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.

Election Experts Testify in Virginia Voter ID Case

District Court Erred by Dismissing Expert Opinions as Conjectural

Camille Sedar parked her car on the ground level of a parking garage at Reston Town Center, where she planned to have lunch with friends. Reston Town Center is a mixed-use development in Reston, Virginia.

Patrons who park in the garage must climb up a short flight of stairs before crossing a brick-paved landing and climbing down another short flight of stairs that leads to a sidewalk. As Sedar was crossing the landing, she tripped and fell.

Sedar has no memory of the fall. Friends who were following her did not see her trip, but they testified that her direction of travel took her over some loose bricks just before reaching the top of the stairs. Her friends took pictures and videos of the loose bricks.

Sedar landed face down on the sidewalk. She suffered a concussion, lost consciousness, fractured her elbow, and had cuts on her face and lip. An ambulance transported her to an emergency room for treatment.

After she was discharged from the hospital, Sedar examined the flat-soled shoes she had been wearing. She saw a scuff mark on the toe that was not present before she fell. She concluded that the scuff mark was caused by contact with the loose bricks.

Expert Evidence

Sedar hired a structural engineer to reconstruct the accident. The expert formed an opinion based on witness testimony, photographs of the scene, and the scuff mark on Sedar’s shoe.

The expert opined that deteriorating caulk on the landing caused bricks to become loose and unstable. He concluded that the landing was “structurally unsound and a hazard that violated applicable building and maintenance codes.” In his opinion, the hazardous condition was the most likely cause of Sedar’s fall down the stairway.

Summary Judgment

Sedar sued the property owner and the property manager. They removed the case to federal court, a forum that is often less friendly to plaintiffs than state court.

The defendants moved for summary judgment. They argued that no evidence proved that the property was in an unsafe condition. They argued in the alternative that if the property was unsafe, no evidence proved that they knew or should have known of the unsafe condition. Finally, they argued that Sedar could not prove that the allegedly unsafe condition caused her injury, given her loss of memory.

Remarkably, the district court judge granted summary judgment against Sedar. The court held that Sedar failed to prove that the property was dangerous or that the property owner or manager had notice of the unsafe condition. Notwithstanding the expert evidence, the court found that Sedar could only “speculate” about the cause of her fall.

Sedar appealed. The Court of Appeals for the Fourth Circuit sensibly reversed the district court’s judgment.

Dangerous Condition and Notice

The appellate court made short work of the first two issues. Whether the property was dangerous was a jury issue. Witnesses testified that the bricks were loose. Photographs showed that the loose bricks created a lip that constituted a tripping hazard. The expert engineer opined that the property condition shown in the photographs was dangerous. Since the evidence was sufficient to allow a jury to find that the condition was dangerous, the judge should not have taken that issue from the jury.

To prove that the property owner knew of the hazard, Sedar relied on a security guard’s testimony that he had “almost tripped on the stairwell a thousand times” because of “the way that it transitions from the garage to the stairs.” The appellate court held that the testimony referred to the layout of the brick landing and not to loose bricks. The court therefore agreed with the district court that there was no evidence that the property owner knew of the hazardous condition that caused Sedar’s fall.

On the other hand, the appellate court noted that Sedar’s expert testified that the deteriorating caulk joint adjacent to the loose brick would have been visible for some time. In the expert’s opinion, the condition that caused the brick to loosen did not happen overnight but resulted from a failure to maintain the property. In the expert’s view, the property owner should have spotted the hazardous condition during routine inspection and maintenance of its property.

The district court characterized the expert testimony as “conclusory allegations.” In fact, the expert based his opinions on specific facts drawn from photographs of the property. He formed an opinion by applying his knowledge of property deterioration to those facts. The expert testimony would therefore allow a jury to conclude that Reston Town Center had constructive notice of the property defect. The district court erred by concluding otherwise.


Sedar was required to prove that the defective property condition caused her injury. Because she had no memory of tripping on the loose brick, and because no witness observed the reason for her fall, Reston Town Center argued that she could not prove causation.

While Sedar had no direct evidence of causation, the appellate court was satisfied that she presented circumstantial evidence. Witnesses testified that her path of travel took her across the defective portion of the landing. Photographic evidence of bloodstains were consistent with her following that path. In addition, the scuff at the tip of her shoe was consistent with her shoe getting caught in the lip created by the loose brick.

Sedar’s expert confirmed that a loose brick was the most likely cause of her fall, given the witness statements and contemporaneous photographs showing the property condition. The district court again disregarded that evidence as “conjectural.” The appellate court noted that inferences drawn from facts are not conjectural when the inferences are reasonable.

Reston Town Center argued that the circumstantial evidence was inconsistent. The appellate court recognized that juries, not judges, sift through inconsistent evidence to determine the truth. Since evidence, including expert testimony, supported the reasonable inference that Sedar tripped on a loose brick, it was up to the jury to decide whether that was the most likely reason for her fall.


District Court’s Grant of Preliminary Injunction Reversed Because Court Took Expert Opinion Out of Context

An online car-sharing service called Turo allows car owners to rent out their cars to others. The company, based in San Francisco, advertises that its customers can skip the line at car rental services by asking the owner to deliver the car to an airport or hotel.

The City of Los Angeles views Turo as a car rental service. It believes that Turo should pay the same fee that Hertz, Avis, and other car rental companies pay to conduct business at the Los Angeles International Airport (LAX). It asked Turo to enter into an agreement to operate an airport concession, as do off-airport rental companies that arriving passengers typically access through shuttle services.

Unlike traditional car rental businesses, Turo does not have a counter in the airport or a shuttle service that transports arriving passengers to a nearby rental facility. Turo argues that it is not a rental company. It views itself as a technology company that provides an app to connect rental customers to private owners.

Lacking a physical presence at LAX, Turo maintains that it is not subject to the regulations that require rental companies doing business at LAX to enter into a concession agreement. Turo sued the city in federal court seeking a declaration that the city cannot enforce its regulations against Turo.

The city counterclaimed and asked the judge to enter an injunction to prevent Turo from delivering cars to LAX while the lawsuit was pending. Turo responded with expert testimony to establish that its car deliveries were not causing any harm to LAX.

Notwithstanding the expert testimony, the district court judge entered an injunction against Turo. On appeal, the Ninth Circuit faulted the judge for cherry-picking the expert opinions.

Preliminary Injunction Standard

A preliminary injunction is a court order that typically prohibits a party from engaging in specified conduct until a lawsuit has been decided. To obtain a preliminary injunction in federal court, a party must prove that (1) the party seeking the injunction will probably win the lawsuit, (2) the party seeking the injunction will be irreparably damaged if the injunction is not granted, (3) granting the injunction is more fair to the party seeking it than it is unfair to the party opposing it, and (4) the injunction would serve the public interest.

The city asked for an injunction against Turo to prevent Turo from allowing car owners to deliver cars to LAX while the lawsuit was pending. The key issue was whether LAX was being irreparably harmed by the delivery of cars on airport premises.

