Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

New York US State Law Legal System Concept

New York Court Permits Life Care Planning Expert to Rely on Hearsay

Thomas Tornatore sued his chiropractor for malpractice. A New York jury determined that the chiropractor, Dr. Jean Cohen, was responsible for Tornatore’s injuries. A portion of the jury’s award of damages covered future life care expenses.

Tornatore presented an expert in life care planning to testify about his future life care expenses. The trial court rejected Dr. Cohen’s challenge to that testimony. The Appellate Division affirmed the trial court’s decision.

Life Care Plans

Attorneys for victims of permanent or long-term injuries use life care planning experts to determine the future expense of coping with a disabling condition. A life care plan considers all of the injury victim’s future needs that arise from the injury, including future medical treatment, rehabilitative therapy, medical equipment and supplies, and medications.

Life care plans assess the injury victim’s ability to live independently in the future. They consider whether the injury victim will need a caretaker or home health aide to assist with the activities of daily living as well as other tasks. A life plan considers whether and when the injury victim will need to reside in an assisted-care facility. If the injury victim’s mobility has been compromised, the life plan will consider the kinds of transportation assistance that the victim will require.

After gathering that information, a life planning expert then determines the accident victim’s life expectancy and investigates the cost of providing for future needs over the course of the victim’s remaining lifetime. All of that information is then presented in a report that becomes the basis for the expert’s testimony.

Expert’s Methodology

The expert in Tornatore’s case testified that he followed the methodology customarily employed by life planning experts when they develop a personal care plan. He reviewed medical records to glean an understanding of the recommendations made by Tornatore’s treatment providers. He interviewed Tornatore about his work history, injuries, and treatments. He assessed Tornatore’s level of independence before and after his injuries.

After determining Tornatore’s future health care needs, the expert researched the ongoing cost of coping with Tornatore’s injuries. He consulted a medical costs database in arriving at his conclusions. The expert then prepared a life care plan and reviewed its elements with Tornatore’s treating physician before finalizing his report.

Expert’s Reliance on Hearsay

Dr. Cohen moved to strike the testimony of the life care planning expert on the ground that she based her opinion on hearsay statements made by Tornatore’s treating physician. New York follows the general rule that experts must base opinions on facts that have been admitted into evidence or that are within their personal knowledge.

New York also follows the general exception to that rule that allows experts to rely on facts that members of the expert’s profession customarily regard as a reliable basis for an expert opinion. The exception allows experts to consider reliable hearsay when forming an opinion, provided that members of the profession would commonly rely on hearsay of the same nature and that the hearsay is not the sole basis for the expert’s opinion.

Applying that rule, the Appellate Division had no difficulty determining that the life care planning expert was entitled to rely on hearsay in forming his opinions. The information the expert obtained from Tornatore’s physician about Tornatore’s future medical needs was hearsay, but life care experts routinely rely upon medical opinions when they form a life care plan. The expert’s opinions were not based solely on information provided by the physician, as the opinions were only a link in a chain of reasoning that included reliance on a medical costs database, information provided by Tornatore, and the expert’s own experience.

Reliability of Expert’s Testimony

Dr. Cohen objected that the expert opined that Tornatore would require greater care in the future than he received in the past. Since the expert explained the basis for his opinion, Dr. Cohen’s objection went to the weight the jury should give the opinion, not to its admissibility.

Finally, Dr. Cohen complained that certain medical information relied upon by the expert were outside the scope of the treating physician’s expertise. However, Dr. Cohen did not move to strike the testimony on that ground. Since New York law requires such a motion to preserve the error, the Appellate Division did not address it.


Texas Court Bars Ophthalmologist from Giving Standard of Care Testimony About Eyelid Injury Caused by Bone Surgery

Kathleen Broussard fell and fractured a bone in her eye socket. Dr. Thomas Cook, a craniofacial plastic surgeon, operated to repair the fracture. During surgery, Broussard’s lower eyelid was torn. She sued Dr. Cook and his surgical assistant for medical malpractice.

As Texas law requires, Broussard offered an expert report explaining why Dr. Cook breached the appropriate standard of care. Her expert, Dr. Peter Kastl, was a full-time professor of ophthalmology who performs and teaches ophthalmic surgical techniques. He has published more than one hundred articles in ophthalmology.

Based on his examination of Broussard’s medical records, Dr. Kastl noted that Broussard’s lower lid was torn by a retractor. The surgical assistant was apparently holding the retractor while Dr. Cook was using a medical instrument that slipped from his grasp. Dr. Kastl opined that a torn eyelid is not a known complication of the surgery and could only have resulted from medical negligence.

Dr. Kastl explained that he is familiar with the type of surgery performed by Dr. Cook. He expressed the opinion that the standard of care “for a blowout fracture of the orbit is to repair the fracture without causing further injury to the patient.” That opinion seems self-evident, but Dr. Cook challenged Dr. Kastl’s qualifications to render it.

The trial court rejected the challenge and ruled that Dr. Kastl could testify at trial. Dr. Cook took an interlocutory appeal to the Texas Court of Appeals, which reversed the trial court’s decision.

Texas Law

Texas is one of many states that makes it more difficult to prove medical malpractice by limiting the range of experts who are able to testify about a physician’s standard of care. The law in those states requires judges to ignore the actual qualifications of the proposed expert and to apply an artificial test devised by the state legislature at the urging of medical industry lobbyists. That test often requires the expert to have recently practiced medicine in the same board-certified specialty as the allegedly negligent defendant.

Texas law is less strict. It requires an expert’s curriculum vitae to demonstrate that the expert: (1) is practicing medicine or was practicing when the claim arose; (2) has knowledge of accepted standards of medical care regarding the injury or condition involved in the claim; and (3) is “qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.”

A standard of care expert in Texas is qualified when the expert is “board certified or has other substantial training or experience in an area of medical practice relevant to the claim” and “is actively practicing medicine in rendering medical care services relevant to the claim.” An expert need not practice in the same specialty as the defendant to be qualified to offer an expert opinion. The question is “whether the expert’s expertise goes to the very matter on which he or she is to give an opinion.”

Appellate Court’s Analysis

Dr. Kastl has substantial training and experience regarding eye injuries and was actively practicing in the field of eye surgery. The question before the court was whether that training and experience qualified him to testify about a surgical standard of care when the surgery caused an eyelid injury.

