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.

Blood-Splatter Expert Testimony Challenged in Murder Trial

Blood Spatter Witness Testifies in Habeas Hearing

An expert in blood spatter offered testimony in the habeas hearing of Brad Jennings, who was convicted of the murder of his wife, Lisa, in 2009.

Death of Lisa Jennings

Lisa Jennings was found dead of a gunshot wound early on Christmas morning in 2006. The Dallas County coroner initially ruled her death a suicide. Lisa Jenning’s right hand tested positive for gunshot residue and both of her husband’s hands tested negative for residue.

A few months after Lisa’s death, her younger sister went to the police with her concern that Lisa had been murdered by her husband, Brad. Sergeant Dan Nash led another investigation of the death.

Nash concluded that Lisa Jennings had not committed suicide — she had been shot by her husband, Brad. At Brad’s trial, Nash explained that his conclusion was based on blood spatter evidence, or the interpretation of individual blood stains. Nash testified that he believed that the death was a murder and not a suicide because Lisa Jennings’ hand only had one drop of blood on it. Nash testified that there should have been more “blowback” present from a gunshot. Brad Jennings was convicted of his wife’s murder and sentenced to 25 years in prison.

Writ of Habeas Corpus

Brad Jennings has maintained his innocence since his conviction. His sister hired an investigator and attorney who discovered that the prosecution suppressed evidence that may have been exculpatory.

Brad Jennings filed a writ of habeas corpus, requesting that his conviction be vacated and he be released or that he receive a new trial. Circuit Judge John Beger presided over the hearing.

The defense called Joseph Slemko to testify as an expert in blood spatter. Joseph Slemko is a veteran police officer with 31 years of experience and works as a blood spatter consultant. Slemko has taken 32 courses on blood spatter over the past 23 years. Slemko pointed out that the blood spatter pattern radiated out 180 degrees from the closet where Lisa Jenning’s body was found. Slemko noted that if Brad Jennings or anyone else had been standing there, there would have been a “void” or disruption in the spatter. Slemko testified that Lisa Jenning’s death was “clearly a suicide.”

Slemko criticized Sergeant Nash’s qualifications to interpret the blood spatter evidence. Slemko opined that Nash’s blood spatter report didn’t make sense and looked like it was copied and pasted from other sources. Nash had taken a one-week course on blood spatter analysis. Slemko stated, “He absolutely is not qualified. . . . In my opinion, he wasn’t even qualified after taking that basic course.”

Slemko additionally criticized Nash’s conclusion that there should have been “blowback” from the gunshot. Slemko said, “Back splatter is actually a very rare thing in most firearm related events.” Slemko also opined that the blood that was found on Brad Jennings’ bathrobe could have come from the blood in his wife’s hair; it did not necessarily result from him firing a gunshot.

Under cross-examination, Slemko admitted that he is not an expert in gunshot residue evidence, that he never saw the bathrobe at issue, and that he did not know about Nash’s other training that may have been relevant to the investigation.

Bowe Bergdahl

Forensic Psychiatrist Testifies in U.S. Army Deserter Hearing

US Army deserter Bowe Bergdahl received a dishonorable discharge, but will avoid prison time. Bergdahl’s defense relied upon testimony from a forensic psychiatrist.

Bergdahl’s Desertion

Bowe Bergdahl was a Sergeant in the US Army who deserted his post in Afghanistan. Bergdahl was captured by the Taliban and held for five years until he was released in exchange for five Guantanamo Bay detainees.

Bergdahl said that he was tortured and beaten during those five years and spent them in complete isolation. Bergdahl described torture with copper wire, sickness brought on by squalid conditions, and being placed in a cage for years.

Following Bergdahl’s return, the US military investigated his decision to leave his post. Bergdahl was charged with desertion and misbehavior before the enemy.

Bergdahl pleaded guilty and chose to be tried by a military judge. Prosecutors asked for a 14-year prison sentence. Defense attorneys sought leniency by presenting evidence of time spent in captivity, mental illnesses, and criticism by President Donald Trump.

