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.

Recommendation That Expert Should Not Be Disqualified From Testifying Against Former Employer

A U.S. district court judge has received a recommendation that he should allow a former employee of the Consumer Financial Protection Bureau to testify as an expert witness against it, in the agency’s suit against loan financier Navient.

The Underlying Suit

In 2017, the Consumer Financial Protection Bureau (CFPB) and the State of Pennsylvania sued Navient, claiming that the nation’s largest student loan servicer failed to properly service its borrowers’ accounts and improperly directed them toward forbearance, instead of encouraging them to move toward income-based repayment plans. Forbearance is the act of refraining from paying any debts.

The complaint alleges that Navient violated the Consumer Financial Protection Act, the Fair Debt Collection Practices Act and Regulation V of the Fair Credit Reporting Act.

Navient has vigorously defended against these claims. It called the suit an “unauthorized copycat” of a complaint that CFPB previously filed against it.

The case is before U.S. District Judge Robert D. Mariani in the Middle District of Pennsylvania.

Proposed Expert Testimony

Navient proposed to have Xiaoling Ang, Ph.D, testify as one of its expert witnesses at trial. Dr. Ang is an expert in consumer financial services, antitrust, and labor economics. She has experience in class certification and damages analysis, policy evaluation, cost-benefit analysis, and fair lending in a range of industries, including mortgage, student loan, subprime lending, deposit products, and fixed income.

Dr. Ang was the author of an article that was published in Law360 entitled, “Student Loan Repayment Options in Light of CFPB v. Navient.” Navient’s counsel approached Dr. Ang about testifying on Navient’s behalf based on writing this article. Her expert report, which Navient proposed to rebut one of CFPB’s experts, reflects the information contained within her article.

Claim of Conflict of Interest

Dr. Ang has a Ph.D. in economics from Princeton University and currently serves as an Associate Director at NERA Economic Consulting. Dr. Ang previously served as an Economist at the CFPB from July 2011 to November 2015. At the CFPB, she served as the Lead Economist on Bureau initiatives and rulemaking, including interagency appraisal rulemaking, larger participant rulemaking in student loan servicing and international money transfers, randomized control trials, disclosure testing, and on a Congressional report on private student loans.

The CFPB objected to Dr. Ang testifying as an expert for Navient, claiming a conflict of interest. The CFPB argued that Dr. Ang should be disqualified from testifying as an expert because she worked for CFPB during its investigation of Navient.

Special Master’s Report

The court asked Special Master Thomas I. Vanaskie to investigate whether Dr. Ang should be disqualified from testifying as an expert at trial. Vanaskie recommended that Dr. Ang should not be disqualified.

Addressing the claimed conflict of interest, Vanaskie wrote, “I have also concluded that Dr. Ang’s sporadic and brief interactions with the Bureau’s Office of Enforcement attorneys over a period of two years did not expose her to confidential information substantially related to the opinions she has offered in her report in this matter such that the Bureau will be prejudiced if she remains an expert witness in this particular case.”

Growing Trend of Using Rap Lyrics as Evidence in Court

An expert on hip-hop culture has noted an uptick in the trend of prosecutors using rap lyrics and videos as evidence of guilt.

The Shooting Death

On December 10, 2016, shots were fired at a “Naughty or Nice Pajama Jam” party being held in the warehouse district of Carson in the Los Angeles area. A 24-year-old partygoer, Davion Gregory, was shot five times. Gregory was brought to the Harbor-UCLA Medical Center and pronounced dead on arrival. Two other people were wounded in the shooting: Travis Harvey-Broome and Kwentin Polk.

Investigators found shell casings from a .40-caliber Glock and a .38 revolver at the scene. There was no video footage of the shooting and no one could identify the shooters. L.A. County sheriff detectives Francis Hardiman and Richard Biddle visited Harvey-Broome and Polk at the hospital, who described seeing a “light-skinned black guy with braids or dreads” in the parking lot, vaguely remembering seeing a black Mercedes SUV and red Mustang or Benz.

