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.

Painfull knee, person in pain

Expert Testimony Excluded in Second NexGen Trial

Despite its financial success, the NexGen knee implant has a troubled history. Several versions of the device, including “high flex” implants that are intended to increase the knee’s range of motion, have prompted litigation due to a high failure rate.

The NexGen High-Flex Knee Replacement is a particularly controversial device that some experts, including surgeons who implant it, regard as problematic. When the implant fails before it reaches the end of its expected life, patients must undergo replacement surgery, sometimes many years before they expected to go under the knife again. Patients complain that components of the device loosen prematurely, making knee movement both painful and difficult.

Thousands of patients who blame NexGen failures on a defective design have sued Zimmer Biomet, the device’s manufacturer. Zimmer Biomet denies that the implants are defective. Many of the lawsuits have been consolidated before a federal judge in Illinois. The first case ended in a jury verdict for Zimmer after the judge excluded some of the plaintiff’s expert testimony. The second case was recently dismissed after the judge concluded that critical expert testimony was inadmissible under the federal Daubert standard.

First Bellwether Trial

About 900 NexGen lawsuits have been consolidated before Judge Rebecca Pallmeyer in Illinois. Multidistrict litigation rules that govern the consolidated cases anticipate the early trial of a few representative lawsuits. Those “bellwether cases” are intended to expose the strengths and weaknesses of the evidence on both sides and to encourage settlement of the remaining claims.

In the first bellwether case, Zimmer argued that the testimony of two experts should not be admitted. The judge decided that Dr. Thomas Brown’s testimony regarding loosening of the device’s tibial component was relevant and reliable. The judge determined that Dr. Joseph Fetto was qualified to testify about biomechanics, but excluded his testimony regarding the risk that the devices’ tibial and femoral components would loosen, the adequacy of Zimmer’s warnings to patients, and the adequacy of Zimmer’s product testing. The court concluded that those aspects of his proposed testimony were not based on a reliable methodology.

The first bellwether case went to trial last year. After three weeks of testimony, the jury found in favor of Zimmer.

Second Bellwether Trial

Theodore Joas contended that the tibial component of his NexGen Flex implant loosened, creating the need for new surgery, because of the product’s defective design. Joas relied on the expert opinions of Dr. Brown as well as those of a statistician to establish that the implant’s design made it prone to loosening.

Joas relied on Dr. Fetto’s expert opinions to prove that the defect caused Joas’ implant to loosen. In an attempt to remedy the problems that caused parts of his testimony to be excluded from the first trial, Dr. Fetto revised his methodology and submitted a new report.

Zimmer again challenged Dr. Fetto’s proposed testimony. Zimmer also moved for summary judgment, contending that without Dr. Fetto’s proposed testimony, the plaintiff could not prove that the knee implant was defectively designed.

Dr. Fetto’s Expert Opinions

In the first trial, the court concluded that Dr. Fetto’s report did not explain how the studies he cited supported his conclusion that the implant’s design contributes to its loosening when patients flex their knees. The court also faulted Dr. Fetto for failing to explain why the product’s design, rather than other factors, caused the implant to loosen.

In preparation for the second trial, Dr. Fetto changed his methodology. He relied on “differential etiology,” a process of elimination that doctors use to identify the cause of an ailment. That method assumes that by identifying every potential cause and ruling out all but one, the one that remains must be the cause of the problem.

Dr. Fetto made a list of potential causes for the loosened implant, including such things as trauma, infection, surgical error, and qualities attributable to Joas’ bones, weight, and activities. He found no evidence to suggest that the loosening was caused by Joas’ surgery, by unusual activities that would have stressed the implant, or by medical problems such as infection or bone disease. Having ruled out all other problems, he determined that mechanical failure was the sole remaining cause.

Daubert Ruling

In response to Zimmer’s Daubert motion, the court ruled that “differential etiology” is a reliable methodology, but that Dr. Fetto’s application of the methodology was not reliable. The court first observed that Dr. Fetto failed to cite adequate evidence to support his opinion that certain kinds of stress cause the NexGen device to pull away from the tibia.

The court then concluded that Dr. Fetto misapplied the “differential etiology” methodology because he “failed to follow identifiable standards for including or omitting potential causes for Joas’s knee failure.” In particular, Dr. Fetto’s report did not explain why he failed to “rule in” the possibility of osteolysis (loosening that results from cement debris and polyethylene wear) or defective cement. The court noted that Dr. Fetto may have considered those potential causes, but the language in his report was insufficiently specific to explain why they could not have caused the implant to loosen.

Oddly, after criticizing Dr. Fetto for failing to “rule in” two remotely possible reasons why the device might have loosened, the court criticized him for ruling in the possibility that the device was defective. The fact that hundreds of patients have experienced premature failure of NexGen knees, as well as statistical evidence and physician complaints about its premature failure, would seem to provide ample reason to rule in a product defect as a suspected cause of the device’s loosening in Joas’ case.

Finally, the judge complained that Dr. Fetto ruled out certain potential causes of loosening for reasons that the judge believed to be “inconsistent.” That sounds very much like an evaluation of the expert’s credibility, which is never an appropriate consideration for a judge who applies the Daubert standard.

In the end, the judge excluded Dr. Fetto’s expert opinion. And since Joas’ proof of causation rested on that testimony, the court granted summary judgment in favor of Zimmer.

The Problem with Daubert

Some observers will cheer the judge’s ruling and others will condemn it. There is no question that the judge carefully parsed Dr. Fetto’s expert opinions, but the question is whether the judge exceeded the court’s proper role by doing so.

Many court decisions suggest that the potential weaknesses in an expert’s analysis should be explored on cross-examination and evaluated by a jury. If Dr. Fetto did not provide a complete explanation for his failure to rule in (and then rule out) remote possibilities for the implant’s loosening, his report makes clear that he did consider them. Courts with a more liberal view of Daubert might rule that Dr. Fetto’s considered decisions about how to apply the differential etiology methodology should not be second-guessed by a judge, since doing so arguably usurped the jury’s role.

The problem with Daubert is that the standard draws no clear line between the evaluation of an expert’s methodology (which is the judge’s limited function as a gatekeeper) and the evaluation of an expert’s conclusions (which is the jury’s responsibility). Cases are widely divided as to when an expert’s application of a methodology should be evaluated by a judge and when it should be evaluated by a jury.