Bergdahl’s Defense

Defense attorneys called Dr. Charles Morgan as a witness. Dr. Charles Morgan is a forensic psychiatrist and professor at University of New Haven and Yale University. Dr. Morgan is an international expert in post-traumatic stress disorder, eyewitness memory, and human performance under conditions of high stress. Dr. Morgan is also an expert in the selection and assessment of US military Special Operations and Special Mission Units.

Morgan stated that he interviewed Bergdahl’s family and friends and did extensive testing on Bergdahl. The testing included psychiatric evaluations, stress exams, and neurological psychological testing.

Dr. Morgan concluded that Bergdahl suffered from a schizotypal personality disorder before he enlisted in the army. Bergdahl also suffered from post-traumatic stress disorder and social anxiety.   Morgan testified that people with schizotypal personality disorder tend to indulge in grandiose fantasies that may compel them to take action they are convinced is morally right, even if it is not grounded in reality. Morgan said that Bergdahl understood the difference between right and wrong, but may have had difficulty seeing the second- and third-effects of his actions and the impacts they will have on others.

Morgan testified that Bergdahl was “someone who had a number of factors that pointed to stress vulnerability before enlistment.” Morgan pointed to Bergdahl’s childhood with a father who punched holes in the wall and said that Bergdahl felt “dumb, inferior, worthless (and like a) failure in the eyes of his father.”

Bergdahl has said that he left his post in Afghanistan intending to reach another base and report what he thought were problems with his unit. Morgan said that this decision would be consistent with schizotypal personality disorder. Morgan opined, “I think he believes there are times that, if it’s the morally right thing to do, you have to break the rules. . . . There’s not a thinking through of: ‘Are there other ways to achieve this goal?'”

The Ruling

Army Colonel Jeffery Nance ruled that Bergdahl will not serve any time in prison, but will be reduced in rank to private, forfeit $1,000 per month in pay, and receive a dishonorable discharge.

Photo Credit: United States Army (http://blog.oregonlive.com/) [Public domain], via Wikimedia Commons

Electoral System

Port Chester Hires Voting Expert to Help the Village Decide its Future Electoral System

The Village of Port Chester, New York has hired Dr. Lisa Handley, an expert in voter data analysis and voting patterns among Hispanics, to help decide the future of its electoral system. The Board of Trustees authorized payment to Dr. Handley of up to $20,000.

A voting expert is needed following the settlement of a voting-rights case between Port Chester and the U.S. Department of Justice. Port Chester needs to choose a new electoral system before the village’s next election in 2019.

Voting Rights in Port Chester

In 2006, the United States filed a complaint against Port Chester, alleging that its at-large system of electing its Board of Trustees diluted the voting strength of its Hispanic citizens in violation of Section 2 of the Voting Rights Act. According to the 2016 American Community Survey, Port Chester has a population of 29,524 and the majority of its population is Hispanic.

The resulting federal consent decree mandated that Port Chester use a “cumulative voting” system and implement an extensive Voter Education Plan including bilingual information and training sessions, educational brochures, notices and advertisements, exit polling, and a bilingual program coordinator.

Using cumulative voting, all six of Port Chester’s trustees are elected at once and voters are allowed to apportion their six votes in any way — all six votes could go to one candidate.

Prior to the federal consent decree, no Hispanic candidate had ever been elected to the Board of Trustees. In 2010, following the implementation of the new cumulative voting system, Peruvian immigrant Luis Marino became Port Chester’s first Hispanic trustee.

The federally mandated voter protections were to remain in place for the next three Trustee elections. The consent decree did not give guidance on how to proceed after those three elections. Port Chester’s next village election will be in March 2019.

Dr. Lisa Handley

Dr. Lisa Handley testified as an expert witness in this case in 2007 and 2008. Handley’s expertise is “in the fields of racially polarized voting, analyzing voting behavior, statistical analysis of voting, and the effect of electoral practices of minority participation and representation.” Dr. Handley used three methods of statistical analysis to review election data and analyze how voters cast their votes in each election. In 2007, Dr. Handley testified that Port Chester’s voting was “racially polarized and the Hispanic-preferred candidate is usually defeated.”