The judge found that traffic in LAX is congested, a finding that comes as no surprise to anyone who has ever driven into LAX. The judge also found that congestion worsened after the city began a construction project to modernize the airport. That project reduced the number of available traffic lanes within the central terminal area.

To reduce congestion, the city requires arriving passengers at LAX to take a shuttle to a remote area to access ground transportation, including taxis, ride-sharing services, and rental cars. The city argued that Turo deliveries interfere with its efforts to reduce congestion.

Evidence Supporting Injunction

The district court decided that the city would probably prevail in its claim that Turo was trespassing by conducting unauthorized business at LAX. It was also satisfied that Turo’s continuing conduct of business was causing irreparable harm to the city by contributing to traffic congestion.

The court noted the conclusory nature of the city’s assertion that Turo vehicle deliveries aggravate traffic congestion. Turo’s expert witnesses pointed out that, on average, only 127 vehicles are handed off daily at LAX. The court used that expert opinion against Turo, finding that Turo’s “own declarations demonstrate that their operations are in fact specifically impacted traffic flow at LAX — at least to some degree.” Since an award of damages cannot lessen traffic flow, the court concluded that the vehicle deliveries constituted an irreparable harm.

Appellate Analysis

Notably, Turo’s experts provided the only factual foundation for the district court’s finding of irreparable harm. The city’s claim that Turo had an impact on traffic flow amounted to little more than conjecture.

The Court of Appeals for the Ninth Circuit faulted the district court for taking the expert opinions out of context. While the experts pointed out that 127 cars are delivered to LAX daily, the experts compared those deliveries to the volume of daily traffic at LAX. Other transportation companies, including Uber and Lyft, taxis, and limousine services, made more than 30,000 daily pickups and deliveries at LAX. Counting private drivers who pass through LAX, often to drop off or pick up passengers, about 100,000 vehicles pass through the central terminal every day.

Turo’s experts expressed the opinion that Turo’s contribution to traffic congestion was “unnoticeable” in the overall volume of terminal traffic. Those expert opinions were unrefuted. The district court’s cherry-picking of the opinions ignored the opinions as a whole, and those opinions did not establish that LAX would be irreparably harmed if Turo’s operations were not enjoined. The court of appeals therefore reversed the preliminary injunction.


Bloody tear of Themis

NY Attorney General Criticized for Presenting Expert Testimony to Grand Jury in Daniel Prude Death Investigation

New York Attorney General Letitia James made an unusual decision to include the testimony of a defense expert when she presented the prosecution’s case against Rochester police officers who allegedly caused the death of Daniel Prude. Despite evidence that Prude stopped breathing while being restrained by the police, a grand jury refused to indict the officers who restrained him. James now faces criticism for her choice of expert witnesses.

Death Investigation

James began an investigation of Prude’s death in July 2020. The results of her investigation are summarized in a report that she released prior to the grand jury vote.

Prude’s brother called 911 to report that Prude was suicidal, had used PCP, and had run from the brother’s home on a freezing night without putting on shoes or a coat. Prude’s brother hoped that the police would locate and help Prude.

Prude tossed a brick through a window and later told a tow truck driver that he needed help. The driver called 911 after Prude ran away. The driver reported that Prude was covered with blood. Prude removed all of his clothing while he was being recorded by a bystander.

Officers of the Rochester Police Department arrived at the scene. Officer Vaughn told Prude to get on the ground and put his hands behind his back. Prude complied and Vaughn handcuffed him. Other officers arrived. While awaiting an ambulance, Prude began to spit, so officers placed a spit sock over his head. The spit sock made Prude even more agitated.

The officers believed that Prude was trying to stand. Officers Taladay and Santiago forced him to the ground and held him there using a stabilization technique known as “segmenting.” They learned that technique in their training. The report explains that “the segmenting involved PO Vaughn holding Mr. Prude’s head to the side and applying downward pressure while PO Taladay placed a knee along Mr. Prude’s lower back / belt line.”

An ambulance arrived with a paramedic and an EMT. The report suggests that they acted with a lack of urgency. Neither the paramedic nor the EMT checked on Prude’s condition as he was being restrained. The paramedic considered using a sedative to calm Prude while the EMT brought a gurney from the ambulance.

Prude vomited, then fell silent. At some point, Vaughn noticed that Prude was no longer breathing. He rolled Prude onto his side. The EMT could not find a pulse so he asked the paramedic for assistance. The paramedic directed the EMT to begin CPR. After several minutes, Prude recovered a heartbeat, but he never recovered consciousness. Prude was removed from life support about a week later.

Autopsy Report

The county medical examiner performed an autopsy. She ruled the death a homicide. She identified the causes of death as:

  • Complications of asphyxia in the setting of physical restraint
  • Excited delirium
  • Acute phencyclidine intoxication

“Excited delirium” is a controversial diagnosis that refers to “the abrupt onset of aggression and distress, typically in the setting of illicit substance use, often culminating in sudden death.” The nonprofit Brookings Institution cautions that the diagnosis “is not recognized by the vast majority of medical professionals.”

Many experts regard excited delirium as junk science. The medical examiner who autopsied Prude noted that the condition is “quite rare.” It is almost exclusively diagnosed when a death occurs while a suspect is being restrained by the police.

The finding of more than one cause of death is not unusual. People often die for multiple reasons. If one person stabs another in the heart, heart failure will be a cause of death, but so will stabbing.

The question in Prude’s case was whether he would have died in the absence of police restraint. If not, police restraint was a cause of his death. The medical examiner concluded that neither PCP ingestion nor excited delirium would have caused Prude’s death if he had not been restrained. She therefore concluded that restraint was a cause of his death.

Retained Experts

The Attorney General’s office retained Dr. Gary Vilke to review the official autopsy results. Dr. Vilke is an emergency room physician in California who has testified in more than one hundred cases involving deaths in police custody. In each case, he was retained by the police officer who was accused of causing the death.

Dr. Vilke agreed with the medical examiner that Prude’s ingestion of PCP caused him to experience excited delirium. Vilke determined that Prude died from cardiac arrest. He described people who are in a state of excited delirium as being particularly vulnerable to heart attacks.

James has been criticized for hiring Dr. Vilke, an expert who has “a consistent track record of deflecting blame from police when people die in their custody — including with regard to excited delirium and restraint leading to asphyxia, two hotly debated concepts that loomed large in Prude’s death.” Perhaps an expert whose career suggested greater objectivity about deaths in police custody would have been a better choice.

James also hired Geoffrey Alpert, an expert in use of force. Alpert generally concluded that the officers acted within the boundaries of acceptable police practices. He concluded that placing the spit sock over Prude’s head, taking him to the ground, and performing the “segmenting” maneuver were all reasonable decisions. He did fault the officers for failing to roll Prude over after he vomited to prevent him from choking on his vomit.

Grand Jury Proceedings

James’ office presented evidence about Prude’s death to a grand jury. It asked the grand jury to indict the officers. The grand jury refused to do so.