There is little reason to believe that juries are less able than judges to evaluate scientific evidence. A jury might have accepted Dr. Fetto’s conclusions as providing the most reasonable explanation of the implant’s loosening, even after the potential weaknesses of his analysis were exposed on cross-examination. As legal scholars have warned, when a judge excludes evidence that a jury might find persuasive, “a judge may risk denying a jury the opportunity to consider important parts of a causation puzzle.”

Mallet and Florida Flag

Sanctions Reversed Against Florida Expert Who Made Mistake in Affidavit

A Florida jury found James Clark guilty of causing the death of an 85-year-old woman while driving after drinking. Frank Fore, an accident reconstruction expert, was hired to help Clark’s lawyer overturn the manslaughter DUI conviction.

In support of the lawyer’s challenge to the conviction, Fore prepared an affidavit expressing the expert opinion that Clark was driving at 55 mph at the time of the accident. He based his opinion on his understanding of data that was taken from the accident victim’s vehicle. Prosecutors had contended that the car was traveling at 85 mph.

Fore’s Mistake

Fore thought he was relying on pre-impact data from the victim’s air bag control module. However, the victim’s car was not able to provide that data.

Fore explained that he relied on a flawed tool that appeared to download the data from the victim’s car. He mistakenly believed the data reported by the tool was accurate.

Fore realized that he misunderstood the data when he was provided with a report prepared by the prosecution’s expert. Fore notified Clark’s attorney of the error but he was not asked to, and therefore did not, revise his affidavit. Clark’s attorney failed to notify the prosecutor of the error in Fore’s affidavit.

The prosecutor took Fore’s deposition. During questioning, Fore acknowledged that his affidavit contained erroneous information. The prosecutor then asked the court to impose sanctions on Fore. At a hearing on that request, the judge found that the affidavit was “materially false” and that Fore had been “recklessly indifferent” to the truth.

The court treated the request for sanctions as a motion to hold Fore in contempt of court. In a civil contempt proceeding, the remedy is remedial, not punitive, so the court could not assess a criminal punishment against Fore. The court decided, however, that it had the power to impose a monetary sanction as compensation “for losses sustained.” It ordered Fore to pay $6,667.70 to compensate the state for the cost of ordering transcripts and hiring its own expert witness.

The court also sanctioned Clark’s attorney. The attorney did not appeal. Fore, on the other hand, appealed the award of sanctions.

Civil Contempt Sanctions Against an Expert Witness

Under Florida law, civil contempt can be imposed as a sanction for the intentional violation of a court order. In most cases, contempt sanctions are imposed to coerce compliance with an order. Somebody who is ordered to produce a document might therefore be jailed or made to pay a daily fine until the document is produced.

The Florida Supreme Court long ago recognized the judicial power to impose a “compensatory fine” in civil contempt cases. While that is what the trial court purported to do when it fined Fore, the District Court of Appeal concluded that the trial court had no authority to impose that sanction. The appellate court noted that contempt fines may only be imposed when a court order has been violated. Fore was not ordered to prepare an affidavit and his inclusion of erroneous information, even if reckless, did not violate a court order.

The appellate court also noted that civil contempt sanctions are only available for intentional violations of a court order. The trial court found that Fore was negligent and even reckless when he prepared the affidavit, but it did not find that he intentionally included false information. For that additional reason, no civil contempt sanction could be imposed.

Other Sanctions Against Expert Witness

The prosecution argued that the trial court had inherent authority to sanction the expert, even if the court incorrectly characterized its decision as the imposition of a contempt sanction. The prosecution pointed to a line of Florida cases that allow trial courts to sanction lawyers who act in bad faith. Those sanctions typically involve an order to pay some or all of the other party’s attorney fees.

The appellate court concluded that the doctrine permitting sanctions against lawyers who act in bad faith should not be extended to expert witnesses. The court noted that the threat of sanctions might deter expert witnesses from testifying for fear that they will be punished if they make a mistake. In addition to the chilling effect that the threat of sanctions might have on expert testimony, the court expressed concern that sanctioning an expert witness might violate the expert’s right to freedom of speech, access to the courts, and due process.

Lessons Learned

Experts should always take care to double-check the facts upon which they base opinions. Unfortunately, mistakes happen. Fore did the right thing when he reported the mistake to the defense attorney. To protect himself, however, he probably should have been more aggressive about following through with the attorney, and should have drafted a revised affidavit based on correct information.

Still, the appellate decision sends the message that experts should not be sanctioned if they make unintentional errors. Experts should try not to make mistakes and should correct any mistakes they discover, but they should not be intimidated by the possibility that an opposing lawyer might ask a judge to sanction them if their opinions turn out to be wrong.

Baby feet

Expert Faults Police Interrogation Tactics in Newborn Murder Trial

A 15-year-old girl charged with murdering her newborn in California relied on an expert witness to cast doubt on the reliability of her confession. The expert questioned police interrogation tactics that have been shown to produce false confessions.

Because the accused is a juvenile, press accounts refer to her as “Maribel S.” Her first-degree murder charge was tried by a judge (rather than a jury) in Santa Maria Juvenile Court. She was prosecuted by the Santa Barbara County District Attorney’s Office.

Maribel based her defense on evidence that she did not know she was pregnant until she gave birth and that she did not intend to cause the baby’s death. Prosecutors argued that Maribel knew she was pregnant and wanted to conceal the pregnancy and childbirth from her parents. They argued that evidence from her cellphone showed that she searched the internet for ways to induce a miscarriage.

Evidence Concerning Childbirth

A registered nurse testified that Maribel came to a medical center on January 17 complaining of vaginal bleeding and abdominal pain. During her examination, the nurse noticed an umbilical cord attached to Maribel’s body. Prosecutors alleged that she gave birth, and murdered her child, that day.

A physician’s assistant testified that Maribel admitted giving birth to a baby in her bathroom. He said Maribel gave him three different versions of events that occurred after the birth. In one version, she said she held the baby on her lap for an hour. In another, she mentioned flushing the baby down the toilet.

Prosecution’s Expert Evidence

Police found the baby’s body in a bag next to the tub. No blood was visible in the bathroom, but forensic experts used a luminol test to search for spots of blood that had been wiped clean. They found blood spots on the bathroom floor, walls, and door.

A forensic pathologist who performed an autopsy expressed the opinion that the baby was alive at the time of delivery. Air in the baby’s lungs and stomach indicated that the baby took a breath before dying. He concluded that the cause of death was a “sharp force injury of the neck.” He based that opinion on his discovery of “a gaping incision wound” across the front and sides of the neck. The incision severed the baby’s trachea and carotid arteries.