Approximately one week later, Hardiman heard the name “Drakeo the Ruler” on a wiretap in an unrelated gang case. Detective Hardiman alleges that he spoke to the victim’s family about Drakeo and they told him that they had also heard rumors about Drakeo being involved with the shooting. This led to an investigation into Darrell Caldwell, a rapper who goes by the name, Drakeo The Ruler.

Darrell Caldwell/Drakeo’s Trial

Drakeo was eventually charged with murder, attempted murder, felony gun possession by a felon, and criminal gang conspiracy in connection with the shooting death of a Davion Gregory.

Drakeo was acquitted of all charges of murder and attempted murder and convicted on a charge of felony gun possession by a felon. The jury was hung on the count of criminal street gang conspiracy. The prosecutors’ theory behind this charge is that Drakeo had ordered the shooter to kill a musical rival, “RJ,” but the shooting was botched and Gregory was killed. As evidence, prosecutors cited a line from Drakeo’s song “Flex Freestyle,” in which he raps, “I’m ridin’ round town with a Tommy gun and a Jag / And you can disregard the yelling, RJ tied up in the back.”

Hip-Hop Culture Expert

Drakeo’s defense attorneys called Erik Nielson to testify as an expert witness in Drakeo’s first trial. Nielson is an Associate Professor of Liberal Arts at the University of Richmond. His research is focused on African American literary and musical traditions with an emphasis on hip-hop culture. Nielson has co-authored two books on the topic, The Hip Hop & Obama Reader and Rap on Trial: Race, Lyrics, and Guilt in America. He is also the author of numerous academic articles, chapters, reviews, and feature articles on the topic.

Nielson has estimated that he has been asked to consult on over 60 cases where prosecutors have introduced rap lyrics or videos as evidence of guilt. Nielson also conducted research with University of Georgia law professor Andrea Dennis that reveals over 500 instances of prosecutors using this tactic.

Nielson explained that the role that he plays at criminal trials is correcting prosecutorial mischaracterizations of rap music. He noted that prosecutors “routinely ignore the fact that rap is a form of artistic expression – with stage names, an emphasis on figurative language and hyperbolic rhetoric – and instead present rap as autobiographical.”

Nielson further explained that this practice is effectively asking “jurors to suspend the distinction between author and narrator, reality and fiction, and to read rap lyrics as literal confessions of guilt. No other art form is exploited like this in court. And yet it’s an effective strategy precisely because it taps into stereotypes about rap music and the young men of color who are its primary creators.”

In Nielson’s opinion, introducing rap lyrics as evidence in criminal trials can be highly prejudicial because it allows prosecutors “to draw on stereotypes about young black and Latino men as violent, hypersexual and dangerous.”

Drakeo is set to be retried on the criminal gang conspiracy charge. If convicted, he faces life in prison.

Experts Testify at Congressional Hearing About Blockchain Technology

A panel of experts have offered testimony at a United States Congress hearing over the benefits of blockchain technology for small businesses.

Congressional Hearing

The hearing, entitled, “Building Blocks of Change: The Benefits of Blockchain Technology for Small Businesses,” was held before The Committee on Small Business on March 4, 2020. The purpose of the hearing was to give the committee insight into “how innovators and entrepreneurs are using blockchain technology to help small businesses boost productivity, increase security, open new markets, and change the way business is done.”

Blockchain technology utilizes a distributed, decentralized, digital ledger or database that allows multiple parties to engage in secure transactions with each other without the use of an intermediary. Blockchain technology is most commonly associated with cryptocurrency such as bitcoin. However, it has many potential uses, including: monitoring goods in global supply chain, use in retail reward loyalty programs, serving as digital identification, digital voting, and transfers of items like real estate or motor vehicle titles.

Expert Witnesses

The experts who were called to testify before the Committee included: Shane McRann Bigelow, Dawn Dickson, Marvin Ammori, and Jim Harper.

Shane McRann Bigelow is the CEO of Ownum, LLC, a blockchain tech company focused on unlocking business growth and making government more efficient. Bigelow offered testimony on behalf of the Chamber of Digital Commerce. Bigelow testified that his company hoped to use blockchain technology to “Help the poorest in our country, who are also disproportionately minorities, to gain better access to their vital records in a secure way by encouraging federal and state governments to allow for the digitization of not only their vital records, but the process to acquire them.” He emphasized, “Additionally, we will help improve public safety through more accurate data, particularly in the vehicle title arena.”

