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.

Expert Witnesses Barred In Mirena IUD Case

The plaintiffs in a lawsuit against Bayer Healthcare recently faced a legal hurdle when four of their expert witnesses were barred from testifying. Bayer Healthcare is the maker of the Mirena intrauterine device or IUD, a contraceptive. Plaintiffs claim that the Mirena IUD can puncture the uterus and end up elsewhere in the body.

Plaintiffs in the lawsuit are 1,200 women who filed lawsuits against Bayer Healthcare. These lawsuits were consolidated. The women bringing these suits claim that Bayer failed to warn of the risk that the IUD could puncture the uterine wall, an injury called a secondary perforation. A secondary perforation is a risk even when it is inserted correctly by a physician.

Expert Witnesses

Plaintiffs’ expert witnesses included two ob-gyn witnesses and a uterine physiologist. Judge Cathy Seibel ruled that plaintiffs’ experts were either unqualified to testify, unreliable, or both. She allowed two of plaintiffs’ other experts, but limited the scope of their testimony. She also limited the scope of two of Bayer’s witnesses. Judge Seibel found that excluded witnesses’ testimony was based on hypothesis rather than scientific evidence. She stated that one of the experts “was given a conclusion by lawyers and worked backwards to hypothesize a mechanism by which it might occur” and criticized another expert’s opinions for lack of support by the medical community.

Bayer contends that these women have no case because they haven’t shown that they were injured or that the Mirena IUD is to blame. On May 4, 2016, Bayer filed a motion for summary judgment, arguing that the plaintiffs will not be able to prove that the IUD could puncture the uterine wall, even if properly inserted, because nearly all of their experts have been excluded.

The Case

The women argue that they can prove their case without experts and assert that Bayer’s own admissions about the dangers of Mirena are enough to prove their case. They state that “[f]or years, Bayer has admitted – everywhere but in the courtroom – that Mirena can perforate the uterus after being properly inserted.” They argue that “A party’s admissions are admissible evidence, and when such evidence shows that a defendant has admitted general causation — that is, admitted that the complained — of injury can occur – no expert testimony on that subject is required.”

In January 2013, the FDA approved Bayer’s IUD called “Sklya,” a slightly smaller version of Mirena. Sklya comes with a warning label that warns that uterine perforation may occur “most often during insertion” but may not be detected until later. This same language was approved for use on Mirena’s label in May 2014. Bayer has also been using same warning message for Mirena since 2010 in Canada.

One of the experts who was excluded by the court, Dr. Roger C. Young, opined that Mirena can exert a force of 390 pounds per square inch, which is enough force to puncture the uterus.

The case is still pending as In re: Mirena IUD Products Liability Litigation, case number 7:13-md-02434, in the United States District Court for the Southern District of New York.

Kansas Court Allows Defense Expert Witness Testimony But Limits Scope

A district court in Shawnee, Kansas has allowed a defense expert witness to testify, but limited the scope of his testimony.

Pritchard Charged with Murder

Colin Edward Pritchard, 59, was charged with the premeditated first-degree murder of his former wife, Cindy Pritchard. Cindy Pritchard was found dead in the apartment that the two shared after a 911 caller identifying himself as Colin Pritchard called for help and told the dispatcher that he had just shot Cindy in the head. The responding police officers testified that Colin stated that they had been drinking and fighting and that he couldn’t take it anymore.

Scott Kipper, the doctor who performed Cindy Pritchard’s autopsy, testified that Cindy died of a gunshot wound to the head and that the pistol was in contact with her head when it was discharged.

Is Expert Shawn Parcells Qualified to Testify?

Colin Pritchard’s defense attorney, William Rork, proposed to call Shawn Lee Parcells as an expert witness. Parcells has an undergraduate degree from Kansas State University and a masters degree from New York Chiropractic College. He is currently working on a doctorate degree in neuro, infectious disease and forensic epidemiology from Capella University. Parcells was formerly an adjunct professor at Wichita State University in forensic pathology and an assistant adjunct professor at Johnson County Community College. Parcells did note that the Wichita State University position was a pilot program with one student and ended after one year.

