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.

Statue of justice

Court Excludes Testimony of Medical Expert Who Declined to Consider Conflicting Studies

Do expert witnesses who rely on scientific studies have an obligation to explain why they did not rely on studies that produced different results? A divided panel of the U.S. Court of Appeals for the First Circuit ruled that they do. While the holding may be questionable, the decision provides guidance to medical and other science-based experts who may be asked about studies that do not support their conclusions.

Facts of the Milward decision

Brian Milward sued the Rust-Oleum corporation (and other paint manufacturers) after he was diagnosed with Acute Promyelocytic Leukemia (APL). Milward spent his adult life working as a pipefitter and refrigerator technician. He contended that exposure to benzene in paint products caused his cancer.

To succeed in his toxic tort case, Milward needed to prove that benzene is capable of causing APL (general causation) and that benzene exposure actually caused his APL (specific causation). Expert testimony is required to make each of those showings.

The court eventually determined that Milward’s expert in general causation would be permitted to testify. Milward retained occupational medicine physician Dr. Sheila Butler to testify regarding specific causation. Rust-Oleum challenged that testimony.

Dr. Butler based her opinion on three theories. First, she testified that there is no safe level of benzene exposure. She did not base that conclusion on epidemiological studies, but on her examination of the impact benzene has on the human organism and the disease process. Dr. Butler concluded that benzene likely caused Milward’s APL because he was exposed to benzene and all benzene exposures are unsafe.

Second, Dr. Butler testified that certain epidemiological studies have established that the exposure to specified quantities of benzene increases an individual’s “relative risk” of developing APL. Since Milward’s exposure was higher than the amounts found to be hazardous, Dr. Butler concluded that benzene exposure was likely the cause of his APL.

Third, Dr. Butler ruled out other potential causes of APL, such as obesity and smoking. Her “differential diagnosis” resulted in the conclusion that benzene caused Milward’s APL because it was the only significant potential cause that she could not rule out.

District Court’s Ruling

Rust-Oleum brought a Daubert motion to exclude Dr. Butler’s testimony. The Daubert decision requires the district court to assure that expert testimony is based on a reliable foundation. The district court granted that motion, which resulted in the dismissal of Milward’s case on summary judgment for lack of proof that benzene caused his APL.

The district court rejected Dr. Butler’s conclusion that every exposure to benzene increases the risk of APL because “it could not be tested with any known rate of error.” Milward did not challenge that ruling on appeal.

The district court determined that Dr. Butler’s “differential diagnosis” theory was flawed because she could not rule out idiopathic causes of Milward’s APL (causes that cannot be scientifically explained), but merely “ruled in” benzene exposure as a cause. The court reached that conclusion despite Dr. Butler’s testimony that every disease has a cause. While it is impossible to rule out unknown causes, when all known causes but one can be ruled out, it is reasonable to believe that the remaining known cause is the most likely cause of the disease. Milward’s attorneys apparently made no serious challenge to the district court’s ruling on appeal and the court of appeals rejected it with little analysis.

Since the “differential diagnosis” theory and the “no safe level of exposure” theory were both rejected without significant legal analysis, the appeal turned on the district court’s exclusion of Dr. Butler’s “relative risk” theory. The district court found that Dr. Butler’s “relative risk” analysis was flawed because she relied on certain epidemiological studies while disregarding a study that reached contrary results. The court of appeals agreed.

Appellate Court’s Analysis

Dr. Butler relied on studies that defined an exposure level to benzene that elevates the risk of acquiring APL. A competing study found no correlation between benzene exposure levels and the onset of APL. Dr. Butler testified that she did not consider the competing study because she believed that there is no safe level of exposure to benzene. She said that she therefore had no need to consider conflicting studies. The court of appeals concluded that Dr. Butler did not use a reliable methodology because she failed to make a reasoned analysis of studies that supported her position and studies that did not.

Milward’s lawyers argued that Dr. Butler’s methodology was sound because she relied upon reliable studies. In their view, the fact that Dr. Butler did not consider every study did not negate the reliability of the studies that supported her opinion. The appellate court, however, considered it “self-evident that, when an expert engages in a relative risk analysis in the manner that Dr. Butler did here, the district court is on firm ground” when it requires the expert to explain why she relied upon certain studies and disregarded those with contrary results.

Whether Milward’s methodology was unreliable because she did not consider a study that conflicted with her opinion is a close question. Since her opinion was supported by studies she considered to be reliable, a different court (like the dissenting judge) might hold that her failure to consider conflicting studies goes to the weight the jury should give to her testimony, not to its admissibility. Indeed, in a similar case, the Court of Appeals for the Seventh Circuit held that “Rule 702 did not require, or even permit, the district court to choose between those two studies at the gatekeeping stage.”

The Dissenting Opinion

Judge Thompson’s forceful dissent might persuade other courts to answer the question differently. Judge Thompson noted that Dr. Butler is an experienced physician who specializes in the treatment of veterans who were exposed to toxic substances during their military service. The judge thought that Dr. Butler was well qualified by her own experience to diagnose the cause of Milward’s APL without reference to any studies at all.

The dissent notes that Dr. Butler did not claim an inability to compare the sole study that challenged her opinion to other studies, but testified instead that she had no need to do so. She regarded her own experience as sufficient to validate the studies upon which she relied. According to the dissent, it was for the jury, not the judge, to decide how much weight to give to an opinion that was grounded both in relevant experience and in scientific literature.

Judge Thompson’s dissent includes “a short primer on expert opinions” that is recommended reading for anyone who wants to have a better understanding of how district judges should exercise their limited “gatekeeping” role when they decide whether expert testimony is admissible under Daubert. The opinion notes that Daubert is meant to be a liberal standard that favors the admissibility of expert opinions. The dissent clarifies the application of Daubert to medical opinions, carefully distinguishing between admissible testimony that a jury might or might not find doubtful (since weighing competing studies is the job of the jury, not the judge) and inadmissible testimony that cannot be helpful to the jury because it lacks a sound scientific foundation.

Implications for Experts

In the case from the Seventh Circuit noted above, the court concluded that the expert should have been permitted to testify that benzene caused the plaintiff’s injuries. That expert explained why the studies that supported his opinion were more scientifically reliable than the studies that found no correlation between benzene exposure and leukemia.