Defense Experts Concerning Mental Health

The defense contended that Maribel suffers from post-traumatic stress disorder (PTSD) as a result of repeatedly being raped by her cousin between the ages of 8 to 11. Maribel gave a number of inconsistent statements about the baby’s death. The defense attributed those inconsistencies to her PTSD, which caused her to deny her pregnancy, and to police interrogation tactics.

The defense called a psychiatrist, Dr. Peter Garcia, as an expert witness to establish Maribel’s mental state. Dr. Garcia interviewed Maribel two days after the birth. He learned that Maribel began cutting herself after she was sexually assaulted. A Global Assessment of Functioning test supported the conclusion that Maribel needed psychological help and was at risk of continuing to harm herself. He diagnosed her as having acute stress disorder, a condition that precedes PTSD

A psychologist, Dr. Carolyn Murphy. also provided expert mental health testimony. Her testing revealed that Maribel showed no signs of psychopathy and had no criminal tendencies. She did have escapist tendencies and a tendency to avoid confrontation. Dr. Murphy attributed those tendencies to her victimization. Dr. Murphy also determined that Maribel tended to be impulsive and that she cut herself to help her cope with stress. Dr. Murphy concluded that Maribel suffered from PTSD.

Maribel’s parents made her live in Mexico between the ages of 5 and 11. Dr. Murphy expressed the opinion that Maribel suffered from abandonment issues and worried that she would be returned to Mexico if she did anything to displease her parents.

Expert Testimony Concerning Police Interrogation

Police detectives questioned Maribel on January 20. Maribel repeatedly said she did not remember much of what happened on the day her baby was born. She said she knew that she was bleeding nonstop but did not know she was pregnant until she gave birth.

Maribel told a detective that she delivered the baby in her bathroom and that the baby fell into the toilet. She said she then used a knife to cut the umbilical cord. As she was “sawing” the cord, the knife slipped and cut the baby’s neck.

Dr. Richard Leo testified for the defense as an expert in police interrogation practices and psychological coercion. He told the judge about the difference between an interview, which is meant to develop information, and an interrogation, which is designed to induce a confession. Interrogation tactics include:

  • Isolating the suspect from friends and family.
  • Building rapport with the suspect before becoming accusatory.
  • Convincing the suspect that the police already know she’s guilty, so she might as well admit her guilt.
  • Promising or implying a good outcome in exchange for a confession (“things will go easier for you”).
  • Lying about evidence of guilt that the police claim to have.
  • Explaining a theory of how the crime occurred and encouraging the witness to agree with that theory (a process known as “scripting”).

Dr. Leo also testified that a young person with a trauma-based disorder is particularly susceptible to those tactics. Research establishes that police who use interrogation tactics rather than conducting an interview have a history of obtaining false confessions.

Dr. Leo noted that the police used interrogation tactics when they questioned Maribel. They built a rapport, claimed that they already knew what happened, and implied that they had evidence of guilt that didn’t exist. They also “scripted” the confession by telling Maribel that she cut the baby’s throat and asking her to explain exactly how she did it.

Dr. Leo forthrightly acknowledged that parts of Maribel’s statement were probably not induced by interrogation tactics. For example, her statement that she felt the baby’s heartbeat and saw his stomach go up and down did not appear to be scripted.

The Verdict

Expert witnesses serve an important role by helping a judge or jury understand the evidence. In this case, Dr. Leo’s testimony may have helped the judge focus on the parts of Maribel’s testimony that were not scripted by the police, none of which suggested that Maribel had planned to commit a murder.

The judge described the case as emotional. He declined to find Maribel guilty of first degree murder, as the prosecution requested. He instead found her guilty of second degree murder, a crime that occurs when a decision to kill is not premeditated. He ordered a new psychological evaluation that he will consider before imposing a sentence.

Google Search Window

Oregon Court Decides Defendant Should Have Been Allowed to Have Forensic Expert Search His Accuser’s Computer

Google makes a record of all searches that site visitors conduct. A federal law makes those records available to prosecutors but not to the individuals being prosecuted. To assist his defense, the attorney for Thomas Bray made repeated attempts to obtain records of Google searches conducted by Bray’s accuser. In opposition to that request, the prosecution called a police officer as an expert witness. The officer testified that Google did not have the requested records. That testimony was incorrect.

On appeal from Bray’s conviction, the Oregon Court of Appeals characterized the prosecution’s tactics, including the police officer’s “expert” opinion, as “seriously disturbing.” The appellate court decided that the trial court should have granted Bray’s request to have an independent forensic expert search the computer for evidence of Google searches.

Bray’s Prosecution

Thomas Bray was an anesthesiologist. He met a woman (identified in the court decision as “J”) through an internet dating site. They had drinks together and then went to Bray’s apartment. J subsequently accused Bray of sexually assaulting her.

When J arrived home, she sent a text to a friend that said “I think he raped me last night.” She testified that she then conducted internet searches to learn the definition of rape under Oregon law. After completing that research, J called the police and Bray was arrested.

Bray’s lawyer theorized that J searched the internet for evidence of Bray’s wealth before deciding whether it would be profitable to make a false sexual assault claim, followed by a lawsuit. J did, in fact, file a lawsuit against Bray. Bray’s lawyer attempted to obtain J’s search history from Google to determine the content of her searches, but Google refused to honor his subpoena because federal law prohibits the disclosure of electronically stored information.

The federal law contains an exception that allows disclosure to law enforcement agencies. Bray’s attorney asked the court to order the prosecutor to request the search information and to make it available to the defense. The court did so.

The Prosecution’s Expert Testimony

The prosecution took a series of steps to resist the court’s order, none of which were successful. At one point, it claimed that obtaining J’s IP address would be “impractical and expensive,” even though the prosecution already had her IP address. After the court repeatedly ordered the prosecution to request the Google records, the prosecution told the court that it had not tried to do so because it learned that making the request would be “futile.”

To explain its noncompliance with the court order, the prosecution called an officer from the Bend Police Department to testify as an expert witness. The officer told the court that Google did not maintain records of searches for more than 28 days. The officer admitted during cross-examination that he did not base that opinion on anything he learned from Google, but said he heard about the policy by talking to another police officer who claimed to have learned about it from one of Google’s attorneys. The officer did not know the attorney’s name.

During a recess in the hearing, Bray’s attorney searched Google’s website and discovered that it retains search information for 9 months. The judge then chastised the prosecution for offering inaccurate expert testimony and for its deliberate disobedience of the court order. The judge ordered the prosecution to subpoena the data from Google and threatened to hold the district attorney in contempt for the prosecution’s willful circumvention of the court’s discovery order.

