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.


Pediatrician Cannot Testify that Child Was a Sexual Abuse Victim Based on Child’s Statement

Prosecutors increasingly turn to expert witnesses in their effort to prove that an accuser is telling the truth. Yet experts are not lie detectors. Psychologists and people who purport to be skilled at reading microexpressions might or might not be better than ordinary jurors at determining whether someone is lying, but even polygraph evidence is inadmissible in court. It is the function of the jury, not a witness, to decide whether an accuser is telling the truth.

The Michigan Supreme Court recently decided two consolidated cases that address experts who essentially vouch for the credibility of children who testify that they were sexually assaulted. This post addresses a doctor who diagnosed a child as a probable victim of sexual abuse based solely on the child’s statements to the doctor. A separate ExpertPages post addresses a social worker who testified about his unsupported opinion that children “overwhelmingly” do not lie about being sexually abused.

Facts of the Case

A girl identified as TH was raised in a dysfunctional home by a drug-addicted mother before being placed in foster care. While she was living with her mother, TH’s uncle, Brandon Harbison, occasionally babysat for TH. Harbison was 18 and TH was 9.

While watching a movie with her foster mother, TH claimed that Harbison had done something “really bad” to her. TH was interviewed by a social worker and a pediatrician, among others. After she alleged that Harbison touched her in a sexual way, Harbison was arrested and charged with a number of sex offenses.

TH testified that she was sexually abused at least 30 times, at least once while her older brother was in the room. She testified that Harbison made her watch pornography, attempted vaginal and anal penetration, and placed his penis in her mouth.

No witness corroborated TH’s testimony. During part of the time that TH claimed Harbison was sexually abusing her, Harbison was in jail because of a probation violation.

TH’s grandmother testified that TH was never alone with Harbison when he babysat TH at the grandmother’s house. Harbison’s girlfriend testified that she was always with Harbison when he babysat at TH’s residence and that Harbison was never alone with TH.

After Harbison was convicted, new counsel persuaded the trial court that Harbison’s trial lawyer was ineffective because he failed to present the testimony of TH’s brother, who would have denied that Harbison had sexual contact with TH in his presence. Remarkably, the Michigan Court of Appeals reversed the trial court’s decision to grant Harbison a new trial.

The appellate court thought that TH’s brother had “credibility problems” and that the jury might not have believed him. Of course, if the jury believed TH’s brother, it might have decided that TH’s obvious credibility problems created a reasonable doubt about Harbison’s guilt. Since the jury never heard the brother testify, it is impossible to know whether the testimony would have changed the trial’s outcome.

Expert Testimony

The prosecution called Dr. N. Debra Simms as an expert witness. Dr. Simms is a pediatrician who testified as an expert in the field of “child sexual abuse diagnostics.”

Dr. Simms conducted a head-to-toe physical examination of TH. She found no physical evidence that TH had been sexually abused. TH’s hymen was intact and her genitalia showed no trauma that could be attributed to sexual abuse.

Dr. Simms nevertheless testified that she diagnosed TH as a probable victim of pediatric sexual abuse. She based the diagnosis on information she received from TH and from the foster mother.

Dr. Simms also testified that she based her diagnosis on a “practice standard” developed by “individuals that do pediatric sexual abuse evaluation nationwide.” In her view, the standard calls for a diagnosis of probable pediatric sexual abuse if the alleged victim tells a consistent story of sexual abuse to the pediatrician, even if the pediatrician’s physician examination reveals no evidence that would corroborate the story.

Michigan Supreme Court Decision

The Michigan Court of Appeals concluded that Dr. Simms was entitled to take TH at her word and that her expert testimony was therefore admissible. To the extent that it was error to admit her testimony, the appellate court concluded that the error was not prejudicial because TH testified and the jury was able to evaluate her credibility independently of Dr. Simms’ testimony.

Unsurprisingly, the state supreme court found that the court of appeals had ignored Michigan precedent. Michigan has long recognized that a pediatrician’s expertise does not extend to knowing whether a patient is being truthful.

A pediatrician can make findings based on a physical examination and can base a diagnosis on those findings. The patient’s statement might help a pediatrician arrive at a diagnosis — if there are alternate explanations for a physical finding, the patient’s explanation might guide the diagnosis — but in the absence of physical evidence, a physician’s diagnosis that a patient was sexually abused rests on nothing more than the pediatrician’s unsupported belief that the patient is telling the truth.

Notwithstanding that precedent, the Michigan Supreme Court cited six instances in which the Michigan Court of Appeals concluded that an examining physician’s diagnosis of “probable pediatric sexual abuse” was erroneously admitted. Some of Michigan’s trial judges apparently didn’t the message that the supreme court long ago sent, leading to multiple convictions based in part on inadmissible testimony.

The Michigan Supreme Court concluded that Dr. Simms’ testimony was prejudicial. The jury could only have viewed Dr. Simms as vouching for TH’s credibility. The trial was a credibility contest and TH’s credibility was suspect. The prosecution called Dr. Simms as a witness in the likely belief that the jury would regard her testimony as bolstering TH’s credibility. Dr. Simms’ testimony was prejudicial because it invaded the jury’s role in assessing the credibility of accusers.

The court also faulted Dr. Simms for claiming that her diagnosis was based on a “national standard” when the authors of the article she cited made clear that pediatricians should not rely on the article to make a diagnosis of “probable pediatric sexual abuse” at trial. The standard relates to a pediatrician’s duty to report suspected abuse, not to a pediatrician’s trial testimony. The authors forthrightly acknowledged that in the absence of physical evidence, pediatricians have no way of knowing whether a child is telling the truth, and that convictions may be unreliable if they are based on a medical opinion that is not supported by medical evidence.

Lessons Learned

No reasonable person thinks that a person who sexually abuses a child should avoid a conviction. But our time-honored system of justice attempts to assure that only the guilty are convicted and punished. To achieve that goal, the Constitution demands that individuals accused of crime — all crimes, no matter how much sympathy we might feel for the alleged victim — receive a fair trial.

Courts have long understood that only a jury can determine whether an accuser is telling the truth. Juries cannot be assisted in that chore by witnesses who testify that they believe the alleged victim. Vouching for the alleged victim’s credibility is particularly likely to result in an unfair trial when a witness with a respected position, and particularly a witness who is identified as an expert, testifies or implies that the alleged victim is telling the truth.

Yet vouching by social workers, psychologists, pediatricians, and other expert witnesses has become commonplace in child abuse trials. Defense attorneys must be prepared to object and to cite decisions like Harbison when a prosecutor asks an expert to state an opinion that implies the expert’s belief that the accuser is telling the truth.

At the same time, experts must understand that they do not take the witness stand as advocates for children but as impartial reporters of opinions that they base on sound methodologies. An advocate’s opinion that a child’s accusation should always be believed is not the kind of methodology that can reasonably inform an ethical expert’s opinion.

Court room trial

Should the Daubert Rule Be Revised?

Expert witnesses play a vital role in court. In civil cases. Plaintiffs and defendants both rely upon expert witnesses to persuade jurors that a defendant was or was not liable for alleged wrongdoing. Experts also play a key role in helping jurors assess the damages that should be paid to a plaintiff when a defendant is liable for harm that the plaintiff suffered.

In criminal cases, defendants rely on experts to counter the testimony of crime lab employees. Defense experts also explain the psychology that underlies misidentifications, false confessions, and unreliable accusations.

In routine cases, the admissibility of expert testimony is uncontroversial. When drivers disagree about which car crossed the centerline to cause a head-on collision, there is little doubt that the court will allow both sides to call qualified accident reconstruction engineers to explain where on the road the accident probably occurred. The fact that experts have an honest disagreement has no bearing on the admissibility of their testimony, because resolving conflicts in the evidence is why we have juries.

