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.

Bamboo stick massage

No Expert Testimony Required to Prove Negligent Supervision of Massage Provider Who Sexually Assaulted a Customer

As a general rule, expert testimony is required to prove the liability of a healthcare provider for negligence. That rule is typically enforced in medical malpractice cases alleging that a doctor harmed a patient by breaching a duty of care. The injury victim must use an expert witness to establish the duty of care because ordinary jurors do not usually understand what the medical profession expects a prudent doctor to do when caring for a patient.

An exception to the rule allows medical negligence cases to proceed without an expert witness when the negligence is obvious to ordinary people. A doctor who operates on the wrong knee is a classic example. A jury does not need expert testimony to understand that a doctor should verify which knee is injured before surgery begins.

The Tennessee Supreme Court was recently asked whether the “common knowledge exception” to expert testimony should apply to a case involving negligent hiring and supervision by a spa. Under the facts of the case, the court held that no expert testimony was required to prove liability.

Facts of the Case

Lataisha Jackson went to Gould’s Day Spa & Salon in Cordova for a massage. She alleged that she was sexually assaulted by a masseur.

Jackson alleged that two other customers of Gould’s had made complaints about the masseur’s inappropriate conduct but Gould’s took no action to protect her from similar misconduct. She sued Gould’s for negligently hiring, training, supervising, and retaining the masseur who assaulted her.

Whether or not Jackson’s massage meets an ordinary understanding of “health care,” all the courts that considered the case categorized it as a “health care liability” lawsuit. Tennessee’s Health Care Liability Act applies to lawsuits against any “health care practitioner” if the practitioner must be licensed under Tennessee laws governing “professions of the healing arts.”

Tennessee law deems massage practitioners to be members of a profession of the healing arts who must be licensed. Without discussing whether licensing alone makes a massage provider a “health care practitioner,” the supreme court concluded in a footnote that Gould’s was protected by the Health Care Liability Act.

Certificate of Good Faith

The Act requires plaintiffs to file a “certificate of good faith” with a complaint that alleges the negligence of a health care practitioner. The certificate must state that the plaintiff consulted with an expert who is competent to testify under the Act and that the expert determined the existence of a good faith basis for bringing the lawsuit.

Jackson did not file the certificate because she viewed a lawsuit for negligent hiring and supervision as outside the scope of the Health Care Liability Act. The trial court decided that the Act applied to the negligence claims that Jackson alleged. The court granted summary judgment against her because she did not file a certificate stating that she had consulted with an expert.

The court of appeals, over a dissent, concluded that the standard a spa should follow after receiving a complaint about a massage provider was not within the common knowledge of jurors. The dissenting judge opined that the need to protect disrobed customers from being touched inappropriately by a masseur was not the kind of complex question that could only be answered with expert assistance.

The Common Knowledge Exception in Tennessee

Whether an expert witness was required to prove that Gould’s was negligent turned on the applicability of the common knowledge exception. The exception excuses plaintiffs from providing expert testimony when the alleged misconduct falls within the understanding of lay members of the public. If an applicable standard of care, a breach of that standard, and resulting injury would all be obvious to ordinary people, no expert testimony is required.

The common knowledge exception is widely accepted. The Tennessee Supreme Court filled two pages of its opinion with cases from other jurisdictions that recognize the exception.

While Tennessee’s Health Care Liability Act applies to negligence claims against health care providers, the court decided that consultation with an expert is only necessary in cases that require expert testimony. When the common knowledge exception applies, no certificate of good faith is required. Since the legislature supposedly required the certificate to assure courts that a health care liability claim had arguable merit, requiring the certificate would be pointless when the claim’s merit would be obvious to a lay member of the public.

Tennessee Supreme Court Decision

The court relied on Tennessee precedent in deciding whether a health care provider’s negligence is obvious. The court cited a case involving an X-ray technician who asked a patient to stand on a wobbly stool. The patient fell and was injured. Since telling a patient to stand on unsafe furniture is obviously negligent, no certificate of good faith was required.

In a case with facts that more closely parallel to Jackson’s, a patient at a mental health facility sued the facility for the negligent hiring and training of a security guard who attacked him. While providing security scarcely qualifies as health care, the court decided that the Health Care Liability Act applied to the lawsuit. It concluded, however, that whether the facility negligently breached its duty to protect patients from the assaultive conduct of security guards was a question that a jury could answer without the assistance of expert testimony.

In light of that precedent, the supreme court sensibly decided that the need for expert testimony turns on whether the allegedly negligent conduct “involved the exercise of medical judgment or skill.” When a jury will be called upon to consider whether a doctor used the skill that a reasonable doctor should possess, or made professional judgments involving medical risks and benefits that a reasonable professional would make, the plaintiff must provide expert evidence in support of the negligence claim.

Applying that rule to Jackson’s case, the court decided that expert testimony was not required. The claim that a spa knew or should have known, based on customer complaints, that a masseur might assault customers can be decided without expert evidence. Ordinary jurors have sufficient knowledge and experience to decide whether a spa negligently hired, retained, or supervised an employee who sexually assaulted a customer.

A different result might apply when the plaintiff claims that a massage provider “negligently performed the massage, used improper technique or excessive force, or erred in decision-making as a massage therapist.” In cases involving hiring or retention decisions that do not require professional expertise, however, no expert testimony is required to prove negligence.

 

Lawyer Allowed to Testify as Expert Witness in Fraud Prosecution

Lawyers (some more than others) are experts in the law, but they rarely testify as expert witnesses. Legal malpractice cases, in which expert testimony is needed to establish a lawyer’s standard of care, provide one of the few opportunities for a lawyer to testify as an expert.

But lawyers in malpractice cases do not explain the law to juries. Rather, they explain the actions a prudent lawyer should take or avoid in light of prevailing professional standards.

In most cases, lawyers may not testify as experts on the law. The only expert who can explain the law to the jury is the presiding judge. The judge provides that explanation through jury instructions, not testimony.

A federal criminal case spotlights an unusual instance in which a lawyer was allowed to explain fiduciary duties imposed by state law, the breach of which was relevant to a federal prosecution for fraud. The Court of Appeals for the Third Circuit rejected an appellate challenge to the admission of that expert testimony.

Facts of the Case

Renee Tartaglione was charged with 53 crimes related to defrauding a community clinic and for failing to report income earned from the fraudulent acts. Tartaglione, described in the press as a “member of a longtime Philadelphia political dynasty,” was the president of the board of the Juniata Community Mental Health Clinic.

Prosecutors convinced a jury that Tartaglione caused the nonprofit clinic to pay exorbitant rent for buildings that she and her husband controlled. Prosecutors offered evidence that she used the rent proceeds to remodel her own home and to fund her lifestyle.

Prosecutors also presented evidence that Tartaglione was responsible for a bogus drug treatment program aimed at low income people. The crimes were charged in federal court because the clinic primarily served Medicaid recipients.

