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.

Prison, Barbed Wire

Judge Excludes Expert Testimony in Prison Sexual Relations Case

A district court judge has decided to exclude the testimony of an expert on interrogations and false confessions in the trial of a prison dental instructor who has been charged with unlawful sexual conduct with female inmates.

The Alleged Misconduct

Women inmates from the Topeka Correctional Facility have accused their former dental lab instructor of inappropriate sexual conduct. The women claim that Tomas Co, 73, flaunted his authority over them, touched their breasts and vaginas without their consent, and compelled one of them to massage his penis to ejaculation.

Mary Ostrander, a special agent with the Kansas Department of Corrections, interviewed 25 inmates about their experiences with Co. The women were participants in a program that was designed to teach them a marketable skill upon release. Co was a dental instructor who was tasked with training the inmates on how to make dentures. Some inmates told Ostrander that they feared that they would lose their certification if they objected to Co’s behavior.

Following Ostrander’s interviews with Co’s students, he was fired from his position. He was then charged with seven charges of unlawful sexual relations with seven different inmates.

The Proposed Expert Testimony

Chris Joseph, Co’s defense attorney, filed an expert witness disclosure letting the prosecution know that he intended to call Professor Alan Hirsch to testify on Co’s behalf. Joseph said that Hirsch is a nationally recognized expert on police interviews and interrogations, including the “Reid Technique,” which is a method of police interrogation. Joseph argued that the Reid Technique could affect the reliability of statements made by someone who was questioned utilizing that method.

According to his website, Hirsch is a Yale Law School-educated attorney and writer who has focused his career on false confessions. He has been retained as an expert in approximately 200 states, and has been qualified as an expert in Alaska, Arizona, Colorado,  Connecticut, the District of Columbia, Florida, Georgia, Indiana, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, North Carolina, Ohio, South Carolina, Tennessee, Vermont, Virginia, and Washington.

The prosecution filed a motion to exclude Hirsch’s testimony. Shawnee County District Court Judge Cheryl Rios granted the motion.

Under Kansas law, judges “must assess on a case-by-case basis whether expert testimony will be helpful to the jury” and expert testimony is only admissible “if it will be of special help to the jury on technical subjects (with) which the jury is not familiar or if such testimony (will) assist the jury in arriving at a reasonable factual conclusion from the evidence.”

Judge Rios reasoned that the case was not factually complex and that “[i]t is well within the jury’s ability to determine whether the witnesses in this case made false accusations against the defendant and whether techniques used to question these witnesses resulted in false accusations.”

Judge Rios wrote, to allow the expert opinion testimony “would invade on the field of common knowledge and experience of the jury,” the judge wrote. She also stated that cross examination, persuasive argument and cautionary instructions by the defense will provide safeguards against unreliable witness testimony.

 

Gavel and scales

Expert Designation Issue Loses Med-Mal Case

A California appeals court has affirmed the decision of a trial court in a case where the patient sued a doctor for malpractice, but was unable to present testimony from the doctor who successfully treated her because the doctor was not designated as an expert witness.

The Unsuccessful Treatment

From 2014 to 2016, Lyudmila Lerner was treated by Stanley Cowen, M.D. for a wound on her leg.  During the time Lerner was treated by Dr. Cowen, her wound grew in size and her discomfort increased.

In March 2016, Lerner suffered heavy bleeding from the wound. She was admitted to Cedars-Sinai Hospital for an emergency procedure. Dr. Suzuki treated Lerner at Cedars-Sinai. Dr. Suzuki’s treatment resulted in fast and positive results. Lerner was discharged from the hospital within two weeks and has not suffered a relapse since.

Trial Court Proceedings

In October 2016, Lerner filed a complaint against Dr. Cowen. Lerner argued that Dr. Cowen’s “breach of the applicable standard of medical care” exacerbated her wound and increased her pain and suffering during the time of treatment. The case was scheduled for trial on January 14, 2019.

Dr. Cowen filed a motion in limine, arguing that the court should exclude the proposed testimony of Dr. Suzuki because he was an undesignated expert witness. Dr. Cowen argued that the opinion of a physician who was not designated as an expert is irrelevant in a medical malpractice action. Dr. Cowen pointed out that Lerner had taken the deposition of Dr. Suzuki without providing him with any notice. Because of her failure to properly provide notice, Dr. Cowen was unable to attend or participate in the deposition in any way.

