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.

Fifth Circuit Rejects Chiropractor’s Medical Testimony

Fifth Circuit Rejects Chiropractor’s Medical Testimony

Can a chiropractor serve as an expert witness? In cases involving injuries or conditions that chiropractors are qualified to treat, the answer is clearly “yes.” Like any other expert, however, chiropractors may offer only those opinions that they are qualified to render. A recent decision by the U.S. Court of Appeals for the Fifth Circuit concluded that the district court should not have allowed a chiropractor to offer medical opinions without assessing his qualifications to do so.

Plaintiff’s Claim

Due to a diabetic condition known as “peripheral neuropathy,” David Carlson began to lose sensation in his feet. He visited a chiropractor who had been promoting treatment for that condition with a ProNeuroLight device. The manufacturers of the device claim it uses infrared light to generate heat that dilates blood vessels and promotes circulation by increasing the presence of nitrous oxide in the affected area.

Within 48 hours after he was treated, Carlson developed ulcers on the bottom of his heels. His diabetic podiatrist determined that the ulcers were caused by burns. The burns caused a bone infection that required prolonged hospitalization, the eventual amputation of one leg below the knee, and the amputation of Carlson’s heel on the other foot.

Carlson sued the manufacturer of the ProNeuroLight device (Light Emitting Designs, Inc.) and its distributor (Bioremedi Therapeutic Systems, Inc.). Carlson based the products liability lawsuit on claims that the device was defectively designed and manufactured and that it was marketed without appropriate warnings to patients.

A key question during the trial was whether Carlson’s ulcers were caused by burns from the device or whether they were caused by his diabetes. The only witness called by the defense during the five-day trial was Dr. Lance Durrett, the chiropractor whose staff treated Carlson with the ProNeuroLight device. The jury found in favor of the defendant companies and the court dismissed Carlson’s case.

Chiropractor’s Testimony

Before the trial, Carlson filed a motion to exclude Dr. Durrett’s testimony on the ground that he was not qualified to render the opinions he was expected to give. The court denied that motion without a hearing.

Dr. Durrett testified that the wounds on Carlson’s heels looked like diabetic ulcers. He disagreed with a plaintiff’s witness who testified that they were burns caused by the ProNeuroLight device. According to Dr. Durrett, there was “not enough data” to support that conclusion. He also testified that the device could not have caused burn injuries because it was designed to prevent skin temperatures from increasing by more than two degrees Fahrenheit.

The defendant companies did not designate Dr. Durrett as an expert. On appeal, however, they did not challenge that fact that Dr. Durrett offered expert testimony. The court of appeals determined that Dr. Durrett testified as an expert.

The difference between the testimony given by a lay witness and an expert is determined by the content of the testimony, not by whether a party designated the witness as an expert. Since Dr. Durrett’s opinions were based on scientific, technical, or specialized knowledge, they were expert opinions. In particular, his testimony that the injuries looked like diabetic ulcers and that they could not have been caused by the ProNeuroLight device constituted medical opinions.

Admissibility of Chiropractor’s Testimony

Rule 702 of the Federal Rules of Evidence, as interpreted by the Supreme Court’s Daubert decision, requires a district court to consider whether expert testimony is relevant and reliable. Since Carlson’s lawyers filed a pretrial objection to the admission of Dr. Durrett’s opinions, the court should have held a Daubert hearing prior to the trial to assess whether Dr. Durrett’s reasoning or methodology was scientifically valid and whether he properly applied that reasoning or methodology to the facts of the case.

The reliability analysis requires the district court to decide whether an expert is qualified to form the opinions that will be shared with the jury. The court essentially asks whether the expert meets a minimum threshold of qualification. Whether the expert is highly qualified is a question that goes to credibility and is therefore for the jury to decide.

Dr. Durrett is licensed as a chiropractor. He is certified as an acupuncturist and as a clinical nutritionist. He also holds himself out as a specialist in alternative medicine. Dr. Durrett has more than a decade of experience with devices like the ProNeuroLight, although his only formal training consisted of attendance at two sales seminars.