Three months after the court first ordered the prosecution to serve Google with a subpoena, the prosecution finally did so. It later advised the court that Google would not release the information without a search warrant. The court eventually concluded that it did not have the power to order the prosecution to apply for a search warrant.

Request for Defense Expert

The defense then subpoenaed J’s computer and asked the court to enter an order turning the computer over to an independent forensic expert who would determine (1) whether the content of the Google searches could be found on the computer and (2) whether and when J erased the hard drive, as she claimed to have done. The trial court refused to do so after ruling that having a forensic expert search J’s computer for evidence of Bray’s innocence would violate J’s right to privacy.

Bray went to trial without the Google information. He was convicted and sentenced to 300 months in prison. Bray appealed.

The Police Officer’s Expert Testimony

The Oregon Court of Appeals lambasted the prosecution for its efforts to resist the court’s discovery order. The court found that the prosecution’s conduct, including reliance on an “expert” who based an opinion on hearsay that he made no attempt to verify, was “seriously disturbing.” The court characterized the prosecution’s defiance of the court’s order as “nothing short of an attack on the judicial system itself.”

The court nevertheless declined to reverse Bray’s conviction due to prosecutorial misconduct because Google would not have provided the records in response to a subpoena even if the prosecution had more promptly obeyed the court’s order. The misconduct was therefore dreadful but not harmful.

The Defense Request for an Independent Expert

On the other hand, the Court of Appeals rejected the prosecution’s argument that J had a statutory right to privacy that was superior to Bray’s constitutional right to compel the production of evidence in his trial. The right to compel the production of relevant evidence is protected by the Sixth Amendment to the United States Constitution. That right overcame any right J may have had to keep the contents of her hard drive a secret.

The court noted that the prosecution’s argument would have greater force if Bray simply wanted the authority to read everything on J’s hard drive. By asking that the hard drive be given to a forensic computer expert who would determine whether the hard drive contained relevant material (and, if the contents were erased, the date on which that happened), the defense took care to protect J’s privacy rights.

The trial court expressed concern that J’s privacy would be invaded because “the forensic guy” would theoretically be able to access everything on her computer. The court of appeals did not share that concern. The appellate court assumed that a forensic expert would obey the trial court’s order and would only search the computer for evidence of Google searches within a specified time frame. Any intrusion into J’s privacy would therefore have been minimal. In addition, the defense agreed to let the court choose the expert to obviate any fear that the expert might give the defense greater access to the data than the court permitted.

In short, the request to have an independent forensic expert conduct a limited search of J’s computer was reasonable. Because the trial judge denied that request without applying appropriate legal standards, Bray’s conviction was vacated and the case was returned to the trial court to appoint an expert and to decide whether a review of the material discovered by the expert would be appropriate.

The Church of Jesus Christ of Latter-Day Saints Temple in Fort Collins Colorado

Expert Witnesses Build Case to Disband FLDS-Controlled Marshal’s Office

Having persuaded a jury that the twin communities of Colorado City, Arizona and Hildale, Utah discriminated against individuals who did not share the religious beliefs of town officials, the Justice Department wants to disband the Marshal’s Office that serves those towns. It will rely on expert witnesses in an effort to persuade a federal judge to grant that remedy.

The FLDS and Warren Jeffs

Years ago, members of a polygamous sect of the Mormon Church broke away from the mainstream religion and took up residence in isolated communities. Two such communities are the sister cities of Hildale and Colorado City, known collectively as Short Creek.

The communities have been tightly controlled by the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS). Before his imprisonment, Warren Jeffs, a former president of the FLDS, claimed that nearly all of the land surrounding Short Creek was held by a church trust.

In 2004, Jeffs expelled the mayor of Colorado City and 19 other men who, in Jeffs’ view, failed to follow church doctrine. He reassigned their wives and children to other men in the community.

In 2006, after spending some time as a fugitive on the FBI’s Ten Most Wanted list, Jeffs was arrested. He was charged with multiple crimes in various jurisdictions. In 2011, he was sentenced to life imprisonment in Texas for two counts of sexual assault of a child.

Justice Department Lawsuit

After Jeffs was sentenced, the Justice Department filed a civil rights lawsuit against government officials in the two towns, alleging that the city violated the rights of non-FLDS members by discriminating against them in the provision of housing and city services. Before the case went to trial, community officials settled discrimination claims under the Fair Housing Act by agreeing to pay $1.6 million.

At the conclusion of the trial, a jury found that the police departments in the two cities “followed, harassed and intimidated nonbelievers.” Police behavior included subjecting non-FLDS members to unconstitutional detentions and arrests. The jury also found that city officials denied city services, including building permits and water hookups, to non-FLDS members.

The claims about improper policing were brought under the Violent Crime Control and Law Enforcement Act. That law permits the Justice Department to address patterns and practices of police misconduct. Since the law does not authorize a jury trial, the jury’s findings about unlawful police actions are considered advisory. In the next stage of the trial, the presiding federal judge will decide whether constitutional violations occurred and, if so, what remedy to order.

Expert Testimony

Among other remedies, the Justice Department wants the court to disband the Colorado City Town Marshal’s Office. In support of that request, the Justice Department intends to call law enforcement officers as expert witnesses.

The Justice Department proposes to have the sheriff’s departments of Washington County, Utah and Mohave County, Arizona take over law enforcement duties in the two communities. Law enforcement officials from those agencies are expected to provide expert testimony regarding the ability of their departments to handle that task. They will also testify about the difficulty their departments have encountered when trying to work cooperatively with the Marshal’s Office.

The city government will argue that disbanding its law enforcement organization is a drastic and unnecessary remedy. To counter that argument, the Justice Department plans to call former Phoenix Police Chief Jack Harris as an expert to explain why attempts to reform the Marshal’s Office would be costly and ineffective.

The Justice Department also wants to call Washington County Attorney Brock Belnap to describe his experience with the Marshal’s Office. Belnap is expected to offer expert opinions about the need to disband the Marshal’s Office in order “to ensure constitutional policing in the Cities.”

The town government plans to call Colorado City Marshal Jerry Darger to provide his expert opinion that disbanding the Marshal’s Office would have a negative impact on the residents of the two communities. In his opinion, the two sheriff’s departments have failed to provide needed assistance to the towns when they were asked to do so in the past.