Dr. Cowen also noted that Lerner served an expert designation in December 2017 which listed one retained expert and one non-retained expert. This expert designation did not list Dr. Suzuki as either a retained or non-retained witness. However, at the time of the trial, she indicated that she intended to call Dr. Suzuki as a witness at trial.

Lerner filed an opposition to Dr. Cowen’s motion in limine, arguing that as a treating physician, Dr. Suzuki “was permitted to testify to his understanding of the standards of medical care and their application to the plaintiff’s treatment.” Lerner also argued that Dr. Cowen should have been aware of Dr. Suzuki’s role as a treating physician and had been given a copy of the deposition.

The trial court heard argument on the issue and granted Dr. Cowen’s motion in limine, preventing Dr. Suzuki from testifying at trial. The jury returned a defense verdict.

The Appeal

Lerner appealed. On appeal, she argued that the trial court had abused its discretion in excluding the testimony of Dr. Suzuki. The California Court of Appeals for the Second District reviewed the relevant case law as to whether a treating physician must be designated as an expert in order to testify.

The court of appeals determined that the trial court was correct. It wrote, “testimony from a treating physician such as Dr. Suzuki is not admissible in a medical malpractice trial unless the physician is designated as an expert. (County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455 (County of LA).) Like other expert witnesses, treating physicians have knowledge ‘sufficiently beyond common experience,’ and their testimony is ‘[b]ased on matter (including . . . special knowledge, skill, experience, training, and education) . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.’ (Evid. Code, § 801, subds. (a), (b).)”

The court of appeals affirmed the judgment of the trial court and awarded Dr. Cowen the costs of his appeal.

Expert Witness Report Alleges Negligence in Prison Death

Experts Retained for Jail Overdose Death Case

Davis County has retained three expert witnesses to defend claims that its jail personnel were “deliberately indifferent” to a man who died of a drug overdose while in their custody.

Death of Gregory Leigh Hayes in Davis County Jail

On December 13, 2017, Gregory Leigh Hayes, 33, was brought to Davis County Jail because a police officer had determined that he was intoxicated. Because of his condition, jail personnel placed him in a holding cell rather than completing the booking process and assigning him to his own cell.

On December 14, 2017, Hayes died, while still awaiting booking. Hayes had a history of drug addiction.

Lawsuit

Hayes’ mother, Susan Johnson, filed a suit in U.S. District Court in Salt Lake City against the county and the Sheriff at the time, alleging that the jail failed to adequately monitor her son’s medical condition.

Davis County Experts

Davis County attorneys have filed documents putting Johnson on notice that they have retained three expert witnesses to testify on the county’s behalf. The experts that have been retained include: Dr. Kennon Tubbs, Glen R. Hanson, Ph.D., and C. Donald Leach II.

Dr. Kennon Tubbs provides medical care in 10 Utah and Wyoming county jails. Tubbs will testify about the standard of care for people who are suspected to be under the influence of drugs or medicine in a jail setting. He is also expected to testify about the specific monitoring and treatment of Hayes.

Glen R. Hanson, Ph.D. is a toxicology expert who earned his doctorate in pharmacology from the University of Utah. Defense attorneys indicated that Hanson will testify about the substances that Hayes consumed and the effects that they had on him.

C. Donald Leach II is a consultant in jails’ handling of people under the influence of drugs. According to court documents, Leach is expected to address the jail’s policies and procedures regarding the handling of incoming inmates who are under the influence of drugs or medication. Leach will also testify about Hayes’ admission to jail that night.

Plaintiff Experts

Johnson retained two expert witnesses to testify in support of her case. She retained Dr. Ken Starr and Tom Green.

Dr. Ken Starr is a California authority on emergency rooms, drug abuse recovery, and jail medical services.  Dr. Starr is expected to testify about Hayes’ “survivability had appropriate precautions been taken.”

Tom Green is the former chief deputy in the Washoe County Sheriff’s Office in Nevada. Green is slated to testify about the standard practices for safely admitting and monitoring incoming inmates who are suspected to be under the influence of illegal drugs or medication.