The court of appeals relied on a Texas precedent that barred an anesthesiologist from testifying about the standard of care a surgeon should follow when inserting a stent and managing complications during heart surgery. The court decided that the anesthesiologist’s self-professed knowledge of the applicable standard of care was insufficient to demonstrate his expertise in heart surgery.

The court held that the anesthesiologist’s bare assertion of familiarity with a standard of care did not establish that his knowledge, skill, experience, training, or education qualified him to render an opinion about particular breaches of the standard of care applicable to a cardiologist dealing with complications arising from a surgical procedure. That decision is uncontroversial, given the difference between the medical procedures performed by an anesthesiologist and those performed by a heart surgeon.

Guided by that precedent, the court of appeals held that Dr. Kastl’s report failed to demonstrate that he had substantial training or experience in plastic surgery or other bone surgery. His training was in ophthalmology, a branch of medicine that focuses on the eye. While the surgery involved a bone in Broussard’s eye socket, the court held that the proximity of the eye socket to the eye “does not change the fact that this case concerns bone surgery, not eye surgery.”

That analysis would be more convincing if not for the fact that the injury to Broussard’s eyelid was caused by a retractor that was grasping the eyelid when the surgeon’s hand slipped. The training and experience of an ophthalmologist certainly includes the use of a retractor to hold an eyelid.

Dr. Kastl’s opinion that the injury resulted from an “inappropriate motion” by either the surgeon, the assistant who was holding the retractor, or both seems obvious. It should be equally obvious that slipping and causing an eyelid to tear defies any reasonable standard of care for a bone surgeon and the surgeon’s assistant. Disallowing Dr. Kastl’s opinion assures that an injury victim who had clear evidence of a medical team’s negligence will be denied compensation for her injury.

Perhaps Dr. Kastl’s report should have more clearly articulated his experience with retractors and eyelid injuries. The court of appeals concluded that Texas law prevents the court from inferring expertise. That rule, however, is another barrier that protects negligent doctors from the consequences of their malpractice while preventing injury victims from having a jury decide whether an expert is qualified to render a standard of care opinion.

Wisconsin Justice Concept

Expert Opinion of Involuntary Intoxication Excluded Because Expert Was Unqualified to Assume the Existence of a Medical Condition

Paul Ayala was charged with operating a vehicle while under the influence of an intoxicating drug in Milwaukee County, Wisconsin. The trial court excluded the testimony of his expert witness and Ayala was convicted. The Wisconsin Court of Appeals affirmed the trial judge’s exclusion of the expert testimony.

Facts of the Case

A police officer observed Ayala’s car facing west in an eastbound traffic lane. The engine was running but the car was not moving.

The officer noted that the car was damaged. Two mirrors were broken, the bumpers were dented, and the car had a flat tire. Ayala seemed confused and his speech was slurred.

Ayala failed field sobriety tests and was arrested. A blood test revealed the presence of Ambien in an amount well in excess of a therapeutic dose. Ayala denied taking Ambien on the night of his arrest.

Expert Evidence

Ayala wanted to raise the defense of involuntary intoxication. To that end, he proffered the testimony of Dr. Esam Dajani, a toxicologist and pharmacologist.

Dr. Dajani’s expert report expressed the opinion that Ayala suffered from a medical condition that inhibited his ability to absorb Ambien, causing it to remain in his stomach for two to three days. Dr. Dajani opined that Ambien built up in Ayala’s system over a period of time and that the cumulative effect of the Ambien, coupled with some antihistamines he took before he started driving, produced his intoxicated state.

The prosecution moved to exclude Dr. Dajani’s testimony on the ground that he was offering a medical opinion that he was not qualified to give. The trial court held a Daubert hearing before granting that motion.

The court based its ruling on Dr. Dajani’s assumption that Ayala suffered from the medical condition that supposedly inhibited his ability to absorb Ambien. Dr. Dajani based that assumption on medication that had been prescribed to Ayala. However, Ayala’s medical records did not include a diagnosis confirming that medical condition.

Appellate Review

While the Wisconsin Supreme Court declined for many years to adopt the Daubert standard, the state legislature amended the Rules of Evidence to require trial courts to subject expert testimony to Daubert scrutiny. Wisconsin appellate courts nevertheless give trial courts “broad latitude” in deciding how to determine the reliability of an expert’s opinion.

The Wisconsin Court of Appeals applied that deferential review to the trial court’s exclusion of Dr. Dajani’s opinion. The appellate court deferred to the trial court’s finding that, as a pharmacologist and toxicologist, Dr. Dajani was not qualified to diagnose a medical condition. Since his expert opinion depended on a diagnosis that Dr. Dajani could not make, his opinion was not reliable.

The outcome may well have been different if Ayala’s medical records had confirmed that he had the medical condition that Dr. Dajani inferred was the basis for the medication that Ayala’s doctor had prescribed. Dr. Dajani’s expertise would likely have permitted him to render an opinion about the absorption of Ambien into the system of a patient who suffers from that condition. But since the condition had never been diagnosed (or at least had never been recorded in the medical records that Dr. Dajani reviewed), Dr. Dajani had no reliable facts upon which to base his expert opinion.

Lesson Learned

It isn’t clear whether Dr. Dajani contacted Ayala’s physician to inquire about the missing diagnosis. Had he done so, and had the diagnosis been consistent with the condition upon which Dr. Dajani based his opinion, Dr. Dajani would presumably have been relying on the kind of facts that experts are permitted to consider in forming an opinion. Since his opinion would then have had a foundation, Dr. Dajani would presumably have been allowed to testify.

Perhaps the defense made a calculated gamble not to contact the physician for fear that the physician had not made a diagnosis that would support Dr. Dajani’s opinion. If so, the gamble did not pay off. Hindsight is always 20-20, but the lesson to be learned is that an expert who is not a physician and whose opinion is conditioned on a medical diagnosis should confirm that a physician actually made that diagnosis rather than inferring that the diagnosis must have been made.


Jesse Ventura Testifies as Motorcycle Club Expert

Mongols Logo

Mongols Logo (from

Jesse “The Body” Ventura is known as a professional wrestler and as the governor of Minnesota. He is also considering a run for the presidency in 2020. He recently added a new credential to his resume, that of expert witness.

Federal prosecutors accused the Mongols Motorcycle Club of racketeering. The government argued that the “outlaw” motorcycle club has engaged in a pattern of criminal behavior. To defend against that accusation, the Mongols called Ventura to testify as an expert witness.