Given the oft-repeated observation that any prosecutor can get a grand jury to indict a ham sandwich, the grand jury’s decision not to indict has raised questions about the Attorney General’s commitment to the case. While she expressed disappointment in the grand jury’s decision and concern about the rate at which black men are killed by police officers, a state Attorney General generally sides with the police — and routinely relies on police witnesses — in criminal prosecutions.

While James blamed the system for the grand jury’s decision, an attorney for the Prude family is asking why James’ office presented testimony from Dr. Vilke, an expert who routinely testifies in support of police officers. James is, after all, part of “the system.” Perhaps “the system” should not rely on an advocate of the controversial “excited delirium” theory when it seeks homicide indictments.

James might have been concerned that the defense would call a witness like Dr. Vilke at trial and wanted to test that defense before the grand jury. Yet presenting defense evidence to a grand jury is exceedingly uncommon. Prosecutors generally have no obligation to present evidence of innocence to a grand jury, although they may choose to do so in the interest of fairness. Whether it was “fair” to present controversial evidence about “excited delirium” to the grand jury is a matter of opinion.


Police Brutality

Expert Witnesses in the Derek Chauvin Trial

Derek Chauvin is on trial in Minnesota for second degree felony murder, third degree murder, and second-degree manslaughter. The charges arise out of George Floyd’s death under circumstances that sparked nationwide protests regarding the use of force against unarmed suspects. Cellphone and bodycam videos establish that Chauvin knelt on Floyd’s neck and that Floyd repeatedly told Chauvin, “I can’t breathe.”

None of the crimes require proof that Chauvin intended to cause Floyd’s death. Second degree murder requires proof that Chauvin caused Floyd’s death, without intending to do so, while Chauvin was committing a felony — in this case, third degree assault. Third degree murder requires proof that Chauvin acted with a depraved state of mind and that his conduct was imminently dangerous to Floyd. That standard is essentially one of reckless behavior coupled with not caring about the harm the behavior might cause. Third degree manslaughter requires proof that Chauvin’s negligent actions caused Floyd’s death.

Each crime requires proof that Chauvin’s actions were a substantial cause of Floyd’s death. Chauvin’s actions need not have been the only cause of death. Chauvin can be held responsible for Floyd’s death if Floyd would not have died in the absence of Chauvin’s conduct. Expert witnesses for the prosecution and Chauvin will debate whether kneeling on Floyd’s neck contributed to his death.

Forensic Pathologists

The official autopsy report by the Hennepin County Medical Examiner’s Office concluded that Floyd died from cardiopulmonary arrest — in simple terms, his heart stopped beating effectively. The autopsy determined that neck compression while restraining Floyd in handcuffs was a cause of the cardiopulmonary arrest. The medical examiner classified the death as a homicide.

Defense experts are likely to focus on other potential causes of death, including Floyd’s hypertensive heart disease and his ingestion of fentanyl and methamphetamine. Experts might opine that excited delirium caused by drug abuse was the cause of Floyd’s death, although “excited delirium syndrome” is controversial and the mechanism of death is not well understood.

Defense experts may also call attention to the absence of evidence of strangulation. A pathologist who isn’t connected to the case has explained that compression of the neck can prevent oxygen from reaching the brain by blocking the airway. Neck compression caused by kneeling would not leave the same ligature marks caused by strangling someone with a rope or wire. That pathologist suggests that Floyd’s underlying health conditions were not the cause of his death. Floyd was, after all, living with those conditions before he encountered Chauvin.

The prosecution has identified five forensic pathologists who may testify for the state. Three of those witnesses are employed by Hennepin County. The defense will apparently rely on the testimony of Dr. David Fowler, a Baltimore pathologist who has testified for both the prosecution and defense in multiple homicide prosecutions.

Defense Experts

In addition to Dr. Fowler, the defense has identified a forensic toxicologist, a forensic psychiatrist, and a doctor of emergency medicine as medical experts. The defense has also identified Barry Brodd as a use of force expert.

Brodd’s resume indicates that Brodd is a former police officer who has served as an expert witness in use of force litigation since 1995. Use of force experts generally testify about the policies and practices that determine when an officer’s use of force is justified, including the degree of force that officers are allowed to use under different circumstances.

Whether Brodd will be allowed to testify that it was reasonable for Chauvin to kneel on Floyd’s neck for nine minutes is unclear. Experts are often allowed to explain whether an officer’s conduct is objectively reasonable. However, some courts have held that only a jury can determine whether an officer’s use of force was reasonable in light of the facts that the jury accepts as true. Those courts view an expert’s opinion about whether the officer’s use of force was justified as intruding on the jury’s function.

Forensic Psychologist Excluded

The prosecution intended to call forensic psychiatrist Dr. Sarah Vinson as an expert witness. The prosecution wanted Dr. Vinson to explain how people in Floyd’s position react to traumatic events. In particular, she would have testified that “Floyd’s behavior as officers attempted to put him into the squad car was consistent with any reasonable person’s anxiety or panic during a traumatic event.” The testimony was meant to foreclose or counter the argument that Floyd was resisting arrest.

Worried that Dr. Vinson’s testimony might open the door to evidence of Floyd’s similar emotional reaction to an arrest in 2019, the court ruled Dr. Vinson’s testimony inadmissible. The court also excluded most evidence regarding Floyd’s behavior during that arrest.


United States Supreme Court Building

Failure to Request Funding for Expert Violates a Defendant’s Rights

The importance of retaining expert witnesses in criminal cases was underscored by a recent decision of the Michigan Supreme Court. The court concluded that defense counsel was ineffective for failing to seek funding for an expert and that the failure was prejudicial to the defense.

Hinton v. Alabama

The U.S. Supreme Court has made clear that criminal defense attorneys must retain a qualified expert witness to counter prosecution experts when a defense expert’s testimony could create a reasonable doubt as to the defendant’s guilt. In 2014, the Supreme Court decided that Anthony Hinton’s lawyer failed to provide Hinton with the effective assistance of counsel that the Constitution requires. The lawyer asked for funding to hire a ballistics expert. The judge authorized $1,000 but invited the lawyer to request more if he needed it.

Hinton’s lawyer mistakenly believed that $1,000 was the statutory maximum and did not request additional funding. He could not find a qualified expert who would work for $1,000, so Hinton called an expert who had no significant training or experience in ballistics to counter the testimony provided by the prosecution experts.

After Hinton was sentenced to death, his new lawyers produced three highly qualified expert witnesses who testified that the bullets recovered from the murder victim could not be matched to Hinton’s gun. Alabama argued that the lawyer was not ineffective because he found an expert to testify. In the state’s view, all experts have equal value.

The Supreme Court disagreed. The Court held that a reasonably capable lawyer would have understood that additional funding was available. The lawyer knew his expert wasn’t qualified but failed to seek funding for an expert who was qualified. Recognizing that “incompetent or fraudulent prosecution forensics experts” pose a “threat to fair criminal trials,” the Court held that defense attorneys have a duty to retain “a competent expert to counter the testimony of the prosecution’s expert witnesses.” Since Hinton’s lawyer did not do so, his performance was deficient.