Heather Miller Civil Suit

Dr. Starr and Dr. Tubbs were both expert witnesses in the recent civil suit over the death of Heather Miller, who fell off a Davis County Jail bunk and died on December 21, 2016. In September 2019, a federal judge ruled that a jail nurse was deliberately indifferent to Miller’s care. Davis County is currently appealing that decision to the U.S. 10th Circuit Court of Appeals.

Finance and business concept

Experts Offer Testimony in Shreveport Competency Hearing

The competency hearing of a Shreveport, Louisiana businessman accused of defrauding investors involved the testimony of four expert witnesses who had differing opinions on whether he is competent to stand trial.

The Alleged Crimes

The U.S. Attorney’s Office Western District of Louisiana charged Shreveport, Louisiana businessman, David deBerardinis, with a five-count indictment that alleged he defrauded more than $96 million from investors and financial institutions.

According to the Department of Justice, deBerardinis misrepresented himself through the use of fake documents, identities, business transactions, and other false information. The Department of Justice claims that deBerardinis operated multiple business entities and represented himself as part of the petroleum industry involved in the sale, trade, and transport of fuel. The Department of Justice also alleges that deBeradinis attempted to cover his misconduct by creating fake documents, bank statements, promissory notes, news articles, and even hiring a makeup artist to disguise himself as an Orthodox Jewish businessman to attempt to obtain investor funds from a New York-based private equity group.

David deBerardinis faces charges of mail fraud, wire fraud, bank fraud, money laundering and false statement to a bank. If convicted, he faces 20 and 30 years in prison, respectively. He also faces a $1 million fine, restitution, forfeiture, and five years of supervision for each charge.

Motion to Determine Competency

In March, deBerardinis filed a motion, under seal, to determine competency.

The request represented that a preliminary report from a physician determined deBerardinis “may not be mentally competent to assist in his defense or to stand trial,” stated a memorandum order signed by U.S. Magistrate Judge Mark L. Hornsby.

The Competency Hearing

At the competency hearing, four experts who have evaluated deBerardinis over the past year offered testimony regarding their evaluations.

Dr. Samuel Browning, a forensic psychologist employed with the Federal Medical Center in Fort Worth, Texas, testified on behalf of the government.  Dr. Browning evaluated deBerardinis in August at the Federal Medical Center after the question was raised on whether the defendant was mentally capable of trial.  Dr. Browning testified that he believed that deBerardinis is competent to stand trial.

deBerardinis’ defense team called Dr. Robert Ouaou as their first expert witness. Dr. Ouaou is a neuropsychologist who examined deBerardinis in the spring. During that examination, Dr. Ouaou determined that deBaradinis had symptoms of psychiatric disorders.

Defense expert Dr. Erin David Bigler, a neuropsychologist, provided testimony via video conference call. Dr. Bigler’s testimony related to his analysis of deBerardinis’ MRI scans and amounts of white matter in his brain.

The defense team also called Dr. George Woods as an expert. Dr. Woods is a neuropsychiatrist who spoke on the symptoms of cognitive and psychiatric disorders he observed in deBerardinis.

The Department of Justice and the defense team agree that deBarardinis claims he has done business with a man named “Albert” and that the man exists despite it being proven that the persona is fictional. The persona is believed to have been created around 2008.

The decision regarding deBerardinis’ competency is expected to come sometime in the new year.

cannabis leaf

Legalization to Provide More Work for Drug Recognition Experts

Law enforcement agencies expect that the legalization of cannabis in Illinois will provide additional work for police officers who testify as drug recognition experts.

Legalization of Cannabis in Illinois

On January 1, 2020, the state of Illinois legalized the purchase of cannabis for recreational use.  Under the Cannabis Regulation and Tax Act (410 ILCS 705), cannabis can be purchased without a prescription from a state-approved dispensary by anyone 21 years or older. Nonresidents are allowed to buy cannabis, but in smaller quantities than Illinois residents.

By passing this legislation, Illinois became the eleventh state (plus Washington, D.C.) to legalize cannabis in the United States. According to Compass Point analyst Rommel Dionisio, who spoke with Bloomberg, Illinois expects to eventually achieve between $2 billion and $4 billion in annual sales.

Illinois reported almost $3.2 million in sales on the first day that cannabis was legalized. These sales represented 77,128 transactions.