While Dr. Durrett does not have a medical degree, medical opinions can be rendered by scientists who are qualified to testify about fields of medicine that are related to their own expertise. On the other hand, a witness who is not a physician and who does not have expertise in a field that is related to medicine is not qualified to give medical testimony.

The court of appeals noted that a chiropractor may be well-suited to provide expert testimony about the musculoskeletal system. A chiropractor will not generally be qualified to testify about other fields of medicine because they are usually beyond a chiropractor’s training and experience.

Since the district court did not hold a Daubert hearing, however, the court of appeals expressed no final opinion about Dr. Durrett’s qualifications. Instead, the court reversed the judgment and sent the case back to the district court with instructions to perform the gatekeeping function required by the Daubert decision. After hearing evidence, the district court must decide whether Dr. Durrett is qualified to testify as a medical expert. If he is not, Carlson will be entitled to a new trial. Since the court of appeals’ decision leaves the district court with little room to conclude that Dr. Durrett should be permitted to give medical testimony, it seems likely that Carlson will get a second chance to persuade a jury that his injuries were caused by the ProNeuroLight device.

Scientist examining plants in petri dish

Plants Cannot Testify, But Forensic Botanists Can

Plants cannot testify, but they give up their secrets to forensic botanists who serve as expert witnesses. Forensic botanists help the police solve crimes. Then they help prosecutors or defense attorneys explain plant science to juries.

The Beginning of Forensic Botany

According to a recent article in Atlas Obscura, the first forensic botanist was Arthur Koehler. An authority on trees and wood who worked at the United States Forest Products Laboratory, Koehler got his start as an expert witness in cases involving wood that was used to construct homemade bombs and weapons.

Koehler went on to serve as the key witness in the 1935 trial of Bruno Hauptmann for kidnapping the baby of Charles and Anne Lindbergh. Based on a painstaking examination of a homemade ladder found outside the Lindbergh home, Koehler identified a mill in the Bronx as the source of the boards from which the ladder was made. Hauptmann had been employed at a lumber yard connected to the mill and had purchased wood stock that was consistent with the homemade ladder. Koehler provided the strongest evidence against Koehler when he testified that wood used to make a rail on the ladder exactly matched a board that had been removed from the attic in Hauptmann’s apartment. Without Koehler’s detailed analysis, Hauptman would probably not have been arrested, much less convicted.

It is interesting to read Koehler’s testimony, as well as defense counsel’s objection that Koehler’s study of wood “is not a science that has been recognized by the courts … this is merely a man who has had a lot of experience in examining trees.” Even in the modern Daubert era, “a lot of experience” coupled with a sound scientific analysis can provide the foundation for an expert opinion. The objection was overruled, as it would be today.

Forensic Botany Today

Modern forensic botanists are following Arthur Koehler’s example. The highly-publicized Casey Anthony murder trial featured a wide range of expert witnesses, including forensic pathologists, computer scientists, anthropologists, chemists, entomologists, and a forensic botanist. A key question in the case involved the length of time the 2-year-old victim’s body had been in the woods where it was discovered. The prosecution’s case depended on proof that the body had been there for at least a month. A botanist who examined the vegetation beneath the body testified that the body might only have been covering the vegetation for two weeks. Casey Anthony was acquitted of murder, manslaughter, and all other felony charges.

Two cases involving plant DNA illustrate how forensic botanists can help prosecutors convict the guilty while helping defense attorneys protect the innocent. In Arizona, the body of a hit-and-run victim was found near a group of paloverde trees. One of the trees had been damaged in the collision. A forensic botanist matched DNA from the damaged tree to seed pods found in the bed of a suspect’s car. The expert’s testimony cemented the hit-and-run conviction.

In Florida, a woman’s body was found in a shallow grave beneath an oak tree. Oak leaves were found in a suspect’s car. A forensic botanist compared DNA samples and determined that the leaves in the car could not have come from the tree at the grave site. That work saved the suspect from an unjust conviction.