The jury convicted Taraglione after a nineteen-day trial. Noting that Taraglione had betrayed the public trust by misappropriating money from a taxpayer-funded program, the judge sentenced Taraglione to 82 months in prison. She appealed, challenging the prosecution’s use of a lawyer as an expert witness.

Expert Testimony Regarding Non-Governing Law

The prosecution called the Deputy Attorney General of Pennsylvania, Mark Pacella, as an expert witness. While a prosecutor who testifies for another prosecutor might have an inherent bias, the question of bias is usually for a jury to consider. Potential bias, by itself, does not typically disqualify expert witnesses, although on rare occasions judges have excluded experts because of their financial interest in the case or because their history of extreme bias renders their opinions unreliable.

Pacella “explained the legal and regulatory framework for Pennsylvania charitable nonprofit corporations, including the fiduciary duties imposed on board members and directors of such organizations.” Since the judge could have explained fiduciary duties in jury instructions, the question before the appellate court was whether the expert testimony violated the rule that lawyers cannot generally testify as experts in the law.

While recognizing the general rule, the court noted that an exception permits legal experts to testify about “non-governing law” if the testimony will assist the jury. The exception usually applies to the law of a foreign country.

Rule 26.1 of the Federal Rules of Criminal Procedure allows a court to consider relevant testimony about foreign law. At least one legal scholar has bemoaned the use of legal experts to testify about domestic law that a trial judge is fully capable of understanding and explaining.

The appellate court nevertheless concluded that a “non-governing law” exception to the general rule covers “applicable legal duties, especially when those non-governing laws help explain fraudulent intent.” Pacella explained the clinic’s Articles of Incorporation and the legal distinction between a for-profit and a charitable nonprofit corporation. The court decided that the testimony did not cover governing law.

Expert Testimony Regarding Fiduciary Duties

More troubling was Pacella’s testimony about the “fiduciary duties of care and loyalty applicable to directors and officers of such organizations under Pennsylvania law.” The court decided that those duties were not “governing law” because they arose under Pennsylvania law and Tartaglione was not charged with violating Pennsylvania law. The court thought it was noteworthy that Pacella testified that Pennsylvania does not criminalize the breach of a fiduciary duty.

The court’s analysis is questionable. Since prosecutors used Pacella’s testimony to argue that a breach of state law fiduciary duties evidenced a violation of federal law, Pennsylvania law “governed” the very conduct that prosecutors deemed fraudulent.

It is difficult to understand the relevance of Pacella’s testimony if not to define legal duties that governed Tartaglione, the breach of which gave rise, at least in part, to federal charges. The court acknowledged that the testimony was offered to support the argument that Tartaglione’s breach of a governing fiduciary duty proved her intent to commit fraud.

The court cited no on-point precedent, probably because most trial judges do not allow prosecutors to call another prosecutor as an expert witness to bolster their case. The court likened Pacella’s testimony to background evidence about scientific principles, but the issue was whether a lawyer can be called as an expert to explain the law, not whether a scientist can be called as an expert to explain science. If the court is the only expert on the law, it is difficult to understand why the explanation of Pennsylvania law governing Tartaglione’s fiduciary duties should not have come from the court rather than an expert witness.

Ohio wooden Mallet

No Expert Required to Admit Lidar Results in Ohio Speeding Cases

With little analysis, state courts have routinely held that common scientific instruments used by law enforcement agencies should be presumed accurate and that their results should be admissible without expert testimony. For example, Wisconsin’s appellate courts have firmly followed the holding that “tests by recognized methods need not be proved for reliability in every case of violation. Examples, speedometer, breathalyzer, radar.”

The court presumed the accuracy of those devices without giving the matter much thought and without considering any expert evidence that they are, in fact, accurate. How to decide that a method is “recognized” is another question that the court neglected to answer.

Presuming the accuracy of a device makes life easier for prosecutors who would otherwise need to call an expert witness in each trial to explain why the device works as intended. Presumptions shift the burden to defendants to establish that the device did not produce a reliable result. Whether a system that requires each element of the offense to be proved beyond a reasonable doubt by the prosecution is undermined by presuming the accuracy of the prosecution’s evidence has been a source of contention for decades.

The presumption of accuracy sometimes overlooks doubtful assumptions made by the manufacturers of devices sold to law enforcement agencies. Breath testing devices, for example, generate results based on the assumption that the ratio of alcohol concentration in blood to alcohol concentration in breath is 2100:1. But that number is just an average. The actual ratio ranges from 1500:1 to 3000:1, depending on the person.

Since breath testing devices make the false assumption that everyone has the same blood to breath concentration of alcohol, breath testing devices produce blood alcohol results that are low for some people and high for others. The discrepancies have rarely troubled judges, who too often believe it is more important for prosecutors to present their cases quickly than to assure their convictions are based on accurate evidence.

Radar and Laser Devices

Radar and laser devices are commonly used to measure speed. A radar device shoots a radio signal at a moving vehicle and detects the signal when it bounces back to the device. The change in frequency of the signal as the vehicle moves is assumed to be proportional to the vehicle’s speed.

A laser device shoots a concentrated beam of light rather than a radio signal. It measures the time it takes for the reflected light to return to the device. By comparing multiple readings over time (usually less than a second), the device can calculate the speed at which the vehicle is moving.

Laser speed detection devices, sometimes known as Lidar, have grown increasingly popular with law enforcement agencies. While radar emits a wide beam that might capture a passing bird or a vehicle the operator did not intend to target, the narrow laser beam arguably reduces the risk of operator error.

Police officers are commonly presented in court as “expert operators” of radar and Lidar, which simply means they have been trained to use and calibrate the devices. They typically have little understanding of the scientific principles upon which the devices are based. Again, the presumption that the devices work as intended saves the prosecution from calling an expert witness to fill in the gaps in the officer’s knowledge.

Ohio Considers Admissibility of Lidar Device Results

The Ohio Supreme Court recently considered whether courts should take judicial notice of the accuracy of laser devices used to measure speed. A police officer in Brook Park stopped Joseph Rodojev for driving 15 mph over the speed limit.

The officer captured Rodojev’s speed on a Lidar device manufactured by Laser Technologies Inc. The company markets its TruSpeed products as “a laser speed device that any department can afford.”

The city prosecutor introduced the readout from the budget-saving device through the testimony of its operator. No expert testimony was introduced to establish the reliability of the device. The judge did not take judicial notice of its reliability.

The Ohio Supreme Court decided in 1958 that radar was based on valid scientific principles — in particular, the Doppler effect — and that radar results did not need to be supported by expert testimony. The state court of appeals decided that Lidar was similar to radar, notwithstanding that laser devices do not rely on the Doppler effect, and that the same result should therefore apply. Since the court’s lazy reasoning conflicted with the decision of another state appellate court, the state supreme court agreed to resolve the conflict.