Cresco Labs, a vertically integrated multi-state cannabis operator, announced that it had served 3,145 people on New Year’s Day at its five Sunnyside Dispensaries located in Lakeview, Elmwood Park, Champaign, Buffalo Grove and Rockford, Illinois. Cresco’s stores sold 9,258 cannabis products, including Cresco’s house of brands and items from other Illinois suppliers, with an average ticket price totaling $135.

Law Enforcement Agencies Worry About Consequences of Legalization

As Illinois legalizes a substance that can impair a person’s ability to function, it follows logically that there will be an increase of incidents related to people who are accused of driving under the influence of cannabis.

Law enforcement agencies in Illinois began to plan for the increase of incidents involving cannabis before the new year.  According to the Chicago Tribune, Illinois law enforcement agencies are calling in new specially trained officers to deal with cases involving cannabis.  The need for these specially trained “Drug Recognition Expert” officers arises from the fact that there is no simple breath test to determine impairment after consuming marijuana like there is for alcohol.

What is a Drug Recognition Expert?

Drug recognition experts, or DRE officers, are law enforcement officers who are allegedly trained to classify the type of drug that a person took into one of seven categories using a 12-step evaluation process. Some of the things that these officers evaluate include a person’s pulse, their eye movements, and the size of their pupils.

DRE officers are often qualified to testify as expert witnesses in court as to whether a driver was high or under the influence. Currently, there are only about 160 DRE officers out of the about 40,000 law enforcement officers in the state of Illinois.

DRE officers carry around a set of tools far different from a standard police officer. These special tools include a stethoscope, thermometers, pupil measuring charts, flashlight to shine in someone’s eyes, a black light and blood pressure cuffs.

State’s Attorney for Kane County, Illinois, Joe McMahon, told the Tribune that more officers need training in how to recognize the signs of drug use now that cannabis is legal for recreational use.  McMahon said, “It’s an expensive but very important process…I don’t know how many there are in the county, but not every police department has them.”

Gavel and scales

Fatal Car Crash May Test Florida Expert Rule

The new trial of a man who was previously convicted of five counts of vehicular manslaughter and sentenced to 30 years in prison may be the test for how Florida courts apply the recently adopted Daubert standard.

The Crash

On April 13, 2013, a then-21-year-old Jabari Kemp, was behind the wheel of a Mercedes sports car that was estimated to be traveling at 128 mph when it traveled down an Interstate 95 exit ramp and crashed into another vehicle.

The impact of the crash was so powerful that four of the five occupants of the other vehicle were ejected.  All five died from traumatic injuries, including crushed internal organs, broken bone, and severed limbs.

Kemp was initially charged with five counts of DUI manslaughter in connection with the fatal crash. The Florida State Attorney’s Office dropped the DUI charges because of questions concerning the validity of blood samples that reportedly showed high levels of THC.

First Trial

Kemp testified that he lost consciousness and that he does not recall the crash.  His defense team argued that he likely lost consciousness with his foot on the accelerator, which caused his car to speed up as it traveled down the ramp.

The state’s key witness was Florida Highway Patrol Corporal Robert Dooley, an accident investigator who provided testimony about the evidence of braking.  Dooley testified that damage to the crash victim’s vehicle indicated that Kemp’s car was braking at the time of the crash. He based his opinion on the assertion that braking caused the front end of the braked car to “dip” and that the nature of the crash damage indicated that Kemp’s car had dipped at the moment of impact.

Dooley’s expert testimony was allowed based on the Frye standard of whether the expert testimony should be admitted.

Kemp was convicted of five counts of vehicular manslaughter and sentenced to 30 years in prison.

Daubert Standard

In 2013, the Florida Legislature and then-Governor Rick Scott changed Florida law to require judges to use the more-stringent Daubert standard in deciding whether to admit expert testimony.

The Florida Supreme Court initially directed courts to continue using the Frye standard.  However, when new justices were appointed to the Florida Supreme Court, the new justices directed courts to begin using the Daubert standard.

Florida’s adoption of the Daubert standard happened while Kemp’s post-conviction proceedings were pending.

New Trial Ordered

On appeal, the 4th District Court of Appeal found that the testimony of the Florida Highway Patrol accident investigator, Robert Dooley, did not meet the Daubert standard. On July 31, 2019, the appeals court ordered a new trial for Kemp.