In some cases, however, advocates for the insurance industry and corporate defendants have tried to portray expert witnesses as shills and hired guns — but only when they are hired by plaintiffs. Particularly in cases involving toxic torts, dangerous medical devices, and medical malpractice, advocates for defendants have long argued that experts who testify for plaintiffs should be kept out of the courtroom.

Complaints about “junk science” are sometimes legitimate, particularly when directed at the unfounded testimony that prosecutors have too often relied upon in criminal cases. Unfortunately, the term is primarily used by corporate and insurance company lawyers to disparage any expert testimony that helps suffering plaintiffs prove that their injuries were caused by corporate malfeasance.

Life Before Daubert

Until 1993, federal courts generally followed the Frye standard to determine whether expert evidence should be admitted at trial. The Frye standard allowed expert testimony to be admitted if it was relevant, if the expert was qualified, and if the expert’s conclusions were based on scientific principles and techniques that are generally accepted within the relevant scientific community.

Plaintiffs’ lawyers criticized the Frye standard because it prevented plaintiffs from relying on opinions based on scientific advances, no matter how sound those opinions might be, until the advances had come to be generally accepted by other scientists. Defendant’s lawyers, on the other hand, contended that generally accepted scientific principles and techniques can be manipulated to produce unsound results.

Dissecting Daubert

The Daubert decision addressed a claim that birth defects were caused by the anti-nausea drug Bendectin. The drug’s manufacturer, Merrill-Dow, relied on an expert witness who cited multiple studies purporting to show that Bendectin could be taken safely by pregnant mothers. The plaintiff relied on eight scientists who had conducted animal studies that found a link between Bendectin and birth defects.

The plaintiffs’ experts explained why the epidemiological analyses cited by the drug company’s expert were flawed. The trial court excluded the plaintiffs’ experts because their analysis of those epidemiological studies had not been peer reviewed and was therefore not generally accepted by the scientific community. The court also concluded that using animal studies to prove a link between a drug and a health condition in humans was not a generally accepted methodology.

The Supreme Court concluded that the Frye standard was too limiting because it prevents new or novel advances in science from being used as evidence until those advances are generally accepted. Parties should not be deprived of sound expert testimony simply because the field in general has not caught up with the advances made by expert witnesses.

On the other hand, the Supreme Court did not want to open the door to unsound testimony. It therefore devised a test that broadly admits expert evidence, whether or not it is generally accepted, provided that the expert opinion is based on the application of a reliable methodology to sufficient facts. The general acceptance of a methodology is relevant to that analysis, but it is not always decisive. A court might find, for example, that a testable theory with a known and acceptable error rate is reliable even if the scientific community in general has not yet embraced the theory.

In dissent, Chief Justice Rehnquist predicted that the new standard was unworkable because it would be applied by different judges in different ways. That criticism was prescient. Although the decision both broadens and narrows the range of expert testimony that should be deemed admissible, some judges view their “gatekeeping” job as shielding juries from any expert evidence unless the expert’s conclusions are indisputable, while other judges think it is the jury’s job to evaluate expert testimony if the jury could reasonably consider the testimony to be based on a reliable foundation.

Should the Daubert Rule Be Revised?

The essence of Daubert was eventually incorporated into Rule 702 of the Federal Rules of Evidence. Advocates for insurance companies and corporate defendants have urged states to adopt their own version of Daubert. They do so in the belief that empowering judges to limit expert testimony benefits corporate and medical defendants that are sued by injury victims and consumers.

Yet some critics contend that Rule 702 should again be amended because too many judges are allowing juries to do their jobs. The critics lament that the “unclear” standard created by Daubert is too often interpreted in ways that allow disputes about the reliability of expert testimony to be resolved by juries. They want courts to shield corporations from testimony that juries might find more reliable than a business-friendly judge.

For example, the general counsel for pharmaceutical giant Eli Lilly complains that “courts have written that the factual basis for an expert’s opinion is a matter for the jury to sort out, not the judge.” That’s hardly surprising. In the American system of justice, juries resolve factual disputes while judges determine the law. If there are competing views of the facts that underlie an expert’s opinion, the jury should decide which view of the facts is worthy of belief.

Eli Lilly’s lawyer also complains that some “courts have deliberately decided—as a matter of policy preference, not interpretation of the rule—to be more permissive with expert testimony than other circuits.” It would be more accurate to charge that some courts, as a matter of policy preference, have decided to be more restrictive than the Daubert decision permits.

As Georgetown Law Professor Lisa Heinzerling argues, Daubert was expressly intended to “open the courts to a wider range of admissible scientific evidence.” Judges who feel it is their duty to shield corporations from liability have used the decision as an excuse to prevent juries from deciding whether expert testimony is credible.

And as the late Professor Margaret Berger observed, widespread misunderstanding of the Daubert decision has resulted in “trial judges encroaching on the province of the jury to decide highly contested factual issues and to judge the overall credibility of expert witnesses and their scientific theories.” A cynic might think that those judges do not misunderstand Daubert so much as they misunderstand their duty to render neutral decisions, even when neutral decisions do not advance a corporate-friendly agenda.

Perhaps Rule 702 should be amended to make it clear that if any factual foundation for an expert’s opinion is reasonably supported by the evidence, whether an expert opinion is grounded in sufficient facts is for the jury to determine. Or perhaps it should be amended to reinforce the rule that an expert’s credibility is for the jury, not the judge, to determine. No other standard is true to the American belief that juries, not judges, resolve factual disputes in litigation.

court house

Social Worker Cannot Testify That False Accusations of Child Abuse Are Rare

The Michigan Supreme Court recently decided two consolidated cases in which an expert witness was deemed to have vouched for the credibility of a child who reported a sexual assault. One case, discussed here, addressed a social worker who testified that children “overwhelmingly” do not lie about being sexually abused. The other, discussed in a separate ExpertPages post, addressed a doctor who based an opinion that a child had been sexually abused solely on the child’s statements to the doctor.

Prosecutors have long hoped that experts can convince juries to believe children who make accusations of sexual abuse when no physical evidence supports the accusation. The desire to assure the conviction of criminals who sexually abuse children is laudable. Unfortunately, when prosecutors and courts attempt to make it easier to secure convictions, they also make it easier to convict innocent defendants who are accused of crimes that never occurred.

While courts are in general agreement that an expert cannot opine that an accuser is telling the truth, experts are generally allowed to testify about how the victim of a sexual assault might behave. Testimony that a child’s conduct is “consistent with” the behavior of a sexual assault victim is particularly suspect. Since experts acknowledge that victims might behave in a variety of different ways, an accuser’s behavior can always be seen as “consistent with” the behavior of a victim. The risk is that an expert’s testimony about “consistent” behavior — whatever that behavior might be — will persuade the jury that the accuser behaved in a particular way because the accuser was sexually assaulted.

Judges who care about fair trials forbid that testimony because there is no way for an expert to know whether particular behavior was or wasn’t caused by a sexual assault. Courts might, however, reasonably permit testimony to explain why children might engage in specific kinds of behavior (such as delaying reporting of an assault) that might be regarded as evidence of innocence.

“Vouching” Testimony

Expert testimony becomes troubling when it sends the message that the expert believes the child is telling the truth. Testimony that a child’s conduct is consistent with the behavior of a sexual assault victim, when it is equally consistent with the behavior of a child who wasn’t sexually assaulted, is an example of indirect vouching for the child’s credibility.