Dr. Handley received her PhD from George Washington University and is president of Frontier International Electoral Consulting in Maryland.

Port Chester has also requested opinions on the legality of continuing the current system from the New York State Board of Election, the New York State Attorney General’s Office and the Department of Justice.

Village Attorney Anthony Cerreto has stated that the final decision on the electoral system will likely be voted on by the Board of Trustees and may also require a public referendum. Cerreto said, “The board intends to have a public, inclusive, transparent process throughout.”

Mesothelioma

California Appeals Court Allows Trial on Asbestos in Talcum Powder

A California Appeals Court will allow a cancer patient’s lawsuit against the maker of a talcum powder that may have contained lethal levels of asbestos to go to trial.

Mary Lyons’ Mesothelioma

Mary Lyons was diagnosed with malignant mesothelioma in October 2015. Malignant mesothelioma is a cancer commonly caused by asbestos. Asbestos can be inhaled and ingested without knowledge and remain dormant for decades before causing health problems. The period between initial asbestos exposure and mesothelioma diagnosis ranges from 10 to 50 years. Lyons claims that she used Cashmere Bouquet talcum powder from the early 1950s to the early 1970s and that she had no other known exposure to asbestos.

Colgate-Palmolive manufactured Cashmere Bouquet talcum powder from 1871 to 1995. Cashmere Bouquet’s talc came from mines in Montana, North Carolina, and Italy. Lyon’s expert witness found asbestos in talc from each of the three mines and in Cashmere Bouquet during the years that Lyons used it. Commercial talcum products were not required to be asbestos-free until 1973.

Colgate moved for summary judgment against Lyons. It presented a geologist’s opinion that Cashmere Bouquet never contained asbestos, so it could not have been the source of Lyons’ mesothelioma. In the alternative, Colgate argues that Lyons could not produce any of the bottles that she used and prove that those specific bottles contained asbestos.

A San Francisco Superior Court judge granted summary judgment to Colgate. Lyons moved for reconsideration. She introduced testimony by an expert who opined that he tested 50 vintage containers of Cashmere Bouquet and all of them contained asbestos. The motion for reconsideration was denied and Lyons appealed.

In her appeal, Lyons argued that the trial court’s order was “sparse and nonspecific,” that the fact that she didn’t have any of the old bottles of the Cashmere Bouquet didn’t mean that she could not prove they contained asbestos by other means, and that evidence showed that Colgate had sourced talc from mines that were contaminated with asbestos.

The First District Court of Appeal in San Francisco agreed with Lyons’ arguments. It found that Lyons’ expert’s testimony was sufficient to send trial to jury because based on the evidence, jurors could conclude that “all or most of the Cashmere Bouquet that (Lyons) used almost daily for 20 years contained harmful asbestos.”

Related Cases

In April 2015, a California court ordered Colgate-Palmolive Co. to pay $12.4 million to a woman with mesothelioma after a jury found that Cashmere Bouquet was the main cause of her disease. Plaintiff Judith Winkel said that she regularly used Cashmere Bouquet from 1961to the mid-1970s and presented evidence that, during those years, Colgate got its talc for the powder from mines in Montana, North Carolina, and Northern Italy that were known to be contaminated.

In 2013, a jury awarded $2 million to a New Jersey women when it found talc supplier Whittaker, Clark & Daniels responsible for her mesothelioma. In this case, evidence showed that the woman’s father brought home factory clothes that were covered in asbestos-laced talc.

Expert Changed His Testimony to Support Client’s Case

Expert’s testimony in another trial raises serious questions about whether he changed his testimony to support his client’s case

A judge has ordered Montana Attorney General Tim Fox to preserve his office’s communications with an expert witness in a lawsuit against lethal injections, along with the results of any internal investigation into allegations that the witness was told to change his testimony.