Florida Supreme Court Appeal

Florida Attorney General Ashley Moody’s office appealed the appellate court’s ruling.

On November 29, 2019, Moody’s office filed a brief with the Florida Supreme Court, asking it to place a stay on the lower-court proceedings. The brief argued that the appellate court did not properly apply the Daubert standard.

It argued, “Here, the Fourth District adhered to a rigid approach, robotically applying the factors set forth in Daubert in order to exclude evidence rather than employing a flexible approach to permit the jury to weigh the testimony…Whether testimony is admissible as an expert opinion is determined by the facts of a case measured against the principles of Daubert….Here, the proponent of the opinion — the state — failed to establish that Dooley’s expert testimony satisfied any benchmark of reliability required by Daubert.”

police car

DNA Expert Testifies in High-Speed Chase and Shootout Trial

A DNA expert has offered “likelihood ratio” testimony in the trial of two co-defendants who are on trial for leading police officers on a high-speed chase through downtown Cheyenne while shooting guns.

The Chase

On May 3, 2019, Chasity Jacobs and Dominique Childers were arrested following a high-speed chase and shootout that took place in downtown Cheyenne, Wyoming.

Authorities claimed that Childers was driving a stolen 2016 Toyota Camry along Interstate 25 at speeds of up to 115 miles per hour while attempting to avoid being pulled over. Police reports also claim that Childers was driving through downtown Cheyenne at speeds close to 65 miles per hour.

During the chase, multiple shots were fired at a Wyoming Highway Patrol Cruiser and a Cheyenne Police Department cruiser. Both vehicles were struck several times.

The chase ended only after Childers was shot by Cheyenne Police Department officers who were in pursuit of the vehicle.

Jacobs was initially charged with a felony charge of taking a controlled substance into a penal institution (later dropped) and misdemeanor possession of methamphetamine.

Childers allegedly told the police that Jacobs hadn’t fired a gun and he was responsible. However, as Wyoming Division of Criminal Investigation investigated the case, agents claimed to have found Jacobs’ DNA on a 9mm Ruger pistol, two magazines, and the magazine from the other gun used in the shooting. Two recorded phone calls made by Jacobs from Laramie County Detention Center also allegedly implicated her in the shooting.

Jacobs was charged with attempted first-degree murder, first-degree accessory to murder, reckless endangering with a firearm and misdemeanor possession of methamphetamine.

Childers was charged with two counts of attempted first-degree murder, two counts of felony property destruction, felony possession of methamphetamine, two counts of misdemeanor property destruction, reckless endangering conduct and eluding.

DNA Expert Witness Testimony

The state called Jennifer Brammeier as a DNA expert witness. Brammeier is employed by the Wyoming State Crime Lab. The state asked Brameier to testify about DNA evidence collected from the weapons and ammunition used in the alleged shooting.

Brammeier explained that she used a “likelihood ratio” when testing the DNA evidence. This means that she matched the DNA collected on the evidence to reference samples to see if there was a correlation with the DNA. Childers and Jacobs had given reference samples of their DNA for the DNA evidence analysis.

Brammeier compared Childers’ and Jacobs’ DNA profiles to DNA that was found on evidence such as the guns and ammunition found inside the black sedan that was used during the chase. She was able to identify DNA that correlated to that of Childers and Jacobs on both the guns and ammunition.

Cassie Craven, defense attorney for Jacobs, questioned Brammeier about how DNA transfers between objects. She asked whether a person’s DNA could be transferred to an object that he or she never touched. Craven used the following example: If she was touching the courtroom podium and someone else touched that podium and then the door knob, would it be possible for her DNA to be transferred to the door knob, even if she had never touched it herself?  Brammeier replied that this type of DNA transfer is possible.

Brammeier also clarified that it is not possible to determine when or how the DNA was transferred to the objects where it was found.

US flag with camouflage cap combat hat

Defense Tries to Bar Expert in Murder Hate Crime Trial

The defense team in the trial of a man who has been charged with a murder and hate crime has filed a motion to bar the testimony of an expert on white supremacy.

The Crime

In May 2017,  U.S. Army Lt. Richard Collins III, a Bowie State University student, was visiting his friends at the College Park campus of the University of Maryland. It was just a few days before his graduation and he had just recently received his commission as a U.S. Army second lieutenant.