Criminal Prosecution

The racketeering charges were filed against the Mongols as an organization, not against its individual members. The government has prosecuted individual members for individual and collective crimes with mixed success, but its efforts have not caused the Mongols to disband.

Organizations cannot serve prison time, but they can be made to forfeit the property that they use to commit crimes. The government’s apparent objective is to seize control of the Mongols’ trademarked patch, described by the New York Times as “a drawing of a brawny Genghis Khan-like figure sporting a queue and sunglasses, riding a chopper while brandishing a sword.”

Claiming that a logo is an instrumentality that facilitates criminal activity seems a bit of a stretch. The same crimes can just as easily be committed with or without a logo. How the logo facilitates crime is a bit of a mystery.

Prosecutors nevertheless hope to obtain control of the trademark by using criminal forfeiture laws. Prosecutors seem to think that depriving the Mongols of trademark rights will put the group out of business. Why they believe that to be true is also a bit of a mystery.

It appears that prosecutors believe they can stop Mongols from wearing their logo, and thus destroy the group’s identity, by seizing the trademark. If the Mongols commit murder and extortion, as the government claims, are they likely to worry that wearing leather jackets with the Mongol patch will infringe a trademark that the government owns?

Wearing a trademarked jacket isn’t a crime, but even if it were, it hardly seems like a wise investment of public resources to arrest people for wearing a jacket, some of whom might not be Mongols. Nor is the government’s apparent plan practical. Does the government expect to seize the bodies of club members who have tattooed the insignia onto their shoulders and biceps?

Perhaps the government hopes to deprive the Mongols of licensing fees the club collects from retailers who sell attire that features the club’s logo. Denying the club a legitimate source of income may be counterproductive if it encourages the club to replace that income through illicit means. Since taking the trademark plainly won’t put the Mongols out of business, it is difficult to understand the government’s objective.

Expert Testimony

Regardless of the Justice Department’s wisdom in prosecuting the Mongols as an organization rather than prosecuting individual members for crimes they commit, the government brought the case to trial. The Mongols defended against the racketeering charge by arguing that it does not sanction or encourage any crimes that its members might commit.

To advance that defense, the Mongols called Jesse Ventura as an expert witness. Ventura has long been a member of the Mongols. When asked whether Ventura’s membership made him part of a criminal gang, Ventura testified that it did not.

Despite becoming a “full patch” member of the Mongols, Ventura denied committing any crimes for, or on behalf of, the organization. Ventura testified that he was never asked to commit crimes and never did.

Ventura joined the Mongols in 1973 after returning to the United States from his second tour of duty in Vietnam. Ventura found a “brotherhood” in the Mongols that he could not find elsewhere in civilian society. He explained that the organization provided a valuable transition to civilian life after serving in Vietnam.

Ventura acknowledged that some Mongols have committed crimes but pointed out that members of many organizations have broken the law. He contended that some “bad apples” should not be taken as evidence that the organization as a whole is rotten.

Ventura admitted that “bad blood” existed between the Mongols and the Hell’s Angels, but attributed any acts of violence to the exercise of self-defense or necessary retaliation rather than gang wars. His knowledge of recent Mongols activity is limited, however, by his move to Minnesota in 1974 to pursue a career in professional wrestling.

Despite his continued membership, Ventura did not attend Mongols meetings and would not have been aware of any discussions of criminal activity that may have occurred in his absence. The evidence presented by prosecutors focused on crimes committed in the current century.


Notwithstanding Ventura’s testimony, a jury found the Mongols guilty of racketeering. Whether the government will be entitled to seize the Mongols’ trademark is an unsettled question. Whether it will make a difference to the Mongols if the government does so is even less clear.

What is clear is that the government’s attempt to seize intellectual property in a criminal prosecution raises a host of legal issues. Those issues will only be resolved by diverting government resources from crime fighting tactics that would surely be more effective than trying to stop people from exercising their right to express themselves by wearing a logo.


New Hampshire Supreme Court Affirms Admission of Expert Testimony Regarding Cause of Salmonella Infection

Brandon Stachulski sued the owner of an Applebee’s restaurant in New Hampshire, alleging that he contracted salmonella when he ate an Applebee’s hamburger. The Applebee’s owner argued that Stachulski could not prove that its hamburger was the source of the salmonella. The owner argued that Stachulski could have been infected by his pet lizard or other sources of salmonella bacteria.

The jury found in favor of Stachulski and awarded him $750,000 in damages. On appeal, the Applebee’s owner challenged the trial judge’s decision to admit Stachulski’s expert evidence. The New Hampshire Supreme Court ruled in favor of Stachulski and affirmed the judgment.

Expert Testimony

Dr. Seth Rosenbaum, an expert in infectious diseases, testified for Stachulski. Dr. Rosenbaum reviewed Stachulski’s medical records and noted that he was diagnosed with a non-typhodial salmonella infection. That form of salmonella is typically food-borne.

After eating the Applebee’s hamburger, Stachulski became ill within the time frame during which symptoms of a salmonella infection would typically appear. Stachulski’s brother-in-law dined with Stachulski and also ate a well-done hamburger. Stachulski and his brother-in-law became violently ill at the same time, a fact that pointed to the hamburger as a source of the illness.

Dr. Rosenbaum thought it was unlikely that Stachulski contracted salmonella from his lizard because other family members had contact with the lizard but did not become ill. Other family members also eat the same food at home that Stachulski’s wife prepares. The fact that they did not become infected tended to rule out a home-based source of infection.

Stachulski’s wife has a health condition that, in Dr. Rosenbaum’s opinion, would make her susceptible to a salmonella infection. The fact that she did not become ill strengthened the inference that Stachulski’s home could be ruled out as the source of Stachulski’s salmonella infection.

Admissibility of Expert Opinions in New Hampshire

New Hampshire follows a version of the federal Daubert test for determining the admissibility of expert evidence. To be admissible, the evidence must meet a threshold of reliability. Reliable expert opinions are based on sufficient facts or data, are the product of reliable principles and methods, and result from the reliable application of those principles and methods to the facts of the case.

