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.

Dentist chaira

Dental Malpractice Verdict Reversed Because Expert Relied on Inadmissible Hearsay Survey Data

Experts, unlike fact witnesses, are sometimes allowed to testify about inadmissible hearsay if they relied on the hearsay to form an opinion. Whether or not they mention the hearsay in their testimony, the federal (and most state) rules of evidence prohibit experts from giving opinions that are based on hearsay unless experts in the field reasonably rely on hearsay of the same nature when they form opinions.

The relationship between the hearsay rule and the admissibility of expert testimony can cause considerable confusion. An appellate court in Iowa recently explained that expert testimony about a standard of care was erroneously admitted because the expert opinion was based on hearsay.

The hearsay consisted of data that the expert collected in a survey. While the expert might have been entitled to rely on the hearsay, the party who offered the evidence offered no proof that standard of care experts reasonably rely on similar hearsay when they form opinions.

Facts of the Case

Edward Franzen sued his dentist, Dr. Alan Kruger, for malpractice. Franzen was experiencing pain from an abscessed tooth. His dentist had retired so he made an appointment with Dr. Kruger, whose office was close to Franzen’s farm.

Dr. Kruger took x-rays of Franzen’s teeth. After discovering that one of Franzen’s molars was cracked, Dr. Kruger recommended extracting the tooth. Franzen consented to the extraction.

Dr. Kruger used an extraction procedure known as the resection method. The method requires the dentist to break the tooth into three pieces.

Dr. Kruger attached a surgical bur to his drill to perform the procedure. When the bur spins, it acts as a rotary cutting device.

The bur came loose from the drill during the procedure. Franzen felt it hit the back of his throat. He gagged and coughed but could not cough up the bur. After the extraction was completed, Dr. Kruger advised Franzen to have his lungs checked in case the bur had fallen into his windpipe.

After taking x-rays and a CT scan, doctors confirmed that the bur was trapped in a lower lobe of a lung. Surgeons later removed the lobe but could not find the bur, which had migrated to a different part of the lung. Surgeons were ultimately able to extract it using a bronchoscope.

As a result of the surgeries, Franzen has a lower than normal lung capacity. He runs out of breath more quickly than he did before the surgery, which makes it more difficult for him to complete his work. His singing in the church choir was impaired by his inability to draw sufficient breath to hold a note.

Franzen sued Dr. Kruger on the obvious theory that careful dentists do not send sharp objects spinning down the throats of their patients. A jury agreed and awarded him $400,000 in damages, including $320,000 in future damages.

Expert Testimony

A dental malpractice lawsuit in Iowa, like medical malpractice lawsuits around the country, requires an injury victim to prove that the injury was caused by the provider’s breach of the appropriate standard of patient care. That standard and whether it was breached must, in most cases, be proved by expert testimony.

Franzen relied on the expert testimony of Dr. Cheri Lewis. Dr. Lewis is a general dentist who practices in Beverly Hills.

The trial court rejected the claim that Dr. Lewis was unqualified to render an opinion because she practices general dentistry rather than oral surgery. Dr. Kruger is a general dentist, not an oral surgeon. Dr. Lewis was qualified to describe the standard of care that applies to general dentists who extract teeth.

Dr. Lewis opined that the injury was most likely caused by Dr. Kruger’s failure to secure the bur in his drill before he started the extraction. A reasonably prudent dentist would, in her opinion, secure the bur. She considered the failure to do so to be a breach of the appropriate standard of care.

Dr. Lewis also testified that prudent dentists use a bite block and a throat pack during extractions. A bite block (also known as a mouth prop) is a wedge-shaped device that dentists use to keep a patient’s mouth open during a procedure. A throat pack is essentially a piece of gauze that is stuffed into the back of the throat to prevent material from traveling down the patient’s windpipe.

Dr. Lewis testified that a bite block and a throat pack would have shielded Franzen’s throat from unexpected debris. In her opinion, the failure to use them during Franzen’s surgery breached the appropriate standard of care.

Hearsay Objection to Expert Testimony

Before testifying, Dr. Lewis conducted a survey of directors of oral surgery programs around the country. She asked whether the use of a bite block and throat pack were part of the protocol they taught for tooth extractions. She conducted the survey to confirm that the standard routinely followed in California was also a national standard.

About a third of the directors responded to the survey. The consensus among those who responded was that bite blocks and throat packs are part of the accepted protocol for tooth extractions.

Dr. Kruger objected that Dr. Lewis’ opinion was based on hearsay to the extent that she relied on the survey. The defense complained that it could not cross-examine the survey participants. The trial court overruled the objection.

Appellate Court’s Hearsay Analysis

The question before the appellate court was whether an expert can testify about inadmissible hearsay. Iowa follows the general rule that an expert “may base an opinion on facts and data in the case that the expert has been made aware of,” including inadmissible evidence if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”

Would dental experts reasonably rely on survey data in determining a standard of care? Dentists who attend professional training seminars routinely rely on instructors to define a standard of care. Rather than attending a seminar, contacting instructors directly to learn about a standard of care might be something that reasonable dentists would do. Whether standard of care experts reasonably rely on data that they generate from their own surveys is less clear.

Unfortunately for Franzen, Dr. Lewis did not testify that experts in the field of dentistry reasonably rely on the expertise of instructors nationwide to inform their opinions about appropriate standards of care. Nor did she testify that dentistry experts reasonably rely on survey data to help them form standard of care opinions. In the absence of that foundation, the Iowa Court of Appeals concluded that her testimony was inadmissible.

The appellate court noted that the foundation cannot be laid with testimony that other experts agree with the testifying expert. What other experts believe is hearsay unless experts in the field would reasonably rely upon the opinions of other experts in forming an opinion. It might be self-evident that experts routinely gain information from other experts, but the appellate court nevertheless required the foundational question to be asked and answered.

Nor did it matter that the survey answers were not admitted into evidence. If Dr. Lewis based her opinion on inadmissible hearsay, the opinion itself was inadmissible unless the hearsay consisted of the kinds of facts or data that experts in her field reasonably rely upon in forming an opinion.

Lessons Learned

It might not have been necessary to offer any testimony about the bite block and throat pack. Dr. Lewis was apparently confident that all dentists in all states have a duty to assure that a surgical bur is correctly attached to a drill. Her testimony that a failure to secure the bur caused Franzen’s injury was probably enough to win the case.

Perhaps the additional theories of negligence were advanced from an abundance of caution. In hindsight, it might have been possible to advance those theories by laying a better foundation for Dr. Lewis’ opinion or by using a different expert.

Assuming that Dr. Lewis used a sound survey method (a question the court recognized but did not answer), the court acknowledged that survey data might be a useful way for an expert to confirm the appropriate standard of care. Relying on a consensus of opinion might be better evidence than relying on a single doctor’s opinion. To render an admissible opinion, however, Dr. Lewis needed to establish that she relied on survey data that other dental experts would reasonably rely upon to form a standard of care opinion.

Franzen might have prevailed at the trial and made the victory bulletproof on appeal by laying an appropriate foundation for the expert testimony. Whether experts in a standard of care reasonably rely on their own survey data, however, is unclear. As an alternative, since Dr. Lewis’ concern was that the California standard of care might not have been a national standard of care, Franzen might have been better served by an expert from Iowa by a nonlocal expert who could testify from personal knowledge that the nationwide standard of care is to use a bite block and a throat pack during a tooth extraction.