 People v. Ceasor

The importance of the Hinton decision is illustrated by the prosecution of Terry Lee Ceasor in Michigan. Ceasor was convicted of first-degree child abuse. The prosecution’s expert, Dr. Holly Gilmer-Hill, gave familiar testimony that the child’s injuries could only have been caused by violent shaking. Her testimony attempted to impeach Ceasor’s explanation that the child accidentally fell from a couch. In fact, her “shaken baby” theory has been repeatedly discredited by advances in medical knowledge.

Ceasor appealed his conviction. His appellate lawyer argued that his trial lawyer was ineffective because he did not hire an expert to refute Dr. Gilmer-Hill’s testimony and did not request public funding to cover the cost of the expert’s testimony. The Michigan Court of Appeals held that Ceasor could not demonstrate that trial counsel’s failure was prejudicial because his appellate counsel did not ask for an evidentiary hearing. Without calling an expert witness at a hearing, Ceasor was unable to prove that an expert would have challenged Dr. Gilmer-Hill’s opinion. Nor was Ceasor able to prove that trial counsel’s failure to call an expert witness was not dictated by his trial strategy.

Ceasor later made a post-conviction motion that challenged the effectiveness of his appellate attorney. Ceasor supported the motion with affidavits from pathologists, a neurosurgeon, and a biomedical engineer. The expert witnesses opined that Dr. Gilmer-Hill’s opinion was based on discredited science. In Ceasor’s view, an effective appellate advocate would have requested a hearing and presented the expert evidence that his post-conviction lawyer was offering.

Apparently misunderstanding the nature of Ceasor’s post-conviction motion, the trial judge concluded that Ceasor was reframing issues that had already been decided. The Michigan Court of Appeals declined to hear an appeal from that decision.

Failure to Request Public Funding

Ceasor then raised the ineffectiveness of both his trial and appellate counsel in a federal habeas corpus proceeding. The district court held Ceasor to an impossible standard of proof by ruling that he needed to establish that a request for an evidentiary hearing would have been granted if he had requested one. Parties can only prove how a judge should rule, not how a judge would rule.

On appeal, the Court of Appeals for the Sixth Circuit concluded that Ceasor would have been entitled to a hearing if his appellate attorney had requested one and if he had presented the same evidence his post-conviction counsel mustered. The Sixth Circuit noted that Michigan law allows a court to “provide public funds for indigent defendants to retain expert witnesses.” Although it is not required to do so “on demand,” trial counsel neglected to ask for funding. He therefore deprived Ceasor of the opportunity to call an expert witness to challenge the prosecution expert’s testimony.

The Sixth Circuit concluded that trial counsel did not make a strategic decision not to call an expert, but simply didn’t realize that he could apply for public funding of expert testimony. Applying Hinton, the Sixth Circuit held that trial counsel’s performance was deficient because lawyers are expected to know the law. Counsel was unfamiliar with the Michigan statute that authorized public funding and with the Hinton decision.

Since the prosecution based its case almost entirely on Dr. Gilmer-Hill’s testimony, a reasonable attorney would have known that her testimony required a response. When “the expert is the case,” refuting expert testimony with other expert testimony is essential whenever the prosecution expert’s opinions can be challenged.

Concluding that it is “objectively unreasonable to fail to take steps to retain an expert” when one is necessary, the court held that habeas relief was warranted. It remanded the case to the district court so that the court could decide whether the testimony of Ceasor’s experts might have raised a reasonable doubt.

In the district court, the parties stipulated that Ceasor was prejudiced because his appellate lawyer’s failure to request an evidentiary hearing deprived Ceasor of the opportunity to litigate “a claim of ineffective assistance of counsel that was reasonably likely to succeed.” The district court granted Ceasor a new state court appeal.

Michigan Proceedings

Ceasor pursued his appeal. The trial judge stubbornly decided that defense counsel was not ineffective, an issue that was already resolved to the contrary in federal court. Defense counsel attempted to shift blame to Ceasor, who (according to counsel) had led him to believe that his mother would pay for an expert. Counsel claimed he only learned two weeks before trial that Ceasor would not be able to fund an expert. Counsel also testified that he never heard of a case in which a court agreed to fund an expert when the defendant had retained counsel privately. The court of appeals affirmed the judge’s finding that, given those facts, counsel was not ineffective in failing to seek public funding for an expert witness.

The Michigan Supreme Court made short work of the appellate court’s analysis. It was undisputed that Michigan law allows public funding of experts. Ceasor’s lawyer had arranged for an expert to testify. He had time to apply for public funding of that testimony prior to trial and chose not to make that application. Counsel’s belief that a court would not fund an expert when counsel is retained privately was belied by the plain language of a statute that authorizes courts to do so. Failing to make the request was therefore objectively unreasonable. The court granted Ceasor the fair trial that he deserves.

Lessons Learned

Ceasor has traveled a long road in his pursuit of a fair trial. Assuming the district judge credits his expert witnesses — and there is no reason the judge shouldn’t — Ceasor will likely be granted a new state appeal, which may lead to additional appeals, which should ultimately lead to a new trial.

Had Ceasor’s lawyer recognized that Michigan law allows the funding of expert witnesses, and had he retained experts to challenge Dr. Gilmer-Hill’s discredited “shaken baby” testimony, Ceasor’s years of incarceration might have been avoided. His case is a reminder to all defense attorneys that they should always recognize the need to hire defense experts when the prosecution rests on expert testimony that can reasonably be challenged.


Will Lawyers Continue to Depose Experts Remotely After the Pandemic Ends?

Zoom has become a way of life for businesses that conduct interviews or meetings during the pandemic. Courts have used Zoom to conduct hearings remotely to avoid unnecessary gatherings that might spread the virus. Lawyers have relied on technology to take depositions without bringing lawyers, clients, witnesses, and court reporters together in the same conference room.

Rule 30(b)(4) of the Federal Rules of Civil Procedure allows depositions to be taken remotely by stipulation or by court order. As a judge in the Southern District of New York observed, remote depositions have become “the new normal.” The judge concluded that a remote deposition in a “document intensive” case would not be prejudicial because documents can be shared in advance.

The judge also noted that widely available video technology permits documents to be viewed by all parties to a deposition. While sophisticated technology may be more difficult to master than Zoom, a judge in the Southern District of California rejected the notion that lawyers are incapable of learning anything new. The judge wrote: “There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology.” Even lawyers who are set in their ways can be expected to learn new tricks — or to ask their paralegals for help.

Advantages of Remote Expert Witness Depositions

Conducting an expert witness deposition remotely has advantages that extend beyond protection from a contagious disease. Experts are more likely than fact witnesses to live some distance from the place where the lawsuit was filed. Plaintiffs sometimes find that the most suitable expert for a case lives in a different state. Defendants sometimes hire expert witnesses who live on the other side of the country to drive up the cost of litigation as a tactic to encourage settlement for less than a claim’s full value.