The court has scheduled a hearing to take evidence on the discrimination remedy in late October. It will probably issue a decision shortly after the hearing concludes.

Gavel and Stethoscope on Reflective Table

Appellate Court Allows Medical Expert to Testify in Indiana Malpractice Case

Several states have adopted laws that require medical malpractice allegations to be reviewed by a panel of healthcare providers before a malpractice lawsuit can be filed. Construing Indiana’s version of that law, the Indiana Court of Appeals recently decided that an expert witness would be allowed to testify at trial about a theory of medical malpractice that was not expressly presented to the review panel.

Allegations of Malpractice

Rowena Turner was diagnosed with a form of bone marrow cancer that increased her risk of developing blood clots. She was prescribed anticoagulant (blood thinner) medication to reduce that risk.

Ten years later, Dr. Charles McKeen performed surgery to remove a part of Turner’s colon. When she was discharged, Dr. McKeen told her not to restart her anticoagulant medication.

Two days after her discharge, Turner was readmitted to the hospital with complaints of vomiting. Based on her distended abdomen, Dr. McKeen concluded that she suffered from a small bowel obstruction. Later that day, Turner was transferred to a critical care unit after her blood pressure dropped. She was diagnosed with deep vein thrombosis, a condition that occurs when a blood clot forms in a deep vein, and with acute kidney failure. Turner died about a week later.

Following Indiana’s procedure for bringing a medical malpractice claim, Turner’s husband filed a proposed complaint with the Indiana Department of Insurance. The complaint alleged that Dr. McKeen was negligent and that his negligence caused Turner’s death. Turner’s husband later filed a submission with the Medical Review Panel (MRP), supported by medical records, that explained his theory of Dr. McKeen’s negligence.

The submission to the MRP focused on Dr. McKeen’s failure to perform exploratory surgery promptly after Turner’s readmission to the hospital. The submission did not allege that Dr. McKeen was negligent in the dosage of anticoagulant medication he prescribed during the first hospitalization or in his instruction to forego blood thinners after Turner’s discharge.

The MRP concluded that Dr. McKeen was not negligent. Having jumped through the procedural hoops that Indiana requires before medical malpractice litigation can be commenced, Turner’s husband filed his lawsuit.

Expert Opinion

During discovery, Turner’s husband obtained and furnished the report of an expert hematologist, Dr. Robert Manges. Dr. Manges expressed the opinion that Dr. McKeen negligently failed to provide a proper dosage of anticoagulant medication during Turner’s first hospital stay, given her elevated risk of forming blood clots. Dr. Manges also opined that Turner would not have developed deep vein thrombosis if she had been prescribed an appropriate dosage of anticoagulants after her hospital discharge.

Dr. McKeen’s attorney filed a motion to strike Dr. Manges’ opinions because his theory of malpractice had not been presented to the MRP. The trial court granted that motion but later reconsidered its decision. When it ordered that Dr. Manges would be permitted to testify, Dr. McKeen asked the Indiana Court of Appeals to review that order prior to trial. The Court of Appeals agreed to do so.

Court’s Ruling

After filing a proposed complaint, Indiana law requires a plaintiff to submit evidence in support of the complaint to an MRP. The evidence must pertain to the theory of negligence that will be raised at trial.

The MRP, which consists of three physicians, then renders an expert advisory opinion about the complaint’s merit. The MRP essentially gives a thumbs up or a thumbs down to the complaint but it does not explain its reason for doing so. The opinion has no impact on the plaintiff’s right to file a lawsuit, but it must be obtained as a condition of filing suit.

Attorneys often accompany the evidence with a statement that explains why, in their opinion, the case has merit, but the law does not require them to do so. The Court of Appeals concluded that such statements are not “evidence” and that the failure to explain all the ways (or any way) in which a doctor was negligent has no bearing on the ability to raise those theories of negligence at trial. Turner’s husband was therefore not precluded from contending that malpractice occurred for reasons that were not addressed in the statement submitted to the MRP.

The court also concluded that the proposed complaint filed with the MRP does not need to articulate specific theories of negligence. In Indiana, a complaint merely serves to give notice to the party being sued of the general claim (in this case, malpractice) that is being made. Complaints need not recite evidence in support of the claim.

The complaint filed by Turner’s husband met the notice standard. It alleged that Dr. McKeen was negligent by failing to provide the appropriate standard of care to Turner during a time span that covered both hospitalizations.

The decisive question was whether evidence of the theory of negligence that would be raised at trial was presented to the MRP. There was no question that Dr. Manges’ expert opinion was not included in the evidence submitted to the MRP.

The court held that medical malpractice plaintiffs are not required to provide all of their evidence, including expert opinions, to the MRP. The panelists, after all, are themselves experts. Plaintiffs need only present some evidence that supports the theory of malpractice that will be raised at trial.

Turner’s husband did that by submitting Turner’s complete medical records, which included the anticoagulant dosage that Dr. McKeen ordered during her first hospitalization, as well as his instruction to discontinue the medication after her discharge. Since those are the facts upon which Dr. Manges based his expert opinion, the Court of Appeals agreed that the expert could not be precluded from rendering that opinion at trial.

Seal of State of Florida and Gavel

Florida Computer Expert Arrested for Lying About Credentials Under Oath

While awaiting trial on more than a dozen felonies involving sexual abuse of a child, Jason Eugene Daniels got a tip from his cellmate about an expert witness who could assist his defense. The expert, Chester Kwitowski, had testified as a computer forensics expert in other Polk County, Florida cases.

Daniels passed the expert’s name to his defense attorney, who asked Kwitowski for his resume. Impressed with Kwitowksi’s credentials, the attorney decided to engage his services. That turned out to be an unfortunate decision, particularly for Kwitowski. After he testified, Kwitowski was arrested for perjury. Even more unfortunate is the opportunity Kwitowski gave the Polk County Sheriff to criticize defense experts.

Kwitowski’s Arrest

The Tampa Bay Times reports that a sheriff’s detective who was serving as a prosecution expert in Daniels’ case became suspicious about “inconsistencies in Kwitowski’s qualifications.” The Sheriff’s Office began an investigation. Kwitowski was arrested after detectives discovered that some of his credentials were falsified.

Kwitowski was charged with committing perjury when he testified about his education, his professional certifications, and his military service. Kwitowski falsely claimed to have a master’s degree in computer science and engineering and to have multiple computer forensics certifications. He also gave false testimony about having a “Top Secret clearance” and working on “sensitive government projects.”

