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.

Lender Liability

Court Allows Expert to Testify that Advertising Was Not Misleading

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

Facts of the Case

Lending Club is not itself a lender. Rather, it connects borrowers with lenders. Lending Club charges borrowers a percentage of the borrowed amount as a loan origination fee. The fee, which averages 5{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} on unsecured loans, is deducted from the loan and paid to Lending Club when the loan proceeds are advanced to the borrower.

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

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

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

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

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

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

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

Expert Testimony

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

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

Wind then surveyed successful applicants in each group, asking whether they received the amount of money they expected to receive. About 89{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the test group and about 94{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the control group indicated that they received the amount of money that they expected to receive.

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

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

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

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

Wind also found that about 19{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of participants in all test groups and the control group accepted the loan. Wind concluded that the similar results proved that the “no hidden fees” claim had no impact on the decision to complete the loan process.

Daubert Ruling

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

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

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

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

Lessons Learned

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

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

 

dollar bills

Expert Testimony Required to Prove Breach of Fiduciary Duty by Lawyers

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

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

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

Malpractice Claim

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

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

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

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

Need for Negligence Expert

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

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

Breach of Fiduciary Duty

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

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

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

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

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

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

 

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

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

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

Facts of the Case

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

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

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

Trial Evidence

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

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

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

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

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

Competence of Chiropractor to Testify About Causation

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

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

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

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

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

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

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

Competence of Chiropractor to Testify About Necessity of Treatment

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

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

 

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

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

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

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

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

Expert Testimony and Proof of Responsibility

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

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

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

Facts of the Case

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

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

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

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

Indiana Precedent

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

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

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

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

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

Expert Opinions and Demeanor Evidence in Payne’s Case

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

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

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

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

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

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

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

Lessons Learned

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

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

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

Deposing Experts in the Age of COVID-19

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

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

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

Remote Depositions

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

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

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

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

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

Practical Concerns

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

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

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

 

Drug Dog Expert Helps Defendant Establish that Car Search Was Unreasonable

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

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

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

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

Traffic Stop

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

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

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

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

Dog Sniff and Vehicle Search

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

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

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

Drug Dog Training

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

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

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

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

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

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

Dog Sniff Expert

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

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

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

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

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

Court’s Decision

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

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

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

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

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

Lessons Learned

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

 

Tennessee Prohibits Reliance on an Involuntary Expert to Establish Standard of Care

Brenda Pringle had an operation to remove pelvic cysts. Her recovery did not go well. Additional surgeries were required before she could return to work.

Pringle made a complaint against her surgeon, Dr. Christy South, to the Kentucky Board of Medical Licensure. The Board contracted with Dr. Elvis Donaldson to review the complaint. He apparently made a determination that Dr. South did not follow an appropriate standard of care.

Pringle then sued Dr. South for medical malpractice. Pringle disclosed her expert witnesses. All but one were treating physicians. None of the treating physicians offered an opinion that Dr. South breached the applicable standard of care.

Pringle identified Dr. Donaldson as an expert witness but did not retain him to testify. Dr. South subpoenaed Dr. Donaldson to testify in a discovery deposition. The Board moved to quash the subpoena, arguing that its contracted doctors should not be required to repeat the opinions they give to the Board in unrelated court proceedings.

The trial court granted the motion to quash long after the deadline for disclosing experts had passed. Dr. South then moved for summary judgment, arguing that in the absence of expert testimony, Pringle could not prove that Dr. South breached the standard of care.

The trial court agreed and granted judgment in Dr. South’s favor. Pringle appealed.

Appellate Analysis

The Kentucky Court of Appeals affirmed the trial court’s decision. Kentucky follows the general rule that the standard of care in all but the most obvious cases of medical malpractice must be proved by the testimony of an expert. Summary judgment was therefore appropriate unless the trial court erred by refusing to allow Dr. Donaldson’s compelled testimony.

Pringle argued that she was entitled to present Dr. Donaldson’s investigation, findings, and conclusions as memorialized in a report that Dr. Donaldson prepared for the Board. While acknowledging that no Tennessee precedent existed, the Court of Appeals relied on an unpublished decision for the proposition that relevant fact testimony can be compelled by issuing a subpoena, but relevant expert testimony “is not the property of litigants.”

