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.

A judge

Court’s Choice Between Competing Expert Opinions on Standard of Nursing Care Is Affirmed on Appeal

Rachel Howard, the widow of C.R. Howard, brought a claim against the government for medical malpractice committed in a Veteran’s Administration hospital. She alleged that nurses failed to prevent her husband from falling while using a commode. It was undisputed that the fall caused a cervical fracture.

Since the case arose in Arkansas, the Arkansas Medical Malpractice Act governed the substantive proof of malpractice. The district court, deciding the case without a jury, evaluated the competing testimony given by expert witnesses concerning the standard of care that the nurses should have followed. The court ultimately found that the evidence did not establish malpractice. The Court of Appeals for the Eighth Circuit affirmed that decision.

Patient’s Hospital Care

Four years before his death, C.R. Howard was diagnosed with blood cancer. By 2015, his treating hematologist concluded that Howard had exhausted his treatment options.

In February 2015, Howard was admitted to the John L. McClellan Memorial Veterans Hospital in Little Rock to treat neutropenic fever. Following hospital protocols, medical staff assessed Howard as having a high risk of falling. The protocols required high risk patients to receive assistance while using the bathroom.

Howard walked to the bathroom at least twice without assistance. He fell at least once. Medical staff noted that Howard suffered from episodes of dizziness or confusion. Staff entered an order requiring him to use a bedside commode.

Five days after his admission, Howard attempted to use the bedside commode. He sat up in the bed and a nurse asked him if he was ready to stand. The nurse assisted him as he moved to the commode. While Howard was sitting on the commode, he “folded over” and fell to the floor, striking his head.

Because Howard did not appear to be breathing, one nurse administered CPR while another called for a code team. The code team used a defibrillator to restart Howard’s heart and placed him on a ventilator. He was transferred to intensive care.

The next day, Howard was removed from the ventilator. An MRI found a spinal fracture in his neck. He had surgery to repair the fracture four days after he fell. The surgery improved his ability to move, but his underlying medical condition precluded physical rehabilitation.

Howard was discharged from the hospital about three weeks after his admission. He entered home hospice care and died about two weeks later.

Expert Witness Testimony

The two nurses who assisted Howard testified that he did not appear to be dizzy before he was transferred to the commode. Rachel Howard, who was present at the time, testified that he was displaying signs of dizziness.

The parties also offered conflicting evidence about the appropriate standard of care. Howard’s nursing expert, Janet Scott, testified that the standard of care required nurses to keep Howard in bed if he was dizzy. She also testified that the standard of care required his nurses to stand in front of Howard and to place a hand on him while he was using the commode.

Howard’s physician expert, Dr. Thomas Huffman, testified about his experience managing nurses. He opined that placing a hand on the patient is the best way to maintain control over a patient who is using a commode. Dr. Huffman concluded that the nurses were not close enough to catch Howard before he fell. Dr. Huffman was also one of the plaintiff’s experts on causation.

The government relied on the expert testimony of Holly Langster to establish the nursing standard of care. Langster emphasized the need to respect the patient’s dignity by providing as much privacy as possible. She testified that a nurse should have hands on a patient like Howard until he was seated and then stand in front and within arm’s length of the patient.

District Court Decision

The district court noted that expert testimony is needed to determine a nursing standard of care because it is not a matter of common knowledge. The court decided that Scott and Langster were both qualified to express an opinion about the standard of care.

The court gave more weight to the expert opinion of the two nursing experts than to the opinion of Dr. Huffman. While Dr. Huffman has managed nurses during his career, he “did not demonstrate that he was familiar with the degree of skill and learning ordinarily possessed and used by nurses and hospital staff in good standing, engaged in the same type of practice or specialty in Little Rock, Arkansas, or in a similar locality, as is required under the Arkansas Medical Malpractice Act.”

The court was satisfied that Howard sustained a “medical injury,” as that term is used in Arkansas law, when he fell while using a commode under the supervision of nurses in a hospital. The court was not satisfied, however, that the nurses committed malpractice.

The court concluded that the appropriate standard of care depended on whether Howard was dizzy. Scott’s opinion was based on Rachel Howard’s testimony that, as soon as the nurse entered, Howard tried to sit up, then fell back down and complained that he felt like an ocean was going by. The nurse testified that Howard did not fall back on the bed and never complained of dizziness.

The court credited the testimony of the nurse rather than Rachel Howard’s testimony. The court concluded that the standard of care for a dizzy patient, as Scott described it, was therefore inapplicable. Since Howard was not dizzy, the standard of care described by Langster was appropriate. Since the nurses followed that standard of care, they did not commit malpractice.

Appellate Opinion

Medical malpractice claims against a VA Hospital are brought under the Federal Tort Claims Act. That law requires the trial to be held before a judge, not a jury.