An investigation by the Tampa Bay Times also cast doubt on Kwitowski’s claim that he had “information technology and systems support contracts” with two government offices. Those offices had no record of contracting with Kwitowski.

Kwitowski said he testified as a computer forensics expert at least fifty times in state and federal courts. The Sheriff’s Office is investigating that claim to determine whether it was exaggerated.

Sheriff Criticizes Defense Experts

An interview that the Polk County Sheriff gave to a news station suggests that the Sheriff’s Office had a grudge against Kwitowski. The Sheriff said, “We call him Chester who defends the molesters.”

The implication is that expert witnesses should not testify for the defense in child pornography or child molestation cases. The Sheriff’s uncharitable attitude is inconsistent with the presumption of innocence and the constitutional right to present a defense.

Experts should not be impugned simply because they testify for one side or the other in a criminal prosecution. Experts are advocates for the truth, not for a particular party.

The Importance of Defense Experts

Computer forensics experts play a crucial role in assuring that juries understand the evidence against individuals who are accused of crime. Sloppy work by a prosecution expert, left unchallenged, can lead to a wrongful conviction.

Julie Amero is a case in point. While working as a substitute teacher, Amero used a classroom computer to check her email. The computer began to display pornographic images in a series of popups. As quickly as Amero closed one, another would take its place.

Students in the classroom saw the images. She reported it to school officials, who told her not to worry. Concerned parents, however, pressured the school to report Amero to law enforcement authorities. Amero was accused of surfing pornographic websites in the classroom. The accusations led to her arrest for causing a risk of injury to a minor.

The prosecution called a computer forensics expert who testified that the computer could not have displayed pornographic popups, as Amero claimed. The defense did not call an expert and Amero was convicted.

If Amero’s defense attorney had hired an expert, it is likely the case would have been dropped. After her conviction, forensic computer experts volunteered to help her. They explained that her version of events was consistent with a malicious spyware program. Their assistance shamed the prosecution into sending the computer’s hard drive to the state police forensics laboratory. An analysis found evidence that supported Amero and that contradicted the state’s expert witness.

Based on the new expert evidence, a judge overturned Amero’s conviction. The judge also found that the prosecution’s computer forensics expert had given false testimony. But for the willingness of experts to step in and remedy an injustice, Amero’s wrongful convictions would still be haunting her.

Lessons Learned

Jack Townley, the president of the Florida chapter of the Forensic Expert Witness Association, told the Tampa Bay Times that once someone has testified as an expert, lawyers tend to assume that the expert’s credentials have been verified. That isn’t always the case, as Kwitowski’s history demonstrates.

It never hurts to ask an expert to verify claims made on a resume. Producing a copy of a diploma or of certifications shouldn’t be burdensome for most experts, and a failure to do so should cause lawyers to raise an eyebrow and ask whether the expert might be hiding something.

Only a small percentage of expert witnesses fabricate their resumes, which might lull lawyers into a false sense of security. As Townley notes, the more time lawyers spend verifying credentials, the less time they have available to prepare for court. At the same time, an attorney who fails to check credentials runs the risk that a lawyer on the other side of the case will do so. It’s better to learn about an expert’s problematic resume before making a decision to put the expert on the witness stand than to watch the expert’s credibility be destroyed on cross-examination.

Attica Prison Riot

An Expert Witness Who Made a Difference

This year is the 45th anniversary of the Attica prison uprising. The most notorious prison riot in American history led to 43 deaths of prisoners and guards and triggered a demand for prison reform. A recent New York Times story reports that prison conditions improved after the uprising, although some of the reforms promised in 1971 have never been implemented or have been rolled back.

There are few heroes in the story of the Attica riot. One person who deserves to be remembered for his heroism is Dr. John Edland, the medical examiner of Monroe County, New York. Pressured to support the lies told by prison authorities and other state government officials, Dr. Edlund stood up for the truth. He paid a heavy price for his unwavering honesty as an expert witness, but he never lost his integrity.

The Attica Riot

About half of the 2,200 inmates in the overcrowded Attica prison took 38 guards hostage on September 9, 1971. The inmates presented prison authorities with a list of demands. They wanted more than one shower per week and more than one roll of toilet paper per month. They wanted an end to routine beatings by prison guards and to solitary confinement in cells where they were forced to sleep naked on a concrete floor. They wanted prison officials to recognize their right to practice religions other than Christianity.

Prison officials agreed to bring in outside observers to tell the inmates’ story. The officials also agreed to many of the prisoners’ demands, although they would not agree to grant amnesty to inmates who were involved in the riot.

Four days after the uprising began, Gov. Nelson Rockefeller ordered more than 200 armed troopers to storm the prison. In the violence that followed, 39 people were shot to death, including 10 prison employees. Four people had died earlier.

The Attempted Cover-Up

State officials tried to blame the deaths of hostages on prisoners. Officials told the press that prisoners had slashed the throats of the prison employees.

When Dr. Edland autopsied the dead, it was apparent that the hostages had died from gunshot wounds, not from knife wounds. Since the prisoners had no guns, Dr. Edland’s findings compelled the conclusion that the hostages were killed by the state troopers’ gunfire.

State officials attempted to undermine Dr. Edland’s autopsy report. Immediately after Dr. Edland finished his autopsy, the Corrections Department issued a statement claiming that eyewitnesses had seen the victims’ throats being slashed.

The governor issued a statement after the autopsy claiming that the hostages had been killed by inmates. Police officers who watched Dr. Edland remove bullets from the hostages’ bodies said nothing to contradict the official story. State officials also told the families of the deceased victims that inmates had cut the victims’ throats.

Attacks on Dr. Edland

In response to the misrepresentation of his autopsy results, Dr. Edlund sought the advice of clergy. He then released his autopsy report to the media so that the truth would be made public.

Fearing that Dr. Edland would be an effective witness for families of the hostages, state officials began a campaign to damage his credibility. The state police found two local undertakers who were willing to support the claim that the hostages had died from knife wounds rather than gunshots.

The attacks on Dr. Edland resonated with members of the public who assumed that prisoners, rather than the police, had been responsible for killing the hostages. Dr. Edland began to receive threatening calls that accused him of being a Communist and siding with the inmates.

As a respected medical examiner, Dr. Edland had dedicated himself to finding the true cause of death in every case. When called upon to do so, he testified to the facts as he knew them. He could not believe that his integrity and reputation were suddenly under attack. According to his wife, Dr. Edland “was shocked that people wouldn’t believe him. Until that time, people always believed him.”