Parcells has previously testified as an expert witness in other Kansas courts and has participated in hundreds of autopsies.

The assistant district attorney on the case, Brett Watson, opposed allowing Parcells to testify, saying that it was unknown what Parcells would testify about. He raised concerns that Parcells would give “outlandish” testimony in front of the jury.

Watson pointed to a time when another Shawnee County district judge refused to allow Parcells to testify. In 2014, at the trial of James Arthur Qualls III, District Judge Cheryl Rios ruled that the defense had not shown Parcells to be an expert to testify about the trajectory of bullets that struck the victim’s body. Judge Rios also denied a defense motion to allow Parcells to testify about the impact of methamphetamines and alcohol on the victim’s mind.

Judge Allows Testimony But Limits Scope

Here, District Judge Mark Braun ruled that Parcells could testify as an expert witness, but gave him very strict guidelines about the scope of testimony. He issued a court order limiting Parcells to the one-paragraph summary of his proposed testimony.

Parcells testified for almost an hour. He agreed with the coroner’s earlier testimony that Cindy Pritchard had suffered a gunshot wound to the head and on the path that the bullet had traveled. Parcells opined that it was a “50-50 conclusion” whether the victim had suffered bruising to her body in the struggle before the shooting.

At several times during Parcells’ testimony, the prosecution objected, saying the testimony was outside Judge Braun’s order. Judge Braun upheld those objections. At one point, Judge Braun instructed Parcells to only answer yes-no questions with a yes or no and not to go into lengthy explanations.

Murder Conviction Overturned Because Expert Testified via Skype

The New Mexico Supreme Court has overturned the murder conviction of Truett Thomas and ordered a new trial because the trial court judge improperly allowed the prosecution’s expert witness to testify via Skype.

Truett Thomas’ Case

Thomas was charged with the murder of Guadalupe Ashford, whose body was found behind a trash can in a parking lot in 2010. It was determined that Ashford had been assaulted, suffering head injuries including a fractured skull and dislodged tooth. Police found blood on the scene that didn’t belong to Ashford and ran it through the Combined DNA Index System (CODIS). The blood was a match for Thomas. Thomas was arrested and charged on this DNA evidence, but denied knowing Ashford.

When Thomas’ case went to trial, the forensic analyst who had originally tested the blood had moved away. The prosecutor expressed concern over securing the presence of the forensic analyst and suggested that she be allowed to testify over Skype. When the court asked the defense counsel’s thoughts on allowing Skype testimony, the counsel responded, “I don’t like it, but I think it will work. . . . It’s just weird. She’s really just going to be there to establish the chain of custody, so she’s not—I mean, she’s important, obviously, for the State, but she’s not too important. I don’t really have a problem with Skyping it, as long as there’s no technical issues. If there’s technical difficulties, then they’re not going to be able to establish the chain of custody. Then it’s game over.”

However, at another hearing closer to trial, the defense counsel expressed concern about the Skype issue and stated that it might “cause a confrontation problem.” The district court judge allowed the testimony, ruling that the defendant had waived any objection to the Skype testimony through the earlier acquiescence.

Prosecution’s Expert Testifies by Skype

At trial, the prosecution called the forensic analyst to testify via Skype. Her image faced the jury, but she could only see the attorney questioning her. She could not see the defendant, the jury, nor the district court judge. The State had a second forensic scientist analyst testify in person; however, this analyst had not performed the DNA measurements, she had only interpreted the measurements made by the first absent analyst.

A jury found Thomas guilty of first-degree murder and first-degree kidnapping. He received consecutive sentences of life imprisonment for the murder and eighteen years for the kidnapping.

New Mexico Supreme Court Rules on Skype Testimony

Thomas made a motion for a new trial, based on additional DNA evidence and a social media post that the district court judge had made during his trial. He appealed his conviction to the New Mexico Supreme Court. The New Mexico Supreme Court found that the Skype testimony violated Thomas’ right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. The Sixth Amendment to the Unites States Constitution states, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” See U.S. Const. amend. VI.