Unless an appellate court dislikes a district court’s result and needs an excuse to overturn it, a district court judge’s assessment of the facts is virtually unassailable. The court of appeals found no reason to overturn the trial court’s finding that Howard was not dizzy when he tried to sit up.

It was also up to the trial judge to determine the appropriate standard of care. Since the judge decided that Howard was not dizzy, the judge did not err in discounting Scott’s testimony, which was premised on the opinion that a careful nurse will keep a hand on a dizzy patient who uses a commode.

A jury might have seen the facts differently. Allowing a patient to fall to the floor does not seem consistent with appropriate care, particularly when the patient has fallen in the past. However, the judge believed the nurses when they testified that Howard was not dizzy and he believed the defense experts when they testified that the nurses followed an appropriate standard of care. Deciding which witnesses to believe is the trial judge’s job when there is no jury.

The court of appeals suggested that even in the absence of a dispute about Howard’s dizziness, the district court could have accepted Langster’s expert opinion that standing within an arm’s length of a patient on a commode is an acceptable standard of care. It hardly benefits a patient to stand in front of the patient while allowing the patient to fall, but again, when there is no jury to decide the facts, a judge gets to make that call. Since the district court was entitled to choose between competing expert opinions, the court did not err in deciding the case in favor of the VA Hospital.

#9867034 Mallet And Stethoscope Over Sound Block In Court

Experts Improperly Excluded from Giving Res Ipsa Loquitur Testimony in Medical Malpractice Lawsuit

In most medical malpractice cases, one or more expert witnesses for the plaintiff testify about the appropriate standard of care, a physician’s breach of that standard, and how the breach caused an injury to the patient. In most of those cases, a specific negligent act is identified as the mechanism that caused the harm. In some cases, however, no single act of negligence is the clear cause of the patient’s injury.

A legal theory known as res ipsa loquitur (“the thing speaks for itself”) allows negligence to be inferred from the nature of the accident. If it is unreasonable to conclude that the accident could have occurred in the absence of a negligent act, negligence can be inferred.

Alma Willis sued a plastic surgeon and other healthcare providers, alleging their negligence during surgical procedures regarding her breasts and abdomen. Although the experts testified to various breaches of standards of care, they could not determine which specific breach caused Willis’ injuries. The trial court did not allow the experts to testify that her injuries would not have occurred in the absence of negligence.

The trial and appellate courts treated the argument that no injury could have occurred without negligence as being based on res ipsa loquitur. An Illinois Appellate Court ruled that Willis’ experts should have been allowed to testify that no injury would have occurred in the absence of a negligent act, even if they could not identify the specific negligent act that caused her injury.

Willis’ Surgery and Its Aftermath

Willis’ doctor recommended that she have surgery to relieve her back problems. A plastic surgeon, Dr. Jeffrey Flagg, performed surgery to reduce the size of one breast and to reconstruct the other. He also performed a revision of her abdomen.

Dr. Flagg decided to perform all the procedures in a single surgery. He told Willis the operation would take five hours but it actually lasted twelve hours.

Willis was discharged the next day despite having painful swelling in her arms. Three days later, her daughter observed that she was disoriented. The daughter brought Willis back to the hospital, where doctors found blood clots (pulmonary embolism) in both of her lungs. She remained in the hospital for a week as the clots were treated.

During her hospitalization, nurses noted that Willis continued to complain about ongoing pain in her right hand that had been present since the surgery. A nurse noted in her chart that doctors were aware of her complaint.

Willis’ pain persisted after her discharge. About a month after her surgery, a neurologist determined that she had sustained nerve damage near her right elbow and in the carpal tunnel. Surgery to relieve pressure on the nerves was only partially successful. She continues to have pain and some limitation of motion in her right hand.

Willis’ Litigation

Willis sued Dr. Flagg, the hospital where her surgery was performed, and the anesthesiologists involved in the surgery. She alleged that Dr. Flagg unnecessarily prolonged her surgery and that her nerve injury would not have occurred in the absence of medical negligence.

Although an anesthesiologist testified that he did not remember the surgery, he believed that he, Dr. Flagg, and the initial nurse anesthetist would have supervised the positioning of Willis’ body during surgery. He thought they would have placed soft restraints on her arms between the wrists and the elbows, that they would have checked her positioning every hour, and that they would have repositioned her before the abdominal surgery.

Dr. Flagg testified that the surgery was prolonged by the discovery of a large mass on the chest wall. He acknowledged that longer surgeries increase the chance of developing a blood clotting condition known as deep vein thrombosis (DVT). He also acknowledged that Willis suffered from DVT after the surgery.

Dr. Flagg did not prescribe anticoagulants after the surgery, although he agreed that anticoagulants are one way to prevent DVT. He instead gave instructions to have Willis walk and move around after surgery, although he did not put that instruction into her discharge orders.