Taking depositions remotely is thus a cost saving tool. Deposing an expert who lives far away forces lawyers to travel or to pay the expert’s travel expenses. Depositions can also be scheduled more easily if lawyers and witnesses don’t need to consider travel time when they look for availability on crowded schedules. Witnesses and lawyers may also perform more capably if they haven’t been exhausted by travel.

Clients might choose not to expend the funds or time to attend the deposition of a distant expert witness. If the deposition is taken remotely, the client can watch the deposition in the lawyer’s office and may be able to share informative notes with the lawyer as the expert testifies. Remote depositions therefore have value in keeping clients engaged in the litigation.

Disadvantages of Remote Expert Depositions

Remote depositions are always subject to technical glitches caused by slow connections or unfamiliarity with software. As lawyers have become more familiar with the technology, those glitches have become a less frequent annoyance.

A larger problem with remote depositions is the limited scope of images captured by cameras. An expert isn’t supposed to look at documents unless the questioner asks the expert to do so, but it is difficult to be sure that the expert isn’t consulting notes if the expert isn’t testifying in person.

Reading body language is difficult when a camera is focused on the expert’s face. While the camera should capture facial expressions, more subtle nonverbal clues — including sweating when questions become uncomfortable — may not be readily apparent.

The Future of Remote Expert Depositions

As the pandemic winds down, will remote depositions of experts become less frequent? Lawyers have mixed feelings about remote depositions. Attorneys who hire distant experts solely to increase the burden of litigation may want to resume in-person depositions as soon as they can. Lawyers with deep-pocket clients who enjoy traveling (and billing for travel time) may also encourage a return to in-person depositions.

Lawyers who are advancing the cost of depositions, hoping to be repaid from settlement or verdict proceeds, will likely advocate for the continued use of remote depositions. Lawyers who have been placed on a tight budget by clients may also want to reduce expenses by deposing experts remotely.

When lawyers disagree about taking depositions remotely, the federal rules and most state rules allow the judge to order that the deposition be taken remotely. Judges who might once have accepted the argument that video depositions are a poor substitute for live depositions might now decide, based on their own experience in conducting court hearings over Zoom, that questioning a witness remotely isn’t significantly different from questioning the witness in person.

In the end, lawyers will need to weigh the advantages and disadvantages of remote expert depositions in each case. The experience that lawyers and judges have gained during the pandemic, however, make it likely that distant experts will routinely be deposed by video.

California Law Legal System Concept

California Supreme Court Rejects Expert Testimony in “Meal Break Rounding” Case

In Donohue v. AMN Services, LLC, the California Supreme Court considered how California’s meal break requirement intersects with rules that permit employers to base wages on “rounded” time. As is common in class action wage claims, both the employee and the employer relied on expert opinions to establish their claims and defenses.

Meal Break Rules

California requires employers to give their employees an unpaid 30-minute meal break if an employee works a shift that is longer than 5 hours and another if the employee’s shift lasts longer than 10 hours. The meal break must be provided within the first five hours of an 8-hour shift. A penalty is assessed if the employer violates the meal break rules.

Federal law does not require employers to give meal breaks to employees, but it does define when meal breaks count as “hours worked” for purposes of minimum wage and overtime. A meal break can only be unpaid if the employee is relieved of all job duties. When an employee is required to sit at her desk and answer the phone while eating lunch, the employee is working and must be paid for the meal break.

If the break is relatively short (so that it might be classified as a “snack break” or “bathroom break” rather than a “meal break”), the employee must be paid for the break. A ten-minute break, for example, isn’t a meal break.

Rounding Rules

Rounding rules generally allow employees to calculate wage payments by rounding the hours an employee worked. For example, if a timecard shows that the employee worked eight hours and two minutes, the employer can round the time down to eight hours.

Federal rules require employers to choose reasonable increments for rounding. For example, they can’t round to the nearest half hour. Thus, employers cannot avoid paying overtime when an employee works for eight hours and twelve minutes during each day in a five-day workweek by basing pay on five eight-hour days.

Employers also need to follow a neutral rounding policy rather than a policy that favors the employer. In simple terms, employers can’t round down unless they also round up in an equivalent way. For example, an employer can round to the nearest quarter hour by rounding 8 hours and 6 minutes down to 8 hours, but only if it also rounds 8 hours and 9 minutes up to 8 hours and 15 minutes.

Donohue’s Claim

Donohue worked as a nurse recruiter for AMN. Company policy entitled her to a full 30-minute meal break. Donohue kept track of her work hours by using a program called Team Time on her desktop computer. She “punched in” when she began her shift and “punched out” when she ended her shift. She “punched out” when she began her lunch period and “punched in” when she returned to work.

Team Time automatically rounded time to the nearest ten minutes. If Donohue punched out at 11:02 a.m. and punched in at 11:25 a.m., Team Time recorded her meal break as lasting from 11:00 a.m. to 11:30 a.m. Consequently, her 23-minute meal break would be rounded to a 30-minute break.

In an apparent response to California law, Team Time added a dropdown menu to its program. When Team Time recorded a meal break of less than 30 minutes, it asked the employee if the employee had been given the choice to take a 30-minute break and was “voluntarily” taking less time. If the employee clicked a statement to affirm that the short meal period was voluntary, the program recorded a full 30-minute break, and the employee was denied any overtime that might result from recording the actual work time.

The dropdown menu only appeared if the rounded time showed less than a 30-minute break. In the example above, the employee would not see the dropdown menu because her 23 minutes of work time was rounded to 30 minutes of work time.

Expert Testimony

Donohue argued that rounding time spent in meal periods deprived her of overtime wages required by California law. She brought her claim as a class action on behalf of all nurse recruiters who were employed during the relevant time period.

Donohue supported her claim with the declaration of a statistics professor. The professor examined AMN’s payroll records and determined the overtime wages that class members would have received if their short meal periods had not been rounded up to 30 minutes. The professor concluded that employees were denied overtime wages for 40,110 lunches in which they took a break for less than 30 minutes.

California law also entitles employees to an additional hour of pay if a full meal period is not provided within the first five hours of a shift. The professor concluded that class members suffered 6,651 delayed lunches. He determined that lost wages from overtime plus the penalty for lost and delayed lunches totaled about $802,000.

AMN countered with a declaration from its own expert witness, a statistician who was also a labor economist. The expert opined that employees are paid for their full time because AMN sometimes rounds up and sometimes rounds down. Employees might therefore be paid for minutes they didn’t work in some weeks and not paid for minutes they worked in other weeks. The expert determined that the rounding of meal periods evens out over time, so employees do not lose pay in the long run.

Supreme Court Analysis

The trial court granted summary judgment to AMN. The court noted that employers are generally permitted to round time shown on time records for a workday if they do so in a way that does not consistently favor the employer. The court saw no reason why that rule shouldn’t apply to meal periods. The court also accepted the opinion of AMN’s expert that the rounding policy fairly compensates employees over time.