In some contexts, that rule has obvious merit. Expert witnesses should be entitled to pick and choose the persons for whom they work. The leading expert in a field might be deluged with subpoenas to compel testimony if he or she could be forced to give expert opinions.

In addition, unlike fact witnesses, expert witnesses are entitled to be paid for their time. Retained experts can bill for their time and have a contractual right to be paid. An expert who is forced to provide an opinion without being retained might end up testifying for free.

This issue is most likely to arise when the plaintiff visits a physician who opines that the treating physician committed malpractice but is unwilling to say so in court. That happens regularly, given the reluctance of physicians to testify against each other. Forcing that physician to testify as an involuntary expert is not something that most courts are prepared to do.

Accordingly, the appellate court created a blanket rule that a party to a medical malpractice action cannot compel involuntary expert evidence from a physician. Parties must instead retain their own expert witnesses.

Lessons Learned

One might think that a report prepared by a medical expert retained by a state agency for a public purpose would be admissible evidence if it either identified malpractice or exonerated the investigated doctor. Unlike retained experts, who are often disparaged as “hired guns,” Dr. Donaldson was a neutral expert. He formed his opinions at the request of the public, not for an interested party. His opinions might therefore be seen as public property, unlike the opinions of privately retained experts that are, in the view of the court, the property of the party who retains them.

Once an expert’s report prepared for a state agency becomes a public record, there are good reasons to believe a party should be entitled to compel the expert’s testimony. The physician has already chosen to express an expert opinion and has, in fact, done so. The expert has been paid for that work. While the expert would certainly be entitled to additional compensation for testifying in a deposition or in court, the policy considerations that weigh against forcing an involuntary expert to testify have less merit when applied to experts who were retained to provide opinions to a public agency. Depriving litigants of valuable evidence that is already a matter of public record does not seem to promote justice.

Notwithstanding the unique circumstances presented here, lawyers should be guided by the court’s blanket rule. It is unwise to rely on the expectation that an expert witness can be compelled to testify. The better practice is to retain an expert.

Whether the retained expert would be entitled to rely on the report written by the Board’s expert to inform the retained expert’s opinion is a separate question. The answer in most states will likely depend on whether physicians routinely rely on the opinions of other physicians when they form their own expert opinions.

 

Admission of Cadaver Dog Handler Testimony Affirmed Over Daubert Challenge

Apart from providing faithful companionship, dogs have a variety of useful skills that they gladly contribute to humans. But are dogs reliable expert witnesses? They might possess relevant expert knowledge, but they are handicapped by an inability to express their thoughts in human language. And since no human can read a dog’s mind, the human filter through which a dog’s knowledge must pass is inherently suspect.

The Florida Court of Appeals recently considered a murder conviction that was based almost entirely on dog handlers’ opinions that their cadaver dogs alerted on the defendant’s vehicle. Although no body was ever found, the court affirmed the admission of the expert testimony and thus affirmed the conviction.

Facts of the Case

Cid and Vilet Torrez were married. They separated in September 2011 after Torrez abused Vilet. Vilet remained in the home with their children while Cid moved to an apartment.

The home was in a gated neighborhood. Surveillance footage showed Vilet driving her car through the gate in the early morning. She had returned home after spending the night with a co-worker. The children were with Torrez.

Vilet was not seen again. Days later, Torrez called 911 to report that he had not heard from Vilet and believed her to be missing.

Police officers found Vilet’s car parked on the street. A search of the home found small blood stains at various locations. The police found no evidence that Vilet traveled or made telephone calls after the morning when she was last seen.

Suspecting that a homicide had occurred, the police summoned a cadaver dog named Jewel to the scene, along with her handler, Officer Gregory Strickland. Jewel alerted to several spots on the lawn near the front door. Strickland interpreted the alerts to mean that Jewel detected the odor of a dead body in those locations. No physical evidence supported that interpretation.