Pollen and Spores

While DNA is often considered the gold standard in forensic science, pollen and spores (which easily stick to clothing) can also provide reliable evidence that links an individual to a crime scene. According to the Botanical Society of America, pollen and spores “are amazingly diverse.” A particular species may exist only in one specific location. Since they are microscopic, they act as “silent witnesses and even if they were visible, unlike fingerprints, they would be nearly impossible to eliminate from a crime scene.”

The Botanical Society of America laments the failure of most crime scene analysts to recognize the importance of forensic botanists in criminal investigations. While the FBI’s Handbook of Forensic Services discusses wood and cotton fibers, it does not address other kinds plant evidence. Crime scene investigators might notice leaves, but they do not routinely examine clothing for spores or other microscopic plant evidence that could help rule in or rule out criminal suspects. As forensic botanists continue to play an important role as expert witnesses, they may be able to educate police officers and attorneys about the kind of plant evidence that criminal investigations too often overlook.

Choosing the Right Expert Means Asking the Right Questions

Choosing the Right Expert Means Asking the Right Questions

Expert witnesses are often essential to proof of a claim or defense. Some claims, like medical malpractice, will rarely succeed unless they are supported by expert testimony. Proof of damages may depend on the testimony of physicians or economists. Other claims and defenses can be bolstered by credible testimony provided by engineers, forensic scientists, psychologists, and a variety of other experts.

When expert testimony is important to a party’s case, how does a lawyer go about choosing an expert witness? Trial attorney Quentin Brogdon shared his thoughts on the question in a recent issue of Texas Lawyer.

Think About the Kind of Expert You Want

Not every case requires an expert. In small cases, the anticipated recovery may outweigh the cost of retaining an expert. In other cases, lay witnesses can convey facts and juries can form their own opinions about liability and damages without expert guidance. In fact, under the rules that apply in most states, expert testimony is permitted only if it would be helpful. Many judges interpret that rule to mean “more helpful than lay witness testimony alone.”

In many cases, however, expert testimony is vital. In those cases, Brogdon suggests that lawyers consider an expert’s background and examine the expert’s performance in other cases. Any of the following might be red flags that should cause the lawyer to look for a different expert:

  • Difficulties in communicating effectively.
  • Ethical lapses in other cases.
  • A history of professional discipline.
  • A court found the expert to be unqualified.
  • Willingness to testify in many areas of alleged expertise.
  • No history of using expertise as anything other than an expert witness.
  • Overreaching promises about the results the expert will help the lawyer attain.

Some experts are difficult to work with, simply because they overestimate their importance to the case. Experts who bombard a lawyer with emails, unreasonably demand that scheduling orders be changed so they have more time to prepare reports, or second-guess trial strategies might be more trouble than they are worth.

Conversely, experts who communicate well, who are modest, who have a realistic sense of what they can contribute, and who are committed to providing unbiased testimony are likely to win the admiration and respect of juries. Those experts help lawyers win favorable verdicts.

Ask the Right Questions

Brogdon suggests thirteen questions that lawyers should ask during the initial interview with a proposed expert. The questions provide valuable guidance to lawyers, but they also give experts an idea of how to prepare for that interview. Some questions seek information about the expert’s training and experience while others address the issues identified above (such as whether the expert has ever been disciplined or disqualified and whether the expert will be able to meet deadlines established in a scheduling order).