Police car

Exclusion of Domestic Violence Expert’s Testimony Deprived Michigan Defendant of a Fair Trial

Desirae Glatfelter confronted her boyfriend about her suspicion that he was having an affair. When he denied the accusation, Glatfelter became irate. Her boyfriend grabbed her in a “bear hug,” purportedly to calm her down. In the words of the court, he also “administered a French kiss.” Glatfelter objected to the “administration” of the kiss by biting off a part of his tongue.

When officers arrived at the scene, Glatfelter told them that her boyfriend had squeezed her violently and had forced his tongue into her mouth. She became irate again when the officers chose not to arrest her boyfriend for assaulting her but instead arrested her for defending herself.

Glatfelter was charged with mayhem. At her trial, Glatfelter’s boyfriend admitted that he placed Glatfelter in a bear hug and that Glatfelter was not calm when he pushed his tongue into her mouth.

He testified that he thought it was fine to calm his girlfriend down with a French kiss because he had done it before. He also admitted that he had dislocated her shoulder several months earlier, an act of domestic abuse that resulted in his arrest.

Glatfelter asked to present testimony from an expert in domestic violence. The court denied that request because she had not given timely notice of her intent to call the expert. The jury acquitted Glatfelter of mayhem but found her guilty of the lesser offense of aggravated assault.

Ineffective Assistance Claim

Glatfelter’s postconviction lawyer argued that her trial lawyer was ineffective, in part because he failed to give timely notice of his intent to call an expert witness. Every criminal defendant is entitled both to the assistance of counsel and to have that counsel perform in an objectively reasonable way.

Michigan’s Rules of Criminal Procedure require each party to give the opposing party notice in advance of trial of the witnesses they intend to call, including expert witnesses. Since reasonable attorneys follow the rules, the Michigan Court of Appeals concluded that Glatfelter’s attorney failed to perform reasonably when she neglected to notify opposing counsel of her intent to call an expert witness.

In addition, Glatfelter wanted to use the expert as a rebuttal witness. Michigan law gives trial judges the discretion to admit the testimony of undisclosed rebuttal witnesses when it would be in the interest of justice to do so. Since the trial judge apparently gave no thought to whether exclusion of the expert’s testimony would thwart the interests of justice, the judge abused his discretion.

Defense counsel’s deficient performance only requires a new trial if the defendant was prejudiced. By the same token, a judge’s abuse of discretion in keeping evidence from the jury will only result in a new trial if the evidence might have changed the outcome. The court of appeals therefore had to decide whether the expert would have provided relevant and important testimony.

Relevance of Domestic Abuse Expert’s Testimony

Rebuttal evidence is relevant if it responds to evidence introduced by the opposing party. Expert evidence may be introduced as rebuttal evidence.

After the prosecution rested its case, Glatfelter’s counsel wanted to call an expert witness to testify about the impact of domestic violence on victims. Counsel argued that the need for the expert testimony only became apparent during the course of the trial.

The trial court disagreed, ruling that the proposed testimony overlapped the testimony of an expert Glatfelter had earlier identified. Since the first expert was excluded because the notice identifying the expert was untimely, the court also excluded testimony from the second expert.

At a post-trial hearing, the second expert testified that some domestic violence victims respond to abuse with force or violence, even if the violence might not be warranted, because they perceive the abuse as posing an imminent threat to their safety. The trial judge ruled that the expert’s testimony would not have been helpful to the jury because the expert did not testify that Glatfelter acted in self-defense.

The appellate court agreed with the trial judge that trial counsel knew of the state’s evidence prior to trial and therefore should have given timely notice of her intent to call an expert witness. The appellate court disagreed, however, that the expert testimony would not have been helpful to the jury.

While the appellate opinion did not summarize or analyze the expert testimony in any detail, the court concluded that the domestic abuse expert would have enabled counsel to argue that domestic abuse victims sometimes behave counterintuitively. Presumably, the expert’s opinion would have allowed the jury to understand why Glatfelter reasonably believed that a passionate kiss was threatening even if Glatfelter’s boyfriend posed no actual threat. The expert testimony was therefore relevant and its exclusion deprived Glatfelter of a fair trial.

Forensic Expert Should Have Been Allowed to Testify About Deleted Emails

A recent decision of the Court of Appeals for the Third Circuit addressed the importance of using forensic experts when a litigant is suspected of destroying electronic evidence. The practice of deleting emails will often entitle the opposing party to a remedy.

In most cases, the remedy will be an instruction that allows the jury to infer that a party deleted emails because their content would have helped the opposing party prove its case. The strength of that inference, however, may depend on testimony provided by an expert witness.

Nature of the Lawsuit

GN Netcom, Inc. manufactures telephone headsets that are primarily used for hands-free conversations in the customer service industry. GN dominates the headset market in Europe. GN sued a competitor, Plantronics Inc., which dominates the headset market in North America, for antitrust violations.

GN claimed that Plantronics engaged in unlawful anticompetitive conduct by offering rebates and other benefits to distributors who agreed not to purchase headsets from manufacturers other than Plantronics. The agreement also conditioned the benefits upon an agreement not to market competitors’ headsets on resellers’ websites.

GN sent Plantronics a letter alleging a violation of antitrust law and demanding compensation. Plantronics initiated a “litigation hold” that directed employees to preserve all corporate documents relevant to the claim. Plantronics updated the hold after GN initiated a lawsuit. Plantronics also trained employees to obey the hold.

Deletion of Emails

Notwithstanding the litigation hold, Plantronics’ Senior Vice President of Sales directed employees to delete certain emails, including those that referred to GN or its products. In particular, the VP ended three emails referring to competition with an instruction to delete the email chain and to delete certain emails that he flagged as “inappropriate.” The VP also deleted over 40% of his own emails that were sent during a relevant time period.

The VP told employees to stop putting information about competition in writing. Managers also instructed employees to refer to competitors by code names. GN was code named “zebra.” The CEO also expressed his concern that there might be “damning statements” in staff emails.

When Plantronics’ general counsel learned of the VP’s action, she directed his attention to the litigation hold, tried to obtain backup copies of the emails so that they could be preserved, and engaged a forensic expert to try to recover the deleted emails. Ignoring its lawyer’s efforts, Plantronics declined to pay the forensic effort to complete his work and destroyed the backup tapes of the deleted emails.

The forensic expert’s preliminary report estimated that tens of thousands of unrecoverable emails had been deleted and that several thousand of those were probably responsive to GN’s discovery requests. Plantronics’ outside lawyer blatantly told the court that Plantronics received no report from the forensic expert, despite referring to the expert’s preliminary report in his billings.

Spoliation Remedy

GN moved the court for a default judgment on the ground of spoliation (a legal term that refers to the destruction of evidence). Motions to deny parties the benefit of a trial are rarely granted. The district court opted to give a jury instruction that allowed the jury to assume that the destroyed emails would have helped GN prove its case.

GN then asked the court for permission to present evidence of the spoliation at trial, including the testimony of its expert witness. Fearing that the issue of spoliation would overshadow the merits of the antitrust dispute, the judge declined to allow the expert to testify. The judge instead instructed the jury that certain facts about the spoliation were true and could be considered in reaching a verdict.