The lesson to learn is that an expert who relies on studies that support her opinion should be prepared to discuss studies that reached conflicting or inconclusive results. The expert should be familiar with the universe of relevant studies and should be ready to explain why the studies upon which she relied are more reliable than those that do not support her opinions. If Dr. Butler had done that, there is little doubt that her testimony would have been admissible.

Doctor examining a pregnant woman

Certified Nurse Midwife Allowed to Give Expert Testimony Against Registered Nurse in 14 Million Dollar Case

A medical malpractice case that resulted in one of the highest malpractice verdicts in the history of Georgia has settled for an undisclosed amount. The case was about to proceed to a second appeal after the initial appeal was resolved in favor of the woman who brought the lawsuit. The issue on appeal was whether a certified nurse midwife should have been precluded from testifying as an expert about the standard of professional care that is expected of registered nurses.

Facts of the Case

Melissa Dempsey gave birth to Kailey Watson at a Gwinnett Medical Center hospital in Gwinnett County, Georgia. Kailey suffers from permanent physical and mental disabilities. Her mother sued the hospital, alleging that Kailey suffered from fetal distress and oxygen deprivation during her birth, resulting in a traumatic brain injury. Dempsey contended that registered nurses (RNs) who were attending the delivery misread or misinterpreted data from a fetal monitor and otherwise failed to detect and address the problem.

Dempsey supported her case with testimony from two expert witnesses. One was an obstetrician. The other was a certified nurse midwife (CNM). After hearing the evidence, the jury ruled in Dempsey’s favor, returning a verdict of nearly $14 million.

Gwinnett filed a motion for a new trial, contending that the CNM was not qualified to testify as an expert. Georgia law permits an expert to testify about the standard of care that a prudent health care practitioner is expected to follow, provided that the expert is a member of “the same profession.” The trial judge agreed with Gwinnett that the CNM was not a member of “the same profession” as the RNs and should not have been allowed to testify. The court therefore granted a new trial. Dempsey appealed.

Court of Appeals’ Decision

The Georgia Court of Appeals decided that the CNM was qualified to testify about the standard of care that an RN should follow. She began her career as an RN and she supervised RNs as part of a labor and delivery team. She testified that the standard of care involved in reading and interpreting fetal monitoring strips is the same for RNs and CNMs.

In many states, the CNM’s professional experience would obviously qualify her to testify as an expert in the standard of care that applies to an RN. Georgia law, however, permits expert opinions about standards of care in malpractice lawsuits to be expressed only by an expert who has actual knowledge or experience in the relevant area, either by active practice or by teaching during at least three of the last five years, and is a member of the same profession as the defendant. (The statute carves out an exception for physicians, who are allowed to express an opinion as to the standard of care that non-physicians in the medical profession must follow.)

The question was therefore whether a CNM is a member of the “same profession” as an RN. In earlier cases, the court held that a pharmacist could not testify against a doctor and that a neither a nurse nor a chiropractor could testify against a physical therapist because they are not members of the same profession. But chiropractors and physical therapists are regulated by different licensing authorities under Georgia law, while Georgia requires a CNM to be licensed as an RN. It was therefore easy for a majority of the court to conclude that a CNM is an RN with advanced training, and therefore a member of the same profession as RNs. More surprising is that three dissenting judges, noting that the statute lists RNs and CNMs separately, concluded that RNs and CNMs belong to different professions, even if the CNM is also licensed as an RN.

Settlement After Remand

Since the trial court granted a new trial based on an incorrect understanding of the law, the court of appeals reversed the order for a new trial. The court did not address the hospital’s argument that the CNM was not qualified by “actual knowledge and experience” to testify against the RNs in the case. Because the trial court did not address that aspect of the hospital’s motion, the court of appeals remanded the case to the trial court to decide the issue.

After the case returned to the trial court, the judge rejected the hospital’s argument that the CNM did not have the necessary knowledge or experience required of an expert witness. The hospital appealed again, but (perhaps bowing to the inevitable) settled the case for an undisclosed sum before the appeal was decided.

Implications of the Decision

In the absence of legislation, courts typically permit any expert to testify about an applicable standard of care who is qualified to do so. General standards of expert testimony admissibility do not depend on a witness’ licensing status or job title.

In some states, legislatures have modified the general rule when expert evidence is required to establish the relevant standard of care in a medical malpractice lawsuit. Georgia is one of 32 states that have adopted statutes setting minimum qualifications for expert witnesses in medical malpractice cases. The statutes have often been enacted as part of a “tort reform” package that also requires lawyers to file an expert’s affidavit certifying that the case has merit.

Whether the legislative limitation on expert testimony is beneficial is far from clear. From the standpoint of lawyers who defend malpractice cases, the statutes prevent unqualified experts from rendering opinions about the standards of care that apply to healthcare providers. From the standpoint of lawyers who represent malpractice victims, the statutes prevent qualified experts from testifying while making it more difficult to find experts, given the fact that members of the same profession are often shunned if they testify against each other.

The Georgia case highlights the importance, at least in most states, of finding expert witnesses in the same profession as the party who is alleged to be negligent in medical malpractice cases. It also illustrates the difficult burdens that legislatures have placed on lawyers as they attempt to determine the “profession” to which an expert belongs. Lawyers searching for experts in malpractice cases need to understand the relevant evidentiary rule (and judicial interpretations of the rule) in the state where the lawsuit will be filed.

California Law Legal System Concept

California Mental Health Experts Given Greater Latitude to Testify About a Defendant’s Mental State

A landmark decision by the California Court of Appeal in May 2016 gives mental health experts a greater role in the defense of criminal charges. The Herrera decision is already being cited as a basis for granting new trials to defendants who claim that judges improperly limited the testimony of their expert witnesses.

Evidence at the Herrera trial

Richard Arce Herrera was convicted of first degree murder. A witness testified that she saw Herrera stop his car in the street and chase someone who fled from the vehicle. Another witness later saw Herrera kneeling over the victim on the ground next to a car. Herrera appeared to be performing CPR. That witness saw Herrera enter his car and drive away.

The victim had been stabbed 21 times. He had shallow stab wounds in his back and deeper wounds in his chest and abdomen. He died from blood loss.

When Herrera arrived at his home, he appeared to be in shock. He told his parents that he had killed someone in self-defense after being attacked and raped. He showed his parents an injury on his side. His parents called 911.

Over a period of three years, beginning at the age of eight, Herrera was molested repeatedly. He was raped at the age of 15 and again at the age of 19. He became suicidal and obtained counseling to help him cope with his stress.