The state supreme court emphasized that the New Hampshire rule is interpreted liberally in favor of the admission of expert testimony. The proponent’s burden of proving that expert testimony is admissible is “not particularly onerous.” If an expert’s testimony is well grounded, it should be tested by the adversary system of justice, just like the testimony of fact witnesses. It is improper in New Hampshire to exclude expert testimony out of fear that juries are incapable of weighing its inadequacies.

Appellate Court’s Analysis

The supreme court determined that the facts recited above were sufficient to provide a basis for Dr. Rosenbaum’s expert opinion. The court also decided that Dr. Rosenbaum reliably identified and eliminated other potential causes of the salmonella infection, leaving the meal at Applebee’s as the most likely cause. The court noted that a “differential etiology” analysis is widely accepted as a reasonable means of determining the likely cause of a disease.

The defense argued that only the methods used by public health authorities to trace a disease outbreak to a particular source should be deemed reliable, because those are the only methods that have been tested and peer-reviewed, and are the only methods known to have low error rates. The fact that other or arguably superior methodologies exist, however, did not render Dr. Rosenbaum’s methodology unreliable.

The defense failed to establish that Dr. Rosenbaum’s methodology was likely to lead to an inaccurate result. The appellate court therefore deferred to the trial court’s conclusion that the methodology met the threshold standard for reliability. It was up to the jury to decide whether the defense attacks upon the methodology undermined the conclusions that Dr. Rosenbaum drew.

Finally, the defense complained that Dr. Rosenbaum had no basis for believing that the health condition of Stachulski’s wife made her more susceptible to a salmonella infection. Dr. Rosenbaum candidly admitted that he had no way of quantifying how much more susceptible to infection Stachulski’s wife might have been because of her condition. Even if that aspect of Dr. Rosenbaum’s methodology was questionable, Dr. Rosenbaum’s admission concerning the limits of his analysis minimized any prejudicial impact the testimony could have had.

Placing Trust in Juries

In the end, the court decided that Dr. Rosenbaum’s testimony had a reliable basis. The testimony may not have been perfect, but the law does not require perfection. To the extent that Dr. Rosenbaum’s testimony had weaknesses, the purpose of cross-examination is to expose those weaknesses.

After expert testimony is tested by cross-examination, the jury’s job is to weigh its strengths and weaknesses. Juries are the ultimate judges of the facts in our civil justice system and there is little reason to believe that they are less capable than judges of evaluating expert testimony. Because Dr. Rosenbaum’s testimony satisfied a threshold of reliability, it was up to the jury to decide whether his testimony proved that Stachulski’s disease was caused by eating an Applebee’s hamburger.


social media facebook

Sixth Circuit Rejects Expert Testimony About How Criminals Use Facebook

Malik Farrad was convicted of a felony and thus was subject to a federal law that prohibits individuals with felony convictions from possessing firearms or ammunition. After Farrad served his sentence, the police in Johnson City, Tennessee received reports that Farrad had been seen in possession of guns.

To further the investigation of those rumors, a Johnson City police officer sent Farrad a “friend” request on Facebook. Farrad accepted the request, giving the officer the opportunity to view the postings that Farrad made available to Facebook friends. The officer saw a photograph that appeared to show three handguns “sitting on a closed toilet lid in a bathroom.”

On the strength of that photograph, the police applied for and received a warrant that directed Facebook to release all information associated with Farrad’s Facebook page. Facebook released additional photographs to the police, including some pictures showing “a person who looks like Farrad holding what appears to be a gun.” Farrad’s identification was assisted by tattoos that are visible in the pictures.

Farrad’s Trial

Farrad was arrested for being a felon in possession of firearms. No witness who testified in his trial actually saw Farrad with a gun. The police produced no gun at the trial. The prosecution’s evidence consisted largely of the photographs and the inferences that the photographs were taken after Farrad was convicted as a felon, that Farrad is the person in the photographs, and that the gun he is holding in the picture is real.

Testimony during the trial revealed that Facebook strips metadata from posted photographs, making it impossible to access that data to determine the date and time that a photograph was taken. However, a police officer testified that the background of the photographs matched an apartment that Farrad occupied, and the property manager testified that Farrad began his occupancy in February 2013, after he was convicted of a felony.

Farrad objected to admission of the photographs as hearsay. The prosecution countered that they were admissible as business records maintained by Facebook. Farrad then objected that Facebook could not authenticate the photographs because Facebook did not know who took the photographs or when or where they were taken. The trial court overruled that objection and admitted the photographs into evidence.

Expert Testimony

Officer Hinkle, who worked as the police department’s armorer, testified as a weapons identification expert. He testified that the gun shown in the photographs was a Springfield XD .45 caliber handgun. The officer expressed the opinion that the gun was real based on markings and other details that were consistent with a real gun. Hinkle searched the marketplace for a replica of a Springfield XD .45 but could not find one.

To supplement evidence that seems a bit weak on its face, the prosecutor used the presumed social media expertise of Officer Garrison, the police officer who “friended” Farrad. Garrison was asked to testify “in his capacity as an experienced user of social media in the service of police investigations.” In that capacity, and based on his “training and experience,” Garrison testified that criminals usually upload photographs to their social media accounts soon after the criminal conduct occurs (“Generally, in my experience, it’s been more of a — you know, like I say, it can be instantaneous. But it is more of a present-type of thing.”).

When asked why criminals post evidence of crimes to social media, Garrison testified that criminals “like to brag about their — their activities, they’re proud of it, and just like anyone, they want to let their friends know what they’re doing, let their friends know, you know, where they’re at, what’s going on.”

Garrison then testified that, in his experience, the camera app on a cellphone makes it more likely for someone who takes a picture on a cellphone to upload the picture immediately to social media. He thought it would be “rare” for a criminal to wait a substantial period of time before posting evidence of a crime to a social media site.

When asked to identify the criminals who, in his experience, admitted to taking pictures of criminal activity and posting those pictures to a social media site, Garrison testified that he couldn’t think of a “specific instance.” Nor could he identify any specific training that informed his opinion. None of that dissuaded the judge from admitting the testimony based on the officer’s supposed training and experience.

Postconviction Motion

The jury found Farrad guilty and the judge sentenced him to more than 15 years in prison. Farrad later filed a motion for a new trial based on his discovery of website pages showing that Ring Manufacturing sells a replica of a Springfield XD .45. Farrad alleged that the prosecution’s expert testified falsely that no fake versions of the weapon are available in the marketplace.