California Asbestos Exposure Case Allows Controversial Expert Testimony

In a recent asbestos exposure case, Davis v. Honeywell International, Inc., California’s second appellate district has allowed an expert witness to testify that every asbestos exposure is a substantial factor in causing the disease. This goes against the trend around the country of courts rejecting plaintiff experts’ attempts to proffer similar testimony and moves away from Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, which held that trial courts are supposed to play a “gatekeeper” role in keeping out unreliable expert evidence. Davis opens the door in allowing a jury, not the trial court in its “gatekeeper” role, to decide whether to accept the theory.

Davis v. Honeywell International, Inc.

In Davis, an auto mechanic and home remodeler sued Honeywell, alleging that his exposure to asbestos in Bendix brake linings that he used in performing brake jobs in the 1960s and 1970s was a substantial factor in contributing to his risk of developing malignant mesothelioma. The Bendix linings were 50 percent chrysoltile asbestos by weight. Honeywell is responsible for the injuries caused by brake products manufactured by the Bendix company. When the plaintiff died, his daughter was substituted as plaintiff in her capacity of personal representative of her deceased father.

Prior to trial, Honeywell filed a motion in limine to preclude the plaintiff from presenting expert testimony that every exposure to asbestos contributed to Davis’s mesothelioma. The trial court denied the motion and plaintiff’s experts were allowed to testify.

Expert Testimony Offered at Trial

At trial, Dr. James A. Strauchen, M.D., a pathologist, testified for the plaintiff that mesothelioma can occur with very low doses of asbestos exposure, that each exposure is cumulative, and that mesothelioma typically occurs 20 to 50 years after exposure. The plaintiff’s other expert, Dr. Barry Castleman, testified that reports and articles that have been published, beginning in the 1890s, warning of the dangers of asbestos exposure.

Honeywell presented its own expert testimony from an epidemiologist, an industrial hygienist, a pathologist, and an expert in brakes and brake safety. The epidemiologist testified that there was no association between employment as a mechanic and the risk of mesothelioma. The industrial hygienist testified that Davis’ probable cumulative exposure from his work with brakes was below the Occupational Safety and Health Administration (OSHA) limits. He also testified that extremely high heat applied to the brake linings converts asbestos fibers into non-toxic substances. Honeywell’s pathologist testified that exposure to brake dust does not cause mesothelioma. Its brake expert testified about why asbestos was used in brake linings.

Honeywell Challenges Trial Court’s Failure to Exclude Expert Testimony

The jury found for the plaintiffs and Honeywell appealed. On appeal, Honeywell’s primary argument was that the trial court failed to properly exercise its gatekeeper role and exclude Dr. Strauchen’s testimony that was based upon an “every exposure” theory. Honeywell argued that: (1) the testimony was speculative and illogical; (2) he improperly relied upon regulatory standards which do not establish causation; (3) the theory is not supported by scientific literature or epidemiological studies; (4) it is contrary to the direction in Rutherford v. Owens Illinois (1997) 16 Cal.4th 953, that a causation analysis must proceed from an estimate concerning how great a dose was received; and (5) other jurisdictions have rejected this theory.

The court in Davis rejected each of Honeywell’s arguments. It noted that Rutherford held that a plaintiff in an asbestos-related cancer case could demonstrate causation “by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.” Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 976-977, fn. omitted (1997). The court found that the plaintiff properly presented such testimony and that the trial court did not abuse its discretion in allowing it.

Expert Witness in Freddie Gray Trial Falls Apart Under Cross-Examination

The prosecutors who sought murder charges for the death of Freddie Gray concluded their case against Officer Caesar Goodson Jr. with an expert witness who fell apart under cross-examination.