Based largely on an explanatory law review article and court decisions in other states, the Ohio Supreme Court decided that Lidar devices are reliable. Since no expert ever testified in the case, it reached that conclusion without the benefit of expert assistance. The court did a favor for prosecutors by reducing their burden in speeding cases, but like other courts, it did so with remarkably little consideration of the science underlying the devices.

The court did note that Lidar results are still subject to challenge at trial, “including challenges involving the angle at which the officer held the device in relation to the targeted vehicle, the device’s accuracy-validation algorithms, the device’s calibration and maintenance schedule, and the officer’s qualifications to use the device.” Cross-examining the officer by comparing the officer’s actual use of the device to the procedure required by the device manufacturer’s manual is often a fruitful way to beat a speeding ticket. But those challenges, the court said, go to the weight of the evidence, not to Lidar’s reliability. The bottom line is that in Ohio and many other states, no expert testimony is required to admit Lidar results into evidence.

 

Kentucky

Court Excludes Expert Report in Antitrust Case

The State of Kentucky sued Marathon Petroleum and related parties for violating antitrust laws. Kentucky claimed that Marathon’s anticompetitive practices caused consumers to be overcharged.

Marathon asked the court to exclude the testimony of Kentucky’s expert economist. The court granted that motion and, since Kentucky could not prevail without the expert’s testimony, dismissed the case.

Antitrust Arguments

Marathon owns the largest refineries in the Midwest and the only refinery in Kentucky. It is also the largest supplier of gasoline in Northern Kentucky.

Kentucky argued that Marathon monopolized the wholesale market for Summer RFG, a kind of gasoline that some Kentucky retailers are required to sell during the summer months. A necessary ingredient of RFG is a petroleum product abbreviated as RBOB. Wholesalers purchase RBOB and add ethanol and other products to create RFG. They then sell the RFG from their terminals to retailers.

Kentucky argued that Marathon controls the influx of RBOB and thus monopolizes the downstream market for RFG. Kentucky alleged that Marathon used its market share dominance to manipulate the wholesale and retail price of gasoline. That price, according to Kentucky, was higher than the prices that prevail in competitive markets. Kentucky also alleged that Marathon uses anticompetitive supply agreements (known as exchange agreements) to maintain its market dominance.

Expert Testimony in Antitrust Cases

When a plaintiff alleges that a defendant has restrained trade or engaged in monopolistic pricing within a market, the plaintiff’s first task is to define that market.

The plaintiff must define a product market and a geographic market. The product market analysis asks whether there are readily available interchangeable substitute goods that consumers could purchase to serve their needs. A substitute is interchangeable if an increase in price for one product would cause an increase in demand for the substitute product.

A geographic market is the area in which sellers compete against each other to make sales to the same consumers. In simple terms, it is the market area in which the allegedly anticompetitive seller operates.

The relevant market is a fact question that must generally be determined by a jury. A judge’s disagreement with the plaintiff about the relevant market should not lead to a dismissal of the case unless no reasonable juror could agree with the plaintiff’s definition.

Courts usually require the relevant market to be proved by an expert opinion based on sound principles of economics. While a judge cannot dismiss a case simply because the judge disagrees with the expert’s view of the facts, a judge can exclude the expert’s testimony if the judge finds that the testimony is not based on a reliable methodology.

Kentucky relied on a single expert witness, Dr. Michael Sattinger. Marathon did not challenge Sattinger’s qualifications to render an expert opinion. Rather, it challenged the methodology he used to determine the relevant market, to determine the existence of an antitrust injury, and to calculate damages.

Relevant Market

Sattinger defined the relevant geographic market as the Kentucky terminals where RBOB is blended with other products and sold to retailers as RFG. The court decided that Sattinger failed to base that definition on a reliable methodology.

Economists usually use a “hypothetical monopolist” or “small but significant and non-transitory increase in price” (SSNIP) test to determine the relevant market. That test asks whether consumers would leave a market for competing goods if a supplier were to impose a 5% price increase for at least one year. If consumers would not leave the market, the market is worth monopolizing. The smallest market from which consumers would not exit is the relevant market.

Courts have generally agreed that the SSNIP test is a reasonable methodology for defining a relevant market. Sattinger acknowledged that the SSNIP test is widely used but chose not to use it. The court noted that economists are not required to use the SSNIP test to define a relevant market, but are required to use some other reasonable methodology. The court faulted Sattinger for failing to explain why he limited the relevant market to terminals in Kentucky.

The court also concluded that defining Kentucky terminals as the relevant market did not reflect the economic realities of the wholesale RFG market. The court thought Sattinger should have asked whether there were other places wholesalers could look to buy RBOB. The court noted that Marathon’s only local competitor had RBOB transported by barge from other states, and that Marathon itself had met its need for RBOB by transporting it to Kentucky by truck.

Since Sattinger did not define a geographic market that included all reasonably available sources of RBOB, Sattinger did not base his opinion on a reasonable methodology. According, his opinion was inadmissible.

Antitrust Injury

To demonstrate that Marathon’s anticompetitive behavior caused a harm, Sattinger compared markets for RFG in Baltimore and St. Louis to the Kentucky market. He determined that market prices were lower in those cities and attributed the price differential to Marathon’s anticompetitive behavior. He calculated the price difference over the time period covered by the lawsuit and produced a damages calculation of about $173 million.

While the court recognized that Sattinger’s “yardstick method” of damages calculation can be appropriate in antitrust cases, the method must take account of other factors (such as market size, product demand, proximity to supply sources, and cost of operations) that might have an independent impact on prices. Economists generally use a regression analysis to account for those variables, but Sattinger failed to rule out other possible explanations for price differences that were unrelated to Marathon’s anticompetitive pricing.

Kentucky also considered Marathon’s use of exchange agreements to be anticompetitive. Competing refiners use exchange agreements to trade gasoline when a competitor has an insufficient supply. Sattinger did not determine whether exchange agreements are used in Baltimore or St. Louis and therefore failed to determine whether the supposedly anticompetitive agreements had an impact on price.

The court ultimately concluded that Sattinger’s methodology did not rest on sound economic principles. Accordingly, his opinions did not satisfy Daubert and were not admissible as evidence.

Lessons Learned

Different judges view Daubert in different ways, but precedent authored by some appellate judges supported the exclusion of Sattinger’s testimony. Part of case preparation should include a thorough review of Daubert precedent in the case at hand. In this case, a review of Daubert decisions in antitrust cases might have prepared Kentucky’s lawyers for Marathon’s challenges.

Experts should be urged to complete a first draft of a report for an attorney’s review well in advance of the disclosure deadline. If Kentucky’s lawyers had identified attacks that could be made on their expert’s methodology, perhaps those perceived flaws could have been corrected before a final draft was prepared.

