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.


Florida’s New Daubert Rule Leads to Reversal of Conviction

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

Facts of the Case

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

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

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

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

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

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

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

Expert Testimony

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

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

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

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

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

Appellate Opinion

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

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

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

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

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

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

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

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

Lesson Learned

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

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

Expert witness courtroom

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

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

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

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

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

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

Facts of the Case

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

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

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

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

Michigan Law Regarding Expert Witness Funding

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

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

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

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

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

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

A Better Rule

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

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

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

Appellate Court’s Ruling

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

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

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

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

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

New Trial Ordered

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

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

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

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

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


Michigan Rejects Challenge to Expert Testimony When Witness Gave Lay Testimony of a Technical Nature

When Shawn Eichler was eight, he tried to do a pullup from a bar at the top of a dumpster. He instead pulled the dumpster over. The dumpster landed on top of Shawn, causing serious injuries.

Shawn sued the waste management company that supplied the dumpster to his neighbor. He alleged that his injuries were caused by the company’s negligent decision to place the dumpster on grass rather than a firm concrete surface. He also contended that the dumpster design was inherently dangerous, given that it could be tipped over by an 80-pound boy.

The case was tried to a Michigan judge. After hearing evidence for three days, the judge agreed that the design and placement of the dumpster made it inherently dangerous and the company’s negligence caused Shawn’s injuries. The dumpster company challenged the judgment on appeal, arguing that the evidence failed to establish its negligence.

Dumpster Safety Testimony

Shawn relied in part on the testimony of Steven Ziemba. For almost two decades, Ziemba worked as a safety consultant, performing accident investigations for insurance companies. His degree is in chemical engineering.

Ziemba testified that the Consumer Product Safety Commission (CPSC) has determined that “slant-side” dumpsters are unstable. Ziemba also testified that a CPSC fact sheet showed that 13 children had died due to unstable slant-side dumpsters.

The dumpsters were banned in 1978, although owners were allowed to retrofit them with bracing extensions to enhance their stability. That modification was never performed on the dumpster that tipped over and injured Shawn.

Ziemba testified that everything has a center of gravity. Shifting the center of gravity can cause a product to become unstable. The center of gravity of a rectangular bin would normally be in its center. The slant-side bin, however, had extra weight on the edge that shifted its center of gravity from the center to a point closer to the side. That design reduced the stability of the bin. Adding the 80-pound weight of a child to the side was sufficient to cause the bin to tip over.

The CPSC safety standards require bins to remain stable when they are “pulled down” with 191 pounds of force. Ziemba opined that an 80-pound boy should not be able to tip over a bin by pulling down on its edge. Ziemba examined similar bins in the community and determined that even without extensions, the bins could not easily be tipped with 75 pounds of weight when they were on concrete surfaces. Placing the bin on a soft surface, however, made it much easier to tip.

Challenge to Ziemba’s Testimony

The waste management company contended that Ziemba was not qualified to render an expert opinion. His education was in the field of chemical engineering and Ziemba had no training in the area of dumpster design. In addition, Ziemba had not recently been certified as a safety professional and had never been certified as an expert in ergonomics.

The appellate court noted, however, that Ziemba was not asked to testify as an expert. He instead provided fact testimony as a lay witness based on his own perceptions and personal knowledge. The fact that his perceptions relied on elements of scientific or technical knowledge did not preclude him from offering lay testimony, at least if the testimony was not “overly dependent” on scientific knowledge.

The court concluded that Ziemba based his testimony on personal knowledge because he conducted tests to determine the effort required to tip over a slant-side dumpster on concrete and grass surfaces. Some of Ziemba’s testimony, however, described CPSC findings and therefore was not based on personal knowledge. Those findings may have been independently admissible as determinations made by a government agency, but the court did not address that question.

The court also held that Ziemba’s testimony would not be reversible error even if he testified as an expert. The court did not explain why that was true. The criminal case its cites in support of that holding addressed a police officer who gave lay testimony that probably should have been given by an expert. The court split the baby in half, deciding that it could be “reasonably argued” that lay testimony was admissible while making the dubious conclusion that the officer was an expert in the behavior of sexual assault victims because he has interviewed many of them. How that decision supports the admission of Ziemba’s testimony is unclear.

Lessons Learned

It was obvious to the trial and appellate courts that a dumpster should not tip over when a small boy pulls on it. The unsafe design, combined with the placement of the dumpster on an unstable surface, made liability clear. The appellate court’s decision was likely influenced by its unspoken belief that expert testimony is not required to explain the obvious.

Liability in most negligence cases involving unsafe products is not so obvious. Given the gray area between expert and lay testimony, it may have been better for Shawn to have presented testimony from a safety engineer. Alternatively, it may be that Ziemba’s experience as a safety consultant qualified him to give relatively simple testimony about dumpster design, even if he had no experience in product engineering. If so, Shawn probably needed to make a better record of Ziemba’s qualifications.

Using expert rather than lay testimony overcomes the restriction placed on lay witnesses to confine their opinions to perceptions that are based on personal knowledge. While the Eichler decision did justice, the lesson to learn is that lawyers should always try to find an expert who is well qualified to testify when expert testimony would make it easier to prove or disprove liability.


Every Expert Witness Should Be Challenged with Another Expert Witness

Recent news stories alleging mistakes by “celebrity” forensic scientist Henry Lee should serve as an important lesson for criminal defense attorneys. No matter how strong the prosecution’s forensic evidence appears to be, a defense lawyer should never accept it at face value.