After a six-day trial, the jury found that GN failed to prove any of its claims. GN appealed, arguing that it should have received a default judgment and that the judge erred by denying its expert testimony. The court of appeals rejected the claim that GN was entitled to a default judgment but agreed that it should have been permitted to present expert testimony.

Expert Witness Testimony

GN proposed to call a forensic expert, Dan Gallivan, to testify about the deleted emails. The preliminary report by Plantronics’ expert concluded that Plantronics deleted 952 to 2,354 unrecoverable emails that were responsive to GN’s discovery request (plus tens of thousands that were not). Gallivan estimated that ten to fifteen thousand deleted and unrecoverable emails were relevant to the litigation.

The Court of Appeals concluded that Gallivan’s testimony would have been relevant to the underlying claims. Since the jury was entitled to view spoliation of evidence as a material fact, the extent of that spoliation was also a material fact. The jury was not required to draw an adverse inference from the destruction of evidence, so the extent of that destruction was a relevant consideration in deciding whether the inference was appropriate.

The trial court did not fault Gallivan’s reasoning or methodology. His testimony was not excluded on Daubert grounds. Rather, the court did not want the spoliation evidence to overshadow substantive evidence of the alleged antitrust violation. The appellate court construed that analysis as being grounded in Rule 403 of the Federal Rules of Evidence.

Appellate Decision

The trial court did not explicitly balance the probative value of Gallivan’s testimony against the potential prejudice that might be caused by confusing the jury or wasting time. Even if the trial court implicitly conducted the appropriate balancing test under Rule 403, the appellate court decided that the exclusion of Gallivan’s testimony was an abuse of discretion.

In addition to explaining why his estimate was more reliable than the preliminary estimate produced by Plantonics’ expert, Gallivan’s testimony might have shed light on the extent to which Plantronics concealed evidence. If hundreds or thousands of deleted emails were pressuring distributors not to purchase GN’s products, the antitrust case would be stronger than if fewer emails did so.

The most relevant stipulation that the court read to the jury — “It may be that several hundred or even up to 15,000 potentially relevant responsive relevant emails were deleted or destroyed” — was not an adequate substitute for the expert’s live testimony. The appellate court concluded that the vague stipulation “left the jury to consider estimates that were not even in the same ballpark” with no basis for deciding whether Plantronics deleted only several hundred emails or something closer to 15,000 emails.

Finally, the Court of Appeals concluded that requiring GN to rely on a stipulation rather than live expert testimony was prejudicial. “The difference from several hundred to 15,000 could easily have been the difference between applying the adverse inference and not.” Gallivan’s testimony supported GN’s theory that Plantronics engaged in a “massive coverup” and was therefore critical to its proof. The court accordingly granted GN a new trial.

Justice Scales

Texas Court Concludes that Expert Evidence Failed to Prove Employer’s Gross Negligence in Mesothelioma Case

A Texas jury found that Bell Helicopters was grossly negligent in exposing an engineer to asbestos and that the exposure caused the engineer’s mesothelioma. An appellate court reversed the judgment after concluding that the testimony of an expert witness failed to establish Bell’s gross negligence.

Facts of the Case

Bell Helicopters employed Billy Dickson for six years as an engineer. Years after he left that employment, Dickson was diagnosed with mesothelioma, a disease that is caused by exposure to asbestos. Dickson did not work directly with asbestos in his employment with Bell, but he supervised workers who did.

Dickson brought a products liability claim against several defendants. He later added Bell as a defendant. Dickson died before the case went to trial.

Dickson’s estate settled its claims against some of the defendants. Other defendants were dismissed. Bell was the only remaining defendant when the case went to trial.

Because workplace exposure claims are generally preempted by Texas workers’ compensation law, the only surviving legal theory was whether Dickson’s estate was entitled to punitive damages because of Bell’s gross negligence. The estate relied on expert testimony to prove its claim. 

Expert Evidence

Dr. Edwin Holstein is a specialist in internal and preventative medicine. He has a subspecialty in occupational medicine. He has taught other doctors about the health impact of asbestos exposure.

Dr. Holstein testified that bystanders can be exposed to asbestos even if they do not handle the asbestos. Union rules prevented Dickson from touching tools, but he stood within a few feet of employees while they were erecting wall panels to insulate testing areas from heat. The panels were made from millboard.

Dr. Holstein reviewed Dickson’s deposition testimony. Dickson testified that he was present when millboard was cut to make heat-resistant walls. Dickson believed the millboard contained asbestos that was released into the air when the millboard was cut. He described his exposures to asbestos as intermittent but intense. 

It was Dr. Holstein’s impression that Dickson was exposed to asbestos when the millboard was cut. He acknowledged, however, that he did not know who manufactured the specific millboard that was used and did not know the specific amount of asbestos that it contained. He testified that he based his opinion on four studies regarding the air concentration of asbestos caused by the cutting of millboard.

Dr. Holstein opined that Dickson’s asbestos exposure at Bell more than doubled his risk of acquiring mesothelioma. He also testified that laws enacted before Dickson’s employment limited the amount of allowable airborne asbestos in a work environment and that the link between asbestos and mesothelioma was well established before Dickson worked at Bell.

Appellate Analysis

Texas law does not permit an award of punitive damages for an employer’s gross negligence unless the objective evidence establishes that the employer’s conduct created an extreme risk of harm. An extreme risk is one that is likely to cause a serious injury. A plaintiff must also prove that the employer was subjectively aware of that risk but was indifferent to the safety of its employees. 

There is no doubt that mesothelioma is a serious injury. The question before the Court of Appeals was whether the evidence established that Bell’s conduct made it likely that Dickson would acquire mesothelioma and whether Bell was aware of that risk.

Dr. Holstein relied on Dickson’s deposition testimony, but Dickson testified that he did not know who manufactured the millboard and that he only learned recently that the appearance of the millboard was consistent with a product containing asbestos fibers. Dr. Holstein inferred that the millboard contained asbestos based on that testimony and on his knowledge that millboard was a standard product produced by only a few manufacturers. He also knew from studies that the millboard in use at that time contained asbestos.

The Court of Appeals concluded that Dr. Holstein’s testimony fell short of establishing the existence of an extreme risk. While Dr. Holstein testified that the dangers of asbestos were widely known before Dickson’s employment, he offered no evidence that Bell knew the millboard contained asbestos. 

Since Dickson himself had no knowledge at the time that the millboard contained asbestos, the court concluded that Bell’s generalized knowledge that asbestos is hazardous was insufficient to establish its knowledge that cutting millboard created an extreme risk of harm to bystanders. One could argue that Bell should have known the millboard contained asbestos since Bell was using the millboard for its heat-resistant properties, but the question was what Bell subjectively knew, not what it should have known.

Moreover, the studies that Dr. Holstein relied upon to estimate Dickson’s asbestos exposure were all created after Dickson’s employment ended. Bell’s awareness of an extreme risk depended on its knowledge at the time Dickson was exposed to that risk. Dr. Holstein’s testimony did not establish that Bell had any subjective awareness during Dickson’s employment that his proximity to millboard cutting exposed him to the risk of acquiring mesothelioma.