“Vouching” is also problematic when experts opine that children do not generally lie about being sexually assaulted. Experts acknowledge that it is a child’s nature to tell false stories (“I visited the moon”) and that young children have difficulty distinguishing fantasy from reality, but experts who act as advocates rather than objective witnesses testify that children are never untruthful about “really important things.”

Unfortunately, courts have been all too willing to admit that testimony, notwithstanding the absence of a scientific foundation to support the expert’s belief. While some experts have attempted to persuade juries that children who report abuse should always be believed, the fact that children sometimes make false allegations of sexual abuse is undeniable.

Not all false allegations are deliberate lies. Children can easily misinterpret actions and their memories can be shaped by suggestive questioning. Experts who are not agenda-driven also acknowledge that “there are no reliable tools or methods for detecting whether a child has made a false allegation.”

Facts of Thorpe Case

Joshua Thorpe was in a relationship with Chelsie for four years. Before they started dating, Chelsie had a daughter who is identified in the Michigan court decision as BG. Thorpe also fathered a daughter with Chelsie. BG referred to Thorpe as “dad.”

After the couple broke up, Thorpe continued to parent both children. A couple of years later, Chelsie began a relationship with a new boyfriend. That relationship resulted in tension after Chelsie began to deny Thorpe access to the children. After Chelsie became pregnant by her new boyfriend, she told Thorpe she did not want him to have a parenting relationship with BG.

Thorpe stopped seeing BG, a decision that might have caused BG to resent Thorpe, particularly since her mother clearly favored her new boyfriend and wanted BG to have nothing to do with Thorpe. Some months after she last saw Thorpe, BG told a friend about a single instance of inappropriate touching by Thorpe. When authorities questioned BG, the number of allegedly inappropriate touches multiplied.

The entire case against Thorpe was based on BG’s evolving statements. No forensic evidence pointed to Thorpe’s guilt. No witness saw Thorpe behaving inappropriately with BG. Thorpe denied sexually abusing BG. As the Michigan Supreme Court recognized, the trial was a classic “credibility contest” between BG and Thorpe.

Expert Testimony

Thomas Cottrell testified as an expert witness for the prosecution. Cottrell has a master’s in social work and provides counseling services for the YWCA. He gave uncontroversial testimony about why children might delay reporting a sexual assault, why different children might react to sexual assaults in different ways, and the decision-making process in which a child might engage before deciding to disclose a sexual assault.

On cross-examination, Cottrell made the unremarkable admission that children can lie. On redirect, Cottrell was asked if he could estimate the percentage of children who, in his experience, lie about being sexually assaulted. The defense objected that any such opinion had no foundation. The judge ruled that the defense opened the door to that testimony, a response that failed to address the legal merit of the objection.

Cottrell admitted that literature on fabricated allegations of sexual assault is “extremely variable,” then testified that in his experience at the YWCA, about two to four percent of children lie about being sexually abused. He testified that in those cases, the children had a clear motivation to lie, such as a desire for the same attention that an abused sibling was receiving.

Cottrell did not explain how he was able to determine that percentage or, for that matter, how he can distinguish between children who made false allegations, children who misunderstood what was happening, and children who reported the facts accurately. On re-cross, he admitted that “we don’t know what we don’t know.”

Appellate Decision in Thorpe

The appellate court noted that “Opening the door is one thing. But what comes through the door is another.” Cross-examining a witness about whether children sometimes make false accusations does not open the door to inadmissible opinions about witness veracity.

The Michigan Supreme Court applied the well-established rule that no witness, including an expert, can vouch for the veracity of an alleged crime victim. That is what Cottrell did when he suggested that false reporting of sexual assaults is “rare,” that it only occurs in 2% to 4% of all cases, and that the reasons he has seen for making a false report were not present in the Thorpe case.

The court wisely recognized that “although he did not say it,” Cottrell effectively testified that there was almost no chance that BG was not telling the truth about being sexually abused. A jury would likely have viewed his testimony as vouching for BG’s credibility.

Although Michigan is a Daubert state, the court rejected the testimony as violating the vouching rule without analyzing whether it satisfied Daubert. A Daubert analysis would have achieved the same result. Cottrell applied no reasonable methodology to arrive at his opinion that fabrications of sexual assault are rare. He acknowledged that study results of fabricated accusations are “widely variable” and he identified no criteria that allowed him to determine with any certainty whether the accusations he accepted as true were actually true. Since his expert opinion was not informed by a reliable methodology, it should not have been admitted against Thorpe.

semi truck

Eighth Circuit Reverses District Judge Who Allowed Expert to Amend a Report

Philip Petrone and other named plaintiffs brought a class action lawsuit against Werner Enterprises and Drivers Management. The class consisted of student truck drivers who alleged violations of state and federal wage laws. Specifically, the student drivers argued that they were entitled to unpaid wages for time that they spent on short rest breaks and while resting in a truck’s sleeper berth.

After a trial, the jury disagreed that the student drivers were entitled to compensation for time spent in the sleeper berth but agreed that they were denied compensation for brief rest breaks. The Fair Labor Standards Act generally requires employers to count a short rest period as part of the hours worked by an employee.

The jury awarded the student drivers almost $800,000 in damages. Werner and Drivers Management appealed. The dispositive issue on appeal was whether the district court erred by extending the deadline to disclose expert reports in the absence of a showing of good cause.

Expert Report Disclosure

The Federal Rules of Civil Procedure require the disclosure of expert reports in most cases. Rule 16 requires the district court to set a scheduling order which may (and usually does) alter the deadline for disclosing expert reports that appears in Rule 26.

The student drivers disclosed an expert report within the deadline set by the scheduling order. The defendants took the expert’s deposition. The district court characterized the deposition as revealing “considerable flaws in the methodology” for computing the unpaid compensation owed to class members.

The student drivers moved to modify the scheduling order so that a supplemental report could be filed. The supplemental report was intended to correct the errors that appeared in the original report.

The district court noted that Rule 26(e) requires experts to “supplement or correct” a report if the party employing the expert “learns that in some material respect the disclosure or response is incomplete or incorrect.” That duty extends to the report itself and to “information given during the expert’s deposition.”

Motion to Extend Disclosure Deadline Denied

The district court concluded that the request to supplement the report was not based on new information that the expert learned after preparing the report. Rather, the request was intended to correct flaws in the expert’s methodology that were exposed during his deposition. In the district court’s opinion, those flaws should have been known to the expert before the report was submitted.

While the rule allows an expert to amend a report if the expert “learns” that the report is incorrect, some courts have concluded that the expert can only amend the report if what the expert “learns” is based on information that was unavailable at the time the report was written. The rule doesn’t say that, but the district court relied on that questionable precedent to conclude that the expert could not “learn” about flaws in his methodology that were pointed out to him when his deposition was taken.

The court concluded that the supplemental report was untimely because the changes could and should have been made before the submission deadline. The request to supplement was made about two months after the disclosure deadline passed and about a month before the deadline for filing Daubert challenges. The court found no good cause to extend the disclosure deadline.

Court Allows Supplemental Report at Trial

When disclosure of a supplemental report is untimely, Rule 37(c) provides that information in the supplemental information cannot be used at trial “unless the failure was substantially justified or is harmless.” The court decided that a supplemental report would have “imposed on” the defendants by requiring them to analyze the report a second time and possibly to depose the expert again. Using information in the supplemental report would therefore not have been harmless.

The court nevertheless weighed the harm caused by excluding the supplemental report against the demand in Rule 1 that the rules be construed and administered “to secure the just, speedy, and inexpensive determination of every action and proceeding.” It would have been unjust, the court thought, to prevent the student drivers from presenting valid expert evidence in support of a meritorious claim simply because of mistakes their expert made in the original report. The rule express a preference for cases to be resolved on their merits, not on the technical application of procedural rules.