The Underlying Case

Death-row inmates Ronald Allen Smith and William Gollehon sued the state of Montana over its plans to use pentobarbital in lethal injections after the Department of Corrections was no longer able to obtain pentothal, the original barbiturate that the state used in its two-drug execution protocol.

Montana law requires that an “ultra-fast-acting barbiturate” be used in lethal injections.

The Montana State Department of Justice hired Roswell Lee Evans, the dean of Auburn University’s pharmacy school to support the state’s argument that a drug called pentobarbital met the requirements of Montana state law for use in executions.

At trial, Evans testified that pentobarbital met Montana’s “ultra-fast-acting barbiturate” requirement. However, Evans’ original declaration did not address this “ultra-fast-acting” requirement.

The state’s argument was ultimately unsuccessful and District Judge Jeffrey Sherlock ruled that pentobarbital did not meet the requirements of the Montana law, stating that, “Under the express terms of the statute, the State of Montana is not allowed to use the ‘fastest acting barbiturate available’ or a ‘relatively fast-acting barbiturate,’ only an ‘ultra-fast barbiturate.’… The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision.” This ruling effectively halted all executions in Montana.

The Tennessee Case

The attorneys for two of Montana’s death-row inmates located the transcript from an unrelated case in Tennessee where Evans also testified as an expert witness. In the transcript, Evans appears to admit that he changed his original opinion on pentobarbital to better support the State of Montana’s argument. The attorneys requested that District Judge Deann Cooney order the preservation of documents so that they could investigate whether Evans had been coerced to change his original testimony.

Jim Taylor, the Legal Director of the ACLU of Montana has stated that it appears that government attorneys persuaded Evans to change his original declaration. Taylor has argued that if Evans had not changed his testimony, the case would never have gone to trial.

The Order

Judge Cooney entered an order in this matter on December 12, 2016, stating, “This court agrees Dr. Evans’ testimony in West v. Schofield raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true.”

The Response

The Montana Department of Justice has denied telling Evans to change his testimony. Spokesperson for Fox, Eric Sell, stated, “The state will comply with the court’s order.… We are confident that, after review, the court will find that we did everything right.”

Assistant Attorney General Ben Reed has stated that Evans’ testimony was consistent because barbiturates are typically classified by their duration and not their rapidity.

Election Experts Testify in Virginia Voter ID Case

Virginia Taxpayers Spent More Than $38 Million on Litigation Against State Institutions

Virginia has spent more than $38.6 million defending and settling claims against jails, sheriff’s departments, prisons and mental health facilities during the past five fiscal years, according to data from the Virginia Department of the Treasury.

The Report

The Virginia Department of Treasury recently released a paper that reports that Virginia has spent more than $38.6 million defending and settling claims brought by families of those who have died while incarcerated and claims involving excessive force by deputies, wrongful arrests, and other acts of negligence.

The paper also reports that plaintiffs in four additional pending wrongful death lawsuits are suing for a collective $115 million in damages.

Details of the Spending

Virginia spent $2.2 million to defend and settle a lawsuit brought by the family of Billy Creed. Creed was a delusional and paranoid man who stole a car, went to jail and died within a few days of his 2006 arrest. Creed’s family accused guards at the Prince William-Manassas Regional Adult Detention Center of beating, pepper-spraying and choking Creed before he died.

Virginia also spent $1.2 million to defend and settle a lawsuit brought by the family of James Robinson, who had a seizure while driving, crashed his car into a house and was taken to the city jail, where he died within two weeks. The lawsuit claimed that Robinson was not given his seizure medication and developed a painful infection in his lungs that was ignored by guards and medical staff.

Virginia spent $677,000 to defend and settle a lawsuit filed by the family of Guido Newbrough, a German national who was taken to Piedmont Regional Jail in Farmville to await deportation because of a felony criminal conviction. Newbrough died within eight months of his arrival. His family said he developed a staph infection so severe he couldn’t walk.

Richmond Sheriff’s Office and Richmond’s City Jail

According to the report, the taxpayers of Virginia have spent almost $6 million defending and settling lawsuits against the Richmond Sheriff’s Office and the Richmond City’s Jail over the past 5 years. That is $1.5 million more than the next agency on the list and $5.2 more than the  average of agencies with at least $100,000 in claims.