Among the remaining questions, the ones that experts should think about as they prepare for an interview are:

  • Are you the best expert for this issue? An honest expert should recognize when the issue is beyond the scope of the expert’s realm and should be prepared to explain why an expert with different experience or qualifications might be better suited to address the issue.
  • What testimony, documents, and information will you need to formulate and support your opinions in this case? Experts base opinions on facts. They might find some facts through independent investigation, but other facts will need to be provided by the lawyer. Experts should be able to explain what they need so that the lawyer can make appropriate discovery requests to uncover the facts that will drive the expert’s opinion.
  • Do you have any misgivings about this case? If the expert fears that he or she will not be able to form an honest opinion that supports the party’s claim or defense, the lawyer needs to know that as soon as possible.
  • Have you ever testified for or against the opposing party (or been hired by the lawyers representing that party)? Prior experience with a party or the party’s lawyers might present a conflict of interest. If the expert obtained confidential information in the course of that employment, the adverse party might move to disqualify the expert to assure that the information is not used against the party in the current litigation.
  • Are there other types of experts with whom you typically work in these types of cases? There’s nothing wrong with a team approach to expert testimony since no one person can be an expert on all the issues that might arise. For example, in a products liability case, a product design expert might need to work with a metallurgist to determine whether a product defect was caused by poor design, improper materials, or both. The sooner the team can be identified, the more quickly the lawyer can move forward with the case.

Finally, Brogdan recommends asking “pointed Daubert-based questions.” Even if the Daubert standard does not apply in the jurisdiction where the expert will testify, the lawyer will need to understand how well the expert will withstand cross-examination. The lawyer needs to know about the methodology the expert will use to arrive at an opinion, whether that methodology is widely accepted, whether it has been subjected to peer review, and whether it has a known error rate.

Asking the right questions helps lawyers find the right experts. Anticipating and giving prior thought to those questions helps experts prove their value to attorneys.

Expert in Drug Cartels Testifies in Support of Duress Defense

Expert in Drug Cartels Testifies in Support of Duress Defense

Claiming that he was acting under duress when he located an informant marked for murder by a drug cartel, Jesus Gerardo Ledezma Cepeda supported his defense with the expert testimony of a documentary filmmaker. The filmmaker testified as an expert in drug cartel violence.

Juan Jesús Guerrero Chapa was gunned down in Southlake, Texas while sitting at the wheel of his Range Rover. His killers were able to locate him for two reasons. First, a GPS unit attached to the undercarriage of his Range Rover was broadcasting his position. Second, he had been stalked for weeks by Ledezma Cepeda and his cousin, Jose Luis Cepeda Cortes. Both men conducted surveillance of Guerrero Chapa and attached the GPS unit to his vehicle.

Guerrero Chapa had acted as an attorney for Mexican drug cartel leader Osiel Cárdenas Guillén. A cartel leader known as “El Gato” ordered Guerrero Chapa’s death because Guerrero Chapa chose to act as informant against his client on behalf of the U.S. government.

Law enforcement agents have not found the killers. They did find Ledezma Cepeda and Cepeda Cortes. Both men were charged with interstate stalking and conspiracy to commit murder for hire. Cepeda Cortes testified that he did not know why his cousin was tracking Guerrero Chapa, while Ledezma Cepeda testified that he was coerced into acting on behalf of El Gato.

Trial Evidence

Downplaying the role the government played in Guerrero Chapa’s death by failing to protect him after enlisting his services as an informant, a federal prosecutor told the jury that Ledezma Cepeda and Cepeda Cortes led the killers to Guerrero Chapa. The defendants agreed that they tracked Guerrero Chappa but denied that El Gato told them he intended to have Guerrero Chapa killed.

Ledezma Cepeda, a private investigator in Mexico, testified that finding people is his job. Portraying the evidence in a different light, the prosecutor argued that Ledezma Cepeda made a living hunting down men for El Gato, who then had them tortured and killed.

Cepeda Cortes testified that he was just doing a favor for Ledezma Cepeda and was in the dark about any plans El Gato had for Guerrero Chappa. Prosecutors asked the jury to infer Cepeda Cortes’ knowledge of the murder conspiracy from his decision to use fake names when he set up email and GPS tracker accounts, and from his expressed desire to work with his cousin again after the murder occurred.