The court therefore extended the time for filing the supplemental report. It remedied the prejudice caused by that order by allowing the defendants to take a second deposition of the expert and by awarding the defendants the expenses they incurred as a result of the untimely disclosure.

Appellate Opinion

From the standpoint of placing justice ahead of procedural technicalities, the district court’s opinion is sensible. Denying a class of workers their earned wages simply because an expert made mistakes that he later corrected is a harsh result.

The court of appeals, on the other hand, saw the case differently. While appellate courts generally uphold discretionary decisions made by trial courts, discretion must be guided by a correct application of the law. The court of appeals faulted the district court for failing to apply the correct legal standard.

A scheduling order, once entered, can only be changed for cause. In reality, parties will often agree to extend deadlines and courts will often honor that agreement without inquiring deeply into whether there is good cause for changing the order.

In this case, there was no agreement to modify the order. A party who moves to extend a deadline must show that the party cannot meet the deadline despite diligent action. As the district court found, no effort was made to change the deadline to submit the expert’s report until after its flaws were exposed during a deposition. The court of appeals agreed with the district court that those circumstances did not support a finding of good cause to extend the disclosure deadline.

The court of appeals also noted that the disclosure deadline was relevant because the supplemental expert report materially changed the contents of the report. A revised report, the court concluded, is not a supplemental report, even if the report is revised to correct mistakes in the original report. Since the changes to the report were based on information that could have been obtained prior to the disclosure deadline, the report needed to be disclosed before the deadline expired.

The ultimate question was whether the district court could rely on Rules 1 and 37 to allow the late disclosure of the revised report. The court of appeals held that neither rule trumps the requirement in Rule 16 that expert reports must be disclosed within a time set by the court.

Rule 16 only permits the extension of that time for good cause. The court deemed that standard to serve the purposes of Rule 1 by assuring that cases proceed on schedule. Justice apparently takes a back seat to the prompt resolution of cases.

Rule 37 covers sanctions for disobedience of discovery orders but (the court held) does not apply to a motion to extend a disclosure deadline. The court’s logic in that regard is not self-evident. Had a supplemental report been belatedly disclosed without moving to extend the disclosure deadline, Rule 37 would plainly have applied. The court then might have allowed the late disclosure subject to the sanctions it imposed. It is difficult to know why a party that makes a late disclosure should be treated more favorably than a party that asks to make a late disclosure.

Nearly all Rule 37 violations deal with a party’s failure to make timely discovery responses that satisfy the rules. Why the untimely disclosure of an expert report should be treated differently than any other untimely document disclosure is unclear.

In any event, the court of appeals held that the court applied the wrong legal standard and was powerless to allow the student drivers to use a supplemental expert report that was not timely disclosed. The unfortunate result is that drivers, who were (in the jury’s view) cheated out of wages, will be unable to recover their losses.

Lessons Learned

The appellate court’s decision reflects a rigid belief, common in federal court, that justice equates to strict adherence to procedural rules, as opposed to assuring that injured parties receive just compensation for their losses. That belief is manifested in holdings that give experts one and only one chance to produce a report that will satisfy Daubert. Attempts to amend the report after the disclosure deadline are typically rejected, even if meritorious amendments would help an injured party achieve justice.

The lesson for lawyers is that expert reports should be scrutinized well in advance of the disclosure deadline. If the report’s methodology or factual basis is likely to be challenged, the party’s lawyer should ask the expert to address those challenges before the report is finalized and disclosed. Expert witnesses in federal court rarely get a second chance to prepare a satisfactory report.

a doctor and a child

Media Investigation Describes How Careless Expert Analysis Leads to Unfounded Child Abuse Allegations

As ExpertPages has reported, courts in Michigan, New York, Ohio, and other states have recognized that unsound expert testimony has placed innocent defendants at risk of conviction for shaking babies. In response to growing awareness that innocent people have been imprisoned because experts assured juries that evidence of abuse was undeniable, the American Academy of Pediatrics revised its ethical guidelines for pediatricians who give expert testimony.

According to the Houston Chronicle, child abuse pediatricians, “now stationed at virtually every major children’s hospital in the country, work closely with child welfare agencies and law enforcement, providing expert reports and court testimony in thousands of cases a year.” When they acknowledge that they are basing their opinions on an interpretation of the evidence, not on personal knowledge that abuse occurred, expert pediatricians clearly play an important role in the criminal justice system.

Unfortunately, child abuse pediatricians who testify unethically that their opinions leave no room for doubt do not limit their improper certitude to shaken baby cases. A Houston Chronicle and NBC News investigation has focused attention on the continuing problem of prosecution experts who fail to acknowledge that the medical evidence supporting a variety of child abuse accusations is uncertain.

Accidental Burns

The investigation found that “some child abuse pediatricians have at times overstated their ability to determine when a child has been intentionally harmed.” By way of example, the media organizations examined a Texas case in which a child abuse pediatrician conducted a burn pattern analysis using a flawed methodology. The doctor’s claim that a child was intentionally scalded in a bathtub filled with hot water was based on speculation, not on science.

Accidental burns from hot water are common. Housing complexes and apartment buildings often set high water temperatures so that people on upper floors will have hot water. That makes it easy for people who live on lower floors to suffer accidental burns from dangerously hot water.

Some child abuse pediatricians contend that 10% of all child abuse cases involve intentionally inflicted burns. That statistic, unsupported by any peer-reviewed study, is based on the assumption that children who are burned accidentally will remove limbs from a tub before their burns become severe.

Some experts therefore consider a clear line between burned and unburned skin as a “classic forced immersion burn pattern” that proves child abuse. Yet no scientific study supports that opinion.

Other experts recognize that some children experience pain more slowly than others and thus do not leave a hot tub before they are burned. Some pediatric burn victims, for physiological or environmental reasons (such as a closed shower door), are physically unable to remove a limb from hot water before being burned. The simplistic claim that a “classic forced immersion burn pattern” proves that a parent abused a child is the kind of junk science that leads to wrongful convictions.

The Houston Chronicle describes one expert’s testimony that a child will experience “splash burns” — burns caused by hopping from foot to foot in hot water — unless the child is being held in the water. The doctor was unaware of a research paper that debunked the likelihood of splash burns when water temperature is less than 130°. Nor did the doctor acquaint himself with the actual water temperature produced by the defendant’s water heater, which the police determined was 129°.

Crossing the Line from Objectivity to Advocacy

As Dr. Shaku Teas, a forensic pathologist in Chicago, told the Houston Chronicle, some child abuse pediatricians begin with an assumption that injuries were caused by child abuse and then interpret the evidence to prove that assumption. The experts do not interview the parents or look for other evidence that may cast doubt on their opinions. As Dr. Teas says, starting with a conclusion and then working to prove the conclusion is “a recipe for bad forensic analysis.”

Expert witnesses are not advocates. The criminal justice system assures that children have multiple advocates, including police officers, social workers, prosecutors, and victim-witness specialists. An expert’s only advocacy should be for the truth.

The doctor who testified about splash burns was cross-examined about research demonstrating that the water temperature in the defendant’s home would not cause splash burns. The evidence also showed that there were burns on the bottoms of the child’s feet, an unlikely scenario if the child was held with his feet against the bottom of the tub. Rather than graciously conceding the possibility that the evidence was open to interpretation, the doctor doubled down, testifying that the new information did not change his opinion.

The doctor compounded his unfortunate testimony by insisting that he was absolutely certain that the burns could not have been accidental. The doctor wasn’t present when the child was burned. At best, the doctor was drawing inferences from burn patterns. No ethical expert should testify with absolute certainty that a conclusion must be correct, particularly when evidence exists that is inconsistent with that conclusion.