The Response

Richmond Sheriff C.T. Woody Jr. said in an interview, “Y’all say, ‘You’re killing people down there’ … No, the people are dying when they come here…. Yes, they are dying … They are dying here, but I think (their families) should carry their pain and their anguish to the people who can actually do something about the bigger picture: to the General Assembly, the lawmakers, the people who control the funding.”

Experts have said that Woody is half right and that the deinstitutionalization that pushed people out of state-run mental facilities and into communities ill-equipped to accommodate them has resulted in their reinstitutionalization in jails. However, Frank Cohen, a professor emeritus at the State University of New York at Albany and a former federal court monitor overseeing juvenile justice in Ohio has said, “No, people with mental illnesses don’t belong there, but that doesn’t mean (Woody) doesn’t have a constitutional obligation to take care of them.”

Memories

Expert Witness Questions the Nature of Memories

An expert witness has challenged the nature of memory in the trial of Brent Hawkes, a longtime leader of Toronto’s gay community who is facing one charge of indecent assault and one charge of gross indecency for allegedly having oral sex with a 16-year-old more than 40 years ago.

The Incident

Hawkes has been accused of performing sex acts on a teenage boy when he was a teacher in Nova Scotia’s Annapolis Valley. The alleged incident took place over 40 years ago, when Hawkes was still in his mid-20s.

Hawkes has denied the allegations. Hawkes was charged with indecent assault and gross indecency. He pleaded not guilty to both offenses.

The case against Hawkes is based almost entirely on the eyewitness testimonies of three witnesses. One man testified that when he was about 16 years old, Hawkes led him down a hallway during a drunken get-together at his trailer and forced oral sex on him in a bedroom. Two other witnesses corroborated his testimony.

The Expert’s Testimony

Hawkes’ attorney, Clayton Ruby, called Timothy Moore to testify for the defense.

Timothy Moore is a cognitive psychologist and the chair of the psychology department at York University’s Glendon College. Moore has testified as an expert in approximately 50 trials in both the United States and Canada.

Moore testified in Hawkes’ defense on November 21, 2016. Moore testified that it is not uncommon for people who have gaps in their memories to unconsciously insert memories into those gaps and adopt them as real. Moore stated that, “Memories can undergo a substantial amount of modification over time and the longer the time, the more opportunity for these kinds of misinformation effects to occur… The more often a memory is revisited, or recollected or rehearsed, the more confident the rememberer will be with its authenticity.”

Moore cautioned that, “I think we need to be concerned about the reliability of a 40-year-old memory anyway, simply because of the passage of time and the opportunity of misinformation effects.”

Moore also explained the phenomenon of “imagination inflation” where an imagined event over time becomes indistinguishable from an actual memory. Moore stated that imagination inflation is not uncommon and can be self-generated. Moore also stated that it was a “red flag” that the alleged victim’s testimony of his memories of the event continued to evolve.

Speaking about the alleged victim’s improving memories, Moore explained that, “If they’re still improving now…it appears to me that imagination inflation may be at work… ([T]he complainant) is ruminating on events that’s happened 40 years ago. That’s rich fodder for imagination inflation.”

Cross-Examination

Crown lawyer Bob Morrison cross-examined Moore. Morrison pointed to Moore’s testimony that people tend to remember events that are unique, significant, or personal. Morrison also pointed to testimony that indicated that incoherent or incomplete memories are not necessarily false.

Morrison asked, “Would an example of that kind of memory be a group of high school students going to a party and one of them observing a teacher performing oral sex on another participant of the party?” Moore responded, “Yes.”

Pistol

Gun Expert Challenged in Kleopa Murder Trial

Prosecutors have challenged a defense firearms safety expert in the trial of George Kleopa, who has been charged with the 2012 shooting of his live-in girlfriend, Michele Peters.