The judge denied the motion, determining that Farrad presented no evidence that its expert officer deliberately lied. The judge may have believed that the officer conducted a search of the marketplace but that the search was less than thorough, making the expert incompetent but not dishonest.

More importantly, the judge concluded that evidence of the replica firearm would have made no difference because the replica shown on the web pages is bright blue to prevent it from being mistaken for an actual weapon. The replica therefore could not be the weapon shown in the photographs that appeared on Farrad’s Facebook page.

Appellate Opinion

The appellate court easily found that Officer Hinkle’s expert testimony was admissible. Hinkle’s training and experience qualified him as a firearms expert. He had a reasonable basis for identifying the gun in the Facebook photographs and for rendering the opinion that the gun was real.

The court came to the opposite conclusion with regard to Officer Garrison. The court concluded that Garrison testified as an expert, given that he was asked to express opinions based on his training and experience.

Moreover, the prosecution presented him to the jury as an expert in a “niche area of social-media activity: how criminals behave on social media.” Since the prosecution presented that body of knowledge as falling “beyond the ken of an average juror,” Garrison’s testimony was subject to the admissibility rules that apply to expert witnesses.

The appellate court decided that Garrison was unqualified to render the opinions he offered and that the opinions were not reliable. To be qualified to opine about the social media habits of criminals, Garrison needed to have special knowledge of the topic.

While the government made a show of Garrison’s training and experience as a police officer who was familiar with Facebook, Garrison admitted that he had never talked to a criminal about Facebook usage. Nor could he recall any training relevant to the use of Facebook by criminals, although he claimed to have chatted with other officers about the topic.

Garrison’s opinions were unreliable because they were not based on adequate data. He could not offer even anecdotal support for his opinions. Nor were his opinions based on a methodology, much less one that was reliable. The court concluded that the common perception of police officers as experts on crime must give way to the demand that expertise be demonstrated, not assumed. In any event, there is no reason to believe that police officers who have not formally studied the subject are experts in the social media habits of criminals.

Conviction Affirmed

The court concluded that Garrison’s testimony should not have been admitted. In the end, however, the court decided that his testimony wasn’t important to the conviction.

Garrison’s testimony was presented to prove that the photograph was uploaded soon after it was taken, but Farrad’s lawyer did not argue that the photograph was taken before Farrad was convicted. That might have been an error on the lawyer’s part, but that is not the kind of error that can be raised in a direct appeal in federal court. Farrad’s conviction was therefore affirmed despite the trial court’s error in treating a police officer as an expert witness regarding the Facebook habits of criminals.

Patent law

Federal Court Grants a Daubert Motion and Denies Another in a Trademark Infringement Lawsuit

Through two Florida business entities, Superior Consulting Services, Inc. markets a blood-testing service to consumers that includes the creation of a “Healthprint” profile. Superior trademarked the term “Healthprint” to identify a profile that is “customized to a client’s unique biochemistry.” Superior markets the profile as assisting in the early detection of disease. Superior also provides nutritional advice to consumers who purchase a profile.

Shaklee Corporation applied for a trademark for “Healthprint” to identify a free, online survey that results in a recommendation for Shaklee’s nutrition supplements and related products. The recommendation purports to be tailored to a customer’s health goals, needs, and budget.

Superior sued Shaklee in federal court for trademark infringement and for violating a Florida law that prohibits deceptive trade practices. Both parties wanted to use expert witnesses at trial, and each party filed a Daubert motion to exclude the other’s expert.

Survey Evidence

Both experts offered opinions as to whether consumers are likely to confuse Shaklee’s use of “Healthprint” with Superior’s use of “Healthprint.” Both experts relied on survey evidence. The court’s Daubert analysis therefore focused on the methodologies the experts used to arrive at their diametrically different results.

Shaklee’s expert, Hal Poret, showed survey participants the Shaklee website displaying its “Healthprint” mark and the Superior website displaying its “Healthprint” mark. The survey then asked questions that were designed to determine whether the consumers were confused about whether the marks related to the same or different companies. Poret also used a control group that was shown the term “Healthstamp” instead of “Healthprint” as a safeguard against false positives.

Superior’s expert, Kirk Martenson, showed the word “Healthprint” to consumers in a plain font and described the services offered by Superior. He then asked questions designed to determine whether participants perceived the Healthprint name or services as relating to one or two companies. Martenson used no control group.

Both surveys purported to be versions of the Squirt test, which courts generally accept as a means of proving that similar trademarks are or are not confusing to consumers. The Squirt test typically places marks as they appear on products side by side and asks questions to determine whether their similar marks cause consumers to become confused about the source of each product.

Martenson’s survey found that the two uses of “Healthprint” were very likely to cause consumer confusion. Poret’s survey found little likelihood of confusion.

Martenson’s Flawed Methodology

The court faulted Martenson for designing a survey that failed to display the competing “Healthprint” terms to consumers in the context in which they were used. The court concluded that Martenson’s methodology was unreliable because it did not meet the basic standards of a Squirt survey: displaying two marks as they are actually used in the marketplace side by side to test whether they confuse consumers.

By asking questions about the term “Healthprint” without providing the context in which Superior and Shaklee used the term, the survey divorced the test from the real world. For example, customers were asked whether they thought the term “Healthprint” came from one company, two companies, or no company at all. The relevant question is not whether consumers are able to guess at the origin of a mark but whether they are confused, when they see two marks, about whether both marks are associated with the same product or service.

In addition, while Martenson found that consumers were confused as to the origin of the generic term “Healthprint,” the absence of a control group made it impossible to determine the cause of their confusion. Martenson contended that he was testing for the presence, not the cause, of confusion, but it is the cause of confusion that is relevant to a trademark infringement claim. If consumers are confused for reasons that have nothing to do with an allegedly infringing mark, their confusion is immaterial.

Finally, when Martenson’s survey described the service with which “Healthprint” is associated, it described only Superior’s service. It did not describe Shaklee’s. The court noted that a survey respondent “can only compare and contrast two services if they are given two services to compare and contrast.” If participants concluded that the term was associated with one service rather than two (which Martenson interpreted as a confusing association of the mark with a single service rather than two distinct services), the court deemed that conclusion to be compelled by survey questions that described only one service.

The court decided that Martenson’s methodology was “fatally flawed.” It therefore granted the Daubert motion and excluded Martenson’s testimony at trial.