Collins was stabbed to death at around 3:00 AM while he was waiting for an Uber at a bus stop with two of his friends. Surveillance video footage shows Sean Urbanski, who is white, stabbing Collins, who is black.

Urbanski was charged with first-degree murder and for a hate crime resulting in death. If convicted, Urbanski would face up to life in prison with no chance of parole for first-degree murder and 20 years for the state hate crime resulting in death charge.

The Investigation

Following the stabbing, search warrants were executed for Urbanski’s phone, truck, apartment, and parents’ phone. An investigation by the FBI pulled together Urbanski’s online group chats, racist memes, and social media activity — including a now-deleted “Alt-Reich: Nation” Facebook Page.

While Urbanski’s defense team argued that the material was “extremely prejudicial, highly inflammatory, irrelevant, and not otherwise admissible,” Prince George’s County Circuit Court Judge Lawrence Hill Jr. ruled that all of this evidence was admissible.

White Supremacy Expert

On November 13, 2019, Urbanski’s defense attorneys William Brennan and John McKenna filed a motion arguing that Prince George’s County prosecutors waited until 30 days before Urbanski’s December 9, 2019 trial to disclose they intend to call Jessie Daniels as an expert witness “to testify about the Alt-Reich, its history, origins, ideology and members.”

Daniels is a professor at The City University of New York. According to her biography, she “has spent the last 25 years calling attention to white supremacy.” She is currently working on a book, Tweetstorm: The Rise of the ‘Alt-Right’ and the Mainstreaming of White Nationalism.

Urbanski’s defense team argued that the state’s motion to include expert testimony was “inexcusably late” — given that this trial has already been postponed four times. The attorneys wrote, “The State has no justifiable reason for withholding this notice of intention to present expert testimony for more than two years.” They claim that they will be unable to properly prepare a defense or seek their own expert witness to rebut Daniels. They also noted that the state failed to provide any of Daniels’ findings, opinions and conclusions, leaving them unable to prepare for her testimony.

They wrote, “The State’s proposed expert testimony does little more than dress up a lay, albeit highly qualified, witness as a so-called ‘expert’ in order to call the Defendant a racist.”

Judge Hill has yet to rule on this motion.

Urbanski’s trial is set to begin on December 9, 2019 and is scheduled to take ten days.

Court room

Discredited Nurse Causes Review of Sexual Assault Cases

The firing and discrediting of a Hennepin County, Minnesota nurse who examined sexual assault victims and was a prosecution expert witness has prompted the independent review of all of the criminal cases in which she was involved.

Hennepin County Medical Center (HCMC) Nurse Jarvis

Kristi J. Jarvis was a Hennepin County Medical Center (HCMC) nurse. Jarvis was hired by HCMC in 2014. The following year, she was promoted to “program coordinator” for the Hennepin Assault Response Team (HART), which was then known as Sexual Assault Resource Service, or, SARS.The HART organization is staffed 24 hours a day and investigates allegations of sexual assault, human trafficking and sexual exploitation involving adults and children.

Jarvis served as the forensic program coordinator from late 2017 until her firing. During her tenure at HCMC and HART, Jarvis examined sexual assault victims and was listed as an expert witness for the prosecution.

Jarvis’ Firing for Lying About Educational Background

On May 8, 2019, Jarvis was fired for falsely reporting in documents that she had a bachelor’s of science in nursing. Her personnel file obtained by the Minnesota Star Tribune also showed that Jarvis “ inappropriately took $4,050 in personal checks from participants who attended a class she taught, was disciplined in 2017 for altering official HCMC documents and contributed to a work environment rife with dysfunction.”

According to her termination letter, Jarvis was fired for claiming on official documents related to the International Association of Forensic Nursing’s approval process for sexual assault nurse examiner (SANE) classes that she had a bachelor’s of science in nursing.

Hennepin Healthcare, the umbrella organization for HCMC, contended that Jarvis had the credentials to perform her job duties. It said in a written statement, “The reason for termination was ‘failure to comply with Hennepin Health System’s Code of Conduct.”

HCMC documents reveal that Jarvis self-reported conducting more than 400 forensic exams in her career and wrote that she has provided “expert witness consultation and testimony for numerous county attorney’s offices” and defense attorneys.