Five months later, having made no progress in determining Vilet’s location, the police did a “line-up” of cars in their parking lot. Torrez’ vehicle was one of the cars. Jewel sniffed each car and, according to Strickland, alerted on the trunk and back seat of Torrez’ car. Strickland interpreted the alert to mean that Jewel detected the scent of a dead body.

The local police then asked for the assistance of Palm Beach Sheriff’s Detective Juliana Martinez and her dog Piper, who was also trained as a cadaver dog. Martinez had Piper sniff Torrez’ vehicle and interpreted Piper’s response as an alert to the odor of human remains in the trunk and back seat.

Vilet’s body has never been found. On the strength of human interpretations of “alerts” given by two dogs, Florida charged Torrez with murder. A jury convicted him. Torrez appealed, challenging the expert testimony given by the dogs’ handlers.

Challenge to Dog Handling Expert

Most people are familiar with the story of the horse that could do arithmetic. When asked “What is two plus three?” the horse would stamp its hoof five times. It was eventually determined that the horse could only perform the trick when its owner was present. The horse was reacting to visual cues from its owner, not to any understanding of numbers.

During the car “line-up,” Strickland claims not to have known which vehicle belonged to Torrez. Whether Jewel was able to see other officers in the parking lot who did know which vehicle belonged to Torrez is unclear. Perhaps both dogs alerted to Torrez’ car because they were responding to visual cues rather than scents.

Prior to trial, Torrez challenged the admissibility of the expert testimony that Strickland and Martinez proposed to give. Strickland testified that Jewel had hundreds of hours of training in the detection of human remains. She was certified as a cadaver dog by a police association that certifies police dogs. Strickland testified that he was only aware of one instance in which Jewel alerted in the absence of human remains. On that occasion, she apparently detected the odor of a bucket of shrimp.

Martinez and Piper’s trainer testified about the training and certifications that Piper received. They agreed that Piper is a reliable cadaver dog. Martinez explained that when Piper isolates the source of the odor of human remains, she “snaps her head, sometimes closes her mouth, sniffs certain areas, slows down and then sits as a final response.”

Kenneth Furton, a professor of chemistry, testified about the scent molecules that cadaver dogs are trained to detect. He contended that scent molecules can linger for “a very long period,” particularly in an enclosed area. He opined that Piper and Jewel, in combination with their handlers, were reliable teams because of their certifications.

Furton did not believe that the absence of a body in Torrez’ back seat or trunk invalidated the alerts. He speculated that the dogs may have alerted to bodily fluids that leaked into materials and were not detected by other means, or they may have alerted to residual odors that remained after the body was removed. Furton admitted that dogs, like humans, can make mistakes.

The trial court purported to apply Florida’s newly established Daubert standard. It determined that the dogs were trained and accurate in detecting human remains and that their handlers were qualified to interpret the dogs’ alerts. Vilet’s disappearance was circumstantial evidence of her death that, in the court’s view, corroborated the handlers’ conclusions that her body had been transported in Torres’ car.

Appellate Analysis

The Florida Court of Appeals noted that the United States Supreme Court has approved determinations of probable cause based on alerts given by properly trained drug dogs. But probable cause to search for evidence is not itself evidence. The question on appeal is whether a handler’s expert interpretation of a dog’s alerts is sufficient to satisfy the Daubert standard for the admissibility of expert evidence in a trial.

The court nevertheless concluded that the opinions of the cadaver dogs’ handlers satisfied the Daubert standard. The court held that the reliability of dog sniff evidence can be based on the handler’s experience with the dog. The court must be satisfied that the handler is “qualified to work with the dog and to interpret its responses.” But since no handler can read a dog’s mind, it is difficult to imagine any circumstances that qualify a handler to “interpret” a dog’s actions reliably.

The dog must also be “proved successful and reliable” and be “sufficiently trained.” There must also be evidence that corroborates the dog’s opinion as interpreted by its trainer. Finding an actual body would presumably be corroborative, but “corroborative evidence need not be evidence which, standing alone, links the defendant to the crime.” That holding is unfortunate for Torrez, given that there was precious little evidence linking him to the crime beyond the handlers’ opinions that their dogs were smelling evidence that a body had been in Torrez’ car and trunk almost five months earlier.