The Shooting

On March 6, 2012, a 30-year-old Michele Peters was found dead after being fatally shot in the face. At the time, Kleopa and Peters had been a couple for 14 years. Peters’ friends and family allege that it was an abusive relationship and that Peters had been planning to leave Kleopa and move away with the couple’s sons.

Witnesses have said that they heard the couple arguing on the night that Peters was shot. Kleopa maintains that the shooting was accidental — he claims that his Springfield Armory XD 40 pistol discharged accidentally, striking Peters in the face.

The Arrest

Four months after Peters’ death, Kleopa was arrested and charged with first-degree murder. Kleopa has remained free on a $200,000 bond since he was charged.

Prosecutor Nicholas D’Angelo offered a plea deal for Kleopa to plead to a lesser charge of involuntary manslaughter in exchange for a 10-year prison sentence. Kleopa indicated he did not want to make such a deal and that deal has since been revoked. If convicted by a jury of first-degree murder, Kleopa faces a sentence of 45 years to life.

The Proposed Expert

As Kleopa prepares to go to trial, his attorneys, David Sotomayor and Theodore Gailin, have proposed a firearm safety expert to testify in Kleopa’s defense.

Prosecutor Nicholas D’Angelo argued that the proposed expert’s testimony would be hearsay based upon a demonstration that Kleopa gave in the expert’s office with the gun two years after the shooting. D’Angelo said, “There has to be some reliability of data to back that opinion,” noting that the pistol required a six-pound pull to produce a discharge. “The defendant has a self-serving interest on how he manipulated the gun.”

D’Angelo argued that, by presenting this expert, Kleopa’s attorneys were attempting to isolate Kleopa from having to take the stand.

Kleopa’s attorney, Gailin, responded that D’Angelo was trying to eliminate testimony that could exonerate his client. Gailin argued, “The issue is whether he deliberately shot the gun…The expert said the discharge could have been fired by accident. It’s up to the prosecution in cross-examination of an opposing party to give a weight to expert’s opinion.”

Cook County Judge Allen Murphy ruled that, “The only person who can testify to that is Mr. Kleopa on how he fired the firearm…The expert can only testify to the functioning of the gun. [The witness] cannot render any other opinion.” Judge Murphy also ruled that the expert could watch Kleopa demonstrate how he handled the gun in court and then comment.

The Reaction

Commenting on the recently set trial date, Peters’ mother, Catherine Peters-Bird, has said she was relieved that her daughter would finally get some small measure of justice. “I’m ecstatic that there is a date to put this man out there where people can see the truth.”

Drugs

Expert Testimony Allowed in Vehicular Homicide Trial

Testimony from an expert witness with a contrary view of Ohio’s drugged driving laws was admitted in an aggravated vehicular homicide trial against Curtis Hull.

The Incident

On November 8, 2015, Chelsie Alaimo was crossing the street in Mount Vernon when she was struck and killed by a 2005 Chevy Trailblazer driven by Hull. Hull was reportedly impaired at the time of the incident, with high levels of marijuana, cocaine and heroin in his system.

Alaimo, who was 17, was also a senior at Mount Vernon High School. Following Alaimo’s death, students a Mount Vernon High School were notified of the death and told that counselors were present for anyone who needed assistance. Alaimo was an eight-year member of the band and four-year member of the Mount Vernon High School Marching Band. She was very active in many clubs and organizations at the High School.

The Trial

The driver, Curtis Hull, was charged with one count of vehicular homicide, which is a second-degree felony; one count of operating a vehicle under a controlled substance, which is a first-degree misdemeanor; and three counts of operating a vehicle under the influence of a listed metabolite of a controlled substance, which is a first-degree misdemeanor. Hull was held in Knox County Jail on a $250,000 cash bond. At the time of his charging, Hull also had an unrelated felony possession of cocaine charge pending against him.

Hull was originally represented by Public Defender Brandon Crunkilton. Hull decided to hire his own attorney, after Crunkilton reportedly told him that he was “screwed.” Crunkilton withdrew as counsel on February 17, 2016. Since Hull did not obtain an attorney as of late April, 2016, he was assigned another attorney. Hull is being represented by Knox County Public Defender Bruce Malek. Malek became Hull’s attorney of record on April 28, 2016.