Willis’ Expert Testimony

Willis’ treating neurologist testified that the nerve damage near her wrist was caused by the carpal tunnel filling with fluid. Charles Barton, a nurse anesthetist, testified that the nurse anesthetist who positioned Willis during her surgery violated the standard of care by failing to position her correctly and by infusing far too much fluid. Barton also attributed the swelling in her arms after surgery to excessive fluid.

An orthopedic surgeon, Dr. John Fernandez, testified that Willis’ surgery caused her nerve damage. He opined that injuries to her brachial muscles that were shown on an MRI and injuries to her nerves shown on an EMG would not “just happen on their own.” Since Willis had no symptoms of those injuries before the surgery, they must have been caused by the surgery.

A neurologist, Dr. William McElveen, explained that a hematoma, probably caused by compression, led to the swelling at the elbow. He believed the compression could have been caused by the blood pressure cuff on her arm, someone leaning on her arm, or the extended position maintained during the surgery. He rejected the theory that nerve damage was caused by improper insertion of a needle during her subsequent hospitalization for blood clotting because Willis would have felt and complained about extreme pain if that had happened.

Dr. Geoffrey Keyes, a plastic surgeon, testified that the applicable standard of care required Dr. Flagg to end the surgery after he completed the abdominal revision, about five hours into the surgery, because Willis had lost a great deal of blood. The prolonged surgery and excessive blood loss increased the risk of complications, including pulmonary embolisms. He thought the prolonged surgery and Willis’ positioning most likely resulted in her nerve damage, although he could not identify the specific mechanism by which pressure was placed on the nerve. He thought the swelling of her arms might have caused the straps that held her arms to tighten, compressing the nerve.

Testifying as an expert in anesthesia, Dr. Brian McAlary testified that multiple factors, taken together, might have caused Willis’ arms to swell, even if no single factor was responsible. He identified the administration of excessive fluids, diminished oxygen delivery to the nerves in her arms, and the failure to change the position of her arms during surgery as contributing factors.

The court would not permit the experts to testify that the nerve damage would not have occurred in the absence of negligence. The jury returned a verdict in favor of the defendants.

Appellate Decision

On appeal, Willis challenged the trial court’s refusal to allow her experts to testify that the injuries could not have happened unless the healthcare providers were negligent. She also challenged the trial court’s refusal to instruct the jury that it could infer negligence if the principles of res ipsa loquitur were satisfied.

In Illinois, negligence can be inferred from the fact of an injury if (1) an injury of that nature would not ordinarily occur in the absence of negligence, and (2) the means of causing the injury were within the defendant’s exclusive control. Under those circumstances, the plaintiff need not call a witness who saw the act that caused the injury.

Willis was unconscious during her surgery and could not have seen anything. Since she was under the control of the defendants, a jury could find that any injury occurring during the surgery was caused by negligence if the injury would not ordinarily occur in the absence of negligence.

Willis presented expert evidence that she was injured during surgery. That evidence was sufficient to permit the jury to reject the defendant’s claim that she was injured during her second hospitalization. It was up to the jury to decide whether to believe Willis’ experts or the defense experts.

Willis’ also presented expert evidence that standards of care were breached during her surgery. Experts testified in depositions that the nerve damage Willis sustained would not have occurred in the absence of negligence. No defense evidence suggested a non-negligent explanation for the nerve damage that occurred during the surgery.

The trial court thought that res ipsa loquitur was inapplicable because Willis’ expert witnesses agreed that nerve compression during the surgery caused the injury. But the witnesses did not know what caused the nerve compression. It could have been caused by failing to loosen straps when Willis’ arms started swelling, or by administering excessive fluid during the operation, or by leaning against Willis’ body during the surgery, or by failing to reposition her during the lengthy breast surgery, or by repositioning her incorrectly before the abdominal surgery.

The trial court erred by concluding that the expert witnesses understood the mechanism of the injury. The outcome was a compressed nerve, but the mechanism by which the nerve became compressed was unknown.

A dissenting opinion suggested that the second hospitalization was a possible cause of the injury outside the defendants’ control and that the res ipsa theory was therefore unavailable. The majority opinion recognized that Willis’ experts provided ample reason to reject the testimony of the defense experts as speculative.

Which experts were worthy of belief was for the jury, not appellate judges, to decide. Willis was therefore entitled to have the jury instructed that it could find in favor of Willis if they agreed that (1) her injuries occurred while she was under the control of the defendants during the first surgery, and (2) those injuries would not ordinarily occur without negligence. She was also entitled to have her experts testify that she would not have been injured if negligent acts had not occurred.