Jarvis’ Defense

Jarvis’ attorney, Christa Groshek, said in a written statement, “Ms. Jarvis denies any allegations that she misrepresented her title or credentials. … A subordinate in her office misstated her title.”

Jarvis was first licensed as a nurse in Minnesota in 2006, and is actively licensed with an expiration date of February 2020, according to the Minnesota Board of Nursing. A bachelor’s degree in nursing is not required for licensure as a nurse.

Jarvis is a registered nurse, has a bachelor’s of science in criminology and criminal justice, a master’s certificate in forensic nursing and is certified as a sexual assault nurse examiner (SANE), Groshek said. The absence of a nursing degree, however, might cause juries to question an expert’s qualifications to render opinions as a nurse examiner.

The Aftermath

Jarvis worked on cases in Hennepin and Ramsey counties while at HCMC. Public defenders in Hennepin and Ramsey counties could not immediately say how many of their past or pending cases involve Jarvis as an examiner or witness.

“We’ll find out which cases she’s been pivotally involved in and see what can be done,” said Jim Fleming, chief Ramsey County public defender. “This certainly is going to perk interest.”

Fleming stated that Jarvis’ involvement in a case wouldn’t necessarily result in an automatic challenge, adding that many other variables have to be considered.

Chief Hennepin County Public Defender Mary Moriarty said, “Every case is unique. … We’re looking at each one individually to make sure our clients’ rights were protected.”

stock market

Exxon Expert Challenges Authorities’ Claims as “Circular”

An expert for Exxon Mobil Corporation has opined that the authorities’ claims that the company hid the financial risks of climate change are “a tad circular.”

The Securities Fraud Trial

New York Attorney General Letitia James filed a complaint against Exxon Mobil Corporation, alleging that Exxon intentionally misled investors about the way it planned for the expected future impact of climate change on its business. According to the complaint, investors lost between $476 million and $1.6 billion when the alleged scheme was exposed.

New York also claims that former Exxon Chief Executive Officer Rex Tillerson spearheaded a plan to dupe investors into thinking it was applying a high “proxy cost” for carbon to its investment decisions, while secretly using a lower figure to evaluate projects, including those in the Alberta oil sands.

Irving, Texas-based Exxon responded there weren’t any losses from the alleged scheme because there was no deception. Tillerson testified the allegations regarding a plan to dupe investors were false.

Expert Witness Testimony

The state retained Eli Bartov, an accounting professor at New York University, and Peter Boukouzis, an assistant professor of business management at the University of Saint Katherine in San Marcos, California, to testify on its behalf.

Bartov testified that Exxon had inflated its stock by lying to concerned investors starting in 2014. Boukouzis testified about the resulting stock drops tied to the news events.

Exxon Mobil Corporation hired Allen Ferrell, a Harvard Law School professor who is also a senior consultant at Compass Lexecon, to testify on its behalf. Ferrell was the last witness to testify in the three-week trial in Manhattan.

Ferrell refuted Bartov’s testimony by saying that Bartov’s study of Exxon’s share-price movements hadn’t controlled for fluctuations in the energy industry.  Ferrell said that Boukouzis wrongfully cited two news-related stock movements that don’t qualify as statistically significant.

The News Events Used in Damage Calculations

Ferrell also argued that New York’s claim that investors lost as much as $1.6 billion after authorities accused the company of hiding the financial risks of climate change was “a tad circular.”

Ferrell said that it was somewhat convenient for an authority to cite news about its own fraud investigation as the cause of a company’s losses. He stated, “You don’t shoot the arrow and then draw a bulls-eye around it.”

The complaint outlines three news events that allegedly resulted in Exxon’s stock dropping:

  • Two events that relate to climate probes in 2016 by the California attorney general and the U.S. Securities and Exchange Commission.
  • New York’s June 2017 claim that it uncovered evidence of a “sham.”

The state plans to use these three events to calculate the alleged losses. Exxon’s stock did dip on the days of the three news events. The state’s calculation of losses would become crucial if it wins the trial.

In it memorandum, New York wrote, “The evidence will show that when the deception uncovered by the state’s investigation and related investigations was revealed, Exxon Mobil’s stock price fell, injuring investors who must now be made whole.“

The case is being heard by New York Justice Barry Ostrager, who will decide the case without a jury.