The murder victim was a childhood friend of Herrera’s. Herrera met him at a bar. The victim later began to touch Herrera inappropriately. Herrera testified that the behavior triggered flashbacks and caused him to have a panic attack.

Herrera agreed to drive the victim home because the victim was intoxicated. The victim began to touch Herrera again, then struck Herrera when Herrera rejected his advances. Herrera had a steak knife in the car’s console. He testified that the victim grabbed the knife and lunged at him, grazing his abdomen. A prosecution witness testified that Herrera had a circular abrasion on his abdomen that was not consistent with a knife wound.

Herrera testified that he took the knife from the victim after a struggle. Herrera said he began reliving the past and responded by stabbing the victim. After the victim jumped from the car, Herrera chased him. When he caught up with the victim, Herrera stabbed him repeatedly. In his mind he was stabbing all the people who had molested or raped him.

Herrera came out of his rage and took the victim back to his car, intending to drive him to a hospital. However, he could not lift the victim into his car. He then tried to perform CPR. Realizing that the victim was dead, he drove to his parents’ home.

Expert Testimony

During his trial, Herrera called two mental health experts as witnesses. Herrera’s psychiatrist testified that Herrera had suffered for some time from post-traumatic stress disorder (PTSD). Her last session with Herrera occurred two weeks before the killing.

The other expert’s testimony was critical to the appeal. Dr. Nancy Kaser-Boyd is a clinical and forensic psychologist. She evaluated Herrera after the killing. She confirmed that he suffers from PTSD. She also testified that the perception of a threat can trigger a “fight or flight” response in a person with PTSD. Under those circumstances, a traumatized person might enter a “peritraumatic dissociative state.” People in that state feel emotionally detached from their actions, as if they were watching someone else. That testimony was consistent with Herrera’s testimony about how he felt during the killing.

The trial court precluded Dr. Kaser-Boyd from testifying about Herrera’s mental state at the time of the offense. In particular, she was not allowed to testify that, at the time of the killing, Herrera was suffering from PTSD, that he was in a peritraumatic dissociative state, or that he was psychiatrically impaired.

Herrera was convicted of first degree murder. He appealed, claiming that trial court violated his right to present evidence by restricting the testimony of his expert witness.

Mental Health Testimony and the Right to Present a Defence

Criminal defendants have a constitutional right to present relevant evidence that tends to establish their innocence. Herrera argued that the right to present Dr. Kaser-Boyd’s testimony trumped section 28 of the California Penal Code, which bars the admission of mental health evidence to show that a defendant did not have the capacity to form a mental state (such as intent, premeditation, or malice aforethought) that is required as an element of the charged offense.

Section 29 of the Penal Code states that the trier of fact (in this case, the jury) shall decide “whether the defendant had or did not have the required mental state.” California courts have held that these sections do not prevent a defendant from basing a defense on the absence of a required mental state, but preclude the defendant from introducing expert testimony to establish that defense. In other words, a defendant can testify “I didn’t intend to kill him” but cannot bolster that testimony with an expert opinion as to whether he actually formed the intent to kill.

The California rule is common. Similar rules have frequently been challenged as violating the right to present a defense, but those challenges have typically been unsuccessful. In Herrera’s case, the court of appeal did not hold that sections 28 or 29 are unconstitutional, but read them narrowly in order to maximize an expert witness’ latitude to testify about a defendant’s mental state at the moment an alleged crime was committed.

The Appellate Court’s Decision

The court decided that Dr. Kaser-Boyd should have been permitted to testify that Herrera was in a peritraumatic dissociative state and was suffering from PTSD at the time the offense was committed. While that testimony implies that Herrera did not form the intent to kill, the court concluded that the testimony was admissible, provided that Dr. Kaser-Boyd did not expressly opine that Herrera did not intend to kill the victim. Inferences about Herrera’s intent at the time of the killing were for the jury to draw, based on Dr. Kaser-Boyd’s opinions about Herrera’s mental status and on the other evidence.

If the jury had drawn the inference that Herrera’s peritraumatic dissociative state relieved him of responsibility for a premeditated killing, it might have found him guilty of a less serious offense, such as second-degree murder or voluntary manslaughter. It might also have concluded that Herrera acted in self-defense or in “imperfect self-defense,” if Herrera mistakenly believed that his life or security was imperiled. The court therefore reversed Herrera’s conviction and ordered that he be given a new trial with the benefit of full testimony from his expert witness.

Implications of the Herrera Decision

Appellate courts in many states (like many state legislatures) are skeptical of psychological evidence that supposedly “intrudes” upon the jury’s obligation to decide whether a defendant had the state of mind required for a crime. As brain science continues to advance, however, courts are likely to become more comfortable with expert testimony that explains how a defendant’s mental condition likely affected him at the time an alleged crime was committed.

The Herrera decision is already being cited in support of a motion for a new trial filed on behalf of a California woman who was convicted of murdering her husband. Her expert was precluded from testifying about how her husband’s constant abuse during a period of 29 years could have affected her perception of the threat that her husband posed to her on the night that she shot him. In that case and others, the Herrera decision may open the door for defendants to place greater reliance on expert testimony that helps juries understand their behavior.

Riding the bike in the city

Bicycling Expert’s Testimony Ruled Admissible in Negligence Case Against City

The Washington Court of Appeals recently considered whether an expert in bicycling would be allowed to testify in a lawsuit alleging that a municipality caused her bicycle accident by failing to maintain a city street in a safe condition. The trial judge excluded the expert’s proposed testimony and dismissed the case without a trial. The Court of Appeals reversed, concluding that the expert was qualified to testify about the impact of road conditions on safe bicycling.

Facts of the Case

Pamela O’Neill was thrown from her bicycle while riding home from work. The accident occurred on Sidney Street in Port Orchard, Washington.

O’Neill was an experienced and skilled bicyclist who often took a new route between her place of employment and her home. This was her first time riding on Sidney Street. She saw a sign warning of a steep incline and noticed that the road was becoming uneven. She therefore rode with caution as she proceeded downhill.

While crossing an intersection, O’Neill’s bicycle unexpectedly changed direction as her handlebars were jerked to the right. O’Neill was thrown to the ground. Pictures of the accident site showed that the road was made from concrete slabs. The pictures showed gaps of up to 4 inches between the slabs and height differentials of up to 1 inch.