Experts who insist that their opinions cannot be questioned further the misperception that an expert is nothing but a hired gun. Experts are, in fact, a vital part of the truth-seeking process, but only when they maintain their objectivity. Experts who cross the line from objectivity to advocacy make it more difficult for honest experts to gain a jury’s respect.

Bad Science Ruins Lives

Nobody doubts the importance of protecting vulnerable children from harm. However, as parents become increasingly aware that child abuse pediatricians sometimes opine that accidental injuries resulted from abuse, parents may have an incentive to withhold medical treatment from their children rather than risking an unfounded arrest.

Responsible parents, of course, will take that risk to assure that their children receive the treatment they need. When those parents are arrested because ambiguous evidence suggests that they abused their children, the results can be devastating.

When experts assert that a child was the victim of abuse, their opinions can be responsible for “traumatic family separations and questionable criminal charges.” In their zeal to carry out that mission of child protection, too many physicians have erred on the side of concluding that child abuse occurred when the evidence is equivocal.

As researchers from Harvard Medical School wrote, basing a guilty verdict on “inadequate analysis” is “anathema to our system of justice, and the impact on the child and the family can prove devastating and lasting.”

The Harvard research underscores the need for criminal defense lawyers to acquaint themselves with state-of-the art science when confronted with a child abuse accusation and to retain experts who are capable of explaining to a jury why the facts lend themselves to interpretations that are consistent with innocence. The right to an acquittal when reasonable doubt exists can only be protected by meeting expert testimony with competing expert testimony that exposes flaws in the prosecution expert’s methodology, assumptions, or reasoning.

gun and bullets

Vermont Prosecutors Seek to Exclude Defense Expert Because He Testifies for the Defense

Peggy Lee Shores has been charged in Rutland County, Vermont with murdering her husband. The defense argues that David Shores killed himself.

Relying on an expert opinion, the defense asked the court to dismiss the charge. The prosecution responded with the uncontroversial argument that conflicts in the evidence should be decided by the jury.

The prosecution then made the startling announcement that it intended to ask the court to exclude the expert’s testimony because he is “defense-friendly.” The prosecution’s belief that juries should decide conflicts in evidence is difficult to square with its belief that juries should never hear conflicting evidence presented by experts who testify for defendants.

Murder Prosecution

The only fact upon which the parties agree is that David Shores died from a gunshot wound in December 2016. In a 911 call, Peggy Shores told a dispatcher that her husband was carrying a gun up from the basement when he tripped on the stairs, landed on his elbow, and accidentally shot himself.

The wound was located on the upper left side of David’s body, below the collarbone. The police believed that the trajectory of the bullet was “consistent with” being shot at the bottom of the stairs by someone standing at the top of the stairs.

The state charged Peggy Shores with murder two months after David’s death. The charge was based on the assumed trajectory of the bullet and on the absence of a “contact wound” or gunshot residue on David’s body. The prosecution has cited no forensic evidence that links Peggy to the shooting.

David Shores’ family members are standing behind Peggy. They told prosecutors that nothing in their 38-year marriage suggested a reason for Peggy to murder David.

In the absence of witnesses or a clear motive, the forensic evidence alone seems insufficient to prove guilt beyond a reasonable doubt. The fact that a bullet trajectory might be “consistent with” one theory does not rule out its consistency with other theories. And whether a wound is a contact wound often depends on a subjective interpretation of inconclusive evidence.

The absence of gunshot residue on David’s hands or shirt does not prove that David was not holding the gun when it fired. Half of all individuals who commit suicide with a handgun do not have gunshot residue on their hands. Blood saturation and improper handling of clothing may remove any gunshot residue that was once present on the victim’s clothing.

In short, the evidence against Peggy is entirely circumstantial and far from conclusive. The prosecution’s inability to explain why Peggy would suddenly kill her husband — with a single shot, which would seem to rule out momentary rage — is likely to create a reasonable doubt at trial.

Defense Evidence

Since the prosecution’s case turns entirely on forensic evidence, the defense wisely retained a forensic expert of its own. The defense engaged the services of Chris Robinson, a forensic consultant who worked as a firearms examiner for the Atlanta Police Department and served as the Director of the Atlanta Police Crime Lab before forming his own company.

Robinson prepared a report concluding that David Shores “died as a result of self-inflicted gunshot wound to the chest.” On the strength of that report, Peggy Shores moved for dismissal of the murder charge.

The motion will almost certainly be denied. Criminal complaints are assessed to determine whether the facts alleged, if proved, would be sufficient to establish the charged crime. Unlike civil cases, in which a party can argue that undisputed facts entitle the defendant to a dismissal of the lawsuit, facts relied upon by the defense in a criminal prosecution cannot usually serve as grounds for dismissal prior to trial.

Robinson’s testimony may nevertheless prove vital at trial if it creates a reasonable doubt about the prosecution’s forensic evidence. Remarkably, the prosecution has stated that it will ask the court to bar Robinson from testifying.

Complaints About “Defense-Friendly” Evidence

The prosecution’s apparent theory is that Robinson should not testify because he “currently makes his living working as a paid-for-hire witness for defense attorneys” who has a “bias to produce a defense-friendly report.” All experts are paid — nobody works for free, including the government-employed experts who will testify for the prosecution — and the fact that an expert earns a living by providing expert services is not a ground to disqualify the expert.

The claim that Robinson’s report is “defense-friendly” is cheeky, since the prosecution will be relying on experts who always testify for the prosecution and naturally do so in a prosecution-friendly way. No expert would ever be called as a witness if the expert’s testimony did not assist the party calling the expert.

Robinson’s twelve years of law enforcement experience may insulate him from charges that he is “defense-friendly.” In any event, the prosecution’s attack goes to Robinson’s credibility, and credibility is up to the jury, not the judge, to assess. If the prosecution actually files the threatened motion to exclude defense evidence because it is favorable to the defense, the motion will be meritless.

Choosing the Right Expert Means Asking the Right Questions

Federal Court Permits Limited Expert Testimony in Credit Reporting Lawsuit

Amber Cramer sued Bay Area Credit Service and certain other defendants for violating the Fair Credit Reporting Act (FCRA). She relied on two expert witnesses to prove the violations. The U.S. District Court for the Eastern District of Missouri decided that, subject to certain limitations, the experts should be allowed to testify.

Facts of the Case

When Cramer reviewed her credit report, she discovered she had been the victim of identity theft. Someone using her name had incurred three medical bills. The debts appeared as delinquent on her credit report. Cramer notified the credit reporting bureaus that she disputed the debts and added a fraud alert to her credit report.

Cramer alleged that Bay Area continued to contact her on her cell phone in an effort to collect one of the debts. She notified the debt collector that she had been the victim of identity theft, but the debt collection calls persisted. Cramer sued Bay Area for violating the Fair Debt Collection Practices Act, but the expert testimony at issue in the court’s decision pertained only to the FCRA claim.

Cramer contended that Bay area violated the FCRA by failing to investigate the dispute and to delete the debt from its reports despite being notified that the alleged debt was inaccurate. To prove that Bay Area violated the FCRA, Cramer relied on the expert testimony of Stan Smith and Evan Hendricks. Bay Area moved to exclude the testimony of both witnesses.

Evan Hendricks’ Qualifications

Cramer offered Hendricks’ testimony regarding industry standards for businesses like Bay Area regarding the investigation of disputes before reporting information to consumer reporting agencies. Hendricks also proposed to testify about the ways in which Bay Area violated those standards and the consequences (including emotional distress) that result from inaccurate credit reports.