If this case had involved ordinary negligence rather than gross negligence, the outcome might have been different. An ordinary negligence standard would ask what an ordinarily prudent company should have known, not what it actually knew. Given the definition of gross negligence in Texas law, Dr. Holstein’s expert testimony fell short of proving that Bell’s gross negligence caused Dickson’s mesothelioma.

It is doubtful that any expert testimony could have done so, as the knowledge possessed by Bell would typically be proved through documents or testimony that revealed what Bell actually knew about the dangers of cutting millboard and when it first acquired that knowledge. The lesson to be learned is that expert testimony can be relied upon to prove facts that are within the expert’s knowledge, but facts regarding the subjective knowledge of another person or business usually need to be proved through fact witnesses or documents.


Court Finds Expert Testimony Supported Part, But Not All, of a Patent Infringement Verdict 

A company called Acantha sued DePuy Synthes Sales and DePuy Synthes Products for patent infringement. Acantha patented an “Orthopedic Implant Assembly” for joining bone segments together during spinal surgery. The implant consists of a plate that is screwed into a bone segment. Once the head of the screw passes through an elastic snap ring, the snap ring returns to its original shape, holding the screw in place.

Acantha claimed that certain products made and sold by DePuy infringed on its patent. Like Acantha’s product, DePuy’s products had a “securing element” (a plate), an “attachment element” (a screw), and a “stopping member” that returns to its original configuration after the attachment element is inserted (as does Acantha’s snap ring).

Acantha argued that two DePuy product lines were infringing. The Vectra line, like the Acantha patented device, screws into a bone segment. The Zero-P VA line, however, screws into the disc space between vertebrae.

Acantha proved its claim to the satisfaction of a jury as to both DePuy product lines and won a judgment of more than $8 million. DePuy then moved the District Court for judgment in its favor as a matter of law.

The question before the court was whether DePuy’s product was the same as Acantha’s. DePuy argued that Acantha’s “securing element” was described as having an “anterior” and “posterior” surface and thus differed from DePuy’s product, which lacked those surfaces. To an ordinary person, most three-dimensional objects can be described as having a front and back or top and bottom, but DePuy argued that the terms had specific meanings that differentiated the two companies’ plates.

Expert Testimony

Acantha relied on the expert testimony of Dr. Sachs, who explained that the anterior surface of the plate was the surface closest to the surgeon — the surface where the screw enters the hole — while the posterior surface was the surface closest to the bone — the surface nearest the place where the screw will exit the hole and enter the bone. A layperson might think of those terms as meaning “top” and “bottom.”

DePuy argued that Dr. Sachs’ construction of the terms, by referencing the sides of the plate where the screw entered and exited the plate, improperly deviated from the court’s claim construction order. Before the trial, the court decided that the “term posterior should be understood to mean an inner portion of the assembly closer to the bone to which the assembly is attached, and the term anterior should be understood to mean an outer portion of the assembly farther away from the bone.”

Court’s Analysis of Zero-P VA Infringement

As to the Zero-P VA infringement claim, the court agreed with DePuy. The court decided that Dr. Sachs based his opinion on an incorrect understanding of the terms “posterior” and “anterior” as the court defined them.

The court noted that an expert can offer an opinion as to how the facts should be applied to an infringement claim, but that an expert must do so in a manner that is consistent with the court’s claim construction order. According to the court, the Zero-P VA could only infringe on Acantha’s product “if it has an anterior surface that is farther from the bone and a posterior surface that is closer to the bone to which it is attached.”

The Zero-P VA is placed between two vertebrae, and the two surfaces are therefore the same distance from the bone. Dr. Sachs’ testimony that the surface of the Zero-P VA where the screw enters is the “anterior” and the surface where the screw exits is “posterior” differed from the court’s determination of what those terms mean. The court accordingly disregarded Dr. Sachs’ testimony.

As defined by the court, the nature of the Zero-P VA plate differed from the plate described in Acantha’s patent. In the absence of Dr. Sachs’ erroneous testimony, the court decided that no reasonable jury could find DePuy’s patent infringed on Acantha’s. Of course, it may be that Dr. Sachs was right and that the court was wrong in defining the terms, but it is the court’s understanding that controls.

The court’s decision turns on a hypertechnical analysis of the language used in the patent description, but hypertechnical dissection of language is what lawyers and judges do. Perhaps if the lawyers who wrote Acantha’s patent description had expressly defined “anterior” and “posterior” in relation to where the screw entered and exited, the court would have accepted Dr. Sachs’ testimony and allowed the verdict to stand.

Court’s Analysis of Vectra Infringement

The court came to a different conclusion as to the Vectra line, which apparently mimics the Acantha device in all respects. DePuy attempted to identify a nonexistent difference by referring to the entire screw as a “screw head,” but the jury was entitled to rely on Dr. Sachs’ testimony that the spherical shaped, widest part of the screw is the screw head. Since he based that opinion on DePuy’s own documents, the testimony had a factual basis and the jury was entitled to accept it.

The jury was also entitled to reject the testimony of DePuy’s expert that screw threads are part of the screw head. Apart from the fact that the testimony is contrary to an everyday understanding that the head and threads are distinct parts of a screw, it was up to the jury to decide which of the two experts to believe.

Court’s Order

The court reduced the jury’s award of damages to about $4.3 million to account for its decision that DePuy’s Vectra line, but not its Zero-P VA line, infringed Acantha’s patent. Expert testimony therefore contributed to a sizeable verdict, although it did not support the entire verdict that the jury returned.

Fifth Circuit Affirms Admission of Expert Testimony to Prove Mortgage Lender Made False Claims

A False Claims Act lawsuit against a mortgage lender depended on the expert testimony of a loan underwriter. The government also relied on an expert to select loan files randomly for the underwriter to review. Daubert challenges to those two experts failed in the trial court. The Court of Appeals for the Fifth Circuit affirmed the court’s admission of the expert testimony.

Facts of the Case

The US government sued Jim Hodge and the two mortgage companies he owned for defrauding the government. One of those companies originated loans and the other funded them.

Some of the mortgage loans were insured by the Federal Housing Administration (FHA). Eligibility for insured loans was determined by standards created by the Department of Housing and Urban Development (HUD). The loans were primarily available to first time homebuyers who met HUD’s guidelines.

The company that funded the loans was certified as a “direct endorsement lender.” It was authorized to determine eligibility for the loans on HUD’s behalf. 

A branch manager who worked for the lending company sued Hodge and his companies on behalf of the government, alleging that they fraudulently obtained FHA insurance for loans that later defaulted. The government intervened in the lawsuit.

After a five-week trial, the jury found that the lending company misrepresented its compliance with the FHA lending guidelines. It also found that Hodge and the loan origination company misrepresented that loans were originated by branches that were registered with and approved by HUD.

Applying federal laws that triple damages awarded by the jury, the court entered judgment against Hodge and his loan origination company for about $23 million and against the lending company for about $269 million. On appeal, the defendants challenged the methodologies used by the government’s expert witnesses.

Daubert Challenge to Sampling Methodology.

Katherine Ensor testified as a statistical sampling expert. She generated random samples of loan files that other experts relied upon as representative of the defendants’ lending practices.

The defendants objected to the government’s request for all its loan files and argued that discovery should be limited to a random sample of files. The parties agreed to use a sampling of loan files, including files that did and did not result in insurance claims, but could not agree on the number of files that should be included in the sample.