In a deposition, the city engineer testified that the City had no records of repairs performed at the intersection. It was obvious, however, that asphalt had been used at some point in an attempt to repair road damage. The engineer did not know when that last happened, and testified that maintenance crews sometimes repair minor road damage without making a record of the repair. The engineer also testified that seasonal changes in temperatures cause the concrete slabs to rise and fall.

O’Neill suffered serious injuries in the fall. She sued the City, alleging that the damaged road caused her accident. The City contended that bicyclists assume the risk of falling and denied any responsibility for the accident. Before trial, the court dismissed the lawsuit, concluding that O’Neill had no evidence that the City knew of any dangerous road condition or that it breached any duty to keep the road safe for ordinary travel. The court also concluded that the City had no special duty to make roads safe for bicycle riders.

Expert Testimony

O’Neill presented the court with an affidavit from James Couch, a certified bicycle technician and a United States Cycling Federation cycling coach. After describing the hazardous condition at the intersection, O’Neill provided the following expert opinions:

  • The height difference between the concrete slabs was sufficient to cause even the most experienced cyclist to lose control.
  • While potholes are relatively easy for cyclists to see, differences in height between slabs in a roadway are very difficult for cyclists to see.
  • Road defects that run in the direction of the cyclist’s travel are particularly hazardous and height differences need not be great to cause a bicycle accident.
  • The road defects at the accident site created a significant hazard to bicyclists.
  • Once a bicycle wheel makes contact with the defect, even the most experienced rider would be challenged to keep control of the bicycle.
  • The defects were present in a part of the road where experienced cyclists would normally ride.
  • The City’s prior attempts to repair the road demonstrated that the City was aware, or should have been aware, of the defective condition.
  • There was no evidence at the accident site or in the City’s records that the City made a comprehensive effort to repair the defect.

The trial court determined that Couch was an expert in bicycle racing and maintenance, but could not testify as an expert in road design or defects, bicycle accident reconstruction, or human perception of road hazards. The court struck Couch’s testimony as beyond his field of expertise. It then entered summary judgment against O’Neill, finding that she assumed the risk of falling by riding a bicycle and that she had no evidence to rebut the City’s assertion that it had no notice of the road’s defective condition.

Appellate Court’s Opinion

The State of Washington follows the Frye standard in determining the admissibility of expert testimony. In this case (as is true in most cases), the court’s ruling would have been the same even if Washington followed the Daubert standard. The question before the court was not the reliability of the expert’s methodology but whether the expert was qualified to render the opinions he proposed to give. Under either standard, experts may not testify outside the areas of their expertise.

The appellate court divided Couch’s proposed testimony into three parts. Some of the testimony related to Couch’s personal observations of the road conditions. The court held that those observations amounted to testimony about facts rather than expert opinion testimony. Since road conditions were relevant to the lawsuit, the trial court erred by excluding that part of Couch’s testimony.

The second category of testimony involved Couch’s opinions about a cyclist’s ability to see a roadway defect and the impact of such defects on the ability to maintain control of a bicycle. Given Couch’s experience and training, the court easily decided that Couch was qualified to render those opinions as an expert in bicycle riding. The trial court therefore erred by excluding that testimony.

Finally, Couch proposed to testify about repairs on the roadway and whether the City had notice of the road’s defective condition. Since Couch had no expertise in those areas, the court of appeals held that the trial court properly excluded that testimony.

Outcome of the Case

The court decided that Washington law requires a municipality to maintain its roads in a safe condition for all travelers, including bicyclists, not just motorists. While it does not need to maintain roads in perfect condition, it must maintain safe roads for all ordinary road users.

Washington law also requires a municipality to have notice of a dangerous condition and an opportunity to correct it before the municipality will be held liable for injuries caused by the condition. While O’Neill had no proof that the City had actual knowledge of the road defect, the court determined that the City may have had constructive notice that the road was defective. Constructive notice exists when a municipality should have been aware of the problem if it had exercised reasonable care in maintaining its roads.

Photographs showed weeds growing in the gaps between the cement slabs, suggesting that the gaps had been present for some time. The city engineer testified that the slabs rise and fall each season as the weather changes. The City should therefore have known of the likelihood that the road would need repair at some point but it produced no records showing when the road was last inspected. A jury could find from those facts that the City ignored a defective condition that had existed for a substantial time and that the City therefore had constructive notice of its existence.

Finally, the court held that bicycle riders assume the ordinary risks that are inherent in cycling, but do not assume the enhanced risks that are caused by another’s negligence. Couch’s admissible testimony established that the hazardous road condition was not one that an experienced rider could easily detect or avoid. That evidence would allow a jury to conclude that the City’s failure to maintain the road in a safe condition created an enhanced risk that bicycle riders do not assume when they decide to ride on a city street. Accordingly, the court decided that O’Neill is entitled to have a jury consider whether her evidence, including Couch’s expert testimony, establishes that the City is responsible for her injuries.

Itanium chip

Oracle’s Lawyers Aggressively Cross-Examine Hewlett Packard’s Damages Expert

Just days after losing a copyright infringement lawsuit against Google, computer technology giant Oracle was back in court. This time it is defending a lawsuit by Hewlett Packard Enterprise (HPE), a spinoff of the former Hewlett-Packard (HP) that inherited HP’s server business. Hewlett Packard Enterprise is trying to convince a jury that Oracle is responsible for the declining fortunes of HPE’s pricey line of computer servers based on the Itanium chip.

HPE claims that Oracle wrongfully failed to create new versions of its database software that would support machines running Itanium. According to HPE, Oracle wanted to drive business from HPE to Sun Microsystems, an HPE competitor that Oracle purchased in 2010.

A key dispute in the lawsuit concerns the reason for Itanium’s declining popularity and the amount of money that HPE lost because Oracle failed to support the chip. The expert upon whom HPE relies endured a grueling cross-examination as Oracle attempted to persuade the jury that Itanium was doomed regardless of Oracle’s actions.

The Lawsuit

HP and Intel developed Itanium in 1994 to run a high-end line of HP servers. While HP made some inroads with its Itanium servers, many businesses preferred servers that used Intel’s less expensive x86 chips. Many server customers continued to buy HP machines, but they purchased the less profitable x86 machines rather than those that were running Itanium.