A res ipsa loquitur jury instruction, and testimony that the injury could not have occurred in the absence of negligence, were necessary for a fair trial. Since Willis did not receive a fair trial, she was entitled to present her expert’s full opinions and to have her case decided upon the basis of correct jury instructions in a new trial.

 

Late Disclosure of Expert Witnesses in Divorce Trial Leads to Order Barring Their Testimony

Jeffrey and Julie Nelson were involved in a divorce proceeding that lasted longer than their four-year marriage. After five earlier appeals from provisional orders pending the final hearing, an appeal of the final outcome was seemingly inevitable.

One of the sticking points involved the value of Jeffrey’s interest in oil leases. Julie testified about Jeffrey’s ownership of those interests and presented expert testimony about their value. Jeffrey did not testify but offered expert testimony of his own. The trial court decided that Jeffrey’s expert was not qualified and therefore declined to consider his opinion.

The day before the final day of trial, Jeffrey disclosed two new experts. One would have testified that Julie’s expert overvalued the oil leases. The other would have testified about the amount and sources of Jeffrey’s income.

Julie had served an interrogatory upon Jeffrey that asked for the disclosure of experts. Julie contended that Jeffrey should have supplemented his interrogatory answers to disclose the two new experts. The court agreed with Julie that the disclosure of those experts on the day prior to the last day of trial came too late. The court excluded the experts from testifying as a discovery sanction. Jeffrey appealed and the Indiana Court of Appeals affirmed the judgment.

Late Disclosure of Experts

On appeal, Jeffrey apparently did not take issue with the trial court’s decision that his original expert was not qualified to render an expert opinion. Rather, he contended that the court should not have excluded the experts he proffered during the trial.

The hearing took place on six days between November 2018 and July 2019. Julie’s expert testified on June 25, 2019. Jeffrey complained that he did not have enough time between June 25 and July 12 (the last day of trial) to retain new experts. Jeffrey argued that he did not recognize the need for expert testimony until Julie’s expert gave valuation testimony that Jeffrey realized was clearly wrong.

The appellate court characterized Jeffrey’s argument that he did not anticipate the need for expert testimony as “baffling.” Jeffrey knew that Julie contended the oil leases were marital property that was subject to division. He knew the court needed to place a value on property that it divided. He apparently knew that he would not be relying on his own testimony to establish their value, given his decision not to testify.

It is difficult to understand why Jeffrey did not know in advance of trial the opinions that Julie’s expert would offer. If Jeffrey did not engage in discovery, that choice would not excuse his failure to anticipate the need to call his own expert witnesses.

The appellate court was unsympathetic with the claim that Jeffrey had too little time to find an expert. He should not have waited until Julie’s expert testified to begin his search. Under the circumstances, the trial judge did not abuse his discretion in excluding Jeffrey’s experts due to Jeffrey’s belated disclosure of their identities.

Lessons Learned

The trial court was plainly influenced by its belief that Jeffrey’s late disclosure was an obstructive litigation tactic. The court characterized Jeffrey as having “repeatedly interrupted, obstructed, embarrassed, and prevented the due administration of justice in these dissolution proceedings.”

Obstructive tactics will never endear a litigant to a judge. The lesson to learn is that lawyers should make diligent efforts to learn what expert testimony an opposing party will present, to locate experts who can present more favorable testimony (if any exist), and to respond to a request to disclose experts in a timely manner.

Water Treatment

Judge Pauses Trial After Hearing Expert Testimony About Fluoridation of Drinking Water

Conspiracy theories sometimes overcome facts in the minds of those who are inclined to believe them. Few public policies have been attacked by conspiracy theorists as persistently as fluoridation. Yet modern science raises legitimate questions about the risks and benefits of fluoridating water.

During the 1950s and into the 1960s, a popular conspiracy theory convinced many believers that fluoridation was a Communist plot. An equally far-fetched theory insisted that fluoride is a mind control chemical that governments rely upon to control their populations.

Fluoridation of public drinking water is intended to prevent tooth decay. While conspiracy theories have no basis in fact, legitimate scientific debates have long addressed the balance between the public health benefits and the risks of fluoridation.

Critics have also complained that fluoridation deprives individuals of freedom to choose whether or not to expose themselves to fluoride. That isn’t quite true, because people are free to forego municipal water and to drink fluoride-free bottled water, albeit at their own expense.

The government often requires people to do things they don’t like (paying taxes, for example) in order to serve the greater good. Debates about the wisdom of public programs that depend on a cost-benefit analysis should be driven by facts. In the case of fluoridation as well as other public health issues, facts are supplied by experts because they have knowledge and experience that the rest of us lack.

Fluoride and IQ

Responding to evidence that fluoridation can have an impact on cognitive development, the Department of Health and Human Services in 2015 recommended that water utilities reduce the amount of fluoride added to tap water from 1.2 parts per million (ppm) to 0.7 ppm. The Centers for Disease Control and Prevention released a statement in 2018 that endorsed fluoridation of community water supplies to reduce the health risks associated with tooth decay.