Experts understand their field of expertise but lawyers understand precedent. Helping experts understand how a court might respond to Daubert challenges is a key role that lawyers must play after they hire expert witnesses.

 

Lender Liability

Court Allows Expert to Testify that Advertising Was Not Misleading

The Federal Trade Commission (FTC) sued Lending Club for violating federal laws that prohibit deceptive or unfair business practices. A federal judge recently decided several motions in the case, including the FTC’s Daubert motion to exclude the testimony of Lending Club’s expert witness.

Facts of the Case

Lending Club is not itself a lender. Rather, it connects borrowers with lenders. Lending Club charges borrowers a percentage of the borrowed amount as a loan origination fee. The fee, which averages 5% on unsecured loans, is deducted from the loan and paid to Lending Club when the loan proceeds are advanced to the borrower.

From 2012 to 2018, Lending Club’s advertising claimed it charged “no hidden fees.” Loan applicants who met baseline criteria could apply for a loan. The Lending Club website would then display a loan offer page showing the loan amount, the number and amount of monthly payments, and the annual percentage rate (“APR”).

The loan offer page did not disclose an origination fee unless a consumer clicked a question mark beside the term “APR” (on the desktop version) or hovered over the term “APR” (on the mobile version). Borrowers were not required to perform those actions before completing the loan.

The FTC contended that Lending Club falsely claimed that loans included “no hidden fees” when, in fact, an origination fee is literally hidden in the loan offer and only becomes visible if a consumer happens to click or hover in the right place.

The origination fee was mentioned again on a terms page that included a federally required Truth in Lending Disclosure. The “amount financed” box includes the full amount of the loan for which the borrower applied, but the borrower must scroll down the page to learn that an origination fee would be deducted from the “amount requested,” resulting in a smaller “amount received.”

The final page asks the borrower to enter bank account information where the loan will be deposited. The page then says “Your [$ amount requested] loan is on the way.” The FTC contended that the statement was false, because the amount requested minus the origination fee was “on the way.”

The origination fee is more conspicuously explained on a separate “rates and fees” page. However, borrowers were not required to view that page before completing the loan.

In addition, nearly all Lending Club customers elect to pay their loans through an automatic bank account withdrawal each month. The FTC alleged that Lending Club had a habit of “mistakenly” taking too much money or continuing to take withdrawals after the borrower canceled the automatic withdrawal feature. The FTC alleged that consumers had contacted their banks to force Lending Club to reimburse $3.8 million. Apart from that inconvenience, if consumers failed to notice that they were overcharged, Lending Club might have simply pocketed their money.

Expert Testimony

A key dispute in the case involved the number of consumers who proceeded with the loan process because they didn’t know they would need to repay a loan origination fee that would be deducted from their loan proceeds. Lending Club argued that a more conspicuous disclosure of the origination fee would not have reduced the number of borrowers who decided to continue the application process.

Lending Club supported that claim with the expert report of Dr. Yoram Wind. Wind conducted an experiment with prospective borrowers. He showed the actual Lending Club website to a test group. He removed the “no hidden fees” statement from the website he showed to the control group.

Wind then surveyed successful applicants in each group, asking whether they received the amount of money they expected to receive. About 89% of the test group and about 94% of the control group indicated that they received the amount of money that they expected to receive.

Wind shared the results with the FTC, which indicated that Lending Club had changed its website during the years covered by the complaint and that the experiment did not take those changes into account. Wind then designed a new experiment with three test groups.

The first test group saw a “no hidden fees” offer page that omitted the origination fee disclosure that Lending Club added to a footer in June 2017. The second test group saw a “no hidden fees” offer page and the origination fee footer that appeared from June 2017 to May 2018. The third test group saw the page that was displayed to the second test group but without a “no hidden fees” statement. The court thought the evidence was inconsistent as to whether the third group saw a footer disclosing the origination fee.

In response to an FTC objection, Wind also modified the survey invitation to state that borrowers’ responses would not affect their relationship with Lending Club or their credit score.

In the new version of the study, Wind concluded that the percentage of control group applicants who misunderstood the amount they would receive was virtually identical to the first study, while the percentage of applicants in each test group who misunderstood was very similar to the test group results in the first study.

Wind also found that about 19% of participants in all test groups and the control group accepted the loan. Wind concluded that the similar results proved that the “no hidden fees” claim had no impact on the decision to complete the loan process.

Daubert Ruling

The FTC contended that Wind’s methodology was unreliable because he asked the wrong question. In the FTC’s view, asking whether borrowers received the money they expected did not address Lending Club’s misleading advertising. The real question, according to the FTC, was whether borrowers were aware of the origination fee by the time they completed the loan.

The court decided that the principles Wind used to design his survey, including assuring an adequate sample size and random assignment to test or control groups, were scientifically valid. In addition, one of the test groups saw the “No Hidden Fees” advertisement described in the complaint, so the test results were relevant.

The question that Wind asked — whether applicants received the loan payout they expected — provided insight into whether applicants were aware of the origination fee. Whether that was the best question to ask could be explored on cross-examination. Surveys do not need to be perfect to be admissible. In that regard, the court provided a more forgiving interpretation of Daubert than the interpretation used by judges who insist that only a perfect methodology can be reliable.

The court also regarded the FTC’s remaining challenges as bearing on the weight that the evidence should receive rather than its admissibility. Whether the question that Wind asked was improperly leading, whether he should not have disclosed that Lending Club was sponsoring the survey, whether he should have screened out applicants who learned of the origination fee from other sources, and whether Wind waited too long to survey applicants were not questions that exposed a blatant bias in the test results, as the FTC claimed.

Lessons Learned

Whether an arguable deficiency in a research methodology goes to admissibility or weight is a question that different courts, confronted with the same facts, will answer in different ways. Sometimes the same judge will answer the question in different ways in different cases, depending on which party the judge favors. Unless the methodology is obviously error-free or egregiously flawed, decisions about admissibility depend more on the judge’s philosophy than on any clear rule of law.

The judge in this case may have been influenced by the fact that she will be the ultimate factfinder. The trial will be to the court, not to a jury. Caselaw allows judges to be less vigilant about their “gatekeeping” role in bench trials because judges are assumed to be less likely than juries to be influenced by expert evidence that might be less than rigorous. Whether or not that assumption has merit, it is worth remembering that judges are less likely to grant Daubert motions when no jury will hear the evidence, if only because admitting the evidence and discounting it after a trial provides a shield against appellate reversal.

 

dollar bills

Expert Testimony Required to Prove Breach of Fiduciary Duty by Lawyers

State courts are in general agreement that plaintiffs who sue for professional malpractice must present expert testimony to establish the applicable standard of care and the professional’s breach of that standard. While most of the litigation establishing that rule has involved claims of medical malpractice, the rule typically applies to claims of professional negligence by other professionals, including accountants, lawyers, and psychologists.