Dr. Edland’s Work as an Expert Witness

Other medical examiners who examined the bodies rallied to Dr. Edland’s defense. New York City’s medical examiner confirmed Dr. Edland’s findings, noting that “passions sometimes overtake truth and justice.” Days later, the State Correction Commissioner was forced to admit that the hostages died of gunshot wounds and not of slashed throats.

Dr. Edland testified about his autopsy results in several trials that followed the Attica riots. He always told the truth, but he continued to received threatening phone calls from misguided individuals who thought he was betraying the police by refusing to support the claim that the hostages were killed by knife-wielding prisoners.

Dr. Edland’s family recalls how he became dispirited after facing public scorn simply because he was an honest witness. He suffered a breakdown and was hospitalized for severe depression.

After his discharge, Dr. Edland resigned from his position as medical examiner. He joined the faculty of Vanderbilt University and later became a dean at Creighton University in Omaha.

Until his death in 1991, Dr. Edland continued to testify as an expert witness, but in criminal cases, he only testified for the defense. He told the press that he was “no longer interested in the state’s case because it seems they have so much power” compared to “the poor little guy on the other end.”

Dr. Edland stands as a model for all expert witnesses. Trials are a search for the truth. Experts serve a crucial role in helping juries find the truth, but only if their testimony is honest. Sometimes serving the cause of truth is difficult, but expert witnesses who do so in the face of adversity, like Dr. Edland, are among the heroes of the judicial system.

Image Credit: By Jayu from Harrisburg, PA, U.S.A. (Attica, New York (Correctional Facility)) [CC BY-SA 2.0], via Wikimedia Commons

eye looking through peephole

Eyewitness Identification Experts Are Making a Difference in Illinois

American courts have been slow to recognize the importance of expert opinions when a criminal charge hinges on eyewitness testimony. Until recently, judges tended to rule that juries understand the possibility of mistaken eyewitness identifications and that experts had nothing meaningful to add to jurors’ knowledge.

Mistaken eyewitness identifications are the leading cause of wrongful convictions of innocent defendants. As DNA testing continues to expose wrongful convictions, courts are increasingly acknowledging the reality that jurors really don’t understand how easily an eyewitness can make a mistaken identification. Exonerations, coupled with published studies that explain why eyewitnesses so often get it wrong, have compelled courts to recognize that a defendant who wants to call an eyewitness identification expert probably won’t receive a fair trial unless the expert is permitted to testify.

Illinois Opens the Door

The Illinois Supreme Court opened the door to testimony by eyewitness identification experts in a ruling earlier this year. In an appeal from a murder conviction, the court agreed that the defendant, Eduardo Lerma, was denied a fair trial when the trial judge refused to allow his expert witness to testify.

The only evidence against Lerma consisted of eyewitness identification testimony. The key witness testified that she was standing on the unlit steps of a home near midnight when she saw a man dressed in a black hooded sweatshirt draw a gun and shoot the victim. The victim then fell on top of the witness, who heard the victim say “Lucky shot me.” The defendant was known in the neighborhood as “Lucky.”

The eyewitness had never met the defendant but had occasionally seen him on his porch across the street. Depending on whether her trial testimony or her prior grand jury testimony is to be believed, she only saw the defendant on his porch once or twice, or as many as ten times. She had never spoken to him and had not seen him in six months to a year prior to the shooting.

The Proposed Expert Testimony

The defendant wanted to call a psychologist as an expert witness to testify about several facts that typical jurors do not understand. Those facts included: an eyewitness’ confidence in her identification does not correlate with the accuracy of the identification; the stress of witnessing a violent crime, the presence of a gun, nighttime viewing, and the passage of time all affect an eyewitness’ ability to make an accurate identification; cross-racial identifications are less reliable than same-race identifications; and eyewitness identifications are influenced by suggestion (such as “Lucky shot me”).

The expert acknowledged that identifications are more reliable when the eyewitness knows the person she is identifying. For that reason, the trial judge excluded the expert’s testimony on the ground that it wasn’t helpful to the jury. The judge also remarked that identification experts were simply “the latest trend.” The defense asked the judge to reconsider, offering the opinion of another psychologist that acquaintance with the person being identified does not necessarily increase the reliability of the identification. The trial judge refused to permit any expert testimony.

The Supreme Court’s Ruling

The Illinois Supreme Court decided that the expert’s testimony should have been admitted. The court recognized that in the 25 years that had passed since it last ruled on the admissibility of expert testimony concerning eyewitness identification, a growing body of relevant research had produced “a dramatic shift in the legal landscape,” as courts across the country have come to regard expert testimony as both reliable and necessary to a fair trial when the defendant’s identification is in doubt.

The court noted that most of the factors that render an identification questionable were present in Lerma’s case. The court also concluded that whether or not eyewitness identification is more reliable when the witness knows the person she identifies, it was not fair to say that the eyewitness who identified Lerma actually knew him. Seeing a person from a distance a few times is not the same as knowing a person, and the witness expressly testified that she did not know Lerma. Expert testimony was therefore an essential means of explaining to the jury why the eyewitness identification might have been mistaken.

The Impact of the Lerma Decision

The Chicago Tribune points out that eyewitness identification experts have made a difference in Illinois trials. Marco Lopez was recently acquitted of murdering a father and son after an expert witness explained why an eyewitness identification could not be trusted.

The case against Lopez rested on eyewitness testimony. The murder weapon was never found and Lopez’ DNA was not present at the crime scene. The police questioned and released a different suspect who may have committed the crime. Two people who told the police that they saw Marco with a gun on the night of the murder changed their stories when they testified under oath.

The eyewitness testified that he saw Lopez walking away from the crime scene “from about 10 feet away through a glass door shortly after midnight.” The expert explained how poor lighting, the brief observation, and other factors cast doubt on an identification made under those conditions.

The Tribune article cites a number of wrongful convictions in Illinois that were based on mistaken identifications before the Lerma case opened the door to expert testimony. Now that jurors are being made aware of factors that make identifications doubtful, expert witnesses are helping to assure that fewer innocent defendants are convicted in Illinois courts.

DNA

DNA Expert in Casey Anthony Case Found Unqualified to Testify

Richard Eikelenboom, a DNA expert described by media sources as “prominent,” was barred from testifying in a recent trial. Although Eikelenboom has testified in several high-profile cases, the court decided to exclude Eikelenboom’s expert opinions in a sexual assault trial in Denver. The prosecutor and Eikelenboom have differing perspectives as to the reason for that ruling. Unfortunately, a transcript of the court’s decision reveals that the court did not explain its reasoning in barring Eikelenboom from testifying.