Remarkably, the appellate court held that “courts need not consider the science underlying testimony relating to cadaver dog evidence.” In civil cases, Daubert hearings are almost entirely devoted to the adequacy of the underlying science that supports an expert’s opinion. Why should a lesser standard be applied in a criminal case, where the evidence may lead to a deprivation of liberty?

The court held that it is common knowledge that dogs can distinguish different kinds of odors. But it isn’t common knowledge that dogs can distinguish the scent of a decaying body several months after the body could have been present in the location that the dog sniffed, or that they can reliably explain what they smelled to a human.

This case cries out for scientific evidence, but the court pointed to no peer-reviewed studies suggesting that scent molecules can be detected by a cadaver dog almost five months after the cadaver was no longer present. Nor did the court point to peer-reviewed studies suggesting that the scent molecules associated with cadavers can be reliably distinguished from the scent molecules associated with shrimp or other substances.

Finally, the court held that challenges “to an expert’s measurements, methods and determinations do not render inadmissible an expert opinion based on them but goes to the weight of the evidence, raising factual questions to be determined by the jury.” The court cited only pre-Daubert criminal cases for that proposition. After Daubert, expert opinions have been routinely excluded because an expert’s methods were unreasonable and because an expert’s determinations were not founded on the application of a reasonable methodology to adequate facts.

The appellate court said that it was applying Florida’s new Daubert standard to dog sniff evidence, but its shoddy opinion rests entirely on pre-Daubert understandings of whether expert evidence is admissible. The unfortunate result for Torrez is that his conviction was affirmed based largely on the opinions of police officers about what their dogs might have smelled in his car.

 

Fake

Expert’s Demonstrative Exhibit Held Inadmissible Because It Was Based on Speculation Rather Than Science

Douglas Shaneyfelt was driving at night on a state highway in Ohio. Robert Byram was backing his tractor-trailer into his driveway. Byram’s vehicle was blocking both lanes of traffic when Shaneyfelt began braking. His pickup truck slammed into the side of Byram’s semi.

Byram contended that he was not negligent because he checked the road for oncoming traffic and saw none before he began to back into his driveway. Byram broke no law. Whether it is prudent for a trucker to back into a driveway from a highway at night was a question for the jury. The jury found in favor of Byram.

Shaneyfelt moved for a new trial, contending that he was prejudiced by the computer-simulated images that Byram’s expert witness used as demonstrative evidence. The trial court agreed and granted the motion for a new trial. The Ohio Court of Appeals held that the exhibit was inadmissible but reversed the order for a new trial after finding that the exhibit was not prejudicial.

Demonstrative Evidence

Byram called Ashley Dunn as an accident reconstruction expert. Dunn prepared three computer-simulated images to show how Byram’s truck would have appeared to Shaneyfelt at a distance of 600 feet, 400 feet, and 250 feet.

Shaneyfelt complained that the images were not produced in discovery but were only disclosed four days before trial. The trial court agreed with Shaneyfelt that the untimely production of the images violated the court’s discovery order.

The trial court nevertheless concluded that under Ohio law, discovery violations should not result in the exclusion of evidence unless the violation caused material prejudice to the opposing party. To determine whether the violation was prejudicial, the court allowed the expert to testify, subject to cross-examination.

After the trial, the court determined that the demonstrative exhibits were inadmissible because there was no evidence that they accurately represented Shaneyfelt’s view of the accident. Specifically, Dunn did not measure the brightness of the lights and reflectors on Byram’s tractor-trailer or the brightness of Shaneyfelt’s headlights. Without making that measurement, Dunn could only hazard a guess about how the scene might have appeared to Shaneyfelt.

The court reasoned that Dunn’s demonstrative evidence was “speculative and void of case-specific facts.” Because Dunn’s testimony misrepresented the exhibits as depicting an accurate view of the scene when he could not have known whether the exhibits were accurate, the testimony and related exhibits were prejudicial.

The trial court noted that Byram took a chance by producing the exhibits after the discovery deadline. The court granted a new trial and barred Byram from calling Dunn, or anyone in Dunn’s firm, as an expert witness in further proceedings. Byram appealed.