The defense argued that the authorities should go after El Gato, a former Mexican federal agent. According to the defense, prosecuting the defendants was a face-saving measure, motivated by the government’s embarrassment about the death of Guerrero Chapa while he was under the protection of Homeland Security. The government may also have been embarrassed that U.S. Customs and Border Protection designated El Gato as a “pre-approved, low-risk traveler” who was entitled to expedited entry into the United States using Trusted Traveler lanes.

The Defense of Duress

Ledezma Cepeda testified that he was forced to find and follow Guerrero Chapa. He told the jury that El Gato would have harmed his family in Mexico if he had not performed the assignment.

The defense of duress is rarely successful in a criminal case. Judges typically conclude that no reasonable jury could find that the defendant met the legal standard required to establish the defense. For that reason, they typically refuse a defendant’s request to instruct the jury that it can acquit the defendant if the defendant committed the crime under duress.

A typical formulation of the jury instruction for duress tells the jury that if the defendant’s guilt is established beyond a reasonable doubt, the jury should find the defendant guilty unless the defendant proved that each of the following facts is probably true:

  • First, that the defendant was facing an immediate, unlawful threat of death or serious bodily injury to himself or to others;
  • Second, that the defendant had a well-grounded fear that the threat would be carried out if he did not commit the offense;
  • Third, that the defendant’s criminal action was directly caused by the need to avoid the threatened harm and that the defendant had no reasonable, lawful opportunity to avoid the threatened harm without committing the offense (in other words, the defendant had no reasonable lawful opportunity both to refuse to do the criminal act and also to avoid the threatened harm); and
  • Fourth, that the defendant did not recklessly place himself in a situation in which he would be forced to engage in criminal conduct.

Defendants who raise a duress defense usually falter when they encounter the third element of the defense. Unless a defendant has a gun pointed at his head at all times, a defendant usually has an opportunity to avoid harm by seeking the protection of the police.

Expert Evidence of Duress

Gary Fleming, a documentary filmmaker, testified as an expert witness for Ledezma Cepeda. Fleming gained expertise in drug cartels when he interviewed cartel members for a documentary. He testified that he has attended cartel meetings at which “green lights” were given to kill people.

Fleming testified that cartel members commonly use the expression “Lead is cheaper than silver,” meaning it is cheaper to kill people who refuse their demands than to pay them for their work. Fleming explained that cartels use fear and terror to induce compliance with their wishes.

In a moment of drama, Fleming pointed at Ledezma Cepeda and said, “That’s a walking dead man right there.” Fleming explained that he expects the cartel to kill Ledezma Cepeda whether he goes to prison or walks free.

The Verdict

The judge allowed the jury to consider the duress defense, but the jury rejected it. The prosecutor argued that accepting the duress defense would be like giving Ledezma Cepeda a “get out of jail free” card that could be played every time he commits a crime. Jurors evidently agreed. The jury found both defendants guilty.

Ledezma Cepeda and his cousin face the possibility of life sentences. The minimum sentence the judge is allowed to impose in each case is 25 years in prison.

hands show molar teeth over x-ray dental scan

Expert Bite-Mark Evidence Debated in Texas

Should bite-mark experts be permitted to testify in criminal trials? An editorial in the San Antonio Express-News suggested that “Texas prosecutors and judges should maintain the integrity of the criminal justice system by voluntarily declaring a moratorium on the use of bite-mark evidence.” Responding in an op-ed, a Texas judge contends that a moratorium “is no solution.”

The controversy echoes a debate among experts as to whether the identification of a suspect based on bite marks has any scientific validity. The Texas Forensic Science Commission recently joined that debate by advocating against the admission of expert bite-mark testimony in criminal trials.

Texas Forensic Science Commission

The Texas Forensic Science Commission is making a diligent effort to improve the state’s criminal justice system by assuring that expert witnesses who profess to base opinions on science actually have a scientific foundation for those opinions. The Commission recognizes that Texas judges have an unfortunate history of permitting expert witnesses to help prosecutors obtain unwarranted convictions by rendering opinions that are unsupported by a valid scientific methodology.