The defendants complained that Ensor’s methodology was unreliable because she failed to control for loans that defaulted for obvious reasons. The appellate court determined that the defendants waived that objection by advising the trial court that they did not disagree with Ensor’s methodology, but only disagreed with the sample size she proposed. 

The number of files that Ensor chose for sampling was larger than the number proposed by the defendants. Since the defendants could not explain how using a larger sample size made the sampling unreliable, the court rejected the challenge to Ensor’s methodology.

Daubert Challenge to Underwriting Testimony

The government called Richard Payne to testify about FHA loans that were made to borrowers who were not eligible for FHA insurance. Payne reviewed 460 loans that were randomly selected by Ensor. He determined that 240 of the loans were not eligible for FHA insurance because they failed to meet HUD’s underwriting guidelines.

The defendants complained that Payne’s methodology was unreliable because he applied his own standards rather than HUD’s standards. Payne testified, however, that his team applied the standards specified in the HUD Handbooks that were in effect at the time, supplemented with FHA mortgagee letters and an FHA guide to automated underwriting.

Payne created a spreadsheet that identified each of the 240 loans he regarded as noncompliant with HUD guidelines. For each loan, he identified the specific way in which the loan failed to comply and made reference to the specific guideline that the loan failed to meet. Since the defendants failed to identify a single instance in which Payne substituted his own standards for those of HUD and the FHA, the court rejected their challenge to Payne’s methodology.

#9867034 Mallet And Stethoscope Over Sound Block In Court

Expert Medical Opinion Held Admissible When Expert Expresses Confidence in the Opinion

Luzi Bartsch was injured in a car accident caused by Irma Lage. She settled with Lage and then brought an underinsured motorist claim against Geico, her insurer. Coverage was available only if Bartsch suffered a permanent injury. Two experts testified that Bartsch’s injuries were permanent. The court nevertheless dismissed the lawsuit because Bartsch’s doctors did not testify that they held their opinions to a reasonable degree of medical probability.

The issue before the Superior Court of New Jersey Appellate Division is one that arises when lawyers fail to ask expert witnesses to express confidence in their opinions using specific language. The standard for expert opinions is often expressed as an opinion that is held to a “reasonable degree of certainty.” Recognizing that medical science is inherently uncertain and that honest medical experts often balk at the term certainty, the judicial trend is to allow medical opinions to be admitted when they are held to a “reasonable degree of medical probability.”

Incanting those magic words has sometimes been deemed necessary to the admissibility of an expert’s opinion. The judge who presided over Bartsch’s trial concluded that the absence of those words was fatal to her claim.

Expert Opinions

Geico called Dr. Edward Decter, an orthopedic surgeon who examined Bartsch at Geico’s request. He opined that the pain Bartsch described in her medical records was consistent with spinal degeneration and not consistent with the part of her neck that was injured in the accident. He also opined that her injuries were not permanent.

Interestingly, Dr. Decter had been admonished by a professional organization for slanting his expert opinions in the past to favor the party that hired him. The trial judge disallowed reference to that evidence of Dr. Decter’s “bad character” and the appellate court agreed with the judge’s ruling.

Bartsch relied on the testimony of a chiropractor and a pain management physician. The chiropractor, Dr. Mark Rodrigues, testified that Bartsch suffered from cervicalgia and lumbalgia, conditions that were caused by the car accident. He also testified that those conditions were unrelated to back pain he had treated several months before the accident. When asked whether he was certain of those opinions, Dr. Rodrigues answered, “Without a doubt.”

The pain management specialist, Dr. Clifton Burt, testified that the car accident caused cervical and lumbar radiculopathy. When he was asked whether that condition would be permanent, he testified that “it’s a good possibility that the original cause and the original disc bulges can lead to permanent symptoms.”

Both experts provided written reports prior to trial in which they expressed their opinions to a reasonable degree of medical probability. However, since neither expert used those words when they testified, the trial court dismissed Bartsch’s case.

Appellate Opinion

In New Jersey, a medical expert must express an opinion to a reasonable degree of medical probability. However, as is true in most states, the expert is not required to use those “magic words.” Rather, the court must be satisfied that the expert is reasonably confident in the opinion expressed.

The appellate court held that Dr. Rodrigues’ testimony expressed the requisite degree of certainty. He testified that he believed the car crash damaged Bartsch’s spine and that he believed the damage was caused by hyperflexion or hyperextension induced by the accident. He did not say he believed the crash “might have” caused an injury. By testifying to an unqualified belief as to causation, he expressed confidence in his opinion.

When Dr. Rodrigues later testified that he had “no doubt” that Bartsch sustained a permanent injury as a result of the car accident, he made his confidence even more clear. The appellate court had no difficulty reversing the trial court’s ruling.

Dr. Burt’s testimony, on the other hand, would not have supported a verdict in Bartsch’s favor. He testified that a permanent injury was a “good possibility,” but an opinion that permanence is possible cannot be equated with an opinion held to a reasonable degree of medical probability.

Since Dr. Burt did not express confidence in his opinion as to permanence, the jury was not entitled to base findings on his testimony. Nevertheless, Dr. Rodrigues’ testimony alone would have allowed the jury to find that Bartsch’s injuries were permanent. Bartsch was entitled to a new trial, regardless of Dr. Burt’s insufficient testimony.

Lessons Learned

It is surprising that the trial judge insisted that medical experts must use the words “reasonable degree of medical probability,” given that New Jersey’s focus is on the expert’s expression of confidence, not on the specific words used to express confidence. At the same time, it is surprising that Bartsch’s lawyer did not ask the simple question: “Do you hold the opinions you’ve expressed today to a reasonable degree of medical probability?”

The lesson to learn is that lawyers should familiarize themselves with court decisions in their state that explain the level of certainty or confidence an expert must express in order to make the expert’s opinions admissible. Prefacing questions with the phrase “Do you have an opinion to a reasonable degree of medical probability” about the cause or nature of an injury, followed by “What is that opinion?” will avoid the risk that a trial judge might take a case away from a jury. Of course, it is also important to explain those standards to the expert during witness preparation so that the lawyer’s question and the expert’s response will not come as a surprise.

Disabled man, wheelchair

Indiana Court Affirms Admission of Expert Testimony Regarding Personal Injury Damages

Nolan Clayton and Gregory Smith became friends while working together at a Stacked Pickle bar. Smith volunteered to work during a special event at a Stacked Pickle in Indianapolis. He invited Clayton to attend the event as a guest.

Smith drove Clayton to the bar. Clayton began to drink. After about an hour, Smith decided there were enough employees to cover the event so he stopped working and joined Clayton. They both became intoxicated.

After the event ended, Smith was asked to leave. Clayton left with him. A Stacked Pickle employee locked the door and called a taxi to pick up the two men outside the bar.

For reasons that neither man recalls, Clayton drove Smith’s truck with Smith as a passenger. They were driving away from the bar as the taxi arrived. Clayton crashed the truck into a tree. Clayton had minor injuries but Smith’s neck was broken. He is now a quadriplegic.

