of the oat-based cereals and snack products that it tested.  All but four of these products contained levels of glyphosate that are higher that what EWS scientists consider protective for children’s health with a sufficient margin of safety.

Environmental Working Group Study

EWG’s recent study confirms the tests that they conducted in July and October of last year. The prior tests found that levels of glyphosate were consistently above EWG’s children’s health benchmark of 160 parts per billion (ppb).

Glyphosate is one of the active ingredients in Bayer-Monsanto’s weed killer, Roundup, and similar herbicides. Glyphosate regulates plant growth and speeds up crop ripening in broadleaf plants and grasses. People can be exposed to glyphosate by breathing it in, eating food that was treated with it, or absorbing it through their skin.

Some popular food products that were found to have high levels of glyphosate include:

  • Honey Nut Cheerios Medley Crunch – 833 ppb
  • Cheerios Toasted Whole Grain Oat Cereal – 729 ppb
  • Nature Valley Crunchy granola bars, Maple Brown Sugar – 566 ppb
  • Nature Valley Granola Cups, Almond Butter – 529 ppb
  • Chocolate Peanut Butter Cheerios – 400 ppb
  • Nature Valley Baked Oat Bites – 389 ppb
  • Nature Valley Crunchy granola bars, Oats and Honey – 320 ppb
  • Nature Valley Crunchy granola bars, Peanut Butter – 312 ppb
  • Nature Valley Granola Cups, Peanut Butter Chocolate – 297 ppb
  • Cheerios Oat Crunch Cinnamon – 283 ppb
  • Nature Valley Fruit & Nut Chewy Trail Mix Granola Bars, Dark Chocolate Cherry – 275 ppb
  • Nature Valley Granola Protein Oats n Dark Chocolate – 261 ppb

The Expert Debate

In 2015, an agency within the World Health Organization, the International Agency for Research on Cancer, found that glyphosate is a possible carcinogen. In 2017, the Agency for Toxic Substances and Disease Registry, part of the U.S. Department of Health and Human Services, released a study that confirmed and strengthened the cancer agency’s research.

In California, the chemical is a Group 2A carcinogen, which means that there is sufficient evidence that it causes cancer in animals used in experiments and is probably carcinogenic to humans.  “[Glyphosate] is known to the state of California to cause cancer,” said Sam Delson, the deputy director for external and legislative affairs at the Office of Environmental Health and Hazard.

Not all experts agree that glyphosate is a carcinogen. The Environmental Protection Agency, the agency that creates the legal limits on pesticide residues, has stated that glyphosate does not pose a public health risk. In April, EPA scientists concluded that there is “no risk to human health from current uses of glyphosate” and “no evidence that glyphosate causes cancer.”

Environmental experts complain that the EPA disregarded mounting evidence associating glyphosate with cancer risk. In addition, the scientific journal, Environmental Sciences Europe, found that the conclusions reached by EPA and the International Agency for Research on Cancer differed because the EPA relied mainly on studies conducted in-house by Monsanto or contracted by EPA with an outside lab.

Court room

Experts Overstating Forensic Results A Leading Cause of Wrongful Convictions

The National Registry of Exonerations recently released its report on Exonerations in 2018. Importantly, it found that official misconduct and misleading forensic evidence were the leading causes of wrongful convictions.

2018 Statistics on Wrongful Convictions

There were 151 exonerations that occurred in the United States in 2018. The exonerations were for the following crimes:

  • 66 murders
  • 2 manslaughters
  • 17 sex crimes – 7 of those involved children
  • 16 other violent crimes including arson, robbery, and attempted murder
  • 47 non-violent offenses including drug crimes, fraud, theft, and traffic offenses

These men and women who were exonerated spent more than 1,600 combined years in prison.

Causes of Wrongful Convictions

In these exonerations, offcial misconduct took place in 107 of these cases. Mistaken eyewitness identification occurred in 31 cases. False confessions were given in 19 cases. Perjury or false accusations occurred in 111 cases.

Almost one-third of these wrongful conviction cases involved a police corruption scheme in Chicago where a police officer framed individuals on drug charges.

In a New York Times report, reporter Heather Murphy examined the misleading forensic evidence that led to many wrongful convictions and how experts often exaggerated statistical claims to bolster their unscientific opinions.