Lee’s reputation took a hit after DNA evidence suggested the innocence of a defendant who was convicted of a 1985 murder on the strength of Lee’s testimony. Unable to find convincing evidence to explain the crime, police detectives who investigated the New Milford, Connecticut murder decided that Everett Carr must have been killed because he interrupted a burglary.

After spinning their wheels for two years, the police turned to the old trick of coaxing statements from jailhouse snitches. The informants obliged by incriminating Shawn Henning and Ralph Birch. The police had been trying to pin the murder on the two local thieves but had no evidence that they were ever at the crime scene.

Lee’s Questionable Testimony

The prosecutor, who now admits that the evidence was “shaky,” bolstered the prosecution’s case by calling Henry Lee as an expert witness. To explain why no blood was found on Henning or Birch after such a bloody murder, Lee opined that they must have wiped themselves with a towel found in the bathroom. According to Lee, testing confirmed that stains on the towel were “consistent with blood.”

Later testing established that the stains were not caused by blood. More importantly, there is no record that Lee ever tested the towel. Although Lee now claims he performed a field test (the results of which would not have produced admissible evidence) rather than a test in the crime lab, Lee’s testimony did not hint at that distinction.

A unanimous decision by the Connecticut Supreme Court overturned the convictions of Henning and Birch. The court faulted Lee for failing to engage in due diligence when he testified that there was blood on the towel in the absence of any lab test that confirmed the existence of blood. When an expert testifies about facts, it is an expert’s duty to confirm those facts before swearing that they are true.

Reputations Do Not Shield Experts

Two innocent men might have been spared decades in prison if their attorneys had hired their own expert witness. Independent testing of the towel by defense experts would have revealed that there was no blood on the towel. Lawyers should always confirm that the anticipated testimony of prosecution experts is accurate.

Henry Lee has given important testimony in well-publicized cases involving O.J. Simpson, Scott Peterson, and JonBenet Ramsey. Yet the Daily Beast reports that Lee “has allegedly hidden evidence or given incorrect testimony in at least three other cases, potentially sending the wrong men to prison and allowing guilty ones to walk free.”

Other highly regarded forensic experts have also given unreliable testimony. Despite its reputation as an “elite” unit of forensic scientists, an investigation of the FBI crime lab discovered that expert analysts “gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period.”

Scandals have rocked crime labs in more than a dozen states. Forensic experts have been accused not just of negligence, but of stealing evidence, falsifying credentials, tampering with forensic tests, concealing their error rates, and lying about the standards that are deemed acceptable in their field of forensic science.

Never Take Expert Testimony for Granted

Criminal defense lawyers might be tempted to assume that the prosecution’s forensic evidence is unassailable. A fingerprint match, for example, is commonly viewed as powerful evidence of guilt. Yet fingerprint analysis is based on unproven assumptions that a defense expert can call to the jury’s attention.

While cross-examining an honest prosecution expert might expose those assumptions, experts who are employed by the government too often see it as their duty to help the government. An expert might respond to cross-examination by doubling down on the expert’s certainty that the science upon which the expert relies is foolproof. Defense lawyers should always be prepared to call expert witnesses who can expose the uncertainties associated with fingerprint evidence.

Even DNA evidence, commonly regarded as the gold standard of forensic science, can be challenged. While a defense expert might not be in a position to say that two DNA profiles are different, an expert can explain how mishandled evidence and misinterpreted test results can undermine confidence in a crime lab expert’s testimony.

The bottom line is that no expert, no matter how celebrated the expert might be, is infallible. When funding is available, every prosecution expert should be matched with a defense expert. Calling an expert witness will often expose reasonable doubt and prevent an unjust conviction.

Medicine bottle

Dismissal in Risperdal Case Reversed Because Judge Improperly Refused to Consider Expert Testimony

Brenda Tinkham and her son, T.M., sued Janssen Pharmaceuticals and related companies for failing to warn of the risk of gynecomastia associated with the drug Risperdal. Gynecomastia is characterized by the growth of female breast tissue in males.

The Tinkhams filed suit in a Philadelphia County trial court. Many similar lawsuits have been filed against Janssen, including more than 5,000 that have been coordinated in Philadelphia’s Complex Litigation Center.

Texas doctors prescribed Risperdal when T.M. was seven years old after diagnosing attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). The Food and Drug Administration (FDA) had approved Risperdal to treat adult schizophrenia. The FDA had not approved Risperdal for use in children or for the treatment of either ADHD or ODD.

The case went to trial, but the trial judge, applying Texas law, decided that much of the testimony of the Tinkham’s causation expert was inadmissible. The judge then dismissed the case for failure to prove causation. The Tinkhams appealed to the Pennsylvania Superior Court.

Expert Testimony Regarding Duty to Warn

The Tinkhams relied on the testimony of two expert witnesses. Dr. David Kessler, a former FDA commissioner and the former dean of Yale Medical School, testified that Janssen had a duty to warn patients of the risk that Risperdal could cause gynecomastia and that Janssen breached that duty.

Dr. Kessler reviewed the known risks that were associated with Risperdal in 2004, when it was prescribed to T.M. Risperdal had long been known to elevate prolactin levels associated with gynecomastia and other endocrine disorders. Janssen had acknowledged in an application to the FDA in 1996 that doctors were prescribing Risperdal to children for off-label uses (i.e., uses not approved by the FDA), including the treatment of ADHD.

The FDA denied Janssen’s application for approval of Risperdal to treat ADHD, noting the absence of substantial evidence that the drug was safe for pediatric use. Dr. Kessler testified that, despite the FDA’s refusal to approve Risperdal to treat ADHD in children, Janssen actively marketed Risperdal to doctors for that purpose.