Sales of Itanium-based systems declined sharply after 2011. HPE blames that decline on Oracle. It argues that Oracle undermined Itanium when it announced in 2011 that it would no longer create new versions of its popular software products that would run on Itanium. According to HP, Oracle instructed its sales force to encourage customers to switch to servers manufactured by Sun Microsystems, which Oracle had recently acquired. Oracle claimed that that it was simply following the lead of other software companies that considered Itanium to be nearing the end of its market life.

HP sued Oracle, claiming that the settlement of an earlier lawsuit between the two companies required Oracle to continue supporting Itanium. In 2012, a judge agreed. The judge ordered Oracle to continue supporting Itanium in its new software as long as HP continued to sell machines with Itanium chips.

Oracle appealed, but it has obeyed the judge’s order while the appeal is pending. It contends that HP and HPE were not harmed, or that any harm was minor, because its current software will run on Itanium machines. HPE contends that the harm was done at the moment Oracle announced it would not support Itanium, causing customers to abandon servers with Itanium chips. HPE contends it cannot win those customers back. It wants to persuade the jury that Oracle’s breach of the settlement agreement resulted in a loss of $3 billion in sales of Itanium-based servers.

Expert Testimony

To prove the $3 billion loss, HPE is relying on the expert testimony of economist Jonathan Orszag. Among his other credentials, Orszag served on President Clinton’s National Economic Council.

Orszag based his loss analysis on a comparison of HP/HPE’s revenue from sales of Itanium-based products before and after Oracle announced that it would no longer support Itanium. Orszag noted that revenues began to fall as soon as Oracle made the announcement, and then began to snowball. Although Oracle began to support the product again 17 months later, Orszag testified that Oracle’s announcement created uncertainty that caused customers to turn to other platforms.

Orszag anticipates that losses will continue until 2020, the year in which HPE and Intel project the end of Itanium’s market life. Oracle contends that Itanium is already dead and that HPE has been hiding that reality from its customers and from the market in general.

An aggressive cross-examination of Orszag included an attempt to tarnish his credentials. Oracle’s lawyers accused Orszag of relying on his brother’s help to win a “relatively junior” White House post and of padding his resume with lists of the awards he’s won. The judge eventually agreed that the personal attacks were becoming irrelevant.

Oracle’s lawyers then attempted to poke holes in Orszag’s analysis. They pointed to other factors that could have caused a decline in Itanium sales, including Intel’s development of the competing E7 chip.

Oracle is expected to counter with the testimony of its own expert witness, economist Ramsey Shehadeh. In a preview of that testimony, Shehadeh argued that many other factors contribute to the declining sales of HP and HPE servers, including a decline in HP’s reputation before the company separated its home computer business from its server and business support divisions. Shehadeh also noted the industry’s belief that Itanium was nearing the end of its useful life, sparking defections to more stable product lines.

Oracle and HP/HPE have a long history of suing each other. How the jury will resolve this lawsuit will depend in part on its assessment of the competing views offered by the parties’ expert witnesses.

(Photo Credit: “Intel Itanium” by Konstantin Lanzet is licensed under CC BY-SA 3.0.)

DNA

Convictions Based Solely on “Touch DNA” May Be Unreliable

Fans of the CSI shows know that DNA is the gold standard of evidence in criminal investigations. Unless a criminal is wearing gloves and covered from head to toe in protective clothing, there is a good chance that the criminal will leave traces of DNA at the crime scene.

Crime scene investigators are taught that “every contact leaves a trace” of DNA, a principle that is attributed to Edmond Locard. The transfer of just a few skin cells may be enough to provide investigators with “touch DNA” that can be matched to a known suspect or to someone whose DNA appears in a database. Touching a doorknob or any other object may leave a trace that can be used to identify the culprit.

Given the power of “touch DNA” to unlock the mysteries of a crime scene, investigators often conclude that finding the DNA from someone who denies ever visiting the crime is proof of guilt. New studies, however, establish that DNA can be transferred to a crime scene even if the person to whom the DNA belongs has never been there. When that happens, DNA may point the finger of guilt at an innocent person.

The Risk of Inadvertent DNA Transfer

An article in Scientific American warns that police, prosecutors, and juries may be making a mistake when they treat the presence of DNA as infallible proof of guilt. The article spotlights the arrest of a homeless man who was charged with murdering a multimillionaire in Silicon Valley. The arrest was based solely on the discovery of the homeless man’s DNA at the crime scene. Since the man told the police he had never been there and could not explain the presence of his DNA, the police and prosecutors assumed he was the murderer.

The homeless man’s defense team soon found irrefutable evidence of their client’s innocence. The homeless man had been hospitalized before the murder. He was nearly comatose and under constant medical supervision when the crime was committed.

Further investigation revealed that paramedics responded to the crime scene hours after treating the homeless man. The paramedics touched the homeless man, then unwittingly transferred his DNA to the crime scene. If the homeless man did not have proof of his whereabouts during the commission of the crime, he would be facing a wrongful conviction.

A number of studies show how easy it is to transfer someone else’s DNA. If you shake hands with someone, that person’s DNA will probably be left on the next object you touch. If the next object you touch is later used as a murder weapon, an innocent person may become the prime suspect. Laundry workers who touch clothing, hotel maids who touch the trash that they empty from a bathroom wastebasket, and children who hug their parents may be transferring someone else’s DNA to objects they touch throughout the day.

Defenses to DNA evidence have traditionally been built upon the contamination, degradation, or mislabeling of samples; the failure to follow proper analytical protocols; and the use of expert statisticians to explain why the statistical probabilities of DNA matches are overstated by DNA experts. When it comes to “touch DNA,” a stronger defence — and a greater risk of a wrongful conviction — may be the possible transfer of a defendant’s DNA to a crime scene by a third party.

The Need for Caution in Forensic Science

The new revelation about DNA fallibility comes at a time when other forensic sciences are subject to increasing scrutiny. Courts are becoming increasingly skeptical of forensic scientists who present doubtful evidence as if it were based on irrefutable science.

Based solely on microscopic examination, crime lab analysists have often testified that a hair found at a crime scene came from a defendant, when an examination of the physical characteristics of hair can only support a conclusion that the hair is similar to the defendant’s hair. The FBI admitted in 2013 that the scientific “testimony used to convict thousands of individuals was scientifically invalid.” Earlier this year, a judge overturned a 1987 conviction because it was founded on unreliable hair evidence.