A series of claims followed against various insurance companies. The insurer of Smith’s truck (Progressive) would not pay Smith, alleging that Smith’s policy did not cover injuries to Smith caused by another driver. Other insurers settled and Smith assigned his claims against Progressive to Allstate, a settling insurer that provided coverage through a policy issued to Clayton’s parents.

Smith eventually sued Clayton. Liability was largely conceded; the trial focused on comparative negligence and damages. The jury awarded Smith $35 million and found Clayton to be 60% responsible for Smith’s injuries. The trial court therefore awarded judgment for Smith in the amount of 60% of the verdict, or $21 million.

Clayton appealed, alleging that the trial court erred when ruling on the admissibility of expert testimony. In each case, the trial court allowed experts to testify over Clayton’s objections. Clayton appealed, and the Indiana Court of Appeals affirmed the trial court’s decision to admit the testimony of each expert.

Admissibility of Expert Testimony in Indiana

Indiana is not a strict Daubert state, although the state supreme court has concluded that Daubert provides “useful” guidance when courts apply Indiana’s rules of evidence. The state’s evidence code provides that expert scientific evidence “is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.”

Once the court determines that the expert has based testimony on sound principles, it is up to the jury to decide how much weight the testimony deserves. Unlike some federal and state judges who follow the Daubert rule, Indiana judges do not substitute their own assessment of the facts upon which the expert relies for the jury’s view of those facts.

Indiana courts wisely follow the traditional rule that vigorous cross-examination and competing evidence will expose flaws in an expert’s opinion, and that questions about the reliability of facts upon which an expert relied are best resolved by juries. If an expert has based testimony on sound principles, the accuracy of the expert’s opinion is typically a question that an Indiana jury should determine.

Smith’s Vocational Expert

Smith moved to exclude the expert testimony of Sara Ford, a vocational economist. Ford testified that Smith’s lifetime income loss would exceed $2.1 million. She based that calculation on the understanding that Smith is totally disabled for occupational purposes.

Clayton complained that Ford did not have an adequate foundation for her belief that Smith was 100% occupationally disabled because she relied on “outdated” medical records and ignored the fact that Smith wanted to work. Clayton also argued that Ford did not consider the local job market and that she used “boilerplate” language in her expert report.

The court noted that Ford assigned a 100% disability rating to Smith because he was unable to perform manual tasks with his hands. Her disability rating was supported by medical testimony that Smith is a quadriplegic, that he only retained some function in his biceps, and that his prognosis for improvement was poor. The foundation for her opinions was subject to vigorous cross-examination and the jury was entitled to determine how much weight the opinions deserved.

The appellate court concluded that “the breadth of Ford’s research, the methodology used to forecast lost wages, and the purported lack of corroboration of her definitive conclusion” regarding Ford’s disability were matters for the jury to determine. The appellate court did not explicitly address the “boilerplate” argument, presumably because professionals, including lawyers and judges, typically rely on boilerplate language when it is suitable for a particular document.

Smith’s Medical Expert

Dr. Ralph Buschbalter testified about Smith’s current medical condition and poor prognosis, including a probable 20-year reduction in his life span. He also testified about nine future health conditions for which Smith was “at risk,” including renal failure, heart disease, and deep vein thrombosis.

Clayton asked to exclude Dr. Buschbalter’s testimony about future health risks on the ground that the testimony was speculative. However, Dr. Buschbalter candidly testified that the risk of each condition developing was either low or impossible to predict.

The fact that a future complication is unlikely to be relevant does not mean that the risk is speculative and does not make testimony about the risk irrelevant to an assessment of damages. The appellate court found that the trial court appropriately exercised its gatekeeper function by allowing Dr. Buschbalter’s testimony. How much weight to give the risks he described when awarding damages was for the jury to decide.

Smith’s Life Care Planner

Finally, Clayton asked the trial court to exclude the expert testimony of Debra Berens, a life care planner. Clayton complained that Berens had no foundation for opinions that rested on economic projections, given that she was not an economist.

Berens reviewed Smith’s medical records to determine his limitations, then researched the cost of meeting his future needs and coping with his disability. She noted modifications of his home that were needed to make it wheelchair-accessible, considered the future cost of wheelchair replacements, and estimated the expense of future medical care, massage therapy, medications, psychological services, and transportation.

As life care planners commonly do, Berens relied on national databases to determine some of those costs. She examined data compiled by the Veterans Administration to estimate the cost of wheelchair replacement. Since experts in life care planning routinely rely on those sources, Berens was entitled to consider them in forming an expert opinion.

Some of the future expenses were not reduced to present value. In other cases, she relied on an economist to perform a present value calculation. Clayton complained that her testimony lacked foundation because no economist testified in support of her calculations and because not all of her calculations were reduced to present value.

Estimates of future costs are necessarily uncertain because interest and inflation rates change as economic conditions change. A thousand dollars invested today might be worth more than a thousand dollars a year from now if the investments are prudent. On the other hand, a wheelchair that costs a thousand dollars today might cost more than a thousand dollars in the future because of inflation. Present value (the amount of money that should be invested today to create a targeted amount of money on a future date) is a problematic concept because interest and inflation rates are offsetting, at least to some degree.

The appellate court held that juries generally understand the concepts of interest and inflation. The court held that expert testimony is not necessarily required for a jury to decide whether to accept cost estimates that are not reduced to present value, since juries are entitled to give such weight to those estimates as the jury thinks they deserve.

Although the court did not say so, the general rule is that the defendant has the burden of introducing evidence to reduce a future loss to its present value. If Clayton wanted to argue that the jury should award a present value rather than the full future cost of Smith’s life care requirements, Clayton should have called his own expert to present that calculation to the jury.


Florida’s New Daubert Rule Leads to Reversal of Conviction

The State of Florida charged Jabari Kemp with vehicular manslaughter, alleging that his reckless driving caused the deaths of five people. While Kemp’s postconviction proceedings were pending, the Florida Supreme Court adopted the Daubert standard for the evaluation of expert testimony. Applying the Daubert standard, the Florida Court of Appeals reversed the conviction and remanded for a new trial.

Facts of the Case

Kemp exited from I-95. When his vehicle reached the end of the exit ramp, it ran a red light and crashed into a Lexus sedan. An expert witness for the prosecution testified that Kemp’s vehicle was traveling at 128 mph.

To prove that Kemp was driving recklessly, the prosecution needed to establish that he was in control of his vehicle. Under Florida law, the mere loss of control of a vehicle does not constitute reckless driving. There was no suggestion that Kemp was incapable of controlling the car because of intoxication or any other voluntary action.

Kemp testified that he felt faint before he exited from I-95. At that time, he was driving at about 65 mph. He testified that he lost consciousness and does not recall the crash. His attorney theorized that he passed out with his foot on the accelerator, causing the car to speed up as it traveled down the exit ramp.

An eyewitness testified that Kemp’s car moved down the ramp in a straight line, giving the impression that the driver was unconscious. The eyewitness did not see brake lights illuminate as Kemp’s car traveled down the ramp or into the intersection.

The prosecution offered no reason why Kemp would choose to drive down an exit ramp at 128 mph and then run a red light. The prosecution’s only hope of getting a conviction rested with its effort to prove that Kemp applied the brakes before reaching the intersection in an unsuccessful attempt to avoid the collision.