Eikelenboom’s History as an Expert Witness

Eikelenboom is perhaps best known for his work on behalf of Casey Anthony, who was acquitted of murdering her daughter Caylee in a well-publicized trial during 2008. The prosecution theorized that Casey Anthony rendered her daughter unconscious with chloroform, covered her mouth and nose with duct tape, and concealed her body in the trunk of her car for several days before disposing of it. The acquittal was widely attributed to “holes in the state’s forensic case,” including novel expert evidence that the defense condemned as “junk science.”

Eikelenboom was one of several experts who testified for the defense. Eikelenboom explained that a method could have been used in an attempt to create a DNA profile of the killer, despite the difficulty of recovering DNA from duct tape after the tape had been exposed to water for several months. The implication of Eikelenboom’s testimony was that the police and prosecutors did not do all they could have done to find or rule out the presence of Casey Anthony’s DNA on the duct tape.

Eikelenboom was also a key witness in the Tim Masters trial. Colorado police detectives clearly botched the investigation of Peggy Hettrick’s abduction and murder. The police destroyed physical evidence that might have yielded forensic clues to the killer’s identity. Instead of conducting an impartial investigation, the police focused on proving the guilt of Masters, a 15-year-old boy who saw the body but had no motive to commit the murder.

Twelve years after Hettrick’s death, Masters was convicted of her murder, largely on the basis of a psychologist’s expert opinion that Masters’ artwork was proof of his guilt. Twenty years later, Richard Eikelenboom and his wife, working from their lab in the Netherlands, were able to create a DNA profile from skin they discovered in the lining of the victim’s panties. The DNA could not have come from Masters. Combined with new evidence that had been withheld from the defense during Masters’ trial, Eikelenboom’s analysis made a convincing case of Masters’ innocence. The prosecution eventually conceded that Masters should be freed from prison.

The Court’s Ruling in the Abraha Trial

Eikelenboom’s most recent case involved a sexual assault accusation against Maicle Abraha. Eikelenboom was asked to testify as a defense expert at Abraha’s trial in Denver District Court. The prosecution objected to Eikelenboom’s qualifications. According to prosecutors, the court found that Eikelenboom committed “fundamental DNA analysis errors by not following scientific standards in the DNA field.”

A statement released by the Denver District Attorney’s Office claimed that Eikelenboom admitted during cross-examination that he “had no direct DNA extraction or analysis experience, that he operates a lab that has not been accredited, that he personally failed his basic proficiency tests in 2011 and 2012, and admitted that he was ‘self-trained’ in running DNA profiles.” A transcript of the court’s ruling, however, offers scant support for those claims.

Rejecting both the Frye and Daubert standards of expert testimony admissibility, the Colorado Supreme Court has instructed judges to focus on the reliability and relevance of proposed expert testimony. How the judge applied that standard to Eikelenboom’s testimony is unclear. The transcript reveals that the judge did not explain his determination that Eikelenboom was not qualified to testify.

Eikelenboom’s Response

Eikelenboom calls the District Attorney’s statement “completely unfounded.” He contends that prosecutors were “lying when they say I don’t do my own DNA work.”

Eikelenberg complained that the prosecutor did not let him finish his answers and that the judge was confused. Eikelenboom told the press that he has been accredited by the Dutch National Accreditation Council for years. He also said that he was just accredited by the American Society of Crime Lab Directors (ASCLD), although he received that accreditation after he testified.

Eikelenboom theorized that the Denver prosecutors wanted to discredit him in retaliation for work that exposed Tim Masters’ wrongful conviction. An attorney who used Eikelenboom’s expert opinions to overturn the wrongful conviction of David Camm notes that Eikelenboom’s testimony was more nuanced than the prosecutor’s statement reveals. The attorney suggests “that the Denver prosecutor, having obtained a favorable ruling under Colorado law, now seeks to demean Richard nationally.”

Eikelenberg’s Qualifications

Eikelenberg testified as an expert 19 times in the United States and 30 times in Holland before he was called to testify in the Denver case. Every court in which he testified determined that he was qualified to render expert opinions. He said that he has worked with DNA for 20 years.

The prosecution’s claim that Eikelenberg “had no direct DNA extraction or analysis experience” is apparently based on his testimony that he did not do extraction or analysis while he was working for the national lab in the Netherlands prior to 2005. He testified, however, that his job as a reporting officer involved examining the results prepared by lab analysts and deciding whether the results of a DNA profile “matched” the profile of a criminal suspect. He also testified that labs in Holland commonly separate the work done by analysts from the work done by reporting officers, but that reporting officers need to be qualified as analysts in order to do their jobs. Finally, he testified that he began doing his own extraction and analysis after starting his own company in 2005. None of that testimony was disputed.

Eikelenberg testified that his current lab has three DNA scientists and two more in training. He also testified that a senior scientist validates all of the lab results. Eikelenberg denied that he failed any proficiency tests and the prosecutor presented no evidence to challenge that denial. Eikelenberg testified that the lab was ISO accredited and that ASCLD accreditation was pending, but he also testified that the DNA analysis was performed in his lab in the Netherlands, which was accredited by local authorities.

Nothing in the transcript remotely supports the prosecutor’s claim that Eikelenberg made “fundamental DNA analysis errors.” The prosecutor’s complaint that Eikelenberg was “self-trained” is a stretch (Eikelenberg testified that he was trained in Holland’s national lab), but given his years of experience in the field, the level of his training should go to the weight a jury would give to his opinion, not to the admissibility of that opinion.

Eikelenberg’s Future as an Expert Witness

It is odd that the testimony of an expert who was deemed to be qualified in a number of other cases was excluded in the Denver trial. Unfortunately, the reason for the judge’s ruling is far from clear. The exclusion of Eikelenberg’s expert testimony without explanation might furnish Abraha (whose trial ended in a conviction) with grounds for appeal.

The judge’s ruling in the Denver case may be an aberration, or it may give prosecutors a roadmap for excluding Eikelenboom from testifying as an expert in future cases. No suggestion has been made that Eikelenboom’s testimony in past cases was unreliable, and in some of those cases, the prosecution conceded that his opinions established that an innocent defendant had been convicted. It seems likely, therefore, that Eikelenboom will be allowed to testify as an expert in future cases, but only if attorneys take care to make a clear record of his qualifications to testify as an expert witness.