Poret’s Reasonable Methodology

Superior complained that Poret only surveyed consumers who would consider using blood-test services to analyze nutritional needs. The court rejected the argument that Poret should also have surveyed consumers who might want a nutritional analysis without taking a blood test. While Superior occasionally offers nutritional advice without a blood test, it does not actively market those services using the “Healthprint” mark, so it was reasonable for Poret to exclude those consumers from his survey.

Superior also complained that Poret surveyed consumers who are at least 21 years old, while most of Superior’s customers are over the age of 50. Since Superior markets its services to all adults, however, Poret’s methodology was reasonable.

Superior complained that Poret showed survey participants a brochure that reproduced its website pages rather than showing them the actual website. That methodology was reasonable because it provided participants with the website content while assuring that each participant saw the same materials.

Finally, Superior complained that Poret showed participants the nutrition-related questions that Shaklee’s website asks but did not show them the questions that Superior’s website asks. Superior’s questions, unlike Shaklee’s, are included in the company’s order form. Showing the order form to participants would have underscored the fact that Superior’s services are much costlier than Shaklee’s and would have decreased the likelihood of finding consumer confusion. The decision not to show Superior’s order form to participants did not prejudice Superior and did not undermine the reliability of Poret’s methodology.

Having rejected all Superior’s challenges, the court denied its Daubert motion. The decision highlights the importance of using reliable survey methods when basing a patent infringement lawsuit on an expert’s opinion about the likelihood of consumer confusion.


Ninth Circuit Declines to Rehear Case that Asks Whether Admissible Expert Evidence Is Required to Support Class Certification

Does expert evidence need to be admissible at trial before a judge can base a class certification decision on the evidence? A Ninth Circuit panel said “no” while a divided court recently declined to review the panel’s decision en banc.

Facts of the Case

Two registered nurses (“RNs”) filed a class action complaint against their former employer, Corona Regional Medical Center, alleging that Corona violated California wage laws in several ways, including the failure to pay wages for all hours worked, to pay overtime wages or all overtime hours worked, to provide RNs with off-duty meal and rest periods, to pay timely wages upon the termination of employment, and to provide accurate wage statements.

The RNs filed their lawsuit in state court. Corona removed it to federal court. The RNs asked the federal district court to certify subclasses as to each category of wage violation. The court denied that motion on several grounds, including its determination that the RNs’ financial injuries were not typical of those suffered by class members. In reaching that decision, the court decided that certain expert evidence offered by the plaintiffs was not admissible under federal law, and that the plaintiffs therefore failed to demonstrate any injury at all.

The RNs appealed. The Court of Appeals for the Ninth Circuit reversed the district court’s order. The court based its ruling in part on the conclusion that the RNs were entitled to rely on evidence to demonstrate typicality that would not be admissible at trial.

Expert Evidence

To establish the typicality of their injuries, the RNs submitted a declaration prepared by a paralegal employed by their law firm. The paralegal reviewed payroll records and determined that Corona “rounded” the time shown on time cards to the nearest quarter hour.

Using a sampling of timesheets, the paralegal compared the time for which Corona paid its employees to the time they actually worked, as recorded on time cards. The paralegal concluded that over hundreds of shifts, Corona’s rounding practice undercounted one RN’s time by eight minutes per shift and undercounted the other RN’s time by six minutes per shift.

The RNs did not submit declarations until after Corona challenged the paralegal’s declaration. Nor did the RNs have a payroll expert or statistician prepare the analysis on which they relied. Had their counsel taken those steps, the legal issues raised on appeal would likely have been avoided.

The district court concluded that the paralegal’s analysis was not admissible because:

  • the paralegal was a lay witness who had no personal knowledge of the data that he analyzed;
  • the opinions that the paralegal offered were “technical” and “specialized” and thus could only be offered by an expert witness; and
  • the paralegal was not qualified to provide expert testimony.

Since the paralegal’s analysis was based on the kind of arithmetic a high school graduate should be competent to perform, the district court’s conclusion that the paralegal’s opinions were based on “technical” or “specialized” knowledge is doubtful. The larger question, however, is whether evidence of typicality must be admissible at trial before it can satisfy the requirements of class certification.

Evidence Required for Class Certification

Class certification decisions require the district court to analyze facts. The Ninth Circuit cautioned that the analysis does not require a “mini-trial.” A trial determines the merits of claims asserted by plaintiffs. Courts decide whether to certify a class without deciding the merits of class claims.

Accordingly, the appellate court deemed it a matter of common sense that the “formal strictures” of a trial, including the rules of evidence, should not necessarily constrain the court’s determination of whether the facts support bringing the case to trial as a class action. “Inadmissibility alone,” the court held, “is not a proper basis to reject evidence submitted in support of class certification.”

The court acknowledged that the Fifth Circuit requires all evidence in support of class certification to be admissible, while the Third and Seventh Circuits require expert evidence to be admissible. The Eighth Circuit, on the other hand, noted that the limited decision to certify (or not) a class is a preliminary determination made early in the case, usually before the conclusion of merits discovery. For that reason,the Eighth Circuit allows courts to rely on evidence to certify a class that might not be admissible to prove the merits of a claim.

Since evidentiary uncertainty is inevitable at the certification stage and since a class can always be decertified later, the Ninth Circuit agreed with the Eighth Circuit that the Daubert standard applies to the evaluation of evidence proving the merits of a case, not to the preliminary decision to certify a class.

Formalism v. Justice

At least as applied to the facts of this case, the decision was in fact based on common sense. The paralegal’s statistical analysis may not have satisfied Daubert  because it was not accompanied by an explanation of the methods used to extract data, but it is fair to assume that the methodology would be fairly obvious to anyone who examined the spreadsheets that the paralegal created from the payroll data. If data was cherry-picked, one would expect the defense to point that out by submitting its own analysis using a different sampling of the data.

The appellate court concluded that the district court’s reliance on “formalistic evidentiary objections” prevented it from considering evidence that “likely could have been presented in an admissible form at trial.” For example, the plaintiffs responded to Corona’s objections by presenting declarations that authenticated the payroll data — the accuracy of which Corona never challenged — but the district court rejected the declarations as “new evidence.” The only thing new, however, was the authentication of the payroll data, not the payroll data itself.

The appellate court noted that the district court’s “narrow approach” told it nothing about whether the typicality requirement was actually satisfied, and thus prevented the court from determining whether allegations about Corona’s violation of California wage laws should most efficiently be resolved in a class action. In essence, the district court elevated evidentiary formalities over justice.