The lead investigator, Corporal Johnson, testified that he saw tire marks on the exit ramp that he attributed to Kemp’s vehicle. He acknowledged that tire marks are not always caused by braking, but could be caused by steering or unspecified “other factors.” Rapid acceleration is presumably one of those factors.

Johnson opined that tire marks would require driver input. He acknowledged, however, that he did not know whether a driver must be in control of a vehicle to leave tire marks on the pavement.

Expert Testimony

If Kemp lost consciousness before the crash, he was not in control of his vehicle and could not have been driving recklessly. The prosecution relied on another police officer to establish that Kemp was braking, and therefore in conscious control of his vehicle, at the time of the crash.

Corporal Dooley, who calculated the estimated speed of Kemp’s vehicle, also testified that damage to the crash victim’s vehicle indicated that Kemp’s car was braking at the time of the crash. He based that opinion on the assertion that braking caused the front end of the braked car to “dip” and that the nature of the crash damage indicated that Kemp’s car had dipped at the moment of impact.

As is customary when police officers testify as experts, Dooley asserted that his opinion was based on his “training and experience.” When pressed as to whether his opinion was based on science, he testified “I can’t tell you about the scientific — or anything about the braking of the Mercedes. What I can tell you is the overall dynamics of a car to require to have shocks and struts and all these things and if you are accelerating, the front will go up. If you are decelerating it goes down — that’s all I can — I’m just telling you what it means to me.”

The prosecutor tried to rehabilitate Dooley by asking him whether his opinion was based on physics. Dooley readily agreed that it was, although he cited no principle of physics that informed his opinion. When defense counsel asked him whether any scientific studies supported his opinion, he testified “I’m sure that there are but I can’t quote anything specific.”

Dooley testified that he had watched car crashes as part of his training, but acknowledged that, other than learning that momentum shifts forward during acceleration and backward during deceleration, he could not cite “an actual case study or a doctor or scientist or whomever may have been out there looking at it” to support his opinion.

Appellate Opinion

Before the trial, Kemp challenged Dooley’s claimed ability to discern from crash damage that Kemp’s car had been braking. Citing Daubert, Kemp argued that Dooley failed to identify any reliable scientific methodology that would allow an expert to determine whether a car was braking by examining crash damage.

At that point, the Florida legislature had added the Daubert standard to the state’s rules of evidence, but the Florida Supreme Court had directed trial courts to continue using the Frye standard. Without holding either a Frye hearing or a Daubert hearing, the trial judge deferred to the prosecution’s request to admit the testimony.

While post-conviction proceedings were pending, Florida’s governor appointed new justices to the Florida Supreme Court. The new justices promptly adopted the Daubert standard. Since Kemp based his objection on the Daubert standard, and since the trial judge purported to apply the Daubert standard, the Court of Appeals concluded that Kemp was entitled to rely on that standard in postconviction proceedings.

The Court of Appeals faulted the trial judge for admitting Dooley’s testimony “without requiring that it satisfy any of the benchmarks of reliability set forth in Daubert.” Whether or not cars “dip” during braking, Dooley based his opinion that Kemp’s vehicle dipped on “eyeballing” the crash damage. He cited no evidence that his technique had been tested or peer reviewed. He did not explain whether his technique had a known error rate. He did not claim that other experts in the field generally form opinions about braking on “eyeballing” crash damage.

The court rejected the claim that unspecified “training and experience” is enough to satisfy a Daubert analysis. Rather, experts must demonstrate that they based their opinions on a reliable methodology. Dooley did not appear to base his opinion on any methodology, apart from looking at crash damage, guessing that Kemp’s car dipped before the crash, and attributing that speculative dip to braking.

While the appellate court was prepared to accept Dooley’s testimony that a front end “dip” could be related to a loss of momentum (notwithstanding Dooley’s inability to cite any scientific evidence for that proposition), the court was unwilling to credit Dooley’s claim that he could infer that Kemp’s vehicle was dipping from “the shape of the damage” to the accident victims’ vehicle.

Dooley’s claim that the crash damage was “curling downward” was undercut by his admission that “I’m just testifying as to what this looks like to me.” Given his testimony that his accident reconstruction class did not cover the cause of collision damage that appears to “curl downward,” he was not qualified to give an expert opinion as to whether only a decelerating car could have caused the damage he saw.

The Court of Appeals concluded that nothing in Dooley’s testimony explained how his “experience led to the conclusion he reached, why that experience was a sufficient basis for the braking opinion, and just how that experience was reliably applied to the facts of this case.” Accordingly, the trial judge erred by allowing Dooley to testify that Kemp’s car was braking at the moment of impact.

Lesson Learned

While the insurance industry has championed the claim that Daubert shields corporate defendants from “junk science,” criminal defendants are the true beneficiaries of the Daubert standard. Unfortunately, trial judges who have grown accustomed to allowing prosecutors to present doubtful guesswork under the guise of expert testimony have not always understood that Daubert applies to criminal cases, not just to toxic tort lawsuits.

Kemp’s case illustrates the importance of challenging police officers whenever they give expert testimony. The minimal training in accident reconstruction that police officers receive is a far cry from the engineering backgrounds that actual experts rely upon when they form accident reconstruction opinions. Challenging the testimony of police officers who are not qualified to testify as experts — and raising that challenge again on appeal if it is rejected by a prosecution-friendly trial judge — is critical to effective advocacy. Consulting with an actual expert may also provide crucial evidence that can make the difference between a conviction and an acquittal.

Expert witness courtroom

Failure to Argue Effectively for Expert Witness Funding Leads to New Trial in Michigan Shaken Baby Case

The government, with its vast resources, has a distinct advantage when it brings criminal charges against all but the wealthiest defendants. Since poor defendants have the same right to a fair trial as wealthy defendants, the Supreme Court has held that the constitutional right to equal protection of the law demands that defendants not be placed at an unfair advantage simply because they are indigent.

It has long been the law that indigent defendants are entitled to appointed counsel. Without a lawyer, a defendant is deprived of a fair opportunity to present a defense. It was not until 1985, however, that the Supreme Court decided that the right to “a fair opportunity to present a defense” will sometimes include the right to use government funds to hire an expert.

States with robust public defender systems routinely authorize the hiring of experts, although budget-conscious agencies do not always approve the funding a defendant would regard as ideal. When judges are asked to authorize funding, however, defendants all too often encounter judicial reticence to use the government’s money to pay for expert witnesses.

Prosecutors, of course, might also be constrained by budgets, but they are not required to ask tight-fisted judges to approve the funding of expert witnesses. In addition, many prosecution experts work for government crime labs or law enforcement agencies, so it costs the prosecution nothing to call the experts to testify at trial.

Defendants, on the other hand, frequently struggle for approval of funding by judges who act as if they were paying for experts out of their own pockets. The Michigan Court of Appeals recently decided that a defendant was denied a fair trial because the court declined to approve funding for necessary expert witnesses. The appellate court blamed defense counsel rather than the trial judge, but the court’s circular reasoning allowed it to rectify an injustice.

Facts of the Case

Shawn Brown was convicted of manslaughter and child abuse in a Michigan court. Brown told the police that when his son started choking, he patted his son on his back, then patted him harder. When his son stopped breathing, he took his son to the hospital.