Bite mark evidence is even more suspect. The California Supreme Court recently granted William Richards a new trial on the ground that the bite mark expert who testified against him later admitted that his scientific methodology was unreliable. Richards’ conviction of murdering his wife was based on circumstantial evidence, including the expert’s opinion that Richards’ teeth matched a photograph of an alleged bite mark on wife’s hand. The new trial was granted only after California enacted a law permitting convictions to be overturned on the basis of an expert’s admission of error during the original trial.

The science of DNA is on firmer footing than bite mark or hair analysis, but expert witnesses who testify about DNA still need to exercise the caution that is the trademark of an honest scientist. The presence of trace DNA is circumstantial evidence, but in the absence of corroborating evidence it should not be seen as proof of guilt. The Scientific American article emphasizes that point by quoting the author of Inside the Cell: The Dark Side of Forensic DNA: “If you don’t bring in the appropriate amount of skepticism and restraint in using the method, there are going to be miscarriages of justice.”

USA legal system conceptual series - Illinois

Expert Witness Rejected in Illinois Judicial Corruption Case

Three plaintiffs, representing a class of State Farm insurance policy holders, have sued State Farm in an Illinois federal court for conspiring to corrupt the Illinois judicial process. The plaintiffs in Hale v. State Farm contend that State Farm engineered the election of Lloyd Karmeier to the Illinois Supreme Court.

The plaintiffs allege that after the election, Karmeier participated in a decision that benefitted State Farm by overturning a $1 billion judgment in Avery v. State Farm. The Avery lawsuit accused State Farm of using inferior parts to make vehicle repairs.

The plaintiffs recently challenged State Farm’s proposed expert witnesses. The court decided that one witness could testify but rejected another on the basis that the proposed testimony was not that of an expert.

Lawsuit Allegations

The class action lawsuit is based on federal racketeering laws. The suit contends that State Farm and others participated in a “criminal enterprise” designed to elect a state supreme court justice who would vote in State Farm’s favor when the court decided the Avery appeal. Other defendants in the lawsuit include an attorney for State Farm and the president of the Illinois Civil Justice League (ICJL), an advocacy group that promotes the interests of businesses in the Illinois justice system.

The class action complaint states that Hale and the other plaintiffs in the Avery case won a judgment of more than $1 billion against State Farm on behalf of 4.7 million State Farm policy holders. That judgment was upheld by the Illinois Court of Appeals. The Illinois Supreme Court agreed to review the judgment on October 2, 2002. Briefing was completed in May 2003 but the Illinois Supreme Court did not issue a decision until April 18, 2005.

Beginning in the fall of 2003, Lloyd Karmeier began a campaign for election to a vacant seat on the Illinois Supreme Court. Karmeier won. The Avery plaintiffs filed a motion to disqualify him from participating in the Avery case because of the financial support State Farm provided to his campaign. State Farm opposed the motion, claiming that its financial support of Karmeier was “modest.” Karmeier declined to remove himself from the case. He ultimately voted to reverse the judgment.

In 2010, the Avery attorneys began an investigation with the assistance of a retired FBI agent. According to the plaintiffs, the investigation revealed evidence that State Farm, acting through the ICJL, recruited Karmeier, directed his campaign, developed a network of contributors, and funneled as much as $4 million in contributions and in-kind services to the campaign.

In addition, the investigation revealed that State Farm’s CEO sat on the “leadership team” of the U.S. Chamber of Commerce that selected judicial races to target in 2004. The Illinois Supreme Court race was one of the targeted elections. State Farm contributed $1 million to the U.S. Chamber of Commerce, which contributed $2 million to the Illinois Republican Party, which paid for nearly $2 million in media advertisements for Kanmeier.

The complaint alleges that State Farm concealed and misrepresented those facts when it opposed the motion to disqualify Karmeier. The complaint further contends that State Farm committed mail fraud by mailing fraudulent statements of fact to the Illinois Supreme Court and to other parties in the Avery case.

District Court’s Rulings on Expert Witnesses

State Farm proposed to call former state elections board director Ronald Michaelson as an expert witness. As required by the Federal Rules of Evidence, Michaelson prepared an expert witness report. The plaintiffs’ attorneys filed a motion to exclude Michaelson’s testimony.

Most motions asking a federal court to rule on the admissibility of expert testimony hinge on the Daubert test. Before a court decides whether the expert based his or her opinions on adequate data and a reliable methodology, however, the court must decide whether the proposed testimony would be helpful to the jury. The court decided that Michaelson’s opinions would not help the jury decide the case.

Michaelson would have summarized the contributions that each judicial candidate received from various sources. He particularly called attention to contributions that the plaintiffs’ lawyers made to Kanmeier’s opponent. Some of the report focused on contributions that concerned Kanmeier’s retention election, which occurred long after the Illinois Supreme Court decided the Avery case.

The court concluded that Michaelson’s report contained no expert analysis. Rather, it was a summary of publicly available campaign contributions with the addition of “an editorial.” The court faulted Michaelson for doing “no probing” or “independent analysis” of the data.

Using harsh language, the court concluded that Michaelson “performed a rudimentary analysis/report that contains bias that can be associated with the consulting fee paid to him.” The court held that Michaelson’s opinions were inadmissible because they “do not rise to the level of expert testimony and will not help the fact finder” decide disputed issues.

The court decided that it would allow economist Lauren Stiroh to testify as an expert for State Farm. Stiroh would testify that Kanmeier’s vote in the Avery case did not matter because a majority of the justices would have voted in State Farm’s favor on key issues even if Kanmeier had not participated. The plaintiffs argue that Stiroh’s opinion is based on speculation, since the degree to which Kanmeier persuaded the other justices to vote in favor of State Farm cannot be known. The court disallowed some of Stiroh’s testimony on the ground that it invaded the judge’s authority to instruct the jury on the law.

The case is scheduled for trial next year. The court is likely to resolve additional issues regarding expert witnesses before the trial date arrives.

Expert Witness Attributes Shooting to Water Intoxication

Expert Witness Attributes Shooting to Water Intoxication

Lawsuits by people who are convicted of crimes are rarely successful when they attempt to shift responsibility for criminal behavior. Juries tend to be skeptical of convicted criminals who blame others for their illegal conduct. Still, a former deputy sheriff is relying on an expert witness to help him prove that an I.V. administered by a paramedic caused him to shoot his neighbor.

The Shooting

During the early morning of May 17, 2015, Joshua Dean Nash left a party and went to the home of his neighbor in Snow Creek, Virginia. Nash shot his neighbor in the shoulder with a .380 Smith & Wesson. Nash then sat in the neighbor’s recliner. When the police found him, he was unresponsive.