Dawn Dickson is the CEO of PopCom, a company that uses blockchain technology in “high-IQ automated retail technology” or smart vending machines. Dickson testified, “Blockchain is not a silver bullet. But it can solve problems that small businesses face.” She gave the example that her company believes that the most “secure way to check and confirm a customer’s identity, while ensuring that their personal data remains secure, is to have the customer verify their information securely on their mobile device and store that data on blockchain.”

Marvin Ammori is the General Counsel of Protocol Labs, a research, development, and deployment institution for improving Internet technology. Ammori testified on behalf of the Blockchain Association, a trade association for organizations who are interested in responsibly building and investing in the next generation of digital services. Ammori testified that blockchain technology benefit businesses in many industries, including health care, supply chain, law, and enabling investment and competition in internet infrastructure services such as cloud storage.

Ammori also testified that, “The tax treatment is very complicated” and “doing your taxes for crypto is the worst nightmare.” He explained that doing taxes involving crypto is currently a nightmare and that the system should be reformed before mass adoption. He gave the example, “If you wanted to spend Bitcoin on a coffee this morning, you’d have to keep track of what you paid for the Bitcoin and how much it was worth the moment you spent it, and pay the capital gain or loss on every single transaction.” Ammori also argued for clearer crypto guidelines from both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CTFC).

Jim Harper is a visiting fellow at the American Enterprise Institute. Harper identified “three advantages of blockchain I can identify for small business: First, simple efficiencies may produce lower costs for small businesses. Second, blockchains may allow for diversified and open market structures that support more niches and specialties. Finally, blockchains may reduce the competitive advantage that large businesses have in the world of data.”

Colorado Supreme Court to Weigh in on Experts in Domestic Violence Cases

The Colorado Supreme Court has decided to hear a case to determine whether to permit expert witness testimony in domestic violence trials by experts who are not familiar with the details of the case.

The Domestic Dispute

In the summer of 2013, Kerry Lee Cooper and his partner, L.K., got into an argument over where to place an electric fan. L.K. testified that Cooper shoved her face into the fan’s blades, cutting her, and she retaliated by hitting him. L.K. claims that Cooper then punched her, grabbed her by the jaw, and beat her with a tire iron.

Cooper claimed that L.K. had been the aggressor. According to Cooper, L.K. asked him to reposition the fan. When she was unhappy with the way he had placed it, he threw the fan on the end of the bed. He claims that L.K. hit him with the flashlight and bit his hand when he tried to take the flashlight away from her. Cooper only admitted to pushing L.K. in the forehead.

Cooper’s daughter, who lived nearby, heard screaming and called the police.

The Domestic Violence Expert

At Cooper’s trial, the prosecutors brought in an expert witness to testify about the “characteristics of domestic violence relationships” and the “power and control wheel,” a tool that was developed with the intent to “explain the ways that an abusive partner can use power and control to manipulate a relationship.”

Cooper’s attorneys objected to the testimony, but the court allowed its admission. A jury convicted Cooper of third degree assault and harassment, but acquitted Cooper of related menacing and cruelty to animal charges — Cooper’s dog had entered the room during the incident.

Colorado Court of Appeals

Cooper appealed his conviction. On appeal, the Colorado Court of Appeals considered whether the district court erred by admitting a subject matter expert witness who had no familiarity with the facts of the case.

The Colorado Court of Appeals ruled that the trial court had erred by admitting the expert witness. Writing for the court, Judge Michael H. Berger stated that “No evidence presented to the jury proved or even suggested that prior to the charged incident Cooper had assaulted, or physically or nonphysically abused, L.K.” Berger also noted that there was no indication of a cycle of violence or control over L.K.; however, “the expert was permitted to give extensive testimony about how domestic abusers exercise such control”.