Appellate Analysis

In the absence of any measurement of headlight brightness, it was impossible to make a demonstrative exhibit that accurately displayed the scene as Shaneyfelt would have seen it. While Dunn relied on industry standards and studies to determine how bright the scene might have been, it is common knowledge that headlights do not always meet industry standards.

Bulbs tend to produce less light as they get older. Perhaps more importantly, dirty or cloudy headlight coverings reduce the brightness of headlights. No assumptions about industry standards can take the place of actual facts when preparing demonstrative evidence.

The court of appeals agreed with Shaneyfelt that the pdf exhibit he received four days before trial differed from the 40” by 30” exhibit that was displayed to the jury. The brightness of the lights in the trial exhibit had been enhanced.

Byram contended that the difference was caused by brightness settings on the printer used to print the pdf. However, the trial exhibit had a car dashboard superimposed over the simulated view that was missing from the pdf. The trial exhibit was obviously not the same exhibit disclosed to Shaneyfelt.

Regardless of the belated pretrial disclosure, the court of appeals agreed that the trial exhibit was inadmissible. Because Dunn did not measure the brightness of the lights shown on the exhibit, the representation of Shaneyfelt’s alleged view was based on speculation, not fact.

The appellate court nevertheless concluded that the improper exhibit was not prejudicial. The court found no evidence in the record that Byram’s decision to back a tractor-trailer into a driveway at night was negligent. The court noted that Shaneyfelt’s own expert agreed that Shaneyfelt’s headlines should have illuminated the truck when Shaneyfelt was 288 feet from the truck. The expert calculated stopping distances and concluded that, if Shaneyfelt had slammed on his brakes at the moment the truck became visible, he could have narrowly avoided the collision.

Lessons Learned

If the trial judge had excluded the exhibit before the jury saw it, there would be no need to guess about the verdict the jury might have returned if it had not been exposed to inadmissible evidence. That is what the judge should have done, although it is not clear that Shaneyfelt objected to the expert’s methodology (as opposed to the belated disclosure) prior to trial.

Demonstrative evidence can be a persuasive tool at trial. Images embed themselves in the minds of jurors more effectively than words. Experts may therefore provide a valuable service for lawyers when they prepare demonstrative exhibits.

But exhibits are evidence, and when they are prepared by experts, they are subject to the same rules of admissibility as other expert evidence. Demonstrative exhibits should have a basis in fact and should reflect the expert’s application of a reasonable methodology.

An exhibit that recreates an accident may be persuasive when an accident reconstruction engineer relies on physics and math to recreate an accident scene. An exhibit that is based on a guess as to how the accident scene might have appeared has no value at all. To assure that demonstrative exhibits are admissible, experts should use the same care when preparing exhibits that they use when preparing reports and formulating opinions.

 

Expert Witness

Tennessee Requires Expert Witness in Malpractice Case to Be Licensed, Not Just Authorized to Practice

In response to lobbying by the insurance and medical industries, many states have adopted laws that make it more difficult to find expert witnesses who are permitted to testify in medical malpractice cases. Doctors who clearly have the expertise required to offer an informed opinion are precluded from testifying based on arbitrary criteria imposed by legislators who want to protect negligent doctors and their insurers from the consequences of malpractice.

Tennessee is one such state. Among other restrictions, Tennessee requires a liability expert in a medical malpractice case to have been licensed to practice and to have actually practiced medicine in Tennessee or a contiguous state during the year prior to the act that caused the patient’s injury.

Whether the licensing requirements applies to a doctor who is authorized to practice, and actually practicing, in Tennessee but exempt from licensing laws was the issue in Young v. Frist Cardiology. The Tennessee Supreme Court construed state law to require expert witnesses to be licensed even when they are authorized to practice without a license.

The Locality Rule in Malpractice Cases

In the nineteenth century, many states adopted the locality rule “to protect rural physicians from being held to the same standards as physicians working in urban areas or at academic institutions.” The locality rule requires juries to determine the standard of care in the locality where the defendant physician committed the allegedly negligent act.