Janssen’s warning label between 2002 and 2006 claimed that the effects of elevated prolactin levels were “unknown in most persons.” The label was updated in 2006 to state that hyperprolactinemia (an elevated level of the hormone that produces breast milk) was a “rare” side effect. In 2007, Janssen updated the label to acknowledge that Risperdal causes gynecomastia in 2.3% of patients. Dr. Kessler testified that the actual percentage of patients who develop the condition is significantly higher.

Based on studies, including some of Janssen’s internal studies and its internal emails, Dr. Kessler testified that Janssen was aware of the risk that Risperdal could cause gynecomastia by 2001. He opined that Janssen had an obligation at that time to warn patients of the risk. He also testified that Janssen manipulated study data to reduce the apparent risk and that it funded the publication of a misleading article regarding the study.

The physicians who prescribed Risperdal to T.M. testified that Janssen actively marketed Risperdal for the treatment of ADHD. One psychiatrist testified that he accepted an all-expenses-paid trip from Janssen to a seminar at which Risperdal was marketed for the purpose. The doctors also testified that they would not have prescribed Risperdal if they had known that gynecomastia was not a rare side effect.

Expert Testimony Regarding Causation

Dr. Mark Solomon, a plastic surgeon with expertise in gynecomastia and diseases of the breast, testified that T.M. suffered from gynecomastia. He also testified that Risperdal was the cause of T.M.’s gynecomastia. He based that opinion on studies showing that Risperdal can cause the condition, a review of T.M.’s medical records, and photographs taken in 2007 showing that T.M. had begun to develop breasts.

Janssen argued that under Texas law, general causation (the ability of a drug to cause an adverse condition) can only be proved by two epidemiological studies showing that taking a drug doubled the risk of developing the plaintiff’s condition in test subjects who are similar to the plaintiff. Janssen contended that Dr. Solomon did not rely on studies showing a doubled risk.

Janssen also discounted the photographic evidence because T.M. stopped taking Risperdal in 2008 and was not diagnosed with gynecomastia until 2010. The trial court agreed with Janssen and dismissed the lawsuit for failure to prove causation.

The question on appeal was whether Texas or Pennsylvania law governing proof of causation should have been applied. As a general rule, when a negligent act is committed in one state and a negligence lawsuit is commenced in a different state, a court will apply the substantive law of the state in which the negligent act occurred. The court nevertheless applies the procedural law of the state in which the lawsuit is heard.

Pennsylvania Law

Unlike Texas, Pennsylvania courts do not require two epidemiological studies that show a doubling of risk in patients similar to the plaintiff. The Pennsylvania court noted that if the risk of developing a condition is 1.5 times greater in patients who take a drug than in patients who don’t, that elevated risk might make it more probable than not that the drug causes the condition. The “more probable than not” standard of proof can be satisfied even in the absence of studies that prove a doubling of risk.

The Tinkhams argued that Texas law does not require epidemiological studies to establish general causation, but merely sets standards for those studies when they are relied upon. The appellate court noted precedent in support of that position but decided the case on different grounds.

The Admissibility and Sufficiency of Expert Testimony is Procedural

Is the sufficiency of expert evidence to establish causation a matter of substantive or procedural law? The Superior Court decided that plaintiffs have a substantive duty to prove causation, but the admissibility and adequacy of proof of causation are procedural issues.

The court held that Pennsylvania law governs whether an issue is substantive or procedural. The admissibility of expert evidence is, under Pennsylvania law, a procedural matter.

Pennsylvania (unlike Texas) follows the Frye standard for the admissibility of expert testimony. Pennsylvania generally allows juries to decide whether experts have given reliable testimony, provided that they use methodologies that are generally accepted in their field of expertise. Dr. Solomon’s testimony satisfied the Frye standard.

The court recognized that even if a judge admits expert evidence, Texas law allows the judge to review expert evidence at the end of the case to determine whether it would support a verdict in the plaintiff’s favor. Janssen characterized that review as substantive rather than procedural.

The Superior Court disagreed. In Pennsylvania, whether the evidence is sufficient to prove causation is a procedural inquiry. That holding is consistent with the general principle that the law of the state in which the trial is held determines whether a party has introduced sufficient evidence to support a verdict in its favor.

The substantive law of Texas holds drug companies liable for failing to warn patients about known side effects. When warnings have been approved by the FDA, the substantive law of Texas creates a presumption that the warnings are adequate. That presumption can be overcome by evidence that the drug company withheld relevant evidence from the FDA about side effects at issue in the case, or that the company promoted the drug for an off-label use. The evidence was sufficient to prove that both of those were true.

The substantive law of Texas also requires proof that a defective warning caused harm to the plaintiff. The court’s procedural review established that the expert and nonexpert evidence was sufficient to permit a jury to find that the improper warning caused T.M.’s gynecomastia. The trial court therefore erred by dismissing the case.


Court Rejects Challenges to Expert Testimony in Case Alleging Negligent Medical Transportation

Rodolfo Prieto was thrown from a wheelchair while being transported in an ambulance from a dialysis center to his assisted living facility. He died a few months later. Bianca Prieto sued the dialysis center, Total Renal Care, for negligence. She alleged that Total Renal Care had a duty to follow Rodolfo’s doctor’s orders, which required Rodolfo to be transported by stretcher.