Expert opinions are generally required to prove professional negligence because juries lack the knowledge to determine the standard of care by which professionals must govern their conduct. Exceptions to the need for expert testimony may nevertheless arise when the negligence is obvious. When a doctor operates on the wrong knee or when a lawyer fails to file a lawsuit before the limitations period expires, a lay jury can easily determine that the professional was negligent in absence of expert testimony.

The Court of Appeals for the Ninth Circuit was recently asked whether the rule requiring expert testimony can be circumvented by characterizing a claim of legal malpractice as a claim for breach of a law firm’s fiduciary duty to its client. The court essentially held that a malpractice claim by any other name is still a malpractice claim that must be established by expert testimony.

Malpractice Claim

The plaintiffs in Chastain v. Poynter Law Group were Alaska Airlines flight attendants. Represented by Poynter Law Group, they brought a mass tort claim in a California state court against Twin Hill Acquisition Company Inc. They alleged that the uniforms provided by Twin Hill caused skin irritation, hives, respiratory problems, and headaches, among other injuries.

The case went to trial. According to Twin Hill’s press release, the judge dismissed the case because no evidence established that the flight attendants’ symptoms were caused by the uniforms. The court evidently reached that conclusion after relying on expert testimony and an evaluation of the uniforms by the National Institute for Occupational Safety and Health.

The plaintiffs then sued Poynter Law Group in a California state court, alleging that the firm mishandled their claims. They alleged that Poynter failed to prepare expert witnesses to testify and otherwise neglected to manage the litigation wisely. They also alleged that Poynter breached its fiduciary duty to the plaintiffs by failing to give them proper advice.

Poynter removed the case to federal court. After a federal judge dismissed both claims, the plaintiffs appealed to the Ninth Circuit.

Need for Negligence Expert

The district court granted summary judgment on the malpractice claim because the plaintiffs offered no expert testimony regarding the standard of care the attorneys should have followed. The appellate court recognized that California law does not require expert testimony to prove obvious acts of negligence but held that the exception did not apply.

According to the Ninth Circuit panel, the strategy a lawyer should follow to prove a mass tort claim is not within the knowledge of an ordinary juror. The court also held that the standard for preparing an expert witness to testify about causation is beyond the ken of ordinary jurors. Since negligence was not obvious, the failure to supply expert testimony was fatal to the malpractice claim.

Breach of Fiduciary Duty

The plaintiffs argued that even if expert testimony is required to prove professional negligence, their claim for the law firm’s breach of its fiduciary duty was not governed by the same standard. That claim alleged that the firm breached its fiduciary duty by failing to give adequate advice to the plaintiffs, by “generally mishandling” the case, and by failing to manage the litigation in a “prudent manner.”

The district court dismissed the fiduciary duty claim because it duplicated the malpractice claim. The appellate court noted that no California precedent expressly disallows claims brought under different legal theories that might duplicate each other. The court also noted the federal rule that alternative claims are permitted in federal complaints.

The appellate court agreed with the plaintiffs that California law requires expert testimony to prove a professional malpractice case but does not necessarily require expert testimony to prove a claim for breach of a fiduciary duty. In many cases, a fiduciary’s failure to act in a client’s best interests can be established without the assistance of an expert. For example, a claim that a fiduciary improperly diverted a client’s money into the fiduciary’s pocket — an act that would breach a fiduciary’s duty of loyalty — might readily be proved without expert testimony.

In this case, however, the breach of fiduciary duty claim was based on strategic considerations about how to present the case in court or what legal advice would best serve the client. The plaintiffs, for example, alleged that they wanted to testify but the law firm refused to allow them to do so.

While the plaintiffs claimed that the firm’s advice violated the duty of loyalty, whether a client should testify is a matter of trial strategy. The appellate court decided that making an honest strategic decision does not breach a duty of loyalty. If the decision is wrong, the claim is one of malpractice and must be proved with expert testimony.

Recharacterizing a malpractice claim as a claim for breach of a fiduciary duty cannot circumvent the requirement to prove malpractice claims with expert testimony. The lesson to learn is that plaintiffs should be prepared to call an expert witness whenever a claim rests on a professional’s departure from an expected standard of care.

 

Arkansas Allows Chiropractor to Provide Expert Opinion About the Need for Surgery

The insurance industry has long disparaged the testimony of chiropractors in personal injury cases. Courts nevertheless agree that chiropractors may give expert testimony about the cause of injuries for which they provide chiropractic treatment as well as the necessity of that treatment.

Courts are less likely to agree whether chiropractors are qualified to testify about the causation of injuries for which medical treatment is provided or the necessity of that treatment. A recent decision in Arkansas rejected a blanket rule and decided that the expert’s qualifications depend on the expert.

Facts of the Case

On a rainy day in 2010, Karen Elder visited a Dollar General store in Mt. Ida, Arkansas. She slipped on the wet sidewalk outside the store’s entrance. Elder reported her fall to an assistant manager.

Elder had preexisting back pain for which she had received chiropractic treatment since 2004. After her fall, Elder had neck, back, and shoulder surgery. In 2013, she sued Dollar General for negligence, alleging that Dollar General breached its duty to maintain its premises in a safe condition.

Elder intended to have her chiropractor, Eric Carson, testify about the cause of her injuries, the permanence of her disability, and the reasonableness of her medical bills. Dollar General moved to exclude much of Dr. Carson’s testimony. The motion was denied and the case went to trial.

Trial Evidence

Elder testified that the weather was misting and that she was jogging toward the entrance to avoid getting wet. She encountered a slick area on the sidewalk and fell. She testified that the slick area was not covered by a mat and that no signs warned her that parts of the concrete sidewalk were slippery.

One portion of the sidewalk has a rough surface and is presumably not as slippery, but another portion has a smooth surface. Elder relied on a safety expert to establish that the smooth portion of the sidewalk was unreasonably dangerous and that the danger was not obvious.

A former assistant manager testified that she had slipped on the sidewalk when it was wet and that she had seen at least four other people slip. She alerted her manager and the landlord about the unsafe condition and expressed concern that it might lead to a customer injury. She was told that it would be taken care of, but no action was taken.

Over objection, Dr. Carson testified that Elder’s injuries and the medical treatment Elder received for them, including her surgeries, were caused by her fall. Dollar General offered the testimony of an orthopedic surgeon that her surgeries were related to a degenerative medical condition and not to her fall.

The jury found in Elder’s favor and returned a verdict of $700,000. Dollar General appealed, arguing that Dr. Carson was not qualified to testify that Elder’s surgery was caused by injuries she sustained in her fall.

Competence of Chiropractor to Testify About Causation

Elder supplemented its discovery responses to disclose Dr. Carson’s anticipated causation testimony. Dollar General claimed to be surprised by those opinions and asked for a continuance during the trial so it could pursue additional discovery. The supreme court agreed with the trial court that the request for a continuance came too late, given that the opinions were disclosed almost three weeks before the trial.