The Prosecution’s Case

Goodson, 46, faces the charge of second-degree depraved heart murder, three counts of manslaughter, second-degree assault, reckless endangerment, and misconduct in office for the death of Freddie Gray. Gray, a 25-year old black man, died of a spinal injury that was determined to have happened while being transported in a police van on April 12, 2015. Goodson was the driver of the van.

The prosecution argues that Gray suffered from a “rough ride,” where a driver takes sharp turns and jolts to jostle a prisoner who is handcuffed without a seatbelt. They allege that Goodson failed to secure Gray with a seat belt and intentionally drove him around in a reckless manner. The prosecution also argues that Gray was hurt early in the van’s journey and that the officers failed to get him the necessary medical help.

Expert Testimony Falls Apart

The state called 21 witnesses to support its case. Its final witness was Stanford O’Neill Franklin, a former police commander who once oversaw police training for the Baltimore Police Department. Franklin was called to support the prosecution’s theory that Gray had suffered a rough ride. He testified that, “[i]t’s extremely important that the ride be as smooth as possible to prevent the person in the back from being propelled around the inside “… and that if prisoners were unsecured and shackled, they would have no way to prevent themselves from becoming projectiles.

However, Franklin’s testimony fell apart during cross-examination. Under questioning by defense attorney Matthew Frailing, Franklin was unable to point to any evidence that Goodson drove erratically. When Frailing asked the direct question, “It’s not your contention that Officer Goodson in any way engaged in a rough ride?” Franklin responded, “I can’t say for sure.” Franklin also testified that a seat belt would not have necessarily ensured that Gray was secured in the van.

Franklin’s testimony was the finale of a series of witnesses that failed to effectively support the state’s case. Another state witness, Detective Michael Boyd, testified under cross-examination that the videos did not show the van taking an abrupt path. Additionally, Donta Allen, who was also in the van with Gray, told investigators that he experienced a “smooth ride.”

Trial Moves Forward Despite Weak Case

Following the state’s five-day presentation of its case, defense filed a motion for acquittal, arguing there is not enough for the case to move forward. The presiding judge, Circuit Judge Barry G. Williams, denied that motion, but expressed concern about the merits of the murder charge.

Two defense attorneys who are not involved in the case, but have observed the proceedings, have said that the state has put on a “weak case.”

Goodson is the third officer to go to trial in this matter. Officer Porter stood trial in December, but the jury failed to reach a verdict. He is scheduled to be retried in September. Officer Nero was acquitted on all counts.

Photo Credit: Minneapolis rally and march to support the people of Baltimore, by Fibonacci Blue is licensed under CC BY-SA 2.0.

Professors Battle Each Other As Experts in Wisconsin Voter ID Battle

One Wisconsin Institute, Citizen Action of Wisconsin Education Fund and six individuals brought a suit arguing that Wisconsin’s voter ID law and other election-related laws have a disproportionate impact on Wisconsin youth and minorities.

While the trial has concluded, there has not yet been a ruling. The decision is expected by the end of July. However, because the decision will come too close to the date of the August 9 partisan primary, presiding Judge James Peterson has said that his decision will not affect that election.

During this two-week federal trial, both sides used multiple expert witnesses to make their arguments.

Plaintiff Experts

Plaintiff expert Lori Minnite, a voter fraud expert and associate professor of public policy and administration at Rutgers University in New Jersey, testified that voter fraud is uncommon in Wisconsin and that these laws tend to be politically motivated. She opined that the Republican Party believes that it benefits from more restrictive voting laws and the Democratic Party believes the opposite, which can be seen in a “really stark partisan divide in every legislature that’s adopted voter ID laws in recent years.”

Plaintiff witness Allan Lichtman, Distinguished Professor of History at American University, opined that, “[t]he plausible explanation for these many restrictive measures is the partisan gains that Republicans can achieve through provisions that disproportionately burden African American and Hispanic voters and potential voters.”

Plaintiff witness Kenneth Mayer, Professor of Political Science at University of Wisconsin-Madison, has opined that Wisconsin’s elections laws impose “substantial burdens” that “have the greatest effect on identifiable population subgroups, particularly racial minorities, young voters, students, and registrants without ID, depressing their turnout by making it significantly harder to register and vote.”