The lawsuit was filed in federal court in the Southern District of Florida. Bianca and Total Renal Care each moved to exclude testimony of the other party’s expert witnesses. Both parties also moved for summary judgment. The District Court judge denied all motions.

Facts of the Case

Rodolfo was 76 at the time of his death. His leg had been amputated in 2015. His treating nephrologist ordered that Rodolfo be transported to and from dialysis treatment on a stretcher.

In January 2016, American Services Company transported Rodolfo to Total Renal Care on a stretcher. He left the center in a wheelchair. American Services Company left him in the wheelchair during his transportation to his assisted living facility. During that drive, the transportation van came to an abrupt stop, throwing Rodolfo from the wheelchair.

Bianca contended that Total Renal Care had a duty to ensure that Rodolfo was transported to and from their dialysis treatment center via a stretcher. She further contended that the van’s abrupt stop would not have caused Rodolfo’s death if he had been in a stretcher rather than a wheelchair.

Total Renal Care argued that American Services Company was to blame because the company failed to secure Rodolfo to the wheelchair. According to Total Renal Care, the transportation company’s negligence was a superseding cause of Rodolfo’s injuries.

Defendant’s Expert

Bianca filed a Daubert motion to exclude the testimony of Charles Benedict, an accident reconstruction expert. In Benedict’s opinion, Rodolfo would have sustained the same or worse injuries if he had been transported in a stretcher rather than a wheelchair. Benedict concluded that Rodolfo’s injuries were caused by the driver’s failure to secure him to his wheelchair with a seatbelt.

The Daubert decision requires a trial judge to decide whether an expert is qualified to render the proffered opinion, whether the expert’s testimony would be helpful to the jury, and whether the expert’s opinion is reliable. Reliability is measured by whether the expert formed the opinion by applying a sound methodology to sufficient facts.

In some cases, at least, the Eleventh Circuit tests reliability by examining “1) whether the expert’s theory can be and has been tested; 2) whether the theory has been subjected to peer review and publication; 3) the known or potential rate of error of the particular scientific technique; and 4) whether the technique is generally accepted in the scientific community.”

Bianca contended that Benedict’s opinion was unreliable because it was not based on testing or on any peer-reviewed methodology that was subject to a known error rate. Bianca also challenged Benedict’s qualifications to render the opinion.

The court noted that an expert only needs to be “minimally qualified” and that the qualification standard is “not stringent.” Benedict’s education and experience were sufficient to meet that forgiving standard. The court also concluded that his testimony could help the jury decide the core issue: whether Rodolfo’s injuries were caused by Total Renal Care or by American Service Company.

Benedict considered Rodolfo’s medical records, reviewed deposition transcripts, and “used technical data to make comparisons.” Based on that information, Benedict concluded that the driver failed to restrain Rodolfo properly when the driver picked him up in a wheelchair and that the driver’s failure caused Rodolfo’s injuries. Benedict’s opinion was based on adequate facts

Although the court did not say so, the kind of opinion that Benedict ventured is probably not the sort of science-based opinion that must depend upon an accepted and tested theory with a known error rate. Rather than engaging in the microscopic examination of methodology that some judges favor, the court simply noted that “nothing suggests that the process by which Mr. Benedict formed his opinions is unreliable.” The court therefore denied the motion to exclude his testimony.

Plaintiff’s Expert

Bianca attached the affidavit of Erika Hall, an Adult Nurse Practitioner, to her complaint. The affidavit opined that Rodolfo would not have been injured if Total Renal Care had sent him home the same way he arrived — in “a properly restrained stretcher” rather than a wheelchair. 

Total Renal Care moved to strike Hall as an expert witness because she was not timely disclosed as an expert, as required by the court’s scheduling order. Hall was disclosed on Biana’s witness list and was belatedly designated as an expert witness.

Total Renal Care took Hall’s deposition and cross-examined her about her opinion testimony. Total Renal Care received her expert affidavit when it was served with the complaint. Concluding that Hall’s status as an expert witness was no surprise to Total Renal Care, the court decided that excluding her testimony would be an unjust response to a harmless violation of the scheduling order.

Indiana US State Law Legal System Concept

Indiana Supreme Court Permits Impeachment of Expert Based on Professional Discipline

Experts who are licensed in a profession sometimes face professional discipline for breaching professional standards. When accusations are unproven, courts are unlikely to admit evidence of the alleged transgression to impeach the expert. When the expert is disciplined, however, whether disciplinary findings may be raised in cross-examination of the expert presents a more difficult question.

The Indiana Supreme Court confronted that question in Turnstall v. Manning. The court determined that discipline affecting the status of a professional’s license may be admissible evidence, while the reasons for the discipline might not be.

Facts of the Case

Dawn Manning was rear-ended by Levetta Turnstall while Manning was stopped at a stop sign. Manning went to an emergency room and was given a neck brace. Her neck pain did not resolve, despite twice-weekly visits to a chiropractor.

Manning’s family doctor took X-rays and administered an MRI that revealed no abnormalities. A spine specialist suggested the possibility of injections for pain relief, but Manning did not want to engage in treatment that might last the rest of her life.

Manning was evaluated by Dr. Stephen Paschall, who testified at trial as her medical expert. Manning explained to Dr. Paschall that she suffered from constant back pain and regular back spasms. Dr. Paschall concluded that Manning suffered from a cervical spine injury that significantly limited the full range of her head motion. He also testified that the injury was permanent.

During a deposition, Dr. Paschall testified that his medical license had been placed on probation at some point in the past. Dr. Paschall refused to discuss the underlying facts that caused the discipline.