Using a paralegal to crunch data was not an ideal way to present evidence to the court. Still, the plaintiffs were certainly capable of giving admissible testimony that “we weren’t paid for all the hours we worked,” which is all it would have taken to demonstrate that they — and employees like them — were harmed by wage violations. That they did so only after Corona challenged the admissibility of the payroll analysis they presented hardly seems like a sufficient justification to deny an entire class of employees the opportunity to prove that Corona cheated them out of the full wages they earned.

Lessons Learned

The Ninth Circuit recently denied a petition to rehear the appeal en banc (that is, to have the entire court consider the issue), but five judges dissented from the denial. The dissenting judges believed that circuit precedent, the prevailing view in other circuits, and “the Supreme Court’s clear guidance” compel the conclusion that expert evidence must pass the Daubert test of admissibility before it can be considered in support of a certification motion.

The dissenters were incredulous that the other judges were willing to accept the calculations of a mere paralegal, whether or not the calculations were probably correct. The dissenters devote a footnote to their assumption that the paralegal’s simple arithmetic had to be supported by expert testimony, despite ample precedent for the proposition that arithmetical calculations that most reasonably intelligent people could make, and that most jurors could understand, need not be made by experts.

The Ninth Circuit’s decision results in an apparent circuit split that may be resolved by the Supreme Court if Corona petitions for review. In the meantime, prudent attorneys who need to present statistical evidence in support of certification motions would be well advised to hire a payroll expert, an accountant, or a statistician to derive conclusions from payroll records or other data compilations. Whether or not an expert is strictly necessary (and in some circuits, an expert’s testimony is vital), employing the services of an expert in a wage claim should significantly improve the odds that a court will certify a class.

Fertilizer Plant

Appellate Court Affirms Exclusion of Toxicologist’s Opinion Linking Respiratory Disease to Pollutants from Fertilizer Plant

Rhonda Williams sued Mosaic Fertilizer, claiming that her lung diseases and other health conditions were related to toxic substances emitted by Mosaic’s plant. Mosaic made a Daubert motion to exclude the expert testimony that linked Williams’ health problems to Mosaic’s emissions. A federal district court granted the motion and the Court of Appeals for the Eleventh Circuit affirmed its decision on appeal.

Williams’ Claim

Williams has lived her whole life in Tampa, about three miles from a Mosaic factory. She alleged that Mosaic uses a number of toxic chemicals in its manufacturing process. She further alleged that Mosaic produces toxic emissions, including arsenic, cadmium, chromium, lead, manganese, nickel, phosphorous, and zinc.

Government agencies have found that sulfur dioxide in their air near Mosaic’s plant exceeded national and state standards. Measurements of particulate matter (inhalable particles that are 10 micrometers or smaller) exceeded the national standard in Williams’ neighborhood. Particulate matter is a respiratory irritant.

Williams’ lung-related health problems included pulmonary hypertension, obstructive pulmonary disease, asthma, and lower lung scarring. She also attributed her fatigue, abdominal pain, and diabetes to the pollutants or to the side effects of treating her lung conditions.

Expert Evidence

To prove that her health conditions were caused by Mosaic’s pollution, Williams relied on the expert opinion of Dr. Franklin Mink, a toxicologist. Dr. Mink opined that Williams had been exposed to a lifetime of pollutants and hazardous materials generated from Mosaic’s operations, including mining, processing, storage, transportation, and waste handling. Mink also concluded that Williams developed adverse health effects from her exposure to those pollutants and materials, and from the therapeutic agents used to treat those diseases.

Dr. Mink appended a list of sources to his report that included environmental studies and regulatory documents. However, he did not make specific references in his report to the cited sources that supported each of his conclusions. One lesson to learn from this case is that experts should carefully cite the specific sources they rely upon in support of each fact or opinion stated in an expert report.

In granting Mosaic’s Daubert motion, the trial court concluded that Dr. Mink failed to address “the hallmark of the science of toxic torts — the dose-response relationship.” The dose-response relationship is a means of proving that a toxic substance caused a particular health outcome by demonstrating that increasing exposure to the substance correlates with an increased risk that the outcome will occur.

The trial court also faulted Dr. Mink’s methodology because he:

  • “unjustifiably” relied on regulatory standards to determine the dose that would cause harm to health;
  • inferred facts from studies that contradicted his conclusions;
  • failed to consider background risks for Williams’ conditions;
  • failed to rule out other potential causes for Williams’ conditions; and
  • speculated about Williams’ exposure to the toxic substances.

Since the court deemed Dr. Mink’s methodology to be unreliable, the court concluded that his opinions were inadmissible.

Causation Standards

Without deciding whether Williams failed to prove general causation (in other words, to prove that the pollutants emitted by Mosaic are capable of causing the harmful health conditions from which Williams suffered), the Court of Appeals for the Eleventh Circuit agreed that Williams failed to demonstrate specific causation. To establish that her health conditions actually were caused by Mosaic’s toxic discharges, Williams needed to establish a level of exposure that was necessary to produce those effects, and to prove that Williams was exposed to that level. The court concluded that her expert’s failure to do so was fatal to her proof of specific causation.

Dr. Mink did not independently measure the level of pollutants in Williams’ environment, but relied on academic studies measuring the ambient concentration of air pollutants in Williams’ neighborhood. He also relied on Environmental Protection Agency (EPA) air quality standards to determine the threshold exposure to those pollutants that could produce Williams’ health problems.

The court of appeals concluded that Dr. Mink’s analysis was “methodologically problematic,” in part because one of the studies upon which he relied concluded that the concentration of pollutants emitted by fertilizer plants in the Tampa Bay area was below the level that would present a health risk to the public. Dr. Mink explained that he relied on the study’s data, not on its conclusions, but the court of appeals held that Dr. Mink never “clearly explained” until after his opinion was deemed inadmissible why he disagreed with the study authors’ conclusions.

Unfortunately, the appellate opinion does not tell the reader what explanation Dr. Mink gave that prompted the district court’s ruling, making it impossible for the reader to evaluate the clarity of that explanation. Nor does the opinion explain why Dr. Mink was less qualified to draw opinions from the data than the authors of the study.