A more troubling question was whether Dr. Carson was competent to testify about causation. There were two related issues of causation in Elder’s case. The first is whether her fall at Dollar General caused her to suffer an injury. The second is whether the medical (as opposed to chiropractic) treatment she received was caused by injuries she suffered in the fall.

Dollar General agreed that Dr. Carson was qualified to testify that injuries he actually treated were caused by the fall and that he provided necessary treatment for those injuries. Dollar General contended that Dr. Carson was not qualified to testify about the necessity of treatment provided by medical doctors.

The supreme court disagreed with the proposition that “a chiropractor may not testify as to the causal need for surgical procedures that a chiropractor may not perform.” The Arkansas precedent upon which that argument was based held that no foundation had been laid for the chiropractor’s testimony that a patient had a permanent disability. That precedent did not establish a blanket rule.

The court decided that the admissibility of a chiropractor’s opinion requires a case-by-case assessment of a chiropractor’s training and experience. Dr. Carson had extensive training in the fields of orthopedics and neurology. The trial court was satisfied that his training in those areas was similar to the training of a medical doctor.

Dr. Carson’s experience included the treatment of hundreds of patients who suffered from traumatic injuries. He acknowledged that he does not perform surgery, but he regularly diagnoses injuries and makes an informed judgment about whether the injury would respond to chiropractic care or would be better treated by a medical doctor.

The combination of Dr. Carson’s training and experience qualified him to opine that Elder’s injuries were caused by her fall, whether or not he treated them. That he was not trained as a medical doctor went to his credibility, not to the admissibility of his causation testimony.

Competence of Chiropractor to Testify About Necessity of Treatment

Dollar General next argued that Dr. Carson was not qualified to testify about the necessity of Elder’s medical treatment. Whether surgeries were related to the fall or to preexisting conditions was an issue in the case.

The supreme court noted that the reasonableness of treatment (which must generally be established to support the inclusion of medical expenses in a verdict) was not contested. Dr. Carson might not have been qualified to testify about the reasonableness of the medical treatment, but his training and experience qualified him to testify that the medical treatment was necessary. Since he was competent to testify that the fall caused the condition for which Elder was treated, he was also competent to testify that she needed the treatment she received.

 

Juries May Not Base Guilty Verdicts on Unreasonable Disregard of Expert Testimony

The Indiana Supreme Court began its opinion in Payne v. State with the observation that the “criminal legal system rests on the assumption that humans are rational agents of free will with the ability to exercise conscious choice in their everyday actions.” Whether that assumption is accurate is hotly debated by philosophers and neuroscientists. There is much about the mind and the concept of self that we do not understand, but judges are comforted by long-held assumptions that, if abandoned, would undermine the foundations of criminal punishment.

Putting aside the debate about free will, it is commonly understood that some people, at least, are compelled by irrational beliefs to behave unlawfully. Those people are sometimes said to be insane, although many states have abandoned that term.

The criminal justice system is premised on the belief that serious punishment should be reserved for people who choose to commit a crime despite their knowledge that it is wrong to do so. Modern legal thought generally shields defendants from criminal punishment when, at the time they engage in unlawful conduct, they are suffering from a mental disease or defect that deprives them of the ability to control their actions or to understand that their actions are wrong.

The tests for legal responsibility (or “insanity” in those states that still use the term) vary from state to state. In Indiana, an accused is not legally responsible for conduct that would otherwise be criminal “if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.”

Expert Testimony and Proof of Responsibility

Mental illness is typically proved by expert testimony. When a defense is based on the accused’s mental disease or defect, both the prosecution and the defense typically call an expert witness to opine whether the accused meets the relevant legal standard.

In some cases, however, mental illness and its impact on the defendant’s perception of reality is so obvious that all the experts agree that the legal standard is met. Those cases often result in a civil commitment based on the need to protect society from a dangerous person.

In Payne v. State, all the experts agreed that Payne was unable to appreciate the wrongfulness of his conduct, but the prosecution nevertheless took the case to trial and obtained a conviction. The question before the Indiana Supreme Court was whether jurors are free to disregard the unanimous view of expert witnesses when they decide whether a defendant is responsible for a criminal act.

Facts of the Case

Jesse Payne was arrested for burning down two covered bridges in 2002 and 2005 and for attempting to burn a third bridge. A judge determined that Payne was incompetent to stand trial, presumably because his mental illness rendered him incapable of understanding the proceedings or assisting in his defense. In 2016, the court decided that Payne had regained competence and the prosecution resumed.

Payne defended the charge on the ground that, when the crimes occurred, he was incapable of appreciating the wrongfulness of his conduct. Indiana persists in referring to that defense as an “insanity defense.”

Pursuant to Indiana law, the court appointed three neutral experts — two psychiatrists and a psychologist — to evaluate Payne and to determine his mental status at the time the alleged crimes were committed. All three experts agreed that Payne “suffered from paranoid schizophrenia and delusional disorder, rendering him unable to distinguish right from wrong” in 2002 and 2005.

Notwithstanding the unanimous opinions of the experts, and not satisfied with the fact that Payne had lost his freedom for eleven years before being declared competent to stand trial, the prosecution took Payne to trial. The prosecution argued that Payne’s demeanor proved that he knew he was doing something wrong. The jury evidently agreed with that argument and found Payne guilty. The Indiana Court of Appeals concluded that the jury was entitled to give the demeanor evidence greater weight than the unanimous expert opinions and affirmed his conviction.

Indiana Precedent

Appellate courts rarely second-guess a jury verdict. It is the jury’s function, not the court’s, to weigh the evidence. Juries are entitled to disbelieve witnesses, including expert witnesses.

But juries must still base their decisions on evidence, not on a sense of outrage that a crime might go unpunished if they vote to acquit a defendant who does not have the ability to understand the difference between right and wrong. The unwillingness of juries to let bad acts go unpunished makes the “insanity defense” a defense of last resort. Yet there are times when the evidence compels a finding that the defendant was not legally responsible for his actions, even if the jury chooses not to believe the obvious.

The supreme court noted that flaws in an expert’s opinion about the defendant’s mental status, combined with evidence of a defendant’s demeanor at the time the crime was committed, might reasonably permit the jury to find a defendant guilty. The primary Indiana precedent involved a defendant who had carefully planned a crime for weeks and then took steps to conceal evidence of the crime to avoid apprehension. Those facts, the court thought, could convince a jury that the defendant understood that it was wrong to commit the crime, given inconsistencies in the experts’ opinions.

Of course, failing to understand that conduct is wrong is not inconsistent with making a plan to engage in that conduct. A person might be driven by schizophrenia and paranoia to plan a crime without appreciating that the criminal conduct is morally wrong.