Plaintiff witness Barry Burden is a professor of political science at University of Wisconsin-Madison and the Director at UW Elections Research Center. Burden has concluded that “the changes to Wisconsin election law between 2011 and 2014 that are challenged by plaintiffs in this litigation will predictably have a disproportionate impact on voting participation by blacks, Latinos, young people, lower income individuals, and Democrats in Wisconsin. The challenged laws disproportionately increase the costs of voting for these individuals.”

Defense Experts

Defense witness M.V. Hood III is a professor of political science at University of Georgia. He has concluded that “Wisconsin’s election code provides a reasonable and common sense approach to the manner in which elections are conducted in the state” and has stated that, “I can think of no reason that would lead me to believe that the changes undertaken to Wisconsin’s election code under challenge in this case have, or will have, a detrimental impact on the ability of Wisconsin voters to cast a ballot, including minority voters.”

Defense witness Nolan McCarty, Susan Dod Professor of Politics and Public Affairs at Princeton University, concluded that there is little evidence that the changes in electoral law had significant partisan effect. He further concluded that findings suggesting an adverse effect on minorities or youth are attributable to attrition biases, measurement error or misinterpreting the findings.

Credibility of Alcohol Expert in Stanford Sexual Assault Case Questioned

Former Stanford University swimmer Brock Turner was found guilty of assault with intent to rape an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object.

The Case Against Turner

The incident occurred on January 18, 2015, outside of a Kappa Alpha fraternity party. Two bicyclists passing by found Turner on top of an unconscious and partially disrobed woman. The bicyclists said that when they confronted Turner, he backed away and tried to free himself when they tried to detain him. The woman’s blood alcohol content (BAC) was estimated at three times the legal driving limit and she did not wake up for at least three hours after the incident. Turner was arrested and charged with five felony counts, later reduced to three. He also withdrew from Stanford.

Throughout his trial, Turner maintained his innocence. He testified that the woman, a 23-year-old who did not attend Stanford, consented to all sexual activity.

However, the woman testified that she had no recollection of the event. She says that the last thing she remembers is drinking and dancing with her younger sister at the fraternity party. She does not remember meeting Turner or how she woke up in the Valley Medical Center in San Jose, where she was told that she may have been a victim of sexual assault. The woman did testify that she was “extremely intoxicated” and that she had blacked out from drinking on four or five previous occasions. She admitted to drinking about four shots of whisky before the party and then drinking vodka at the party.

Defense Expert’s Credibility Called Into Question

Defense attorney Mike Armstrong argued that while the woman may not remember the events, she may still have given her consent at the time. Armstrong retained expert witness Kim Fromme to give testimony on the effects of alcohol and blackouts.

Kim Fromme is a clinical psychology professor at the University of Texas in Austin and the Director of the Studies on Alcohol, Health, and Risky Activities. Her research focuses on prevention of alcohol abuse and risk-taking behaviors in young adults. Fromme described herself as an unbiased expert.

Fromme testified that a person who has been drinking may appear normal, but actually be experiencing a blackout, which she defined as a period of amnesia. The person is fully conscious and capable of making short-term decisions, such as driving a car or having sex, but not able to store long-term memories.

Under cross-examination, the prosecutor Aleleh Kiancerci asked Fromme whether she was biased. Kiancerci introduced several of Fromme’s emails to Armstrong into evidence. In Fromme’s emails, she expressed hope for an acquittal of “our client” and asked whether it was prudent to turn over communications between herself and defense attorney Armstrong.

Kiancerci’s attempts to assail Fromme’s credibility seemed to be effective. After Fromme’s testimony, the jury exercised its privilege to question witnesses and asked whether Fromme had ever seen a drunk person experiencing a blackout who appeared normal. Fromme responded that she had in her personal life, but not in the lab.