Nash arrived at the party at about 10:00 p.m. Witnesses say he was “drinking heavily.” Nash contends that he went to the party with nine Coors Light beers but did not drink them all. As Nash recalls it, he sat in a chair and drifted off to sleep. He denies being drunk but does not recall anything that happened after he sat in the chair.

Someone at the party apparently called 911, expressing the concern that Nash had passed out. A paramedic who arrived at the party decided to administer an I.V. in an attempt to hydrate Nash and to help him sober up. After Nash received two liters of saline solution over the period of one half hour, his wife woke him up and drove him home. She noted that he was slurring his words and walking with difficulty.

Nash’s wife parked their truck and walked to the house so that she could deactivate the burglar alarm. When she returned to the truck, Nash was gone. Shortly after that, he shot his neighbor, who had just stepped out of the shower to find Nash standing in his living room.

The neighbor and Nash agree that there was no “bad blood” between them. Why Nash shot the neighbor is a mystery to both of them.

Nash’s Expert Explains the Shooting

Nash entered an Alford plea to felony charges of unlawful shooting and discharging a firearm in an occupied building. An Alford plea allows a defendant to concede that the evidence against him is sufficiently strong to establish guilt while continuing to maintain his innocence. The plea results in a conviction.

To persuade the prosecutor to enter into a plea agreement, Nash relied upon the report of an expert toxicologist. Gerry Henningsen theorized that the rapid infusion of the I.V. probably produced fluid overload resulting in water intoxication. Prosecutors conceded that a jury might accept that theory and find Nash not guilty.

Henningsen testified as an expert witness at Nash’s sentencing. He again expressed the opinion that the I.V. caused water intoxication. The judge gave Nash a three year suspended sentence on the unlawful shooting charge. He deferred the sentence for discharging a firearm. That charge could be dismissed after a year if Nash complies with the terms of his community supervision.

As a result of the felony convictions, Nash cannot legally possess a firearm. He is therefore precluded from returning to his former career in law enforcement. He also lost custody of his son. The paramedic who administered the I.V. resigned from her position after the shooting.

The Civil Suit

Nash is suing the former paramedic for $1 million, contending that she is the source of his troubles. The lawsuit is based on the expert’s belief that the rapid administration of the saline solution caused water intoxication that accounted for Nash’s bizarre behavior.

Too much water can cause a form of intoxication by reducing the amount of sodium in the body’s blood supply. However, Nash may have an uphill battle convincing a jury that he became intoxicated because of water rather than beer. Since beer has very little sodium content, drinking too much beer can also reduce the amount of sodium in the blood supply, while excessive alcohol consumption inevitably causes intoxication.

In addition, administering a saline solution is a recognized treatment for water intoxication, since saline restores sodium to the blood. News reports do not say whether the paramedic administered a normal saline solution, or a hypotonic saline solution that has half the normal saline content and is more likely to cause water intoxication.

The defense will likely engage its own experts to express opinions about whether saline solution causes water intoxication and whether Nash was the victim of water intoxication or beer intoxication. If the case does not settle, a jury will eventually need to decide which expert opinion is more persuasive.

young man swearing an oath, crossing his fingers in his back

Misconduct by Experts on Both Sides of Case Requires New Trial

A recent decision of the U.S. Court of Appeals for the Federal Circuit concluded that expert witnesses testifying on both sides of a patent infringement dispute committed misconduct. The decision vacated the judgment and remanded the case for a new trial.

Expert Testimony at Trial

Rembrandt Vision Technologies sued Johnson & Johnson Vision Care, alleging that certain Johnson & Johnson contact lenses violated Rembrandt’s patent. At trial, Rembrandt called Dr. Thomas Beebe as an expert witness. Dr. Beebe supported his testimony with the results of tests he performed on the contact lenses.

In his direct testimony, Dr. Beebe described the testing methodology he used. He had also explained that methodology in his expert report. On cross-examination, however, Dr. Beebe changed his testimony and described a “drastically different” testing methodology. Because that methodology was not disclosed in Dr. Beebe’s expert report, the court struck Dr. Beebe’s testimony.

In its defense, Johnson & Johnson relied upon the expert testimony of Dr. Christopher Bielawski. Dr. Bielawski challenged not just the opinions but also the credibility of Dr. Beebe. For example, Dr. Bielawski testified that Dr. Beebe’s failure to correct mistakes in his data was “misleading and tantamount to dishonesty.”

The jury found in favor of Johnson & Johnson. The trial court also granted judgment for Johnson & Johnson as a matter of law, after finding that Rembrandt had insufficient evidence to support its claim without Dr. Beebe’s testimony.

Motion for New Trial

After the trial, Rembrandt discovered that Dr. Bielawski had testified falsely. He claimed during his testimony that he personally tested the contact lenses when, in fact, his graduate students and lab supervisors conducted the testing while he was out of the country. He also represented himself as an expert in a certain testing methodology (time-of-flight secondary ion mass spectrometry) when, in fact, he had no experience with that methodology whatsoever.

In addition, Dr. Bielawski withheld test results and data analysis that would have undermined his opinions and trial testimony. Johnson & Johnson contended that it was unaware that Dr. Bielawski concealed the results of tests that were unfavorable to its position.

Rembrandt moved for a new trial on the ground that the verdict was procured by fraud and that newly discovered evidence revealed Dr. Bielawski’s deceptive conduct. The district court denied the motion on the ground that Rembrandt failed to show that Dr. Bielawski’s false testimony affected the result of the trial.

Court of Appeals’ Decision

On several occasions during the trial, Dr. Bielawski impugned the credibility of Dr. Beebe. Rembrandt was denied the same opportunity to challenge the credibility of Dr. Bielawski because it did not know that he testified falsely and withheld critical documents. Dr. Bielawski’s misconduct was at least as serious as Dr. Beebe’s. The court of appeals therefore had little difficulty concluding that Dr. Bielawski’s misconduct deprived Rembrandt of a full and fair opportunity to present its case.

The court of appeals concluded that Rembrandt was not required to prove that Dr. Bielawski’s misconduct affected the verdict. While the district court struck Dr. Beebe’s testimony, leaving it with little proof of a central part of its claim, the case might have proceeded differently if Dr. Bielawski had not withheld critical documents during discovery. Learning of the weakness in Johnson & Johnson’s defense could have changed the way Rembrandt approached its proof of the case.