Dr. Phillipe Grandjean, an Adjunct Professor of Environmental Health at the Harvard T.H. Chan School of Public Health, authored a 2019 review of studies that addressed the relationship between fluoride intake and IQ levels. Dr. Grandjean concluded that “elevated fluoride intake during early development can result in IQ deficits that may be considerable.”

Dr. Granjean concluded that the impact of fluoride on IQ is dose dependent. In other words, greater exposure is likely to have a greater impact on IQ. He also found that “tentative benchmark dose calculations suggest that safe exposures are likely to be below currently accepted or recommended fluoride concentrations in drinking water.”

Fluoridation Lawsuit

Everyone agrees that too much fluorine in drinking water would be unsafe. Experts dispute whether the permitted level of fluorine creates an unreasonable risk to the public.

The Environmental Protection Agency (EPA) does not require municipalities to add fluorine to public water supplies, but it does limit the amount that they can add. Since a “safe” amount of exposure is difficult to establish with certainty, opponents of fluoridation argue that it should be not permitted at all.

The Toxic Substances Control Act (TSCA) allows citizens to petition the EPA to address unreasonable risks posed by toxic chemicals. In November 2016, a group of organizations, including the American Academy of Environmental Medicine, the Fluoride Action Network, and Moms Against Fluoridation, petitioned the EPA “to protect the public and susceptible subpopulations from the neurotoxic risks of fluoride by banning the addition of fluoridation chemicals to water.”

The EPA denied the petition on February 17, 2017. It concluded that the studies supplied by the petitioners did not prove that any person had actually suffered neurotoxic harm because of fluoride exposure. The petitioners then sued the EPA for breaching its statutory duty to protect the public from unsafe toxins.

While most administrative decisions are reviewed deferentially by federal courts, the TSCA entitles petitioners to a de novo proceeding and to prove the need for regulation by a preponderance of the evidence. After denying summary judgment motions that had been filed by both parties, the case proceeded to trial.

Petitioners’ Expert Evidence

The petitioners relied on the expert opinions of Howard Hu, Bruce Lanphear, Philippe Grandjean, and Kathleen Thiessen. The EPA and other government agencies have in the past relied on each of those experts for guidance. Their qualifications as experts were not seriously contested.

The petitioners’ experts pointed to evidence that fluoride passes through the placenta into the brain of the fetus. They opined that babies who are bottle fed with fluoridated water are being exposed to fluoride at the most vulnerable point in their lives, while their brains are still developing.

The petitioners’ experts cited animal studies that, according to EPA experts, produced mixed results. The petitioners’ experts also relied on birth cohort studies that found associations between early life exposures to fluoride and a reduction of IQ by about five points.

EPA Expert Evidence

The EPA argued that there is too much uncertainty about safe dosage limits to support an outright ban on fluoridated water. It relied on two toxicologists employed by Exponent, an engineering and scientific consulting firm.

Joyce Tsuji and Ellen Chang testified that the scientific literature does not support a clear connection between fluoridated water at the current maximum dose and adverse health effects. Accordingly, they contended that fluoride at 0.7 ppm is not a neurotoxin.

The EPA contended that the law requires it to balance risks and benefits when it decides whether a risk is unreasonable. There is undeniably a benefit to reducing tooth decay. While that goal can be achieved more efficiently in other ways, fluoridation assures that everyone who drinks from a public water supply receives some protection against tooth decay.

The EPA uses expert staff members to determine whether the benefit of a chemical is outweighed by an unreasonable risk of toxicity. The EPA called its employee, Kris Thayer, as a fact witness to testify about that process. It did not, however, call Dr. Thayer as an expert witness and therefore did not ask her to assess the scientific literature regarding fluoride exposure. The petitioners asked the court to infer that she was not called as an expert because her testimony would have been unfavorable to the EPA.

The petitioners also pointed to the opinion of Joyce Donohue, an EPA staff scientist, who agreed that studies by the National Institute of Health warrant a reassessment of all existing fluoride standards.

Trial Paused

Having listened to the expert testimony, the presiding judge pressed the pause button and asked the EPA to reconsider its position. The judge noted that cohort studies are the gold standard of scientific evidence in cases involving toxic chemicals. The cohort studies that the petitioners relied upon had not been published when the petition was filed.

After suggesting that the EPA applied the wrong causation standard, the judge asked whether it would be productive for the petitioners to file an amended petition citing the new studies so that the EPA could make a new determination using the correct standard. He also suggested that the EPA could reconsider its ruling in light of new evidence.