In essence, the expert testimony had no factual foundation that made it relevant to the case. Berger wrote that the expert’s testimony “may well have caused the jury to infer that there was a prior history of domestic violence.” The court reversed Cooper’s conviction and ordered a new trial.

Colorado Supreme Court

The prosecution petitioned the Colorado Supreme Court for a Writ of Certiorari.

The Colorado Supreme Court granted the petition, agreeing only to determine the issues of (1) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence was inadmissible because the charged act was the first act of domestic violence in the relationship; (2) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence must be limited to those facets of a subject that are specifically tied to the particular facts of the case; and (3) Whether the court of appeals erred in finding that the admission of the expert testimony was not harmless.

Covering the Cost of Experts in Utah Jail Death Cases

In Utah, expert witnesses play important roles in the civil court cases that are fought over jail deaths. Who pays for these experts? That depends on if you’re a plaintiff or a defendant.

The Government Indemnity Pool

In the State of Utah, there is a government indemnity pool that pays for civil defense attorneys and expert witnesses when a death occurs in a jail.

The Ogden, Utah-based Standard-Examiner daily newspaper recently took a look at how the government indemnity pool works and how it may cause the government to have an advantage over plaintiffs in civil jail death cases.

Funding the Government Indemnity Pool

The Utah Counties Indemnity Pool was created by the Utah Government as a public agency insurance mutual. The pool allows counties to combine resources to cover legal expenses and other losses. Individual counties pay “law enforcement liability contributions” to this fund each year. For example, thus far in 2020, Box Elder County has paid $125,025 into the fund, Davis County has paid $325,065 into the fund, Morgan County has paid $16,670 into the fund, and Weber County has paid $396,746 into the fund. The amount that each county owes is based upon the total number of law enforcement personnel that it employs.

According to the data that the pool shared with Transparent Utah, the pool paid out more than $2.5 million to cover losses, including settlements, and payments to attorneys in 2019.

Miller and Hayes Deaths

In December 2017, Gregory Leigh Hayes, 33, died of a prescription drug overdose after being booked into the Davis County Jail. His mother, Susan Johnson, filed a wrongful death suit, arguing that the jail should have had him checked by a doctor before putting him in a holding cell.

In December 2016, Heather Miller, 28, died of a severely ruptured spleen after falling from her cell’s top bunk. Her mother, Cynthis Farnham-Stella, sued Davis County for damages and an injunction requiring better medical care for inmates.

Dr. Kennon Tubbs was retained by Davis County as the chief expert witness in both the Miller and Hayes suits. Dr. Tubbs is the contract medical director for 11 county jails in Utah and Wyoming and formerly practiced medicine at the Utah State Prison for 13 years. Dr. Tubbs’ rate sheet indicates that he receives $500 per hour or $3,500 per day for his expert witness fee. Dr. Tubbs’ expert witness fee comes out of the Utah Counties Indemnity Pool.

Less Options for Plaintiffs

Tad Draper, one of the attorneys who is representing the families of Hayes and Miller in their suits, told the Standard that hiring expert witnesses can be more challenging for plaintiffs. He explained that expert witness fees can range from $200 to $500 per hour. Draper said that lawyers will typically front the expense of expert witnesses, and cover those costs if they lose the case. He explained, “In most cases worth pursuing, a lawyer takes the risk,”

Former FBI Director Excluded as Expert Witness

A federal judge has excluded the testimony offered by a former FBI Director in the case of the high-profile Volkswagen diesel emissions scandal.

Volkswagen Diesel Emissions Scandal

Volkswagen installed emissions software on more than 500,000 diesel cars in the United States and about 10.5 million more globally that allowed them to sense when a car is going through an emissions test. When the cars are in test mode, they are fully compliant with the maximum emissions levels that are set by The Environmental Protection Agency (EPA). But when the cars are driving normally, the cars switch to a different mode that changes fuel pressure, injection timing, exhaust-gas recirculation, and the amount of urea fluid that is sprayed into the exhaust. The “normal driving” mode delivers higher mileage and power; however, it also emits nitrogen-oxide (NOx) at levels that are up to 40 times higher than the federally-allowed limit.