Brown’s son died. At Brown’s trial, a forensic pathologist testified that a traumatic brain injury caused his death. The pathologist couldn’t explain quite how that happened, but she viewed bleeding in the back of the child’s eye as evidence of a traumatic brain injury. Other doctors testified about visible injuries, including subdural hematomas and lung injuries, that they viewed as “consistent with” abuse and nonaccidental death.

The pathologist testified that all of the child’s injuries resulted from impact and that shaking was a potential mechanism for the injuries. She also testified that she might describe the cause of death as “Shaken-Impact Syndrome.”

After Brown was convicted, he moved for a new trial based on ineffective assistance of counsel. The court denied the motion without bothering to hold a hearing. Brown appealed and the Court of Appeals ordered the trial judge to hold a hearing. Predictably, the court held the hearing and again denied the motion. Brown then asked the Court of Appeals for relief, based in part on the trial court’s failure to approve funds for an expert witness.

Michigan Law Regarding Expert Witness Funding

Prior to 2018, Michigan courts viewed requests for expert witness funding through the lens of a statute that authorizes courts to issue subpoenas for indigent defendants in the same way that subpoenas are issued for prosecutors. In other words, service fees and witness attendance fees are paid by the state.

While the legislature clearly did not have expert witnesses in mind when it enacted the statute, courts relied on a strained reading of the statute to authorize payment of expert witness fees if the defendant could demonstrate that expert testimony would probably be helpful. Of course, it is often impossible to predict whether an expert’s testimony will be helpful until an expert has been hired, has analyzed the facts, and has arrived at an opinion.

The Michigan statute provided no authority for public funding of experts to assist defendants in trial preparation. Even if an expert’s testimony might not be helpful, an expert can provide invaluable assistance in helping defense counsel understand the prosecution’s expert evidence. Experts can explain weaknesses in methodologies that help lawyers develop effective strategies for cross-examining expert witnesses.

A 2018 decision of the Michigan Supreme Court overruled cases that relied on the statute and instead required trial courts to analyze requests for expert witness funding as an aspect of the constitutional right to a fair trial. According to the court, an indigent defendant “must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”

That standard does not address the equal protection problem, because wealthy defendants can hire experts based on the possibility that they might find something to assist the defense, while indigent defendants must establish a “reasonable probability” that they will do so. The court’s suggestion that the standard might allow unfair trials, provided that they are not “fundamentally” unfair, is consistent with longstanding judicial tolerance of a system that is less fair to poor defendants than it is to wealthy defendants.

The United States Supreme Court has never held that every defendant has a right to receive the best possible defense. The Court has often suggested that defendants have no right to “a perfect trial,” a sarcastic axiom that lower courts have seized upon to excuse serious denials of constitutional rights. Rather, the Court has held that indigent defendants are only entitled to a fair trial. At the same time, the Court has recognized that the right to a fair trial should not be burdened by an indigent defendant’s lack of resources to hire necessary experts.

A Better Rule

The standard Michigan adopted in 2018 tracks the prevailing federal standard. Courts continue to struggle to decide whether an expert would probably be “of assistance” to the defense and whether the absence of expert assistance could deprive the defendant of a “fundamentally” fair trial.

A simpler rule that is more consistent with a commonsense understanding of due process would permit the defense to hire an expert whenever the prosecution intends to use an expert. Lawyers, after all, are experts only in the law. If the prosecution needs an expert to present its case, defense lawyers have an equal need for experts to help them prepare to meet the prosecution’s expert testimony.

When the prosecution does not plan to call an expert, the defense should be entitled to public funding of an expert when the expert’s scientific analysis of evidence would help the lawyer understand that evidence. Courts should also fund expert testimony whenever expert testimony would be admissible. For example, courts in recent years have recognized the importance of expert testimony to expose the unreliability of eyewitness testimony and to explain how suggestive questioning causes children to fabricate allegations of sexual assault. Approval of expert witness funding in cases involving eyewitness or child testimony should be virtually automatic.

Appellate Court’s Ruling

The Michigan rule is imperfect, if only because it contributes to imperfect trials by authorizing the denial of public funding for expert witnesses who could improve a defendant’s opportunity to receive a fair trial. Still, the Court of Appeals recognized that the trial courts must apply the rule in a meaningful way.

The Court of Appeals excused the trial court’s initial denial of funding because defense counsel advised the court only that he need an expert to help him evaluate the pathologist’s opinion that “unexplained injuries” and the nature of the victim’s head trauma were indicative of child abuse. The court upheld the trial court’s denial of funding because defense counsel failed to make a “detailed” showing that the proposed expert would probably have been helpful to the defense.

The defense lawyer’s explanation that he needed an expert’s help to understand the technical medical opinions upon which the pathologist’s opinion was based should have been enough, in a fair world, to persuade the trial court to fund the expert. How much detail is required for a lawyer to explain “I’m not a doctor and I don’t understand the medical evidence”?

Having let the court off the hook, the Court of Appeals then asked whether the defense lawyer failed to provide effective assistance of counsel because he did not explain the need for an expert in more detail. Appellate judges are often more comfortable blaming lawyers than other judges when defendants are denied a fair trial. In the end, no matter how blame is apportioned, the question is whether the denial of funding for an expert witness renders a trial unfair.

The Court of Appeals decided that defense counsel should have consulted with an expert to obtain evidence that expert testimony would have assisted the defense. The court concluded that counsel was ineffective for failing to do so. Yet counsel testified that he needed funds to hire an expert to consult with him and that the trial court refused to provide that funding. The appellate court put the cart before the horse by blaming counsel for failing to hire an expert to persuade the trial court to allocate the funds he would need to hire the expert.

New Trial Ordered

Justice was nevertheless done, albeit belatedly. The court noted that the “prosecution presented eight medical experts most of whom presented testimony that was heavily laden with medical terminology and complex medical processes.” Counsel’s cross-examination revealed that he did not understand their testimony.

The court then cited testimony from a 2018 hearing at which Brown presented expert evidence (presumably funded by the Michigan Innocence Clinic at the University of Michigan, which handled the most recent postconviction proceedings). Dr. Mark Shuman averred that Brown’s child had likely been injured a week before he died and that his injury on the date of death caused the earlier injury to re-bleed. Dr. Shuman also averred that it was impossible to know whether the combined injuries were intentional or accidental.

Brown also relied on the expertise of Dr. Joseph Scheller. Dr. Scheller testified that Brown’s son had a chronic subdural hematoma that spontaneously re-bled, causing his death.

The Court of Appeals concluded that the two doctors could have helped Brown’s counsel prepare for trial. Their testimony would also have given the jury another way to view the evidence, a way that was consistent with Brown’s innocence. Although the court deemed counsel to be ineffective for failing to present that evidence in his original request for funding, the court did not explain how Brown could have been expected to obtain that information from two notable experts without paying them for their time.

The Court of Appeals also refused to accept the prosecution’s assertion that a “consensus” of opinion demonstrates “that there is no controversy concerning the medical validity of the existence of shaken baby syndrome or abusive head trauma.” The court concluded that the “consensus statement” is “informative” but “not dispositive.” Only in a footnote did the court call attention to evidence that the “consensus statement” is a sham designed to keep falsely convicted defendants from relying on expert testimony that debunks conventional wisdom about shaken baby syndrome — a syndrome that careful researchers now regard as nonexistent.