Neither party supported the judge’s solution. The EPA noted that it has no authority to reconsider a petition that it has denied. It also contended that it has no ability to review an amended petition within 90 days as required by the TSCA. The latter argument, amounting to “we don’t have the resources to obey the law,” did not impress the judge.

The petitioners contend that the EPA is entrenched in its position, perhaps for political rather than scientific reasons, and that it is unlikely to budge. The petitioners suggested that giving the EPA a “do-over” would be a waste of time.

The judge postponed proceedings to give the parties an opportunity to negotiate a proposed path forward. If they are unable to come to an agreement by August 6, the judge may decide to make a ruling based on the arguments and expert testimony presented at the trial.

 

Missouri flag, gavel

Judge Recommends New Trial for Missouri Man Whose Conviction Rested on Recanted Expert Testimony

Donald Nash was convicted of capital murder in 2009 by a Missouri jury. He was sentenced to 50 years in prison without parole. Since Nash is now 78 years old, Nash was effectively sentenced to life in prison. His life might be shortened by the COVID-19 outbreak in the prison where he is incarcerated.

Nash was charged with killing his former girlfriend, Judy Spencer, in 1982. The charge followed a cold case investigation that purportedly linked Nash’s DNA to the killing.

Nash lost his case on appeal. New attorneys brought a habeas corpus petition alleging that the prosecution relied on untrue expert testimony and that undiscovered DNA points to the guilt of another suspect.

Given the time that passed since Nash’s appeal was denied, Nash must prove his “actual innocence” to win his freedom. The Missouri Supreme Court appointed a retired federal judge, Richard K. Zerr, to take evidence and make a recommendation as to whether Nash satisfied that standard.

In a detailed opinion, Judge Zerr determined that Nash’s conviction was based on junk science. He recommended that the Missouri Supreme Court vacate Nash’s conviction on the ground that he is actually innocent.

Spencer’s Death

Before Spencer died, Nash and Spencer were together in a friend’s apartment. They quarreled. Spencer left, telling the friend that she planned to visit some bars in a neighboring town. Nash remained in the apartment.

Spencer’s body was found the next day at an abandoned schoolhouse far from town. The killer strangled Spencer with her own shoelace and shot her in the neck with a shotgun.

The prosecution offered no evidence that Nash owned or possessed a shotgun. On the same day Spencer’s body was found, the police questioned Nash and tested him for gunshot residue. The test was negative. Nash had no scratches on his body. Nash’s emotional reaction when he learned that Spencer was dead convinced the investigators that he was not involved.

Spencer had a blood alcohol content of 0.18, an indication of significant intoxication at the time of death. Spencer’s car was found in a ditch several miles from her body. Two sets of fingerprints were found on the car’s window. Neither belonged to Nash, but one set of prints belonged to the resident of a dwelling that was near the ditch. That resident denied having any knowledge of Spencer’s car, an obvious lie given the presence of his fingerprints.

Fresh tire tracks were found near the abandoned schoolhouse. They did not match the tires on Nash’s or Spencer’s vehicle. They were never matched to any vehicle.

It is a reasonable theory that Spencer became intoxicated and drove her car into a ditch, where one or more killers found her. It is also reasonable to surmise that the killer or killers drove Spencer, either alive or dead, from the ditch where her car was found to the schoolhouse.

None of the investigators at the time of the murder believed they had probable cause to arrest Nash. Two of those investigators told Judge Zerr that they believed Nash was innocent.

Nash’s Trial

The case languished for 26 years until the Spencer family pressured the Highway Patrol to test Spencer’s fingernails for DNA. Nash’s DNA was found underneath her fingernails. That finding is hardly surprising since Nash and Spencer lived together.

Investigators determined that after Spencer left Nash at their friend’s apartment, she returned to her apartment and washed her hair before leaving again. When they applied for an arrest warrant, the investigators claimed that the DNA beneath Spencer’s fingernails would not have survived the hair washing, proving that Nash had contact with Spencer again that evening.

Judge Zerr concluded that the investigators made that assertion without consulting with an expert. It is patently false that DNA beneath fingernails would necessarily be eliminated by washing hair. The judge essentially concluded that the investigators fabricated that statement to justify an arrest warrant.

At trial, the prosecution’s expert testified that hair washing would have a “great effect” on the amount of Nash’s DNA found beneath her fingernails. She also testified that the amount of DNA present would not have come from “low level” contact with Nash.

Nash called a DNA expert to testify that that Nash’s DNA would logically be found under Spencer’s nails since Nash and Spencer lived together. Nash’s expert discounted the effect of hair washing because, in her experience, DNA trapped beneath fingernails can survive hand washing. The expert also explained that Spencer could have reacquired the DNA by touching a surface or clothing that Nash had also touched.

During his closing argument, the prosecutor boldly asserted that Nash’s DNA would have been washed away when Spencer shampooed her hair and that its presence proved Nash’s guilt. That argument was unsupported by any evidence at trial.