Bay Area contended that Hendricks was not qualified to testify because he had never been employed by a credit reporting agency and had never personally investigated a credit dispute. The court noted that experts do not need to work for an industry to have specialized knowledge of the industry. In fact, attorneys often prefer to work with an independent expert whose perspective has not been shaped by working within the industry.

Hendricks wrote and published a newsletter that covered various aspects of the FCRA. Her served as a privacy expert consultant for the Social Security Administration, a position that required expertise in the best practices regarding the disclosure of private information.

Hendricks has testified before Congress repeatedly about the FCRA and has given expert testimony in many cases involving FCRA violations. There was no doubt that he was qualified to testify about credit reporting violations.

The court nevertheless agreed that determining whether FCRA violations cause emotional distress requires medical expertise that Hendricks lacked. Although the court did not so rule, it would also be fair to say that ordinary people can understand that bad credit is stressful and that no expert testimony is needed to understand that mistakes on credit report might cause emotional distress.

Nor did the court allow Hendricks to testify about financial harms caused by incorrect credit reports. Hendricks had no accounting background and was not qualified to testify that Cramer suffered a financial loss because of Bay Area’s FCRA violations.

Relevance of Evan Hendricks’ Testimony

Bay Area also moved to exclude Hendricks’ testimony on the ground that Hendricks’ opinions were merely interpretations of the evidence that should be made by the jury and that expert testimony thus invades the province of the jury.

The court concluded that Hendricks should be allowed to testify about relevant industry practices for reporting and investigating consumer credit information, including his opinion that the industry generally applies a “reasonable investigation” standard when consumer credit disputes arise. The court also permitted Hendricks to explain how Bay Area’s actions concerning Cramer either comported with or departed from those industry standards.

The court noted that Hendricks would not be allowed to offer legal opinions, including “opinions on whether Bay Area’s conduct failed to conform to a particular legal standard, as this is an ultimate issue that should be decided by the jury.” He thus could not opine that Bay Area’s actions were “unreasonable, unreliable, inadequate, negligent, willful, or in any other manner violative of the FCRA.”

The court’s ruling required Hendricks to walk an imprecise line. He could testify “broadly over the entire range of the applicable law where the opinion is focused on a specific question of fact,” including facts that relate to industry standards and whether Bay Area’s policies, procedures, and actions complied with those standards. He could not, however, connect the dots by expressing the conclusion that Bay Area violated the FCRA.

Stan Smith’s Testimony

Cramer wanted to call Stan Smith as a damages expert. Smith proposed to testify about Cramer’s loss of credit expectancy, the value of the time she spent dealing with the problem that Bay Area caused, and the reduction in value of her life caused by the inaccurate credit report (also known as loss of enjoyment of life or hedonic damages).

The court disagreed that Smith was unqualified to testify about loss of credit expectancy. Smith has a Ph.D. in economics, has published articles about credit damage, and has participated in national presentations addressing the measurement of credit damages.

Bay area also faulted Smith’s methodology because Smith could not attribute a denial of credit to the false entries in Cramer’s credit report. Smith acknowledged that Cramer was not denied credit after the erroneous information appeared on her credit report.

Smith noted that there is a difference between the loss of credit and the loss of credit expectancy. He relied on Cramer’s testimony that she decided not to seek a mortgage because she feared that her application would be denied because of the untrue information on her credit report. Smith also attributed Cramer’s inability to find a better car insurance rate to her poor credit report.

The court noted that the facts surrounding Smith’s testimony regarding credit expectancy damages were technical. The court apparently found no fault with Smith’s methodology. The court decided that whether the facts supported Smith’s opinions was a question that should be resolved on summary judgment or at trial. The court therefore permitted Smith to give expert testimony about the loss of credit expectancy.

The court rejected the argument that Cramer could not recover the value of her lost time in dealing with erroneous credit reports. Smith’s testimony in that regard was therefore relevant.

The court accepted the argument that Smith could not testify about hedonic damages. The court noted precedent that allows victims of FCRA violations to recover compensation for actual damages, including both economic and non-economic losses. Courts have ruled that humiliation and emotional distress can be awarded even when the victim of an erroneous credit report had no out-of-pocket expenses.

Hedonic damages, however, have generally been awarded only in personal injury cases. Absent a physical injury, the court concluded that damages for the loss of enjoyment of life are unavailable in a FCRA lawsuit.

In addition, Smith based his analysis of hedonic damages on a “willingness to pay” model which considers consumer behavior, wage risk premiums, and a regulatory cost-benefit analysis in measuring the loss of enjoyment of life. The court agreed with several decisions that have deemed that model to be of no value in guiding the jury’s assessment of hedonic damages. The court therefore precluded Smith from testifying about those damages.

dollar bills

Cult Expert Not Allowed to Testify in Tax Case

Cathy Truitt filed seven tax returns in 2009, each claiming her entitlement to a $300,000 refund. The IRS recognized that six of returns were fraudulent, but inexplicably issued the refund demanded by the seventh return.

Within a week, the IRS recognized its error and demanded that Truitt return the money. By that time, Truitt had gone on a shopping spree and had no money to return. The government therefore prosecuted her for making false claims against the government and for theft of government funds.

A jury found Truitt guilty. The question on appeal was whether the trial court wrongly excluded an expert witness who would have testified that Truitt was susceptible to brainwashing by a charismatic group. The Court of Appeals for the Seventh Circuit affirmed the conviction.

Truitt’s Tax Returns

Truitt joined the Moorish Science Temple of America in 2009. The Moorish Temple claims that it is a sovereign “ecclesiastical government.” It tells its members that neither the federal nor any state government has jurisdiction over its members, who hold a status similar to diplomatic immunity.

Moorish Temple members sign documents that purport to notify the government of their new Moorish nationality. Members also receive identity cards, license plates, and other documents that purport to establish their change of nationality. Since the Moorish Temple has no legal status as a nation, however, the documents have no legal effect.

Truitt’s problem arose not because she filed falsified income tax returns, but because she filed returns that relate to trusts and estates. Moorish Temple leaders instructed her to file the returns using numbers that purported to have religious or symbolic significance. She was also told to tithe 25% of any refund she received to the Moorish Temple.

Truitt was advised that filing the returns would allow her to collect funds from a trust that had been established by the Moorish Temple’s founding prophet. She was told that she was entitled to the funds regardless of any “pushback” she received from the government.

Truitt filed the tax returns as instructed. She requested a refund of taxes that had been withheld from trust income in her name. In reality, there was no trust and thus no taxes had been withheld.

Truitt spent or gave away the refund after learning that the IRS wanted it back. Because Truitt stopped attending the Moorish Temple, she was excommunicated and never tithed the share that the Moorish Temple had requested.

Expert Testimony

Truitt’s defense was that she truly believed that money belonging to her resided in a trust. She contended that she had no intent to make false claims because she genuinely believed her claim was supported by the facts that she received from Moorish Temple.

In support of that defense, Truitt wanted to call Dr. Michael Fogel as an expert witness. Dr. Fogel is a forensic psychologist. Although he primarily testifies about a defendant’s mental competence, propensity for violence, or mental disorder, he is also an expert in “charismatic groups.”

Dr. Fogel defined a charismatic group as one whose members share a belief system, have a high level of social cohesiveness, are strongly influenced to comply with behavioral norms, and assign charismatic and/or divine power to the group or its leadership. He characterized charismatic groups as a “type of cultic group” and distinguished them from cults that rely on physical coercion.

Trial Court Ruling

Rule 704(b) of the Federal Rules of Evidence prohibits an expert from stating an opinion “about whether or not a defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” That rule was adopted in response to public outrage that John Hinkley — a man was clearly mentally ill — was acquitted of trying to assassinate President Reagan.