The Expert

The Defense team filed a motion seeking to allow the testimony of Ohio State University college of pharmacy professor emeritus Alfred Staubus as an expert witness. Staubus has a Pharm.D. and a Ph.D. In addition to being an emeritus faculty member of The Ohio State University College of Pharmacy, Staubus is also is president of A & A Consultants, Inc. Staubus provides consulting and expert testimony in the area of forensic toxicology of alcohol and other drugs. He is a member of many professional and scientific organizations, including the Toxicology Section of the American Academy of Forensic Sciences and the Society for the Scientific Detection of Crime of which he is a past president.

Staubus reportedly has a “contrary view of Ohio’s drugged driving laws.” Knox County Prosecuting Attorney Chip McConville filed a motion seeking to bar Staubus from testifying.

Curtis Hull is currently scheduled to be tried by Jury in Knox County Common Pleas Court beginning December 13. Hull faces up to eight years in prison on the aggravated vehicular homicide charge.

The motion was heard and the presiding judge determined that Staubus would be allowed to testify.

Dog Food

Lawsuit Failed To Show That Purina’s Beneful Sickened Thousands Of Dogs

After ruling that he could not accept the testimony of an expert witness, a federal court judge ruled in favor of Nestle Purina PetCare in a class action lawsuit that claimed the company’s Beneful brand dog food made thousands of dogs ill.

The Lawsuit

On February 5, 2016, Frank Lucido filed a lawsuit in California federal district court, alleging that one of his dogs died and two other became severely ill after eating Beneful exclusively. Lucido sought class-action status and $5 million in damages. The suit cited anecdotal evidence from over 3,000 pet owners who had similar complaints about Beneful.

Following a NBC News report on the lawsuit, many other dog owners came forward with concerns that their dogs may also have been harmed by Beneful.

Morgan Malone, 19, of North Carolina, stated that her miniature dachshund, Doc, suddenly took ill after consuming Beneful. “My little boy had been healthy and all of a sudden within a week got super sick and passed away…He had been eating Purina Beneful dry dog food.”

Julie Hyde, 39, of Sandwich, Illinois, stated, “I lost my dog who was 6-years-old, healthy as a horse just this past December and I know in my heart the food was the cause.” Hyde reported that her otherwise healthy 6-year-old pit bull suffered bloody stool, vomiting, and dramatic weight loss several days after switching to Beneful Healthy Weight dog food.

Purina’s Response

Purina responded to the suit by publishing a statement and question and answer section on their website. Purina denied the claims and stated that Beneful is safe for owners to feed their pets. Purina called the various reports by consumers “unsupported.”

Dr. Kurt Venater, director of veterinary strategy and programs at Purina, argued that the claims in the lawsuit were “false and misleading. … Vets know pets get sick for many reasons and the food they eat is often not the root cause. … The challenge is this can be confusing and alarming to pet owners.”

The Plaintiffs’ Expert

The plaintiffs consulted with a veterinarian and expert in veterinary toxicology. The plaintiffs’ expert tested Beneful kibble from 28 dogs who allegedly fell ill after eating the dog food. This sample represented only about 2{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the cases supposedly related to the Purina food.

The plaintiffs’ expert found measurable levels of mycotoxins, heavy metals, and propylene glycol in the food, but all were within limits of what federal regulators consider safe. The plaintiffs’ expert argued that FDA standards for mycotoxin levels don’t take into account the effects of regular, prolonged exposure to the chemicals — such as you might find in a dog eating the same food twice a day for years on end.

The court rejected the testimony of the plaintiffs’ expert, finding “His conclusions are, in fact, entirely inconclusive.” The court further found that the only way the veterinarian’s findings on these 1,400 dogs could have relevant and probative value, is if there is a “scientific basis for his opinions that chronic exposure to mycotoxins, etc. at the levels at issue may cause health problems in dogs.”