The California Supreme Court reversed the summary judgment. It concluded that AMN’s expert did not prove that AMN complied with the law. The expert analysis assumed that rounding rules applicable to time worked in a workday are also applicable to meal breaks.

Rounding rules governing a workday are generally focused on assuring that employers do not cheat their employees out of overtime compensation. The California Supreme Court viewed California’s meal break rule as serving a broader purpose. California law protects an employee’s right to take a full 30-minute break. That right is in addition to the right to be paid for hours actually worked.

Requiring employers to provide a 30-minute break protects the health of employees. Denying breaks increases an employee’s stress and fatigue, making workplace accidents more likely. Cutting a break short also diminishes the employee’s opportunity to eat a full meal or finish errands during a break period.

The court decided that a law guaranteeing a break of “not less than 30 minutes” per workday was inconsistent with rounding break time down to less than 30 minutes. Treating a 24-minute break as if it were a 30-minute break cheats the employee out of the benefits of a full break even if the rounding rules do not necessarily cheat the employee out of compensation over the course of a full week. Rounding thus excuses employers from their obligation to provide full 30-minute breaks.

In the court’s view, “rounding is inappropriate in the meal period context.” When employees are working for a few minutes during their 30-minute meal break, they are entitled to be compensated for those few minutes, including the penalty that California imposes on employers who do not give employees the full 30-minute break.

Since AMN’s expert based his opinion on an incorrect view of the law, the trial court erred by basing summary judgment on the expert’s declaration. The court remanded the case so that each party could file new summary judgment motions based on the supreme court’s new interpretation of California law.


New Mexico Justice

New Mexico Court Rules that Experts May Not Testify About a Defendant’s Intent

The New Mexico Supreme Court recently weighed in on an issue that will continue to be raised as scientists gain new knowledge about the impact of genetics on self-control. In State v. Yepez, the court held that a particular genome associated with violent behavior in victims of an abusive childhood cannot be the subject of expert testimony about a defendant’s intent to commit a violent crime.

Criminal Responsibility

An ongoing controversy in criminal law hinges on science and philosophy as much as precedent. When should individuals be held responsible for their misconduct?

Traditionally, convictions of serious crimes require proof that the accused offender intended to commit the crime. If the accused caused an accidental result and did not behave recklessly, the accused should not usually face serious punishment.

When it is clear that the offender caused harm that was not accidental, courts generally recognize only a state’s version of the “insanity” defense as negating intent. “Insanity” is an antiquated term that mental health experts have largely abandoned. While states formulate the defense in different ways, one version of the defense places the burden on the offender to prove that a mental disease or defect prevented the offender from conforming his or her conduct to the law.

Another version requires the offender to prove that, because of a mental disease or defect, he or she was incapable of appreciating the difference between lawful and unlawful conduct (or more fundamentally, the moral difference between “right and wrong”). Jurisdictions that have adopted that version of the defense do not allow experts to opine that an offender was incapable of controlling his actions, because lack of volitional control is not relevant to the defense.

The “insanity defense” has long been criticized as being divorced from medical science. Psychiatrists and other expert witnesses have difficulty applying a legal standard that is at odds with a medical understanding of mental health and volitional control.

Tradition has governed, in part because members of society tend to express outrage that an offender has “gotten away with” a crime when the offender is found not guilty due to a mental disease. The defense is rarely used and even more rarely successful. A few states have abolished it; in others, it is severely limited. But questions remain about the morality of holding people accountable for behavior that they cannot control.

Competing Views of Free Will

An ongoing debate in science and philosophy involves the degree to which individuals have any control over their actions at all. The debate between free will and determinism “is among philosophy’s oldest controversies.”

Some neuroscientists argue that free will may be an illusion. They suggest that we engage in an action, that our brain perceives the action, and that our brain convinces us that we willed the action to occur.

The notion that choice is not a matter of volition divides neuroscientists. Scientific studies approach the question indirectly and their results are open to interpretation.

Self-Control and Criminal Justice

Free will is the foundation for the criminal justice system. Criminal law assumes an individual’s ability to control his or her behavior. Criminal punishment (at least for serious crimes) is based on a volitional choice to disobey the law. If, in fact, offenders have no choice, punishment is based on a false premise.

There is room for middle ground in the debate between free will and determinism. It is possible that people generally have free will, but that some people, under some circumstances, are unable to exercise it. If, through no fault of your own, you are incapable of controlling your actions, whether you have free will is academic.

When intent is an element that must be proved to obtain a conviction, one might expect defense lawyers to call expert witnesses to prove that their client was incapable of choosing to break the law because the client was powerless to control his or her behavior. Courts have historically shut the door to that argument, in part because they do not want to undermine the rationale for criminal punishment. Apart from the insanity defense or its cousin, diminished capacity, the claim that “I couldn’t control my actions” is usually unavailable as a defense to criminal culpability, even if it happens to be true.

Expert Opinion in Yepez

Anthony Yepez killed George Ortiz during an argument, then set fire to Ortiz’s body. Yepez was charged with murder and tampering with evidence, among other crimes.

Yepez sought to admit evidence that he had “experienced maltreatment in childhood.” Yepez also wanted to admit expert evidence that he has “a genotype that confers low levels of monoamine oxidase A (MAOA) activity.” MAOA is an enzyme that affects the metabolism of neurotransmitters in the brain. According to Yepez’s experts, low levels of MAOA activity, combined with childhood maltreatment, produce maladaptive or violent behavior.

Yepez essentially hoped to defend the case with evidence that he was “born violent” and could not overcome traits that were part of his genetic makeup. He argued that the testimony was relevant because the condition caused him to kill without forming an intent to kill. He identified a neuropsychologist, James S. Walker, and a geneticist, David A. Lightfoot, as expert witnesses.

Daubert Hearing

The prosecution argued that the proposed testimony was not relevant. It also argued that the expert opinions were insufficiently reliable to be admissible under New Mexico’s version of the Daubert test.

Walker testified at the Daubert hearing, as did two psychologists. All three experts based their opinions on research demonstrating “a relationship between childhood maltreatment combined with low MAOA activity and predisposition to antisocial aggressive behavior.” The research included a study of Brunner Syndrome (a condition that associates complete deficiency of MAOA with aggressive behavior) and a study by Avshalom Caspi and his colleagues in 2002.

The Caspi study attempted “to determine why some children who are maltreated grow up to develop antisocial behavior, whereas others do not.” The study found that MAOA moderates the effects of maltreatment. Maltreated children who have a genotype conferring high levels of MAOA are less likely to become antisocial than children with a genotype that confers low levels of MAOA.

Many studies have replicated the Caspi study’s findings but some have not. A meta-analysis of peer-reviewed studies found a “moderately reliable” interaction between certain environmental risk factors (including abuse during childhood) and levels of MAOA.

Based on Lightfoot’s testing, Walker testified that Yepez’s genotype produces extremely low levels of MAOA, although he could not be sure whether Yepez suffered from Brunner Syndrome. Walker also testified that Yepez’s “history of childhood abuse and … this low MAOA activity gene made him exceptionally predisposed to committing violent behavior.”