Turnstall asked the court to compel Dr. Paschall to answer the questions. The court determined that Dr. Paschall was placed on probation because he had been convicted of two misdemeanors, failed to disclose the charges or convictions to the licensing authority, and failed to keep adequate records of the drugs he dispensed.

The court ruled that the discipline was not relevant because Dr. Paschall no longer had a probationary license at the time of the trial. The court therefore disallowed testimony about the discipline or the reasons for which it was imposed.

The jury ruled in favor of Manning and awarded her $1.3 million in damages. Turstall appealed and the verdict was affirmed. The Indiana Supreme Court agreed to review the Court of Appeals’ decision to determine whether experts can be impeached with evidence of professional discipline.

Impeachment Evidence

Past misconduct may or may not bear on credibility. For example, different states have adopted different rules about the use of prior criminal convictions to impeach the credibility of a witness. Some states allow evidence of the number of convictions but not the nature of the convictions. Some states allow the jury to hear about past convictions but only if they are relevant to the witness’ character for truthfulness (such as a fraud or perjury conviction). Some states disallow evidence of criminal convictions under nearly all circumstances. Others regard older convictions as inadmissible.

An expert’s past professional discipline might be seen as akin to a criminal conviction. Like a criminal punishment, professional discipline punishes a violation of rules. Just as states have differing standards for impeachment by evidence of convictions, they also differ in their approaches to impeaching experts with evidence of misconduct. The Indiana Supreme Court noted that the admissibility of evidence of professional discipline to impeach an expert had not been definitively determined in Indiana.

Evidence of Probationary License Held Admissible

The court’s analysis begins with the words: “Expert testimony is a valuable litigation tool.” The court also recognized the prevailing rule that if an expert’s opinion is based on a reliable methodology and adequate facts, it is up to the jury to decide whether the expert is credible.

The court held that discipline and the reasons for it may be relevant to an expert’s credibility if the discipline limits professional licensure. The devil is in the details — in this case, the standard that separates cases in which discipline is relevant from those in which it is not.

The court held that evidence of Dr. Paschall’s licensure probation was relevant to his credibility because placing the license on probation affected Dr. Paschall’s “professional qualifications.”  The court did not explain why a limitation on a license that does not exist at the time services are provided or testimony is given should affect an expert’s qualifications to render an opinion. Nor did the court decide whether discipline that does not affect license status, such as a censure or caution, would also be relevant.

The court seemed to suggest a blanket rule that professional discipline affecting the status of a professional license is relevant. The next question is whether the relevance is outweighed by the prejudicial impact it might have on a party’s case.

The court noted that Dr. Paschall was placed on probation shortly after he first examined Manning, although the probation ended before he testified. The court determined that the evidence was not unduly prejudicial under those circumstances. Perhaps the passage of a longer time between the imposition of discipline and the expert’s professional services would reduce the probative value of the discipline, changing the balance of relevance and prejudice.

Reasons for Probationary License Held Inadmissible

The court held, without explaining why, that the reasons for a licensing authority’s actions may be admissible. In this case, however, the reasons for placing Dr. Paschall on probation could not be admitted.

Only convictions for specified crimes may be used to impeach a witness in Indiana. Dr. Paschall was not convicted of any of those crimes, so the convictions could not be used to impeach him.

The failure to disclose the convictions was arguably fraudulent conduct that affected Dr. Paschall’s credibility. Indiana law, however, does not permit specific instances of misconduct to be used to attack “character for truthfulness” unless another witness has given an opinion about the witness’ character. Since no witness vouched for Dr. Paschall’s truthfulness, evidence of misconduct was not admissible to attack his credibility.

Judgment Affirmed

The trial court erred by disallowing testimony that Dr. Paschall was given a probationary license after he examined Manning. The court concluded, however, that the error did not have a significant effect on the verdict.

The insurance company attorney attacked Dr. Paschall’s credibility in other ways. Dr. Paschall admitted that he failed part of a board certification exam twice before passing it, that he had been hired by Manning’s attorney in the past, and that he did not review all medical records that the insurance company lawyer deemed relevant to Manning’s condition. The majority concluded that impeaching Dr. Paschall with evidence that he was once placed on probation would have added little to that attack.

The insurance company attorney also present two expert witnesses who disagreed with Dr. Paschall, including a forensics biomechanical engineer and a neurosurgeon. If the jury found in Manning’s favor in the face of all that conflicting evidence, it would likely have done so even if it knew about Dr. Paschall’s professional discipline.

Finally, the jury heard testimony from other witnesses about the impact of the injuries on Manning’s life. The jury thus had a basis for awarding substantial damages apart from Dr. Paschall’s testimony.

A dissenting judge concluded that the impeachment evidence might have affected the verdict. That judge would have remanded the case for a new trial. The case serves as a reminder that counsel should be prepared to address any sanctions that a licensing body has imposed upon an expert and should consider those sanctions when deciding whether the expert is appropriate for the case.

Judgment Reversed Because Expert Read a Hearsay Opinion to the Jury

Wright Hardware installed a 500-gallon liquid propane tank at the residence of Charles and Linda Benefiel in rural Clinton County, Indiana. The Benefiels used propane to heat their home. When the Benefiels called Wright Hardware many years later to report that had they no heat, the company sent an employee, William Taylor, to determine the cause of the problem.

Taylor discovered that the control board and gas valve were not functioning. Before replacing the parts, he shut off the gas to the furnace and disconnected the piping. After making the repairs, he reassembled the piping to the furnace and used a manometer to check the flow pressure.