The court also faulted Dr. Mink for relying on EPA standards to establish causation. The court noted that regulatory standards are protective, in that they might build in a “cushion” to protect sensitive people from exposures that would not adversely affect most people. According to the court, relying on EPA standards is a poor methodology because the standards, unlike the dose-response relationship, cannot predict how many people will be affected by a particular level of contamination.

The court rejected the argument that the EPA standards are, in fact, based on the dose-response relationship. The court noted that EPA cautions that its data cannot predict future risk with precision. Yet the burden in a civil case is not to prove facts with precision, but to prove that they are more likely than not true. While the court stated that it does not require experts to produce “precise numbers,” it faulted the expert’s methodology because the methodology was not based on precise numbers.

Toxic tort cases have become monstrously difficult to prove because appellate courts have set the bar for expert testimony so high that, without investing huge sums of money to establish precise dose-response relationships, experts are unable to use the “exacting” methodologies that industry-friendly judges believe Daubert requires. The unfortunate result is that jurors never get a chance to apply the less-than-exacting civil burden of proof to decide whether a company’s pollution probably caused a plaintiff’s injury. Whether that’s good or bad depends on how judges and legislators balance a company’s interest in being shielded from judgments against society’s interest in compensating victims of toxic torts.

Other Potential Causes of Harm

Finally, the court faulted Dr. Mink for failing to rule out other potential causes of Williams’ health conditions, such as “obesity, allergies, lifestyle, exposure to secondhand smoke, or possible genetic predisposition.” Dr. Mink testified that the probability of those factors causing Williams’ health condition was low.  The court faulted that testimony because it was unsupported by “probability studies.” That complaint arguably goes to Dr. Mink’s credibility. If Dr. Mink was testifying based on his knowledge and experience, whether he can cite supportive probability studies is an issue that could be explored on cross-examination to attack his credibility.

Credibility is generally for the jury to determine. While the court held that “[t]he law does not require the District Court to take [the expert] at his word,” the law does allow juries to do so by assigning credibility determinations to juries rather than judges. In addition, the district court declined to hold a Daubert hearing and thus gave Dr. Mink no opportunity to discuss probability studies that he did not mention (and apparently was not asked about) during his deposition.

Different courts view the elusive border between credibility and the “reasonableness” of testimony in very different ways. This case is a further example of the importance of having experts prepare reports that document every single fact upon which the expert relies in forming an opinion, even if the fact seems blindingly obvious to the expert.


Hypnosis Experts Challenged in Texas

Everyone agrees that expert evidence should be reliable. Judges have historically determined whether an expert is qualified to render a specialized opinion, and if so, whether the expert’s opinion is based on something more substantial than conjecture.

Some version of the Daubert standard for determining the admissibility of expert testimony now prevails in most states. That standard gives judges a greater role in deciding whether expert testimony is based on a reliable methodology.

Reliability standards have tended to be more stringent in civil cases because the insurance industry and business lobbyists have campaigned for admissibility standards that serve their interests by excluding expert testimony that might convince a jury of a corporate defendant’s liability. Reliability standards have tended to be more lax in criminal cases because prosecutors have advocated standards that serve their interests in obtaining convictions. The different approaches to reliability in civil and criminal cases make it easier for “junk science” to be admitted in criminal trials, as the President’s Council of Advisors on Science and Technology made clear in 2016.

Sometimes experts who do not testify influence the testimony of other witnesses. In those cases, the question of reliability becomes more difficult for courts to assess. Testimony that is “refreshed” by hypnosis is an example of an expert’s use of a methodology that may cause juries to hear unreliable testimony.

Hypnotically Refreshed Recollection

Charles Flores and Richard Childs were charged with murdering a 64-year-old woman who was unexpectedly at home when they burglarized her house. The murder was committed in 1998. Childs made a deal and was sentenced to 35 years in prison. He was released after serving 17 years.

Flores was found guilty in a trial and was sentenced to death. When Childs entered his guilty plea, he admitted that he killed the victim, but a jury found Flores guilty because of evidence that he participated in the robbery that ended in the victim’s death. Allowing the killer to go free after 17 years while the non-killer is sentenced to death is an outcome that causes people to wonder what is wrong with the criminal justice system.

Two witnesses testified that Flores admitted to being at the crime scene. A third witness testified that she smoked methamphetamine with Flores and Childs before telling them that there was money hidden in the victim’s home.

The only eyewitness who placed Flores at the crime scene testified after her memory was hypnotically “refreshed.” Before being hypnotized, she could only recall seeing two men get out of a Volkswagen and enter the victim’s home at about the time the murder was committed. She couldn’t make an identification because she only glimpsed the men while peeking through the blinds shortly before sunrise.

Other neighbors saw two white men leave the Volkswagen. They described the men as having a medium build and long hair. Flores is Hispanic, obese, and had short hair at the time the crime was committed.

After being hypnotized, the neighbor who testified was suddenly able to identify Flores as being one of the men. Was her recollection hypnotically refreshed, or did the hypnosis influence her identification?

The witness was hypnotized by a police officer. She was the first and only person he ever hypnotized. Even if hypnosis might refresh a memory without changing it, there is reason to question whether a police officer who is not an experienced hypnotist is the kind of expert who can produce a reliable result.

Hypnosis Challenged as “Junk Science”

Flores was scheduled to be executed, but he received a stay so that he could challenge the reliability of memories that are refreshed through hypnosis. He may have an uphill battle, given that Texas appellate courts have twice upheld hypnosis as a forensic tool, while purporting to place safeguards on its use.

It may be time for Texas to reexamine those precedents. More than half of all states have deemed hypnosis to be “junk science” and have banned testimony that would not have been given in the absence of hypnosis. The modern trend, based on new research into how memories are formed and stored, has rejected the reliability of hypnosis as a tool for producing accurate memories.

Studies have found that hypnosis does not help people recall events more accurately. Instead, it makes people more confident of their memories, whether or not the memories are correct. In fact, studies suggest that hypnosis converts guesses and hunches into statements of absolute fact.

Studies have also demonstrated the risk that questioning under hypnosis will implant false memories. That risk is particularly concerning when the hypnotist is a law enforcement officer rather than a neutral expert.

In states that allow testimony based on hypnotically refreshed memories, it is imperative for defendants to call an expert witness who can explain to the jury why hypnosis is not a reliable means of producing accurate memories. If Flores loses his challenge, he may one day be executed because his lawyers failed to present critical expert testimony to the jury.