Concealing evidence might be seen as proof that the defendant knew the conduct could lead to punishment, but a desire to avoid consequences is not the same as appreciating that conduct is morally wrong. “Demeanor evidence” may therefore be an ambiguous ground upon which to base a rejection of uncontradicted expert testimony.

Expert Opinions and Demeanor Evidence in Payne’s Case

Regardless of the merit of Indiana precedent, the supreme court deemed it to be inapplicable. The court recognized that experts are “central to a determination of insanity.” The experts agreed that Payne’s history of paranoid schizophrenia and delusional disorder was longstanding and well documented. There was no evidence that Payne had been faking the condition before, during, or after he committed the acts of arson.

When expert opinions are in conflict or when there is reason to discount them, juries are free to choose among conflicting opinions or to reject them all. While “conflicting diagnoses, inadequate document review, deficient psychiatric evaluations” and similar flaws in the expert opinions might allow a jury to disregard those opinions, none of those flaws were present in Payne’s case. Nothing in the expert testimony gave the jury any factual basis for concluding that Payne did not meet the Indiana definition of insanity.

Nor did the prosecution’s reliance on “demeanor evidence” justify a verdict that disregarded the unanimous expert opinions. Dr. Jeffrey Huttinger explained that Payne’s demeanor, though “superficially normal to a casual observer,” was consistent with schizophrenia when his actions were “driven by some type of delusion.”

The prosecution relied on evidence that Payne set the fires late at night, a choice made — in the prosecution’s view — to avoid detection. The prosecution also argued that Payne lied when he told the police that fuel in his car was for camping and that he used convenience store receipts in an attempt to establish a false alibi. The prosecution suggested that the jury could view its evidence as establishing a consciousness of guilt.

The supreme court recognized that the jury was required to consider the totality of the evidence. The prosecution’s demeanor evidence was ambiguous. People who are paranoid and delusional might well operate in secrecy and tell lies. In fact, that conduct might be a product of their mental illness.

In the supreme court’s view, the prosecution’s demeanor evidence did not outweigh the unanimous opinion of three mental health experts that Payne was incapable of appreciating the wrongfulness of his conduct. Given the weight to which the expert opinions were entitled, the probative value of the prosecution’s demeanor evidence “effectively dissolves.” The court therefore concluded that “not guilty by reason of insanity” was the only verdict a reasonable jury could return.

The supreme court observed that its judgment is not a “get out of jail free” card. Indiana law requires a civil commitment proceeding to follow an acquittal on the ground of insanity. If Payne still suffers from a mental illness which makes him a danger to society — and he might not, given the prosecution’s argument that treatment restored his competence to stand trial — he will be subject to civil commitment until he no longer poses a danger.

Lessons Learned

The culture wars that divide America include a battle over expert opinions. Some people reject all expert opinions, whether they pertain to global warming or the dangers of coronavirus, as “elitist.” Those people believe that expert opinions are entitled to no greater deference than the opinions of people who have no expertise at all. That battle, coupled with the insurance industry’s relentless effort to portray all experts as “hired guns,” has tended to make juries less open to the opinions of experts who are more knowledgeable than lay jurors.

Judges routinely take cases away from civil juries because they believe that no reasonable jury could disbelieve the evidence presented by defense experts. The willingness to disregard the judgment of jurors in civil cases, where only money is at stake, should equally protect defendants in criminal cases, where freedom is at stake. When jurors refuse to believe unassailable expert opinions about a defendant’s mental health, it is the judiciary’s duty to set aside the jury’s unreasonable verdict and to acquit the defendant.

Lab Analysts May Be Required to Testify in Person in Criminal Trials

Deposing Experts in the Age of COVID-19

Taking discovery from experts was fairly routine before the coronavirus pandemic. Under the federal rules in civil cases, an expert would write a report, the report would be disclosed to the opposing party, and that party would typically take the expert’s deposition. State rules generally track those procedures.

After the pandemic, taking a deposition is a more complicated issue. Social distancing is difficult in a conference room where the expert, at least two lawyers, a court reporter and a possibly a videographer all gather. Experts and lawyers may be reluctant to sit across from each other at a conference table. They might also have reservations about handing documents back and forth.

Wearing a mask muffles questions and answers and makes it difficult for a court reporter to produce an accurate transcript. Since depositions are typically recorded on video, the mask also interferes with the viewer’s opportunity to gain nonverbal cues about the expert’s credibility by watching the expert’s facial expressions.

Remote Depositions

Rule 30(b) of the Federal Rules of Civil Procedure allows parties to stipulate, or the court to order, “that a deposition be taken by telephone or other remote means.” In the past, parties sometimes refused to stipulate to remote depositions because they wanted to drive up the opposing party’s cost of litigation.

The importance of social distancing during a pandemic, and the likelihood that precautions will be the “new normal” for an extended time, will likely make it easier to persuade federal judges to grant Rule 30(b) motions permitting remote depositions. Objecting to remote depositions during a pandemic is unlikely to curry favor with a judge who is truly neutral.

Platforms like Zoom and WebX allow people at multiple locations to participate in a meeting. Those platforms lend themselves to remote depositions. The court reporting service might suggest a different platform that offers helpful features, such as exhibit display and the ability to read real-time transcription.

Most companies that provide court reporters and videographers have experience with remote depositions. It makes sense to select a reporter shortly after the deposition is scheduled and to listen to the reporter’s suggestions to make the expert’s deposition proceed smoothly.

It is usually preferable for the court reporter to be in the same location as the expert witness. Errors caused by internet lags and equipment glitches are less likely when the reporter is present to hear the witness testify.

Practical Concerns

Taking or offering a remote deposition raises practical concerns that lawyers for both parties need to address. First, the party taking the deposition should assure that the reporter or videographer is “an officer authorized to administer oaths” as Rule 28(a) requires, unless the parties stipulate otherwise. A reporter or videographer who is also a notary will typically satisfy the requirement that the deposition be taken before an officer, although it may be possible to stipulate that a notary at a remote location will administer the expert’s oath.

Second, it makes sense to mark and circulate exhibits ahead of the deposition. The expert report will likely be an exhibit that everyone will have in advance, but marking exhibits on the fly and then showing them to a witness — a common practice during in-person depositions — is problematic when the witness is asked to view an exhibit on a screen.

While attorneys might still try to surprise an expert with a “gotcha” exhibit, the effective use of document discovery prior to an expert’s deposition and good witness preparation should limit the likelihood that an expert will be asked about an exhibit the expert has not seen in advance. Marking exhibits and circulating them by email or through a shared link will make a remote deposition proceed more smoothly. Depositions conclude more quickly when the expert witness is familiar with the exhibits and can consult a hard copy rather than squinting at a screen.

 

Drug Dog Expert Helps Defendant Establish that Car Search Was Unreasonable

ExpertPages recently reported an appellate decision in Florida that upheld the admission of expert testimony given by cadaver dog handlers. The handlers testified that when their dogs “alerted” after sniffing parts of a car, they were telling the handler that they smelled the remains of a body.