Daubert Analysis

Rather confusingly, the trial judge first said “the Daubert factors are met,” then questioned the reliability of the defense evidence. The court said: “I’m really kind of iffy on whether — whether we’ve satisfied — whether it’s a scientific technique that’s reliable enough to prove what it [purports] to prove.” The court also noted that the defense relied on a thirty-year longitudinal study that the court deemed “inconclusive.” The judge observed that there is still “work to be done.”

The trial court ultimately excluded the expert testimony because Lightfoot’s testing could not determine a precise level of MAOA that Yepez’s genotype produced. The judge then faulted the defense for not calling Lightfoot as a witness at the Daubert hearing.

The defense moved for reconsideration, pointing out that New Mexico law allowed its experts to base their opinions on Lightfoot’s report without having Lightfoot testify. Those experts interpreted the facts cited in Lightfoot’s report as consistent with a genotype that produces very low levels of MAOA. The defense also provided an affidavit from Lightfoot that confirmed that interpretation.

The judge accepted the new information but shifted his reasoning. The judge decided that a propensity to behave violently is insufficient to establish New Mexico’s insanity defense — a defense that Yepez did not raise. The judge then decided that people with a propensity to violence can still form an intent to kill and that propensities do not, by themselves, negate intent.

Finally, the judge concluded that studies of low levels of MAOA combined with childhood maltreatment document “increased outcomes of aggressive and antisocial behavior — not impulsive behavior or impulsive violence as such.” The judge thus engaged in hair splitting to distinguish aggressive behavior from impulsively violent behavior, notwithstanding that impulsively violent behavior is by definition aggressive.

Appellate Opinion

The New Mexico Supreme Court agreed that “since Yepez has a low-activity MAOA genotype, not a no-activity MAOA genotype, Walker’s testimony that Yepez is predisposed to impulsive violence was not based on reliable scientific knowledge.” The court agreed that the studies “identified outcomes of antisocial behavior, generally” rather than violence, specifically.

The court was apparently unimpressed by a study finding that low MAOA activity and childhood maltreatment “predict[ed] outcomes … of … both violent and non-violent antisocial behaviors.” The study authors noted that “the low-activity MAOA genotype heightens maltreatment-dependent risk for a range of conduct problems and not aggression or criminal violence specifically,” but that observation means that violence and aggression are not the only outcomes of low levels of MAOA. Both courts were stretching the evidence to conclude that low levels of MAOA do not cause violence.

The court also noted a conflict in the underlying studies about the impact of low levels of MAOA on impulse control. Yet the experts were entitled to rely on studies suggesting that low levels of MAOA diminish impulse control, and the experts are in a better position than judges to evaluate scientific studies. The supreme court essentially cherry-picked the studies underlying the expert testimony to produce the result it wanted.

The court was on firmer ground in concluding that low levels of MAOA do not inevitably produce impulsive violence. Perhaps Yepez killed because he could not control his impulses, or perhaps he formed an intent to kill. The science at this point is incapable of distinguishing between acts caused by an impulsive predisposition and acts taken with intent.

At best, the science can tell us about behaviors that are more common in groups of people who share genomes and childhood experiences. That information doesn’t tell us whether specific individuals within the group are more likely to behave violently. But a defendant only needs to create reasonable doubt about his intent. Whether the science is sufficient to create a reasonable doubt about a defendant’s intent might be a question best left for the jury to decide.

Lessons Learned

In the end, the court decided that the “mere genetic susceptibility to a given mental condition is not relevant on the issue of deliberate intent, at least in the absence of evidence that such susceptibility is so well understood and has such strong predictive value as to be clinically validated as an indicator of the mental condition.”

As science advances, it may be possible for an expert witness to testify with certainty that a person’s genetic makeup makes it more likely than not that an individual with a particular genome and a particular set of life experiences will engage in impulsive, uncontrollable acts of violence. If that happens, will courts admit expert testimony that a defendant could not form the requisite criminal intent?

In the interest of fairness, they should. Given the judicial tendency to hold people accountable for their behavior regardless of scientific debate about free will, gaining the admissibility of expert evidence about intent will continue to be an uphill battle.

Expert Witness Allowed to Testify in Lawsuit for Infringement of “King Cake Baby” Copyright

Jonathan Bertuccelli and Studio 3 designed King Cake Baby, the “terrifying” and “creepy” mascot of the New Orleans Pelicans. Bertucelli and Studio 3 sued Universal City Studios in the Eastern District of Louisiana for infringing its copyright when it featured a “mask of a cartoonish baby face in the 2017 feature film Happy Death Day and its sequel, Happy Death Day 2U.”

The King Cake Baby creators proposed to support their case with the testimony of two expert witnesses: James T. Berger and Edward R. Griffor. Berger analyzed the perceptions of individuals who viewed side-by-side comparisons of King Cake Baby and the Happy Death Day mask. Griffor used artificial intelligence facial algorithms to predict perceptions of similarity between the two baby faces.

Universal moved to exclude the testimony on several grounds. Universal argued that the experts are not qualified to testify about copyright infringement issues, that whether the two images are “substantially similar” is not a proper subject of expert testimony, and that the experts did not correctly apply the “substantial similarity” test as it has been developed in the Fifth Circuit. The district court denied the motion.

Substantial Similarity

Any work of art is based on the artist’s experience, including the artist’s exposure to other works of art. Artists are often influenced by the art they have experienced, but they create original art by expressing themselves in a new way. That expression identifies the difference between copying art and creating something new.

Since ideas cannot be copyrighted, the fact that two artists create similar works that have their genesis in the same idea does not necessarily give rise to a copyright infringement claim. Only the expression of an idea, not the idea itself, can be copyrighted.

Copying a copyrighted work of art violates the law. Creating something new that is inspired or influenced by an existing work of art does not violate copyright law. The huge gray area between copying an existing work and being inspired by an existing work gives birth to most copyright lawsuits. To what degree must a copyrighted work be changed to avoid a copyright infringement? In other words, how much copying is too much?

The “substantial similarity” test is meant to answer that question. It does not do so with precision, but it does offer guidance. Unfortunately, different courts define the test in different ways. In the Fifth Circuit, which includes Louisiana, the test asks whether an “ordinary observer” would conclude that the artist copied so much of a copyrighted work that the artist took something that belonged to the artist who holds the copyright.

Whether an expert may testify about how an “ordinary observer” would view two works of art is the subject of some controversy. Courts that have adopted the “ordinary observer” test generally allow expert testimony if it will help the jury decide whether an infringement occurred, but only if the expert analyzes copyrightable expressions of an idea rather than the idea itself.

Expert Qualifications

Berger is a principal in a firm that provides marketing services to businesses. He has “extensive experience with intellectual property surveys with respect to similarity between brands and trademarks.” His experience includes “the evaluation of intellectual property perception in the public.” Berger has published extensively in the fields of intellectual property and marketing, communications, and trademark surveys. The court determined that he is qualified to testify about perceptions of similarity between copyrighted images.