Does the standard of care for treating a patient in Tennessee differs from the standard of care in Florida? There is no reason that it should, but parochial legislatures and courts are slow to recognize the need to bring the law into the current century.

The locality rule has no obvious value in the age of the internet. Rural doctors now have just as much access to modern medical techniques as urban doctors. Yet many states stubbornly cling to the antiquated rule. The Tennessee Code, for example, requires plaintiffs to prove the standard of care “in the community in which the defendant practices or in a similar community.”

The Tennessee Supreme Court has recognized the sensibility of using a national standard of care in the modern age. It has nevertheless deferred to the legislature’s 1975 adoption of the locality rule.

The locality rule restricts the range of expert witnesses who would otherwise be available to testify for the injured patient. A physician in Atlanta might be eminently qualified to testify about the appropriate standard of care for treating a health condition, but unfamiliarity with the standards followed by doctors in a small Tennessee town in which the defendant physician practiced might preclude the expert from testifying. Making it difficult to find expert witnesses is exactly the reason that laws like Tennessee’s are championed by the insurance industry.

The “Licensed to Practice” Rule

Randall Young had a procedure to correct an abnormal heart rhythm. He died from a stroke two days later. His estate sued the surgeon, alleging that the procedure should not have been performed on a patient in Young’s condition and that the surgeon failed to evaluate and monitor Young’s condition before and during surgery.

In compliance with a case management order, Young’s estate identified Dr. Jason A. Rytlewski as an expert witness who would testify about the surgeon’s deviation from the applicable standard of care. Dr. Rytlewski was an electrophysiology fellow with the Division of Cardiology at Vanderbilt University School of Medicine. There was no doubt that he had actual knowledge of the applicable standard of arrhythmia care in Nashville, where the surgery occurred.

Unfortunately, actual qualifications often give way to the artificial qualifications imposed by legislatures. The surgeon’s insurer argued that Dr. Rytlewski could not give admissible expert testimony because he was not licensed to practice in Tennessee or a contiguous state.

Young’s estate offered evidence that Dr. Rytlewski was licensed to practice in six states and had engaged in the practice of medicine in Tennessee during the year before Young’s death. The estate also noted that the Tennessee Board of Medical Examiners had granted Dr. Rytlewski the right to practice medicine in Tennessee during his appointment at Vanderbilt. The estate argued that the licensing requirement applies only to experts who must be licensed, not to experts who are exempt from the state’s licensing law.

Appellate Decision

Notwithstanding Dr. Rytlewsksi’s exemplary qualification to act as an expert witness, the Tennessee Supreme Court decided that the legislature meant for expert witnesses to be licensed to practice, not simply allowed to practice. Of course, a license to practice allows the licensee to practice, so the distinction between being “licensed” and “allowed” to practice has no practical bearing on the expert’s qualifications.

The relevant statute applies to a “person in a health care profession requiring licensure under the laws of this state.” Although Dr. Rytlewski did not require licensure to practice in Tennessee, the court concluded that the legislature meant the words “requiring licensure” to modify the term “profession” rather than “person.”

Nothing in the structure of the sentence or ordinary rules of grammar compels that conclusion. The court’s claim that “requiring licensure” modifies the three preceding words (“health care profession”) rather than the six preceding words (“person in a health care profession”) is unsupported by precedent, grammatical rules, or logic.

The legislature’s actual purpose in enacting the law might have been to shield the medical industry from liability for negligence, but its stated purpose was to assure that expert witnesses are qualified. Reading the statute to apply only to persons who require licensure would serve that purpose and avoid the injustice of disqualifying experts who do not require licensure but are authorized to practice medicine in Tennessee.

Finding a doctor who is willing to testify against another doctor is extraordinarily difficult. Finding a doctor who is willing to testify against another doctor who practices in the same geographical area can be impossible. Legislatures that want to shield negligent doctors from liability take advantage of that difficulty by excluding eminently qualified experts who are not locally licensed. The Tennessee legislature’s rules have nothing to do with justice. Unfortunately, the Tennessee Supreme Court perpetuated injustice by its doubtful reading of the Tennessee statute regarding the licensure of expert witnesses.