The jury was apparently swayed by the prosecutor’s untrue theory that hair washing eliminates all DNA from beneath fingernails. When Nash appealed his conviction, the state again relied on the theory that hair washing removes DNA and argued that the jury therefore had sufficient proof of guilt to support a conviction. In a rather cursory opinion, the Missouri Supreme Court agreed.

Expert Testimony Reconsidered

Ruth Montgomery was the prosecution’s DNA expert. Montgomery was a Highway Patrol lab analyst. Although she did not say so during her testimony, her “expectation” that the act of hair washing would have a “great effect” on the amount of DNA beneath her fingernails was nothing more than a guess.

Judge Zerr characterized Montgomery as having “no education, training, or experience” in whether washing hair eliminate DNA concentrations beneath fingernails. Montgomery later admitted that her only research consisted of reading a handful of articles the day before she testified in a pretrial deposition.

None of the articles Montgomery reviewed supported her claim that hair washing would have a great effect on the concentration of DNA beneath fingernails. Rather, the articles indicated that DNA persists under fingernails under a variety of conditions. The only article addressing personal hygiene found that it had a statistically insignificant impact on the amount of DNA beneath fingernails.

Montgomery thus made a minimal effort to educate herself about the relevant science and chose to ignore scientific evidence that was unhelpful to the opinion that the prosecution needed her to express. In any event, her claim that hair washing has a great effect on the quantity of DNA under fingernails was not generally accepted by the scientific community in 2008 and was inadmissible under Missouri’s Frye rule. Unfortunately, Nash’s lawyer made no Frye challenge so the jury was permitted to consider the baseless expert testimony.

Montgomery now admits that her opinion was speculative and incorrect. She still maintains that hair washing would remove some DNA from beneath fingernails, but she admits that she has no way to quantify the amount of DNA that would be washed away.

New DNA Evidence

The shoelace used to strangle Spencer was taken from her left shoe. After Nash was convicted, that shoe was tested for DNA. Male DNA was found on the shoe. Nash was excluded as a possible contributor of the DNA, as was the trooper who handled the shoe. Nor was Nash’s DNA found on the shoelace.

In fact, the evidence established that after she left Nash and returned home, Spencer changed her outfit, including her shoes, before leaving again. While male DNA might have been on her shoe before she left, the murderer likely touched the shoe while removing the shoelace. The absence of Nash’s DNA and the presence of another male’s DNA is significant evidence of Nash’s innocence.

Judge’s Recommendation

The judge recognized that Nash’s lawyer was ineffective in failing to seek the exclusion of Montgomery’s testimony under Frye and in failing to cross-examine Montgomery about her lack of qualifications to express an opinion about the removal of DNA trapped beneath fingernails while washing hair. In addition, Nash’s appellate counsel was ineffective in failing to raise the issue.

The judge noted that the prosecutor compounded the problem by claiming in his closing argument that Spencer would have removed all of Nash’s DNA when she washed her hair. Not only was the statement contrary to prevailing scientific theory, it misrepresented Montgomery’s testimony. The state’s appellate lawyer continued to make that misrepresentation in its argument on appeal — a mistake that it now concedes.

Under Missouri’s “actual innocence” standard, a defendant must present reliable new evidence that would likely convince a reasonable jury to return a “not guilty” verdict. Montgomery’s admission that she erred and the discovery of a stranger’s DNA on Spencer’s shoe satisfied the reliable new evidence requirement.

Judge Zerr concluded that the prosecution’s case rested almost entirely on discredited expert testimony. The other evidence against Nash was both weak and consistent with his innocence. Arguing with a girlfriend does not make someone a killer.

The prosecution failed to connect Nash to the scene of the crime or to present evidence that he ever possessed a shotgun. The prosecution also failed to explain why the fingerprints on Spencer’s car window did not point to a different suspect. Those failures contributed to the judge’s decision that no reasonable jury, presented with all of the evidence that is now available, would have voted to convict. Judge Zerr therefore recommended that the Missouri Supreme Court overturn Nash’s conviction and set him free.

Choosing the Right Expert Means Asking the Right Questions

Court Requires Disclosure of Memorandum Discussing Expert’s Methodology

In most cases, a retained expert must prepare a report that states the expert’s opinions, as well as the facts and reasoning that supports those opinions. Yet expert reports do not appear out of the blue. Experts may labor over the report for weeks, treating them as works in progress that evolve over time.

The finished draft of an expert report must be disclosed, as well as certain underlying data. A continuing issue in the law is whether other documents, including prior drafts and communications with an attorney about the report, must also be disclosed. A federal magistrate recently ruled that a memorandum about methodology that an expert wrote for his own use and shared with an attorney is subject to disclosure.