The Commission was created in response to revelations that the Houston Crime Lab regularly used shoddy analytic procedures and employed unqualified experts who told lies in court that contributed to the conviction of innocent defendants. The Commission is now viewed as a pioneer in the effort to prevent innocent defendants from being convicted on the basis of expert scientific opinions that are unsupported by modern science. In addition to bite-mark evidence, the Commission is scrutinizing the subjective opinions routinely offered by experts in hair identification and arson investigation.

At a meeting of the Commission’s Bite Mark Analysis Panel in February 2016, Dr. David Senn, a forensic odonatologist who champions bite-mark analysis, explained that “research relating to bite-mark analysis is slow going, but being developed.” At an earlier meeting, Dr. Senn told the panel that a “competent forensic dentist … can look at a bite and create a profile about what kind of teeth could’ve made it if there’s sufficient information in the bite mark.” The problem, Dr. Senn said, is that 85{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 90{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the injuries he reviews lack sufficient detail to be compared with a suspect’s teeth.

Other experts are skeptical of a dentist’s ability to match bite marks with teeth even under optimal conditions. As skin stretches or contracts, the relative position of marks on the skin changes. Some bite mark analysts have been tempted to move the skin on which bite marks are displayed until it matches a suspect’s teeth. Even when experts try to reach an objectively accurate result, studies show that bite-mark analysis has an error rate of up to 64{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

One study, using teeth held in place by a clamp to make bite marks on cadavers, found that no two bites produced the same marks. The researchers concluded that human skin does not reliably record the patterns of teeth and that the absence of consistent marks produced by the same set of teeth undermines the possibility of matching bite marks to suspects.

Another study questioned whether dentists are even capable of recognizing bite marks. Researchers showed 100 pictures of bite marks to 38 dentists who each had at least 20 years of experience. The dentists disagreed about whether 96 of the 100 pictures depicted bite marks.

Bite-Mark Evidence in Texas Courts

A member of the Forensic Science Commission who is also a professor at Texas A&M’s Baylor College of Dentistry observed that too many Texas judges rely on precedent rather than science to admit bite-mark evidence. The Commission’s general counsel agreed that scientific evidence should be admitted as proof of guilt only if it is based on sound science, not “just because the judge says it’s okay.”

The Bite Mark Analysis Panel recommended a moratorium on the use and admission of bite-mark evidence in Texas courts until acceptable scientific standards are created that will guide the expert opinions rendered by forensic dentists. While the editorial board of the San Antonio Express-News agreed with that suggestion, District Judge Robert Barton pointed out that judges have no power to issue moratoria. They apply rules of expert evidence admissibility on a case-by-case basis.

Texas follows its own version of the Daubert standard for the admission of expert testimony. Using that test, the state’s Court of Criminal Appeals upheld the introduction of bite-mark evidence in a 1990 decision. The wisdom of admitting bite-mark evidence as proof of guilt should give judges pause after Texas court found that unreliable bite-mark evidence formed the basis for one of the state’s most notorious wrongful convictions.

While Judge Barton expressed concern that the blanket exclusion of bite-mark evidence would be “arbitrary,” some might conclude that expert evidence with a 64{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} error rate is arbitrary, and that its exclusion is a safeguard against unjust convictions. Since expert testimony can have a profound impact on a jury, certain kinds of scientific evidence have consistently been deemed inadmissible for fear that juries might give the evidence undue weight. Polygraph evidence is a long-standing example.

While trial judges have no authority to impose a moratorium, Texas appellate courts have the authority to rule that bite-mark evidence is too unreliable to satisfy the state’s standard of admissibility. More importantly, legislatures can decide as a matter of policy that bite-mark evidence should be excluded as proof of guilt in criminal trials unless and until the legislature is convinced that it is supported by sound science.

Given the work of the Forensic Science Commission, it is difficult to believe that responsible judges would continue to permit the introduction of bite-mark evidence as proof of guilt in a criminal trial. Whether that possibility should be eliminated by the declaration of a moratorium is a question that the state legislature should seriously consider.