Taylor also tested the regulator on the new gas value to assure that it was producing the correct pressure. Taylor soap tested the fittings and did not detect any leaks, but he performed no other leak testing.

About a week later, a propane gas leak caused an explosion, destroying the home and killing the Benefiels. Their estate brought a lawsuit against Wright Hardware, alleging that negligent repairs caused the leak.

Experts who investigated the explosion could not determine the location of the leak, although they agreed that it occurred inside the home. Too little remained of the propane system to permit the experts to determine the source of the leak or the nature of the ignition that caused the explosion. It was clear, however, that a spark or flame ignited propane gas somewhere within the home.

Trial Evidence

Indiana’s Fuel Gas Code requires a leak test of a propane piping system to be performed after a new installation or if there has been an “interruption of service.” The phrase “interruption of service” is not defined. The Benefiels’ estate argued that service was interrupted when Taylor shut off gas to the furnace and disassembled the piping.

Wright Hardware pointed out that only the gas flow to the furnace was shut off. Since gas continued to flow to the rest of the system, Wright Hardware argued that there was no interruption of service.

The estate alleged that Wright Hardware’s employee was negligent because he failed to perform leak testing. At trial, the Estate’s experts testified that Taylor needed to leak test the Benefiel gas system because shutting off the gas at the shut-off valve to the furnace constituted an interruption of service.

Wright Hardware’s expert, Todd Hetrick, testified that he contacted the International Code Council (ICC), which wrote the standards upon which the Indiana Fuel Gas Code is based. Hetrick testified that he asked whether the phrase “interruption of service” applies “only to an interruption in fuel gas supply to the point of delivery (i.e., an outage of fuel gas supply from an onsite tank or utility to a customer’s property)” or whether it encompasses “a lack of fuel gas supply to a branch or isolated section of the piping system existing within a built structure, downstream of the point of delivery.”

The ICC responded to Hetrick by email. Over objection, the judge allowed Hetrick to read to the jury a portion of the email that that defined interruption of service as “the utility has shut off the supply at the point of delivery, or an onsite fuel tank has been depleted.” The jury returned a verdict in favor of Wright Hardware and the estate appealed.

Expert’s Reliance on Hearsay

An expert is entitled to rely on inadmissible evidence when forming an opinion if experts in the field would reasonably rely on evidence of that nature. A more difficult question is whether inadmissible evidence can be conveyed to the jury through testimony of the expert who relied upon it.

The estate pointed out that Hetrick followed the procedure on the ICC’s website for obtaining a staff opinion. The same website points out that staff opinions are not official positions of the ICC. The estate objected that the staff member’s opinion was hearsay since the staff member was not present in court and subject to cross-examination.

There is no doubt that the email constituted hearsay. The appellate court noted that some hearsay information that experts reasonably rely upon can be admitted into evidence so that the jury can use it to evaluate the basis for the expert’s opinion. Information from consulting experts and “authoritative sources” might fall within the category of hearsay that can be communicated to a jury via an expert.

On the other hand, an expert cannot simply regurgitate hearsay that goes to an ultimate issue in the case if the expert accepts the hearsay at face value and does not rely on his or her own expertise to determine whether the hearsay is reliable. An expert “may not simply repeat opinions of others or announce that other experts concur with his opinion with respect to the case.”

In this case, the staff member’s opinion was not “authoritative” because the staff member’s interpretation of the code language was not the ICC’s official interpretation. Nor did Hetrik rely on his own expertise to determine whether the interpretation offered by the staff member was correct.  He simply accepted the opinion and repeated it to the jury.

In any event, Indiana altered some of the ICC standards before adopting them. An ICC staff member’s opinion as to the meaning of the ICC standards cannot be considered an authoritative explanation of Indiana’s code.

The Court of Appeals reversed the judgment and remanded the case for a new trial because the inadmissible hearsay may have influenced the verdict. A more fundamental question that the court failed to address is whether a jury should resolve the meaning of a term in the administrative code. Judges are usually regarded as experts in the law, and the legal meaning of language used in a regulation is usually a question of law for the court, not experts, to decide.

Exclusion of Defendant’s Gang Expert Results in New Trial in Georgia

Johannes Lopez was convicted of multiple crimes by a Georgia jury. The crimes included “street gang terrorism” as well as more traditional counts of assault and firearms offenses.

Lopez attempted to present expert evidence to counter the testimony of prosecution experts that Lopez committed gang-related crimes. The trial court excluded the testimony of the defense expert. The Georgia Court of Appeals reversed the conviction after concluding that the defense had a right to present relevant expert testimony.

Facts of the Case

The criminal charges arose out of two incidents. In the first, a Ford Explorer rear-ended a car and then drove away. The occupants of the car chased the Explorer. After obtaining the license plate number, the car occupants continued to follow the Explorer, which eventually pulled into a parking lot. The occupants testified that two people in the Explorer jumped out and shot at them. Nobody was injured. The Explorer was registered to Lopez’ mother.

About thirty minutes later, a Nissan Altima passed a Ford Explorer. Occupants of the Altima testified that shots were fired at the Altima from the Explorer. Nobody was injured.

The occupants of the Altima called 911. Responding to that call, police officers in Cobb County pulled over the Explorer. Lopez was the vehicle’s only occupant.

Lopez was armed with a handgun. Since he was a convicted felon, there was ample evidence upon which to base a firearms violation. The prosecution also charged Lopez was aggravated assault for participating in the shootings. All of those offenses, if proved, would have subjected Lopez to serious penalties, but the prosecution decided to pile on additional counts of “street gang terrorism.”