The Work Product Doctrine and Expert Reports

Law students who struggle to stay awake during dry lectures about civil procedure will eventually encounter the work product doctrine. While simple on its face, the work product doctrine compounds the confusion surrounding the obligation to comply with discovery requests.

Under the federal rules, parties may not discover materials that were prepared by or for an attorney in preparation for litigation. However, the rule must be read in light of other discovery rules, including the obligation to disclose reports prepared by experts who will testify at trial. Those reports are plainly prepared for attorneys to assist in litigation, but the reports were both mandated and made discoverable by a 1993 amendment to Rule 26.

The 1993 amendment also allowed discovery of “data or other information” upon which the expert relied in forming opinions. Courts issued confusing and contradictory rulings about whether communications between an attorney and an expert were discoverable as “other information.” Many courts also required disclosure of preliminary drafts of the report in addition to the final report.

Lawyers responded by instructing experts not to produce drafts prior to the final report, for fear that the drafts would include statements that contradict statements made in the final report. Since reports typically evolve over time as experts refine their thinking or incorporate new data, experts expressed frustration that lawyers did not understand how they work.

The rules committee eventually concluded that disclosure of attorney interactions with experts inhibited “collaborative interaction” with experts because attorneys feared disclosure of “their most sensitive and confidential case analyses.” Experts also complained that limiting their communications with the attorneys who hired them impaired their ability to perform high quality work.

Rule 26 was modified in 2010 to address those concerns. The amended rule requires disclosure of “facts or data considered by the witness” in forming expert opinions and “assumptions” that the attorney who retained the expert communicated to the expert if the expert relied upon those assumptions. The changes were meant to exclude disclosure of communications with lawyers that provided theories of the case or the lawyer’s mental impressions. The new rule also provided that the work product privilege protects prior drafts of an expert report from disclosure.

Expert’s Memorandum in Hernandez Lawsuit

Angel Hernandez, a Major League umpire, sued the Commissioner of Baseball for national origin discrimination. Hernandez complained that, despite his seniority, he was not promoted to crew chief and was never selected to umpire the World Series.

Hernandez identified Gregory Baxter as an expert witness and disclosed Baxter’s expert report. The Commissioner took Baxter’s deposition.

When asked if he had reviewed any documents in preparation for the deposition, Baxter testified that he had reviewed a memorandum that he wrote to himself but did not include in the expert report. Baxter testified that the memorandum described his methodology for deciding whether comments about Hernandez were positive or negative and for determining whether statements made in Hernandez’s year-end review were supported by Umpire Evaluation Reports.

Baxter prepared the memorandum weeks after he finished the expert report. He testified that he wrote it because he expected to be deposed about his methodology. He also testified that Hernandez’ attorney did not ask him to prepare the memorandum.

Baxter based the memorandum on notes that he made to himself while preparing the report. He destroyed those notes after he finished the memorandum.

At some point, Baxter gave the Memorandum a title, referring to it as a “supplement” to the “expert report methodology.” He sent the memorandum to Hernandez’ attorney with the subject line “Proposed Supplement to Baxter’s Expert Report.”

The Commissioner moved to compel production of the memorandum. Hernandez resisted on the ground that the memorandum was work product and not discoverable.

Magistrate’s Decision

The memorandum was not an earlier draft of the expert report because it was created after the expert report was finished. Hernandez argued that it was nevertheless a draft of a new or supplemental report.

The magistrate decided that the work product privilege applies to drafts of expert reports that are “required” by Rule 26. No supplemental report was required in this case, so the privilege did not apply to the memorandum. In addition, since no part of the memorandum was actually included in the required report, the memorandum cannot be regarded as a draft of the report that was submitted.

The court also noted that the work product privilege is designed to protect an attorney’s mental impressions, conclusions, opinions, or legal theories, not those of the expert. Since Hernandez’ counsel did not ask Baxter to prepare the memorandum, it did not qualify as attorney work product.

The court rejected the argument that the memorandum was a privileged communication between expert and attorney. While Baxter’s affidavit stated that the memorandum was prepared in anticipation of discussing methodology with Hernandez’s attorney, it was not created as a communication to an attorney.

The fact that Baxter sent the memorandum to an attorney did not “change its character at inception.” To hold otherwise would result in any document becoming privileged merely because the document was sent to an attorney.

Lessons Learned

The court emphasized that an expert’s “notes to himself do not qualify for protection” as work product. Notes are not drafts of a report unless they are intended for later inclusion in the report. Nor are notes made by an expert for the expert’s own purposes protected as communications to an attorney even if they are eventually sent to an attorney.

Experts should be cautioned that if they prepare notes for their own purposes, other than as drafts of portions of an expert report, those notes are likely discoverable. Experts should therefore be careful about preparing notes that they would not want a party in the case to review.

 

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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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.