Missouri Passes Daubert Bill, Governor May Veto

Missouri Passes Daubert Bill, Governor May Veto

States legislatures, bar associations, and courts are continuing to debate the appropriate standard for the admission of expert testimony. As an attempt to defeat the Florida legislature’s adoption of the Daubert standard heats up, the Missouri legislature has sent Governor Jay Nixon a bill that would replace the state’s current rule of expert testimony admissibility with a Daubert standard.

The Daubert standard

Having been adopted by the federal government and a majority of states, the Daubert standard is now familiar to lawyers and to expert witnesses. Judges applying Daubert generally see their role as that of a “gatekeeper.” Before allowing a jury to hear expert testimony, the judge must be satisfied that the expert’s testimony is both relevant and reliable.

Expert testimony is relevant under Daubert if it would help the jury decide the case and if:

  • the testimony is based on sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the expert has reliably applied the principles and methods to the facts of the case.

To decide whether scientific principles and methods are reliable, Daubert requires the judge to consider whether the method that the expert used to form a scientific opinion:

  • can be and has been tested;
  • has been subjected to peer review and publication;
  • is not associated with an unacceptable error rate;
  • is controlled by standards; and
  • has attracted widespread acceptance within a relevant scientific community.

More ambiguous standards govern the evaluation of nonscientific expert testimony, which by its nature does depend upon the application of the scientific method.

The Missouri Bill

The bill that passed the Missouri House would adopt the Daubert standard in most trials. The current Missouri rule of expert evidence provides that an expert may testify in the form of an opinion if the opinion would help the jury (or the judge in a bench trial) “understand the evidence” or “determine a fact in issue,” provided the expert is “qualified as an expert by knowledge, skill, experience, training, or education.” To form an opinion, the expert may rely on any “reasonably reliable” facts that are “of a type reasonably relied upon by experts in the field.”

Like the Daubert standard, the current Missouri rule does not require experts to form opinions by using a methodology that has gained widespread acceptance. The Missouri rule therefore differs from the traditional Frye standard of admissibility. “Widespread acceptance” is a factor the court can consider under Daubert, but no single factor is controlling.

At the same time, the Missouri rule differs from Daubert, which does not require experts to rely on the kind of facts that would ordinarily be relied upon by other experts in the same field. In that sense, Missouri’s current rule might be more restrictive than the Daubert standard. It is therefore unclear whether the change proposed by the bill would benefit plaintiffs or defendants.

As a general rule, lawyers who represent businesses and insurance companies like Daubert because they believe it gives them an opportunity to prevent plaintiffs’ experts from testifying when their opinions are not based on customary or orthodox methodologies. Plaintiff’s lawyers and consumer advocates tend to view Daubert as improperly substituting the judge’s opinion for the jury’s in the assessment of a methodology’s reliability.

Daubert’s Unclear Impact

In reality, the distinction between the Daubert standard, the Frye standard, and the current Missouri standard is only important at the fringes, since most scientific experts based their opinions on uncontroversial methodologies, even when their opinions conflict. One study suggests that the difference between standards of expert opinion admissibility does not typically affect the outcome of a case. The Missouri Bar’s Expert Witness Legislation Working Group concluded that there is no objective proof that the Frye standard, the Daubert standard, or the current Missouri standard is more likely to increase the fairness of a trial, although the Daubert standard tends to impose greater burdens on the judicial system by making more work for judges.

The Missouri bill would apply the Daubert standard to civil cases other than those arising in probate court, juvenile court, or family court. If the true purpose of the bill is to increase the reliability of evidence, it seems odd that the Missouri legislature would think that juvenile and family cases should turn on less reliable expert evidence.

The bill’s fate is now in the hands of Governor Nixon. The bill was supported by business lobbyists but opposed by the state’s Circuit Judges Association and a bipartisan group of legislators. The Missouri Times reports that the governor is expected to veto the bill.