To prove that Lopez committed the Georgia crime known as “street gang terrorism,” the prosecution needed to present evidence that (1) Lopez was a member of a street gang, and (2) the crimes constituted “criminal gang activity.” Georgia defines a “street gang” as “group of three or more persons” that “engages in criminal gang activity.” The commission of specified violent crimes, as well as tagging, constitutes criminal gang activity.

Prosecution Experts

Whether an individual belongs to a “group of three or more persons” is a question of fact that may not need to be proved by expert testimony. Any time three or more people work together to commit an offense specified in the statute, they are by definition members of a street gang. Proving that the individuals decided to commit the crime together may be all the evidence that is needed to prove the crime of street gang terrorism.

Since Lopez was not in the company of two other people when the police stopped the Explorer, proof that the shootings were committed by a street gang was more problematic. The prosecution relied on several expert witnesses to prove that Lopez was part of a gang and that his conduct constituted gang activity. Those experts “discussed the culture and activities of the criminal street gang, SUR-13, as well as Lopez’s affiliation with the gang.”

The experts also testified that the crimes furthered the interests of SUR-13. Their ability to discern what motivated the crimes is suspect, as even the best experts cannot read minds.

Lopez attempted to call his own gang expert. Remarkably, the trial court refused to allow the expert to testify. After he was convicted, Lopez based his appeal on the unfairness of allowing only side in the case to present expert testimony.

Defense Expert Qualifications

The defense expert was an attorney who formerly belonged to a gang. The best “gang experts” are often former gang members who have inside knowledge of how gangs work. Prosecutors, on the other hand, tend to rely on the dubious expertise of police officers who have an outsider’s perspective on gangs.

The defense expert had the same credentials as law enforcement experts, in that he had investigated and prosecuted gang members, including SUR-13, while working in a district attorney’s office. More importantly, he had firsthand knowledge of gang tattoos, symbols, and terminology that he acquired in and out of jail as a gang member and later in the course of professional and civic duties.

The prosecution argued that the defense expert was not qualified because he had no formal training with regard to gangs. The appellate court rejected that argument because experts do not necessarily need formal training to acquire relevant expertise. Particularly when the subject of expert testimony is not based on science, an expert’s specialized knowledge can come from informal study or experience rather than a formal education.

Membership in and association with gangs is likely to give an expert more knowledge of gang practices than typical jurors will have. Former gang members who gain first-hand knowledge of gang practices usually have more knowledge than police “experts” who acquire information by attending agenda-driven seminars taught by law enforcement agents who have never been part of a gang and who have no personal knowledge of gang culture. The appellate court correctly decided that the expert was qualified.

Relevance of Defense Expert Testimony

The trial court also found that the defense expert had no relevant knowledge of SUR-13. According to the prosecution, the expert only had knowledge of a Florida gang that he joined in the 1970s.

The defense made clear that their expert had relevant knowledge. His personal experience, coupled with his work as a prosecutor and his participation in public outreach programs, qualified him as an expert on gang culture and activities. He did not need to belong to SUR-13 to understand how street gangs operate.

Remarkably, the prosecution argued that the defense expert had nothing relevant to say despite relying on an expert in street gangs who testified in general terms about their culture and activities, without offering any specific testimony about SUR-13. The appellate court did not countenance the hypocrisy of allowing an expert to testify for the prosecution while disallowing testimony on the same subject matter by an expert for the defense.

The prosecution experts all testified that Lopez’s actions were related to gang membership because they occurred in public and were triggered by hostility to the color red, a color that represented a rival gang. Those speculative conclusions about what motivated Lopez to shoot hardly constitute reliable expert testimony.

The defense expert would have countered that testimony by explaining that gang members do not usually attack unsuspecting strangers, that doing so violates the code governing gang activities, and that attacking an innocent person who is not affiliated with a rival gang diminishes a gang member’s status within the gang. He would also have explained that gang members who wanted to send a message to the public would not have taken action in the darkness at 1:30 a.m. on streets where few people were present.

The court concluded that the defense had just as much right as the prosecution to present expert testimony. Denying that right prevented Lopez from countering the prosecution’s dubious expert testimony and thus deprived Lopez of a fair trial. His conviction was therefore reversed and his case was remanded for a new trial on the street gang terrorism charges.

Florida Supreme Court

Florida Shields Corporate Employers of Expert Witnesses from Financial Discovery

After suffering injuries in a bicycle accident, Michael Sode sued the driver who allegedly caused the collision. He was required to undergo a medical examination at the defendant’s request. The  examination was performed by a doctor at the Orthopedic Center of South Florida.

Sode attempted to subpoena the financial records of the Orthopedic Center. The Orthopedic Center moved for a protective order, arguing that Florida law does not permit broad discovery of financial information from expert witnesses. Sode countered that the Orthopedic Center is a corporation that employs experts and is not itself an expert witness.

The trial court granted the motion in part but allowed greater discovery than the Orthopedic Center wanted to provide. The Orthopedic Center appealed to the Florida District Court of Appeals.

Determining the Bias of Expert Witnesses

There is nothing wrong with doctors testifying as retained experts for plaintiffs or for defendants. The legal system depends on honest experts providing honest opinions, regardless of the party that hires them. And since insurance companies have a duty to defend an insured, there is nothing wrong with insurance companies hiring and paying doctors to act as expert witnesses when they provide a defense.