Wisconsin Gerrymandering Trial is a Battle of the Experts

Wisconsin was the site of a recent four-day trial challenging the way that its legislative districts were drawn after the 2010 census. The plaintiffs in this case are a group of twelve Democratic voters who claim that Wisconsin’s state assembly map was drawn to dilute their vote. The lead plaintiff is Bill Whitford, a retired University of Wisconsin Law Professor.

Gerrymandering

Stanford University political science and statistic professor Simon Jackman testified for the Democratic plaintiffs that, if the Republican-drawn legislative map is allowed to stand, the Republicans are “virtually 100 percent” certain to retain a majority in the Wisconsin Assembly. Jackman reviewed 786 elections and 206 redistricting plans throughout the United States from 1972 and 2014 and found only four plans with a stronger pro-Republican gerrymander.

Part of Jackman’s analysis was based upon the new “efficiency gap” test. This test was created by Nicholas O. Stephanopoulos and Eric M. McGhee, professors of political science at the University of Chicago, to measure partisan gerrymanders. Stephanopoulos has worked with the plaintiffs in this case. Stephanopoulos and McGhee assert that the efficiency gap test is an objective judicial standard to evaluate whether a district map creates a gerrymander.

The efficiency gap looks at the percentage of each party’s votes that are wasted on races where their candidates lose. A higher efficiency gap score means a larger gerrymander. According to Jackman, the efficiency gap showed that Wisconsin’s current legislative map is more gerrymandered than any other in recent state history. The current map had a score of 13 percent in the 2012 election and 10 percent in 2014. In comparison, the maps from the 1980s and 1990s had low efficiency gap scores of approximately two percent.

The Democrats contended that the efficiency gap is a way to measure unconstitutional partisan gerrymanders designed to give an extreme and durable advantage to one party. In Davis v. Bandemer, the U.S. Supreme Court upheld an Indiana law that redrew state districts but said that redistricting is properly justiciable and could be held unconstitutional if it was “arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”

The Wisconsin Case

Arguing for the state, Assistant Attorney General Brian Keenan, defended the maps and attacked the validity of the efficiency gap model. Keenan contended that the efficiency gap’s numbers are not reliable and do not accurately consider the demographic and voting patterns in the state.

The case was heard by a panel of three judges: Senior Judge Kenneth Ripple of the 7th Circuit U.S. Court of Appeals in Chicago, U.S. Chief Judge William Griesbach of Milwaukee and U.S. District Judge Barbara Crabb of Madison. Each party will have two weeks to file their final brief and ten additional days to file responses.

In a study published by the Washington Post, a group of political science professors and students from Binghamton University, Jonathan Krasno, Daniel Magleby, Michael D. McDonald, Shawn Donahue and Robin Best, independently concluded that the Democratic plaintiffs’ case is strong. The academic group checked for bias by comparing the mean and median two-party vote in Wisconsin’s 99 assembly voting districts in statewide elections. This study found that the way that the voting districts were drawn favored Republican voters by between 3.8 to 6.3 percentage points in every statewide election from 2008 to 2014.

Expert Witnesses Battle Over “Superfly” Snuka’s Competency to Stand Trial

In the trial of Jimmy “Superfly” Snuka, expert witnesses are battling over the former professional wrestler’s competency to stand trial.

Snuka, 72, is charged with third-degree murder and involuntary manslaughter in the death of his former girlfriend Nancy Argentino. A 23-year old Argentino was found dead in 1983, after authorities were called to the couple’s hotel room. Argentino was later determined to have died of brain trauma. Prosecution alleges that Snuka fractured Argentino’s skull and then failed to call for help. The charges were brought against Snuka after the release of Superfly: The Jimmy Snuka Story and a 2013 investigative news story by The Morning Call uncovered a previously unreleased autopsy report indicating that Argentino’s death should be investigated as a homicide.

Prosecution’s Expert Testifies as to Snuka’s Competency

Snuka’s trial was scheduled to begin in March, but his attorney, Robert Kirwan II, filed a motion for a competency hearing. Arguing that Snuka’s mental health had declined steadily over recent months, Kirwan stated that Snuka “had no idea what charges he faced” and that “[h]e has no recollection of the incident.”