The human ability to interpret a dog’s thoughts is suspect, at best. When a dog brings us her leash, we assume she wants to go for a walk, but maybe she just enjoys carrying her leash. The Florida cadaver dog handlers assume that their dogs are alerting because they smell bodily remains, but one of them admitted that his dog once alerted when he smelled shrimp.

The point is that nobody can be certain what a dog intends to communicate because nobody can read a dog’s mind. Dogs react to verbal cues from their owners and have an intense desire to make their owners happy. Perhaps they react in ways that they hope will please their owners, even if the reaction is unrelated to their training.

The Florida decision paid lip service to Daubert but its analysis of the reliability of dog handler testimony was cursory. While not applying Daubert, a federal court in Utah recently made a more thorough analysis of the science underlying a dog’s expert testimony, as filtered through human handlers.

Traffic Stop

Desmond Travis Jordan was suspected of involvement in drug crimes. A police detective with less than five years of law enforcement experience began conducting surveillance of Jordan’s residence.

Detective Allen alerted a K9 handler to be ready in case Jordan left his home. Having prejudged Jordan’s likely guilt, Allen was planning to have a drug dog sniff Jordan’s vehicle to provide probable cause for a search.

Allen saw a vehicle leaving Jordan’s home. Allen didn’t know who was driving, but he immediately contacted Officer Moore, the K9 handler, to advise him that he should be ready to respond to a traffic stop.

Two minutes later, Allen stopped the vehicle, allegedly for speeding. Allen then contacted Moore and asked him to come to the scene with his drug dog.

Dog Sniff and Vehicle Search

Moore arrived with Tank, the drug dog. A video showed that Moore walked Tank around Jordan’s car three times. Tank did not seem particularly interested in the car. He displayed greater interest in sniffing the sidewalk and watching traffic pass.

Apparently unhappy with Tank’s response, Moore tapped on the doors and the trunk several times. Even then, Tank showed little interest. He did sniff the car, however, which Moore interpreted as an “alert.” Tank did not give the final response he was trained to give upon detecting the odor of drugs — he did not sit — but Moore testified that as Tank’s trainer, he knew what Tank was trying to say.

Armed with Moore’s opinion that Tank had detected the odor of drugs, Allen searched Jordan’s vehicle. Allen found an empty marijuana pipe and a firearm. Jordan was charged with a federal crime related to his possession of the firearm.

Drug Dog Training

Tank the drug dog immigrated from Slovakia in March 2018. Tank suffers from a degenerative hip disease, an unfortunate condition for a dog that is trained to give alerts by sitting.

Moore began training Tank through the Utah POST program in April 2018. Training included the detection of various drugs by scent. Tank was certified as a drug dog in July 2018.

Handlers must be trained as well as the dogs. The POST system tells handlers to disregard normal dog reactions to interesting smells, including focused sniffing and excitement. These are normal behaviors of all dogs and offer no evidence that the dog smelled an odor it was trained to detect.

Tank was trained to sit or lay down when it detected the highest concentration of a drug odor. The training manual claims that the dog’s trained response is objective evidence of the presence of a target odor. The manual does not explain how to distinguish between “I am laying down because I smell heroin” and “I am laying down because I am tired.”

Moore continued training Tank after Tank was certified. However, 27 of the 28 training sessions involved locations where drugs were present. Only one session involved a session where no drugs were present. The sessions may therefore have trained Tank to expect the odor of drugs and to respond accordingly.

In addition, on all but one occasion, Moore was aware that drugs were present. That knowledge created the risk that he would continue to have Tank sniff until Tank alerted. In other words, Tank was trained to alert because Moore wanted him to alert. Whether Tank actually smelled drugs is something that only Tank knows.

Dog Sniff Expert

Jordan moved to suppress the results of an illegal search. Allen needed probable cause to search Jordan’s car. Jordan contended that Moore’s testimony did not establish that his car probably contained illegal drugs.

Jordan called Mary Calbk as an expert witness. Calbk is a POST K9 Evaluator in Nevada and a POST instructor in California.

Calbk explained the concept of “handler bias.” Since dogs are highly motivated to make their owners happy, handlers can easily trigger a false response when handlers expect to find drugs. Even the best trained dogs can react to subtle visual cues and give a response because they believe the handler will be pleased by a response.

The best way to avoid handler bias is double-blind training, in which the handler does not know whether a particular location contains drugs. The dog’s response is judged by a third person, not the handler, who also does not know whether drugs are present. Tank never had double-blind training.

Of course, training makes little difference in a case like Jordan’s, where both Allen and Moore clearly expected Jordan’s car to contain drugs and where Tank never gave the trained response. Calbk testified that the video showed Tank engaging in ordinary dog behavior. In her expert opinion, nothing in that behavior suggested that Tank smelled drugs.

Court’s Decision

Tenth Circuit precedent has been quite forgiving about drug dog “alerts,” even going so far as to say a drug dog need not necessarily give a “final indication.” One might wonder what the point is of training dogs to give a final indication if their handlers are free to ignore that training and substitute their own opinions of what was in the dog’s mind for the objective evidence they are trained to gather.

Judge Waddoups wisely recognized that precedent did not address cases in which a dog’s behavior — sniffing a car after its handler has rapped on the car — is not even slightly unusual. Every dog sniffs. Drug dogs are trained to sniff. When a trained drug dog sniffs but does not alert in any way, there is not the slightest bit of evidence that the dog smelled the odor of a drug.

While courts typically rely on a training certification to prove a dog’s reliability, Utah’s certification apparently follows no recognizable standard. Without double-blind (or even single-blind) training, it is impossible to know whether the dog has been taught to react to the odor of drugs rather than visual cues.

The court understood that Allen and Moore were putting on a show by bringing Tank to the scene. They intended to search the car and were looking for an excuse to do it. Moore’s testimony that he interpreted Tank as alerting to the odor of drugs was, in the court’s view, not credible. Accordingly, the court suppressed evidence obtained in the search.

The court’s holding protects the Fourth Amendment rights of individuals to be free from unlawful searches: “Allowing a K9’s alert to support a finding of probable cause to search a vehicle on the unverifiable, subjective interpretation of the handler would seriously erode long protected Constitutional rights.” The Fourth Amendment “becomes meaningless if the dog’s communication of its detection of drugs is so subjective that it is nothing more certain than a reflection of the handler’s hunch that drugs must be there.”

Lessons Learned

Allen and Moore tried to circumvent the Fourth Amendment. Jordan’s defense lawyer wisely engaged the services of an expert witness to demonstrate that the officers had no probable cause to search Jordan’s car. Whenever humans claim they know exactly what a dog intends to communicate, an expert witness can provide invaluable testimony to assure that the human witnesses do not get away with implausible claims about their ability to read a dog’s mind.