Defense attorneys and insurance companies regularly accuse plaintiffs’ experts of being biased because they work for money. Plaintiffs’ attorneys accuse defense experts of bias for the same reason. In some of those cases, the accusations have substance. In most, they are an attempt to deflect attention from the weakness of a client’s position.

Whether an expert is biased is for the jury to decide. How much a witness is paid to act as an expert is relevant to that decision, although jurors are generally aware that experts do not work for free. To persuade a jury that an expert witness is biased, parties often try to prove that a large share of the expert’s income comes from serving as an expert witness, and that the expert testifies only for plaintiffs or defendants, not for both sides.

Florida Limitations on Financial Discovery from Experts

In Elkins v. Syken, the Florida Supreme Court attempted to balance the need for financial discovery from experts against the expert’s interest in avoiding intrusive inspection of his or her finances. In Elkins, an injured plaintiff wanted to depose the bookkeeper for the orthopedic expert who examined the plaintiff at the request of the defendant’s insurance company.

Plaintiffs are entitled to depose experts hired by insurance companies and to question those experts about their compensation for testifying. When insurance companies hire doctors to examine plaintiffs, the doctors will frequently be asked about the extent to which they earn income by performing examinations at the request of insurers. The court recognized that earning substantial income from insurance companies may be evidence of a doctor’s bias in favor of those companies.

The question is whether plaintiffs’ lawyers are bound by the doctor’s answers, which may be evasive or untruthful. The lawyers in the Elkins case wanted to confirm the number of independent medical examinations the doctor performed, and the doctor’s earnings from those examinations, by subpoenaing financial records.

The Florida Supreme Court largely shut down that line of inquiry by holding that:

it is sufficient for a doctor to be asked to give an approximate estimate for [independent medical examinations] and total patients seen in a year. The figures given need only be an honest estimate, and do not have to be an exact number. We find no sound reason to require disclosure of exact income figures. The doctor should not be required to disclose the amounts of money he or she earns from expert witness work, or disclose their total income.

The court apparently believed that doctors who serve as experts for the insurance defense industry always give truthful and accurate estimates about the number of examinations they perform for insurers. The court also appears to have assumed that substantial earnings for giving expert testimony — the kind of income that might cause jurors to gasp in disbelief — will not cause a doctor to be biased in favor of insurance companies and against plaintiffs. The court held that it is enough for a jury to hear a doctor’s testimony about the percentage of the doctor’s practice (as the doctor best recalls it) that the doctor devotes to working for insurance companies.

The court cited no studies or other evidence to support those beliefs, which are commonly rejected by attorneys for both plaintiffs and defendants. Although most doctors place their professional integrity ahead of their income (particularly if examinations for insurers are only a small part of their practice), both research and experience suggest that bias can be a problem when experts depend on insurers for a substantial part of their income. The court, however, engaged in remarkably little reasoning when it held that information about a doctor’s income provides “little useful information” to the jury.

Rules of Civil Procedure

The court decided Sykes in 1994. In 1996, the court adopted Rule 1.280(b)(5)(A) of the Florida Rules of Civil Procedure. That rule limits discovery of experts to:

  • the expert’s scope of employment in the litigation;
  • the expert’s litigation experience, including the percentage of work performed for plaintiffs and defendants;
  • other cases within “a reasonable time period” in which the expert has testified; and
  • an “approximation” of the portion of time devoted to expert services and to other services, including the percentage of income earned from expert services.

The rule expressly forbids asking experts how much money they make in general and how much money they make from expert services. The expert can be required to produce business or financial records only under “unusual or compelling circumstances.” The Florida rule is considerably more limited than its federal counterpart.

Discovery can always be limited to avoid oppressive or burdensome production of information or to avoid public disclosure of private information. It is reasonable to set limits on the financial records a doctor is required to produce. It is less reasonable, however, to suggest that parties should be required to take an expert’s word for the percentage of a practice that is devoted to the insurance defense industry.

Application of Elkins to Corporate Employers

Sode argued that the limitations of Elkins do not apply to corporate employers of experts. He noted that nine doctors are shareholders in The Orthopedic Center and that five of those nine perform examinations for insurance companies. The doctor who examined Sode acknowledged in a deposition that he had been hired by insurance companies 120 times in the last three years and that he had earned hundreds of thousands of dollars for that work.

Sode agreed that he obtained all the information that Rule 1.280(b)(5) authorized him to receive, but contended that the rule applies to experts, not to their employers. The court held that the reasoning of Elkins— and therefore the limitations of Rule 1.280(b)(5) — should be extended to cover corporate employers of expert witnesses. Otherwise, the court concluded, the protections provided by the rule would be lost when an expert is part of a corporate practice.

Sode apparently had no particular reason to think that the doctor who examined him gave false testimony. The doctor seems to have forthrightly admitted that he earned a significant part of his income from examinations performed for insurance companies. Sode might have been able to demonstrate “unusual or compelling circumstances” if he had evidence that the doctor was misrepresenting the portion of his income that was derived from the insurance defense industry. Since he offered no such evidence, he was required to accept the answer that the witness gave without obtaining financial documents to test its veracity.

Other Florida cases have drawn a distinction when the insurance company is a party to the litigation (when it provided uninsured motorist coverage, for example) and financial information about expert witness payments is requested from the insurance company rather than the expert. Denying discovery, Florida courts have held, would thwart the truth-seeking function of the trial process. It is difficult to understand why the truth-seeking function is not equally thwarted when the same discovery cannot be obtained from an expert who is hired by a non-party insurance company. Florida courts have nevertheless decided that it is important to shield experts, but not parties, from the burden of responding to financial discovery requests.