The rule has been justly criticized, not only because it placed public sentiment about a specific trial outcome ahead of a defendant’s right to a fair trial, but because it prevents juries from hearing expert testimony that is directly relevant to innocence. The rule puts a thumb on the scale in the government’s favor in criminal prosecutions by pretending that experts in mental health have nothing relevant to say about a defendant’s mental state or condition.

Nevertheless, the rule is the rule. The trial judge therefore agreed with the government that Dr. Fogel could not testify that Truitt believed the forms she was filing were legitimate.

The court then considered whether Dr. Fogel could testify that Truitt was susceptible to indoctrination by Moorish Temple. It concluded that Rule 702 and the Daubert decision precluded that testimony. Truitt challenged that ruling on an appeal of her conviction.

Appellate Court’s Analysis

Applying Rule 702, the court asked whether Dr. Fogel was qualified to render an opinion, whether his methodology was reasonable, and whether his testimony would have assisted the jury. The appellate court concluded that, notwithstanding his expertise in group dynamics, Dr. Fogel was unqualified to render an opinion because he had no relevant experience with charismatic groups.

The court acknowledged that generalists may have adequate knowledge and training to render specialized opinions. The court nevertheless concluded that Dr. Fogel’s experience with other kinds of group dynamics did not qualify him to “answer specific questions about the religious themes at play in this case.” The court did not explain why “religious themes” are so different from “other kinds of group dynamics” that Dr. Fogel’s general experience would not allow him to render an opinion about the influence that a group like Moorish Temple might have had on a person like Truitt.

A more formidable obstacle to Dr. Fogel’s testimony concerned his methodology. After the court rejected Dr. Fogel’s testimony as to Truitt’s belief in the legitimacy of her request for a refund, Dr. Fogel reformulated his opinions. He proposed to testify that (1) the Moorish Temple is a charismatic group, and (2) charismatic groups can cause people to lose their moral compass and to do things they otherwise would not do.

The appellate court concluded that Dr. Fogel failed to rely on an adequate methodology to determine whether Moorish Temple was a charismatic group. Dr. Fogel based his opinion that Moorish Temple is a charismatic group on the information he received from Truitt, who had a vested interest in convincing Dr. Fogel that she had been brainwashed. Whether the information that Truitt supplied was truthful, however, was a question for the jury to answer, as questions of witness credibility are exclusively within the jury’s domain.

The court nevertheless concluded that an opinion based on whether a group had a shared belief system required more data than the opinion of a single group member. Dr. Fogel attempted to talk to two other group members who apparently rebuffed his requests, but stopped his data-gathering effort at that point.

Dr. Fogel relied on the work of Dr. Marc Galanter to inform his understanding of charismatic groups. But Dr. Galanter circulates written surveys and conducts interviews with a large number of group members before he identifies a group as charismatic. The court characterized Dr. Fogel’s methodology as a “watered down” version of Dr. Galanter’s methodology.

Lessons Learned

The deficiencies in Dr. Fogel’s qualifications and methodology might have been overcome with a different expert. While the court’s conclusion that Dr. Fogel was unqualified to testify about charismatic groups was suspect, given that he had the requisite professional background to learn about and understand relevant research into cults, the question of qualifications could have been avoided by engaging an expert who had significant experience with charismatic groups.

More importantly, when an expert relies on another expert’s methodology, it is important for that methodology to be followed with care. It may have been difficult for Dr. Fogel to conduct a survey and extensive interviews given the time pressures that are inherent in criminal cases, but the risk of “watering down” a methodology is that a judge will regard the expert’s data as insufficient to support the expert’s opinions.

Finally, if the trial court concluded that Rule 704(b) permitted an expert to testify that Truitt was susceptible to influence by a religious cult, perhaps the defense should have confined Dr. Fogel’s proposed testimony to that simple issue. Truitt was certainly entitled to testify that she was influenced by the leaders of Moorish Temple. Dr. Fogel only needed to interview (and perhaps administer tests to) Truitt in order to decide that she was susceptible to influence by people she respected as religious leaders. Had Dr. Fogel’s proposed testimony been tailored more narrowly, perhaps it would have been admissible.


Eighth Circuit Finds Expert Evidence Sufficient to Support Verdict in Injury Case Involving Ladder

Jeffrey Klingenberg fell as he was stepping from a roof onto a ladder. He sued Vulcan Ladder for manufacturing, and GP International for selling, a defective ladder. He also sued for breach of warranty, alleging that a label stating the ladder had a “working load” of 300 pounds created an express warranty.

A jury rejected the product liability claim but returned a verdict in Klingenberg’s favor on the warranty claim. The jury awarded him about $2.4 million in damages.

On appeal, the defendants argued that Klingenberg’s expert was unqualified and that his methodology was unreliable. The Court of Appeals for the Eighth Circuit rejected those arguments and affirmed the judgment. 

Expert Testimony

Stephen Fournier testified as an expert for Klingenberg. Fournier is a Licensed Professional Engineer. He opined that the ladder was defective and that the defect caused Klingenberg to slip. The defense expert contended that Klingenberg slipped on snow and that the ladder was not defective.

Both experts agreed that the ladder met standards set by the American National Standards Institute (ANSI). Fournier testified that the ANSI sets minimum standards, that products can be unsafe even if they meet those standards, and that no ANSI standard covered the defect at issue.

After evidence was concluded but before the case was submitted to the jury, the defendants moved for judgment as a matter of law. They contended that Fournier’s testimony should be stricken because he was not qualified to render the opinions he expressed. They also challenged the reliability of Fournier’s methodology.

The trial court rejected the challenges. The court therefore denied the motion for judgment, which was premised on the failure to prove causation in the absence of Fournier’s testimony. The defendants appealed.

Expert’s Qualifications

The Court of Appeals easily determined that Fournier was qualified to testify as an expert in ladder safety. Fournier is a civil engineer who is OSHA-certified in fall protection. He has investigated more than 1,000 construction accidents, including 200 that involved ladders. He had been qualified as an expert in more than 20 previous cases regarding ladder safety.

The defendants claimed that Fournier was unqualified because he had never designed an articulating ladder and had never served on an ANSI committee. The Federal Rules of Evidence, however, simply require an expert to be qualified by knowledge, skill, training, experience, or education. Since Fournier easily met that qualification standard, the argument that he lacked additional qualifications did not bar the admissibility of his testimony.

The argument that an expert might be even more qualified by adding additional experience to a resumé goes to the weight the jury should give the expert’s testimony. Since that argument does not support a conclusion that an expert should not testify, the Court of Appeals agreed with the trial judge’s decision not to strike Fournier’s testimony on the basis of his qualifications.

Expert’s Methodology

The federal rules require an expert’s testimony to be based on sufficient facts, a reliable methodology, and a reliable application of the methodology to the facts. If those standards are met, it is the jury’s function to determine whether the expert’s opinions are worthy of belief.

The defendants argued that Fournier’s methodology was unreliable because he did not test his theories on the damaged ladder or on a similar model. The court noted that physical testing is not required in every case. The question is whether the expert used a reliable methodology, not whether some other methodology might have been used instead.

Fournier based his opinion on a variety of facts, including information provided by Klingenberg about how the accident happened, photos of the accident scene, and his examination of the damaged ladder and of competitors’ ladders. He concluded that installing retaining straps, as competitors did, would have made the ladder safer.

Fournier based his opinion on general engineering principles and on his experience in ladder investigations. That experience included the investigation of a competitor’s ladder that failed when its retaining strap was removed. The failure was similar to the failure of the ladder from which Klingenberg fell.

Given Fournier’s knowledge and experience, he did not need to test the ladder to determine that the addition of retaining straps would have made the ladder safer. Because Fournier applied a reliable methodology to sufficient facts in a reliable way, his testimony was admissible. 