Murphy noted that once an expert has been qualified to testify in a courtroom, there are often few limits on what they can and cannot say. According to Simon Cole, the director of the registry and a professor of Criminology, Law and Society at UC-Irvine, “An expert can say whatever they want.” This includes inventing odds like “one in a million” or “1 in 129,600.”

“A lot of the problem with forensic testimony is that the diagnosticity is overstated,” said Barbara O’Brien, a professor at the Michigan State University College of Law and author of the report. A hair sample at the crime scene that resembles a suspect’s hair “gets dressed up with this scientific certainty that isn’t justified,” she said.

Additionally, some forensic techniques that have been used to wrongly convict individuals have later been found to be invalid. In 2013, the FBI reported that testimony asserting that microscopic hair comparison could produce a match between two hairs was scientifically invalid. In 2018, an appeals judge declared that “scientific knowledge underlying the field of bite mark comparisons has evolved in a way that contradicts evidence” that was formerly used to convict a defendant.

Professional Exonerators

Luckily, there are professional organizations that exist for the sole purpose of exonerating those who have been wrongly convicted. Conviction Integrity Units and Innocence Organizations were responsible for 99 of the 151 exonerations that occurred in 2018.

Conviction Integrity Units are divisions of prosecutor’s offices that work to prevent, identify, and correct false convictions. In 2018, there were 44 Conviction Integrity Units in the United States, which is almost three times the number that existed just five years earlier but still a small fraction of the number of prosecutor’s offices that seek convictions in the United States. Conviction Integrity Units were responsible for 58 exonerations in 2018.

Innocence Organizations are non-governmental organizations that are dedicated to the exoneration of wrongly convicted defendants. In 2018, Innocence Organizations represented defendants in 86 exonerations.

Courtroom

Parties to Settle Matter of Expert Sanctions for Refusal to be Videotaped

A prominent New Jersey construction expert witness has reached a settlement that will vacate the court order that would have required him to pay over $22,000 for his refusal to be videotaped during a deposition. 

The Refusal to Be Videotaped

Michael Panish was retained as a critical liability expert by the Ruehl family after Mrs. Ruehl’s family claimed that she had been struck by a sliding door, which caused her to fall and eventually die. The Ruehl family hired Panish as an expert in multiple construction and building disciplines; specifically as an expert in the field of automated sliding glass door technology. Panish had indicated that he had served as an expert witness in over 1,000 past cases.

During discovery, the defendant wanted to take a videotaped deposition of Panish. Panish refused, citing a clause in his expert witness contract. The court ordered Panish to comply with the request.

When the Ruehl family’s attorneys, Bordas & Bordas, told Panish about the order, he said, “I don’t care about you or her [the decedent Plaintiff, Shirley Ruehl] or some asshole judge.” He also scheduled a deposition with the defendants and charged them for attending, but did not show up for it. He claimed to have been stricken with laryngitis. 

The Sanctions

The defendants requested that the court sanction Panish for his conduct. The court awarded $22,270.30 in sanctions. Panish fought back and appealed his case to the U.S. Court of Appeals for the Third Circuit.

Expert Witness’s Defense

Panish said that he told the Bordas firm at least 18 times that he would not agree to be videotaped. Panish’s attorneys said, “Mr. Panish does not permit videotaped depositions of himself, except under very limited circumstances, to protect his professional reputation and image. … Mr. Panish does not permit his picture to be taken for professional purposes and does not even use his picture on his website.”

“It is unconscionable that the Bordas law firm allowed the issue to fester until March 2017 when the firm could have, and should have, secured a substitute liability expert early in the case or seek permission from the Court to extend discovery to do so,” Panish’s lawyers wrote.

Panish’s attorneys argued that he was not subpoenaed by the defendants to testify at deposition and noted that the Bordas law firm withheld defendant’s notice to take Panish’s deposition for three weeks before providing him with the notice. They wrote, “It is reasonable to infer under the circumstances that the Bordas law firm wanted to avoid confronting the reality of the fact that it had known for three years that Mr. Panish would not permit his deposition to be videotaped.”

Panish’s attorneys also noted that “neither Plaintiff nor Defendant moved for an order compelling Mr. Panish to testify at deposition. Even if either party had done so, it is respectfully submitted that this Court could not compel Mr. Panish’s deposition as his engagement with the Bordas law firm set forth the terms and conditions of his retention.”

The parties have since filed a joint motion to settle the matter as long as the court orders of sanctions were vacated. Additional terms were not disclosed.