As a result of these findings, Volkswagen was sued by the Environmental Protection Agency, the Federal Trade Commission, and the Department of Justice. Volkswagen was also liable civilly to the customers who had purchased the vehicles with the emissions software installed.

Expert Witness Louis Freeh

In 2016, Volkswagen was in talks to hire former FBI Director Louis Freeh to run its diesel emissions litigation. Freeh’s resume includes stints as a special agent in the FBI, Assistant U.S. Attorney, and United States District Judge for the Southern District of New York. President Bill Clinton appointed Freeh as the 5th Director of the Federal Bureau of Investigation, where he served from 1993 to 2001. He now serves as a lawyer and consultant in the private sector.

Freeh requested a guaranteed $15 million over three years, plus 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the “savings the company and its subsidiaries yield and/or the costs saved by settlements.” In the end, VW passed over Freeh for the role.

Freeh, who is founder and chairman of consulting firm Freeh Group International Solutions and senior managing partner of the affiliated law firm Freeh Sporkin & Sullivan, is now working for the other side. Freeh was retained as an expert witness for the plaintiffs who opted out of VW’s 2016 civil settlement and chose to sue the company instead.

The Knight Law Group retained Freeh as a plaintiff’s expert witness in the case In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation. The Knight Group paid Freeh $50,000 to write a 21-page report and agreed to pay $1,850 per hour for any future work. In his report, Freeh concluded that Volkswagen had gotten off too cheaply in the government’s criminal case against it, which settled for $2.8 billion in 2017. In Freeh’s opinion, the proper fine should have been in the range of $34 billion to $68 billion.

Volkswagen’s defense team filed a motion to disqualify. In its motion, the team argued, “Mr. Freeh’s conflict of interest and receipt of confidential information disqualify him from serving as an expert adverse to defendants.” The motion argued that Freeh had “engaged in extensive privileged and confidential discussions with Volkswagen’s senior-most executives and counsel about the same diesel matters underlying this lawsuit, including discussing key documents and legal strategy.”

While the motion to disqualify was still pending, U.S. District Judge Charles Breyer of the Northern District of California, held a Daubert hearing on the relevance of Freeh’s opinion. Judge Breyer ruled that the admission of Freeh’s opinion could bog down the trial and would require testimony from the judge who oversaw the criminal case and federal prosecutors. Judge Breyer said that plaintiffs’ counsel could not point to a single case where that type of testimony would be admissible.

Judge Breyer’s ruling effectively mooted the pending motion to disqualify Freeh based on information that was shared with him when he was in the running for the role to run the company’s previous litigation.

Prosecution Undermines Weinstein’s False Memory Witness

The prosecutors in Harvey Weinstein’s criminal trial got the defense “false memory” witness to admit she was not an expert in brain regions, potentially undermining the testimony that she offered in Weinstein’s defense.

The Criminal Charges Against Weinstein

In May 2018, Manhattan District Attorney Cyrus Vance Jr. charged Weinstein with “Rape in the First and Third Degrees, as well as Criminal Sexual Act in the First Degree, for forcible sexual acts against two women in 2013 and 2004, respectively.” In July 2018, the charges were amended to include “one count of criminal sexual act in the first degree and two counts of predatory sexual assault.”

Weinstein pleaded not guilty to all charges. If convicted, he could face life in prison.

Weinstein is charged with four similar sex crimes in Los Angeles County. That case is on hold until his New York case is resolved.

The False Memory Witness

Weinstein’s defense team retained Professor Elizabeth Loftus to testify in his defense. Professor Loftus is a Distinguished Professor of Psychological Science; Criminology, Law and Society; Cognitive Science; and Law at University of California Irvine (UCI). She has her Ph.D. from Stanford University.

Professor Loftus concentrates her studies on human memory. According to her UCI faculty profile, Loftus conducts experiments that “reveal how memories can be changed by things that we are told.”

Loftus has worked as an expert witness on numerous high-profile cases, including those of Michael Jackson, the Menendez brothers, and Ted Bundy.

Weinstein’s defense team is arguing that his accusers are misconstruing consensual sexual encounters as assault and rape. They contend that these accusations are particularly suspect in light of the constant negative media coverage surrounding him. They retained Loftus to strengthen these arguments.