Judge Kelly Banach of Pennsylvania’s Lehigh County Court of Common Pleas scheduled a competency hearing. Attorney for prosecution, Chief Deputy District Attorney Charles Gallagher III, requested an independent evaluation of Snuka’s fitness for trial. Gallagher noted that Snuka “has had a career in entertainment.”

At the competency hearing, psychiatrist Dr. John O’Brien testified for the prosecution. O’Brien testified that Snuka’s demeanor was in contrast to the “level of dysfunction he’s alleged to have” and that he’s “very different than how he is described in medical records.” O’Brien stated that Snuka’s medical records do not support a diagnosis of dementia and that he doubted claims that he has a post-concussive disorder. He further noted that, while one report claims that the former wrester had hundreds of concussions, none of these claimed concussions were ever documented. O’Brien opined that Snuka was competent to stand trial.

Defense Expert Testifies Snuka Has Brain Damage

O’Brien’s opinion differed from that of defense expert, forensic psychologist Dr. Frank Dattilio. Dattilio testified that Snuka has permanent brain damage following a long professional career of taking numerous blows to the head along with a history of drug and alcohol abuse. Dattilio testified that he determined that Snuka wasn’t competent to stand trial before the grand jury hearing in 2015, and that Snuka’s mental health has declined since his initial report. Dattilio opined that Snuka suffers from dementia and post-concussive disorder, and that his treating behavioral neurologist determined that his condition was “worsening by the month.”

Snuka also took the stand during the hearings, spending more than an hour on the witness stand. Under Judge Banach’s questioning, Snuka spoke about his wrestling career and his signature attack, the “Superfly Splash,” but was unable to remember names of sports figures or politicians or even his own age.

This was the first time that Snuka has spoken in court in this matter. Snuka was previously summoned by the grand jury, but refused to testify, asserting his Fifth Amendment right against self-incrimination.

The court’s ruling on Snuka’s competency is not expected for at least one month.

Photo Credit: Paparazzo Photography, Wikipedia Commons [CC BY-SA 3.0 or GFDL].

Expert Witness Testifies That Security Flaws Enabled Aurora Theater Shooting

In a state court suit by victims of the July 20, 2012 Aurora movie theater shooting, a security expert has testified that flaws in Cinemark’s security helped enable the attack.

University of New Haven professor Gil Fried opined that Cinemark “contributed to an environment where they didn’t have the deterrence or prevention necessary to protect the patrons in their theater.” He stated that Cinemark should have patched its security holes by placing alarms on exit doors and extending their surveillance coverage.

Fried pointed to Cinemark’s decision to not hire security for the premiere of the Batman movie “The Dark Knight Rises.” While the theater typically hired guards only on the weekend, 76 out of the 264 Cinemark theaters around the country showing the film that night did hire extra security for the Thursday night premiere.

Cinemark has argued that the shooting was not foreseeable and the company should not be held liable. Attorney for Cinemark, Kevin Taylor, contested Fried’s qualifications to testify as an expert witness in this case. Fried, who is the only witness for the plaintiffs, has never testified as an expert on movie theater security. Fried’s background is in analyzing security plans for large venues and sporting events.

Taylor plans to call five expert witnesses in Cinemark’s defense: a criminologist, a statistician, a psychiatrist, and two security experts. Cinemark paid one expert $180,000 to prepare a single report showing that mass shootings have not increased over time. One of these experts is a former theater company executive who specializes in movie theater security.

In this state court civil case, the victims of the shooting are arguing that Cinemark theater is liable for providing inadequate security. James Holmes has already been sentenced to 12 consecutive life sentences in prison for each of the people he killed, followed by another 3,318 years for those he injured. Cinemark also faces a separate suit in federal court by a different group of victims. Those trials are set to begin in July. See Traynom v. Cinemark USA, Inc., 940 F.Supp.2d 1339 (2013).

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