When fraud is committed during a trial, the fundamental question is whether the judgment was fairly obtained, not whether it was factually correct. The court of appeals did not attempt to determine how the case would have proceeded if Dr. Bielawski had obeyed the rules because that analysis would depend largely on speculation. Instead, it asked whether the trial was fair to Rembrandt. The court concluded that it was not.

Johnson & Johnson nevertheless argued that it should not be held responsible for its expert’s misconduct because it had no knowledge that the expert withheld information or testified falsely. The court of appeals expressed skepticism regarding that claim since the withheld results concerned tests that Johnson & Johnson asked Dr. Bielawski to perform. It nevertheless decided that Johnson & Johnson’s knowledge of the fraud did not matter because regardless of Johnson & Johnson’s complicity, the expert’s fraudulent conduct tainted the trial. Perjury and fraud undermine the integrity of a trial whether or not a party suborns the perjury or encourages the fraud.

Lessons for Experts and Lawyers

The lesson to be learned, for experts and lawyers alike, is the importance of telling the truth. Experts should turn over all test results to the lawyers who hire them, even if they are unfavorable. Experts should not “puff” their qualifications and they should not take credit for work they did not do. Nor should they decide during their testimony that they relied upon a previously undisclosed methodology.

Lawyers, in turn, should make sure that their experts understand their obligations. Lawyers should expressly ask experts for all test results and data that pertains to the case, even if the experts have chosen not to rely on that data. Lawyers should be sure to understand the methodology upon which an expert relied and should prepare the expert to be cross-examined. When lawyers and experts work together and follow the rules, the case is much less likely to be returned to the trial court for a second trial.

Forensic Entomologists Disagree About Time of Victim’s Death

Forensic Entomologists Disagree About Time of Victim’s Death

Prosecutors in the trial of Quentin Bealer, accused of killing a 14-year-old girl in Red Bluff, California, have relied on a number of experts to help them build their case. The jury has heard the testimony of a forensic pathologist, a DNA analyst, and a sexual assault nurse examiner. The most interesting expert testimony, however, has come from two dueling forensic entomologists who are relying on blowfly eggs to establish the time of the victim’s death.

Evidence Against Bealer

Marysa Nichols’ body was found near Red Bluff High School on February 28, 2013, two days after she was reported missing. Authorities began to focus on Bealer after examining security camera footage that showed him walking near the school and in the school parking lot on the day Nichols disappeared. The footage showed Nichols in the same area a few minutes later.

A physical education teacher testified that he saw Nichols and Bealer walking together near the creek behind the high school. He did not observe any physical contact between them.

The forensic pathologist who performed Nichols’ autopsy testified that she was strangled to death with the tank top she was wearing on the day she went missing. The tank top was tied in a knot around her neck when her body was found.

The pathologist observed no evidence of a sexual assault. A sweatshirt and boy’s underwear found near the body were not connected to Bealer.

A sexual assault nurse examiner took a DNA sample from Bealer. She saw no scratch marks or other injuries on his face, although she noted some old scratches on his arms.

A laboratory analyst who tested the tank top found Bealer’s DNA on the knot. The analyst testified that she would expect to find DNA on the knot from the person who tied it unless that person was wearing gloves.

The police questioned Bealer after he turned himself in. He was under the influence of narcotics at that time. Bealer denied having any knowledge of Nichols.

The prosecution contends that Bealer’s answers were inconsistent. The defense attributes the inconsistency to the fact that Bealer was high. The defense blamed the police for questioning a suspect while he was under the influence of drugs.

At some point after he was jailed, Bealer telephoned his mother and admitted that he lied during his interview when he told the police that he had not seen Nichols. He told his mother that Nichols walked behind him for a time and that he gave her a cigarette. The jail recorded that telephone conversation and prosecutors played it for the jury.

Bealer testified that he went to the high school to see his own daughter, then walked along a path behind the school where he used drugs. He said that he saw Nichols and that she asked him for a cigarette and a light. He said he gave her the cigarette that was in his mouth. The defense contends that passing the cigarette to Nichols accounts for the DNA transfer.

Nichols’ mother and step-father testified that Nichols did not smoke and that she tried to persuade them to quit smoking. They also denied that cigarette butts and a nicotine patch found in Nichols’ room after she disappeared belonged to Nichols.

Experts Debate Time of Death

The prosecution wants to prove that Bealer killed Nichols when he encountered her on February 26. Based on rigor mortis, a deputy coroner testified that Nichols had been dead for 24 to 36 hours before her body was found on February 28.

Bob Kimsey, a forensic entomologist, examined the contents of a swab that was taken from Nichols’ mouth. He determined from the swab that blowfly eggs were present in Nichols’ body.

Blowflies are attracted by the gases released from a newly deceased body. They usually lay eggs near the nose and mouth. The eggs then go through stages of development. Forensic entomologists try to estimate time of death from the developmental stage of the blowfly eggs.

Kimsey testified that the most mature blowfly eggs had been developing for 30 to 40 hours. He acknowledged that he did not know when the blowflies entered the body to lay their eggs. He also acknowledged that a number of factors can affect egg development, including temperature, environmental conditions, and the fact that Marysa’s body was partially covered by a foam pad. Finally, Kimsey agreed that the eggs continued to develop during the 24 hours between the time the body was discovered and the time the swab was collected and frozen.

Testifying for the defense, forensic entomologist Timothy Huntington said it was more likely that Nichols died in the late evening hours of February 27, a day after she was seen with Bealer. Huntington explained that maggots should have hatched from the eggs if Nichols died any earlier than mid-afternoon on the 27th.

Huntington faulted Kimsey’s analysis for failing to take account of the warmer temperatures where the body was stored before the swab was taken. Those temperatures would have contributed to faster egg development.

Huntington acknowledged that Nichols could have been killed on February 26, but he said that was only possible if the body was completely covered so that blowflies could not reach it to lay their eggs. Other evidence established that some of Nichols’ body was covered but most of her head was exposed.

Before the jury considers the conflicting scientific testimony and the other evidence in the case, the judge will need to resolve the defense attorney’s request to present evidence of tips that the police received concerning Nichols’ disappearance. The defense contends that the police immediately focused on Bealer and failed to investigate tips that could have led them to the real killer. The case may reach the jury at the end of May or the beginning of June.