Giffor holds a position with the National Institute of Standards and Technology. He has a doctorate in mathematics. Giffor has “experience with algorithmic reasoning for artificial intelligence-enabled driving systems, including facial recognition technology and is considered an expert in the field of facial target recognition.” The court decided that he is qualified as an expert in facial recognition.

Reasonable Methodology

Giffor conducted an “artificial intelligence assisted facial recognition analysis of the King Cake Baby and Happy Death Day mask.” The court concluded that “the use of mathematics and target facial recognition algorithms comparing the two works” could provide reliable evidence of whether “human perception would view the works as substantially similar.”

The court’s discussion of reliability is cursory. It gave no attention at all to whether Berger’s survey methodology was reasonable. Of more significance, perhaps, is the court’s observation that potential deficiencies in the expert’s analysis are best explored on cross-examination. The judge was apparently satisfied that a jury could reasonably find the expert opinions to be reasonable. Since the opinions met that threshold, it was up to the jury, not the judge, to decide whether the opinions are persuasive.

Pennsylvania Justice

Expert Cannot Base Pain and Suffering Opinion on Lay Testimony

Experts offer valuable opinions during trials, but their opinions must be based on their expertise. In an unpublished decision, the Superior Court of Pennsylvania held that an expert’s opinion that a deceased man suffered before he died was inadmissible because it was based on the testimony of another witness.

Facts of the Case

James Cowher II was given an echocardiogram after experiencing chest pain. The result was normal. About nine months later, Cowher told his treating physician that episodes of chest pain, accompanied by shortness of breath, nausea, and sweating, were becoming more frequent. His physician performed an electrocardiogram and conducted another test for heart damage. The tests revealed no abnormalities.

The physician referred Cowher to a group of cardiologists. Cowher explained his symptoms to Dr. Sobhan Kodali. Dr. Kodali was aware that Cowher had a family history of heart disease, was overweight, and had high cholesterol. Dr. Kodali performed another electrocardiogram and conducted a lipid test. The results were normal. Without further investigation, Dr. Kodali attributed Cowher’s symptoms to stress.

About a month later, at the age of 48, Cowher died from heart failure while jogging. An autopsy revealed substantial blockage in two of Cowher’s arteries. The pathologist concluded that Cowher’s death was caused by severe coronary artery disease. While the pathologist identified the immediate cause of death as “cardiac arrythmia,” the coroner reported the cause of death as “acute myocardial infarction” due to severe coronary artery disease.

Expert Report

Cowher’s widow sued Dr. Kodali for wrongful death based on medical negligence. She also brought a survival claim based on Cowher’s pain and suffering prior to death. Her complaint alleged that Cowher died from an acute myocardial infarction.

Cowher retained a cardiologist as an expert witness. The cardiologist’s expert report opined that Dr. Kodali was negligent in failing to diagnose Cowher as suffering from unstable angina. The report also faulted Dr. Kodali for not recommending cardiac catheterization and other diagnostic testing that would have revealed Cowher’s severe coronary artery disease. In the expert’s opinion, that disease could have been treated successfully with coronary bypass surgery.

The expert report expressed the opinion that Cowher died from cardiac arrythmia caused by severe coronary artery disease. The defense asked the court to exclude the opinion that Cowher died from anything other than a myocardial infarction as the complaint alleged. The court denied that motion.

The expert report also expressed the opinion that Cowher suffered conscious pain before he died. The court denied a defense motion to exclude that opinion.

Expert Testimony

At trial, each side presented the testimony of expert cardiologists. The expert for Cowher’s widow testified that Cowher died from a cardiac arrhythmia caused by coronary artery blockages that prevented sufficient blood from reaching the heart. The expert also testified that Cowher was suffering from unstable angina due to those artery blockages when he was examined by Dr. Kodali.

The expert testified that Dr. Kodali breached the applicable standard of care by failing to diagnose unstable angina in response to Cowher’s symptoms and by failing to order cardiac catheterization, a procedure that would have confirmed the existence of blockages. The expert opined that the correct standard of care would have resulted in bypass surgery that would have prevented Cowher’s death. The expert also testified that Cowher suffered pain before his death.

Dr. Kodali’s expert testified that coronary artery disease could not have caused Cowher’s death because no damage to the heart muscle was found during Cowher’s autopsy. Dr. Kodali’s expert also testified that Dr. Kodali’s diagnosis of Cowher’s chest pain as having a non-cardiac origin without conducting further testing did not breach the standard of care.

The jury awarded Cowher’s widow almost $2.5 million on her wrongful death claim. It awarded another $3.8 million on her survival claim. The trial court denied post-trial motions for a new trial and entered judgment for Cowher’s widow in the full amount. Dr. Kodali appealed.

Cause of Death

Dr. Kodali first argued that Cowher’s expert did not establish that negligence caused Cowher’s death because he testified that Cowher died from cardiac arrythmia (a condition that causes cardiac arrest) while the complaint echoed the coroner’s finding that he died from a myocardial infarction (a heart attack). The appellate court concluded that Cowher’s widow merely needed to prove that negligence caused his death. She did not need to prove the precise way in which he died.

The evidence established that Dr. Kodali failed to diagnose and treat Cowher’s severe coronary heart disease. That failure caused Cowher’s death. Whether the death was caused by a cardiac arrythmia or a myocardial infarction, the result was the same. Cowher died because Dr. Kodali did not diagnose and treat the health condition that caused his heart to stop functioning as it should.

Pain and Suffering

A neighbor who saw Cowher collapse testified that she heard him say “I need help.” The neighbor said that he appeared to be in pain and was very distraught. Cowher was conscious for about three minutes after he collapsed.

The expert witness expressed the opinion that Cowher experienced pain and suffering before his death. When asked about the basis for that opinion, the expert testified that he based his opinion on the neighbor’s testimony.

Dr. Kodali argued that an expert must give opinions that go beyond lay opinions. Testifying that Cowher experienced pain, when that testimony was based on a lay witness’ observation that Cowher seemed to be in pain, was not expert testimony. The expert did not need to apply his own expertise to conclude that Cowher experienced pain.

Since the jury heard the neighbor’s testimony, it seems doubtful that the expert’s opinion affected the verdict. The expert didn’t tell the jury anything more than it already knew. In the court’s view, however, placing the imprimatur of expertise upon an opinion that someone suffered pain could have influenced the jury. The court therefore reversed the verdict on the survival claim and remanded for a new trial on that claim.

Lessons Learned

It seems likely that the expert could have given admissible expert testimony on pain and suffering. A cardiologist presumably knows that heart failure is painful. Based on his experience treating patients who suffered from a cardiac arrythmia, and perhaps on knowledge gleaned from medical texts, the expert could probably have explained why his medical expertise informed his opinion that Cowher suffered pain. If the expert had been advised in advance that he should rely on his medical expertise when expressing his opinion, a new trial could likely have been avoided.