Under the questioning of Weinstein attorney Diana Fabi Samson, Loftus testified that media exposure can weaken memories. She said, “it doesn’t take a Ph.D. to know a memory fades over time. … As time is passing and the memory is getting weaker and weaker … it becomes more vulnerable to post-event information.”

Loftus continued, “By exposing a witness to media … post-event information can cause a contamination in memory.”

The Cross-Examination

Prosecutor Joan Illuzzi took the lead on cross-examining Loftus. Illuzzi questioned Loftus as to whether “all memory is wired and retained and retrieved equally?” Illuzzi then brought out a diagram of the brain to question Loftus about it. lluzzi asked Loftus whether the diagram fell within her area of expertise. Loftus replied, “I would defer to the neuroscientists who study the brain.”

Illuzzi pressed further, “Doctor, does that fall within your area of expertise?” Loftus replied, “I know a little bit, but I am not an expert. That’s a more complete answer.”

Justice James Burke, who is presiding over the case, then repeated the question, “Field of expertise?” Loftus replied, “I will say, no.”

Illuzzi also got Professor Loftus to admit that she had previously written a book entitled Witness for the Defense and asked whether her prior testimony that Valuim can impact memory had been tailored to the case.

Forensic Pathologist Disputes Autopsy Results

A forensic pathologist conducted a new autopsy on the body of a woman who was found dead in a vehicle following a chase and police officer-involved shooting. He concluded that the woman was killed by methamphetamine toxicity — not from being shot.

The Chase and Shooting

In December 2017, Toby Mike Holmes was working as a part-time deputy for Grundy County, Tennessee. While on duty, Holmes attempted to stop a Ford Mustang, but the driver failed to stop. A chase ensued.

A later investigation by the Tennessee Bureau of Investigation showed that the driver of the vehicle spun it around so that it was facing Deputy Holmes, at which time he fired at the vehicle. Holmes continued to fire at the vehicle as it sped past him.

The Mustang eventually crashed on the side of the road. A bystander reported the crash. When police responded to the scene, they found that the driver had fled. They also found the lifeless body of Shelby Comer, who was a passenger in the vehicle. She had been shot in the torso.

The driver of the vehicle, Jacky Wayne Bean, 32, was later apprehended. Bean was charged with attempted first-degree murder, evading arrest, and three counts of reckless endangerment. Deputy Toby Mike Holmes was charged with voluntary manslaughter. If convicted, Holmes faces up to six years in prison. Holmes was also placed on unpaid administrative leave and decommissioned by the sheriff’s office pending the outcome of his case.

The Original Autopsy

The original autopsy toxicology report found 3,400 nanograms per milliliter of methamphetamine in Comer’s body. However, it concluded that Comer died because of being shot in the torso.

The New Autopsy

Holmes’ defense team hired Forensic Pathologist Edward A. Reedy, Ph.D., M.D to review the autopsy of Shelby Comer. Dr. Reedy concluded that Comer may have already died before she was shot and disputed the original autopsy’s conclusion that said that Comer died by a gunshot wound to the torso.

Dr. Reedy opined that Comer didn’t lose enough blood for her death to have been caused by a gunshot wound. Dr. Reedy argued that gunshot wounds typically bleed “profusely” when there is enough blood pressure to sustain life. He noted that there was not enough blood found in the interior of the vehicle to indicate that Comer had adequate blood pressure when the shot was inflicted.

Dr. Reedy instead concluded that Comer’s death was caused by the amount of methamphetamine in her system, which was said was “within fatal levels.” Dr. Reedy opined that Comer was likely dead from methamphetamine toxicity before the bullet struck her.

Holmes’ defense team argued that he had not killed Comer; she had died of a methamphetamine overdose. Dr. Reedy testified to support this argument.

Despite Dr. Reedy’s testimony, the jury convicted Holmes of criminally negligent homicide. This was a lesser charge than the original reckless manslaughter charge that he faced. His sentencing hearing has been scheduled for April 3, 2020.

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.

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.

ExpertPages Blog