Sufficiency of Evidence

The jury rejected the claim that the ladder’s design was defective, possibly because it was not satisfied that a reasonable alternative design was available in the year the ladder was purchased. The jury agreed, however, that a label stating the ladder was rated for a “working load” of 300 pounds created an express warranty and that the warranty was breached. Since the warranty claim did not depend on the availability of an alternative design, the verdicts were not inconsistent.

The label stated both that the ladder had a 300-pound working load and that the ladder was manufactured to ANSI standards. The defendants argued that they only warranted that the ladder supports a 300-pound load as required by ANSI standards. Because Fournier agreed that the ladder met ANSI standards, the defendants argued that Fournier admitted that the warranty was not breached.

The appellate court rejected that argument. The language about ANSI standards and the working load language appear on different parts of the label. The jury was entitled to view the statements as two separate warranties, not as a single warranty that somehow merged the two statements.

Fournier testified that the 300-pound working load label meant that the ladder is designed to hold a 300-pound person safely in any of its configurations. While the jury could consider evidence that the ladder passed certain ANSI tests, the label did not simply warrant that the ladder satisfied ANSI standards. Expert testimony permitted the jury to conclude that the defendants warranted that the ladder could be used safely by a person with a 300-pound load.

Evidence that the ladder met a minimum safety standard did not foreclose the possibility that the ladder’s condition did not satisfy the warranty. Since Fournier testified that the ladder was not safe, the jury was entitled to conclude that the warranty was breached. The court therefore affirmed the judgment in Klingenberg’s favor.

Legal Services

Conflicting Expert Testimony Held Insufficient to Grant New Trial

About ten years ago, a Texas jury sentenced George Powell to 28 years in prison for an aggravated robbery. Texas allows defendants to elect whether the judge or jury will determine the sentence in noncapital cases. Powell’s conviction was affirmed on appeal.

Powell’s conviction was based in part on a video of the convenience store robbery. The robber was wearing sunglasses and a baseball cap. A store clerk told the police that the robber was five-foot-six but testified at trial that the robber was five-foot-ten.

As ExpertPages explained in 2017, a retired police officer named Michael Knox testified that he used photogrammetry to determine that the robber in the video was more than six feet tall. Powell is six-foot-three.

After his conviction was affirmed, Powell sought habeas corpus relief. Part of his challenge was based on the dubious expert testimony upon which his conviction rested.

Post-Conviction Expert Testimony

At a post-conviction hearing, Knox testified at length about his undergraduate education and his law enforcement training in accident reconstruction. At the time of his trial testimony, however, Knox had no degree and no formal education in video analysis.

Knox also testified about the procedures he followed to estimate the robber’s height from the videotape. He regarded those procedures as being established by the science of photogrammetry.

In response, Powell called Grant Fredericks as an expert witness. Fredericks is a certified forensic video analyst who has taught courses for a number of law enforcement agencies, including the FBI National Academy.

Fredericks testified that a trained video analyst can use principles of photogrammetry to arrive at valid conclusions. He submitted a report to the Texas Forensic Science Commission in which he concluded that Knox’s methodology had reduced photogrammetry to “junk science.” The Commission agreed with that assessment.

After the trial, Knox responded to the Commission’s inquiry by “revising” his estimate of the robber’s height to at least five-foot-ten, conveniently matching the store clerk’s revised estimate. Knox claimed that it was impossible to determine the robber’s maximum height.

Fredericks testified that he did not understand the basis for Knox’s revised opinion. Fredericks explained in detail why Knox’s methodology was unreliable. In particular, he criticized Knox’s failure to understand the difficulty of determining height from a compressed video image.

Based on his own methodology, Fredericks determined that the robber was no taller than five-foot-nine. In addition, Fredericks scanned a picture of Powell in a prison jump suit, inserted it into a frame of the video showing the robber, and concluded by comparing the two men that they could not possibly be the same person. Other witnesses criticized that methodology because Powell was not standing in an identical posture in both photos and his weight (although presumably not his height) might have changed during his imprisonment.

Knox used PhotoModeler software with which Fredericks is unfamiliar. Fredericks suggested to the Forensic Science Commission that it hire Dan Mills to do a peer review of Knox’s work because Mills has experience with the software that Knox used.

Mills concluded that Knox’s revised analysis (following the conviction) was better than his first analysis (upon which the conviction was based). He also concluded that both Knox’s opinion and Frederick’s opinion were highly subjective.

Actual Innocence

A habeas challenge under Texas law can be based on proof of actual innocence. The court was not convinced that the difference in expert opinions conclusively proved that Powell was not the robber.

The court found that Knox was a credible witness, notwithstanding that the Forensic Science Commission questioned his methodology. The court found that Fredericks was also a credible witness. Since the two experts used different methodologies, the court concluded that their differing findings were not necessarily contradictory.

In essence, the court thought that the subjectivity involved in both methodologies created a range of possible results and that Knox’s first and second opinions, as well as Frederick’s opinion, all fell within that subjective range. One might question how methodologies that are so subjective could possibly meet the Daubert standard, but that was not the question before the court.

One might also wonder how an opinion that the offender was at least six-foot-one, an opinion that the offender was at least five-foot-ten, and an opinion that the offender was no taller than five-foot-nine are not contradictory opinions, regardless of the methodology that was used. Ultimately, given the subjective nature of the opinions, the court likely believed that nobody can say with any certainty how tall the robber was.

No expert testimony established that the robber was as tall as Powell. Still, since the expert testimony could not conclusively establish that the robber in the video was not Powell, the court concluded that Powell failed to prove his actual innocence.

New Scientific Evidence

A Texas statute also permits a conviction to be vacated when new scientific evidence, unavailable at the time of the trial because of a change in scientific knowledge, excludes the defendant as the person who committed the crime. For example, if new techniques for analyzing DNA were not available at the time of trial and the new analysis points to the defendant’s innocence, Texas law will give the defendant a new trial based on the progress of science.

The court concluded that Powell’s new evidence was available at the time of the trial. The court noted that Powell could have retained Fredericks as an expert witness to testify at his trial, so the evidence was not new.

If Powell had retained his own expert, he might have been acquitted. While the failure to do so might support a claim of ineffective assistance of counsel, it did not satisfy the Texas standard for vacating a conviction based on newly available scientific evidence.

Powell attempted to shoehorn Knox’s change of opinion into the statute by arguing that his new opinion was based on an advanced understanding of the appropriate scientific method. The court concluded that Knox based his revised opinion on different data (he chose different measurement points when he prepared his second opinion) and that a change of data is not the same as a change in science.


It should be apparent to even a casual observer that Powell’s conviction rested in large part on a questionable expert opinion. The case illustrates the need for defense counsel to counter expert evidence with the defendant’s own expert in every case.

Fortunately for Powell, the trial court recognized other ways in which Powell’s trial was unfair. The prosecution relied on a jailhouse snitch but withheld information from the defense that created substantial doubt about the credibility of that witness.

Nor did the prosecution disclose the promises it made to the snitch in order to induce his testimony. When the snitch testified that no such promises had been made, the prosecutor did nothing to correct his perjured testimony, in violation of Powell’s right to due process of law.

The trial court recommended that Powell receive a new trial. On the basis of that recommendation, the Texas Court of Criminal Appeals granted Powell’s habeas corpus petition.

In a just world, the Bell County’s District Attorney would concede that the evidence falls well short of proof beyond a reasonable doubt that Powell committed the crime and would drop the charges. Unfortunately, the DA has refused to acknowledge that his prosecutors engaged in misconduct to convict Powell and has promised to move forward with a new trial.