Taser and police car, lights in the background

Experts Support Robert Bates’ Defense of Accidental Shooting

The defense of Robert Bates, a former Tulsa Reserve Deputy who was charged with manslaughter, hinged largely on expert testimony. The charges against Bates were filed after Bates shot an unarmed suspect who fled when Tulsa deputies tried to arrest him during an undercover gun buy.

Bates explained that he was trying to shoot the suspect with his Taser but drew his gun by mistake. The manslaughter charge required prosecutors to prove that Bates was guilty of “culpable negligence” in causing the victim’s death.

Trial Evidence

Bates is 74 years old. He was in the insurance business before he became a volunteer deputy in the Tulsa County Sheriff’s Office.

Bates provided support for an undercover operation organized by the Sheriff’s Office. An undercover officer planned to purchase a gun from Eric Courtney Harris, an ex-convict who could not legally possess a firearm.

After the illegal sale allegedly took place, other deputies approached the vehicle in which Harris was sitting. Apparently realizing that he was about to be arrested, Harris bolted from the vehicle and ran.

Bates was parked several blocks away from the undercover transaction. He told an interviewer on NBC’s Today Show that he had participated in hundreds of similar operations, usually coming to the scene after the arrest to assist in taking pictures and gathering evidence.

Deputies Ricardo Vaca and Miranda Munson were with Bates. They testified that Bates had his eyes closed and appeared to be dozing off as they waited. When they saw Harris running toward their position, they left their vehicle and intercepted him. Vaca tackled Harris and took him to the ground, where he held Harris in what he described as a “seatbelt hold.”

Bates did not testify, but he gave a statement to an investigator in which he admitted mistaking his Taser for his gun. He said he decided to shoot Harris with his Taser because he feared that Harris might have a concealed weapon. A sheriff’s deputy testified that Bates’ revolver and the Taser have similar grips and weights.

Bates shot Harris as he was on the ground. Vaca testified that the bullet came within inches of striking him. Another deputy who arrived at the scene testified that he heard Bates yell “Taser.” Vaca said that he would have disengaged from Harris if he had heard Bates announce his intent to fire a Taser. Vaca also testified that even if Harris intended to use his Taser, proper procedure required him to wait until he had a clear opening so that he would not accidentally shoot a deputy who was struggling with the suspect.

Experts Debate Cause of Death

Dr. Cheryl Niblo, a forensic pathologist, testified that Harris died from a “combination of lung collapse and blood loss.” Based on the severe injuries she saw in her autopsy, she concluded that his death was caused by gunshot wounds.

The defense contended that Dr. Niblo failed to review Harris’ medical history and therefore did not know of other medical issues that could have caused his death, including heart disease and methamphetamine use. The defense called two medical experts to refute Dr. Niblo’s conclusion. Dr. Mark Brandenburg, a specialist in emergency medicine, and Dr. James Higgins, an expert in cardiology, agreed that Harris died from a heart attack caused by blockage and the stress of running from and struggling with the police.

In addition to challenging the cause of death, the defense attacked the manslaughter charge by arguing that Bates’ mistaken use of his firearm was reasonable under the circumstances. Dr. Charles Morgan, a psychiatrist who studies human cognitive error in stressful situations, testified that the stress of the moment contributed to Bates’ confusion and that “muscle memory” prompted him to grab his gun instead of his Taser.

Morgan said stress causes even highly trained professionals to make mistakes as a surge of adrenaline blocks “reflective” thinking, forcing the body to resort to “reflexive” or “habitual” actions. On cross-examination, Morgan admitted that his research focused on military personnel and that he did not know whether Bates had sufficient experience with guns to develop muscle memory.

The Verdict

The defense argued that the prosecution should have been required to call experts to testify about law enforcement standards and whether Bates negligently deviated from those standards when he mistakenly shot Harris. The judge ruled that the jury was entitled to base its decision on common sense and that no expert guidance was required.

The jury deliberated only three hours before finding Bates guilty of manslaughter. The maximum sentence that Bates could receive for that conviction is four years in prison.

Video Recording Experts Will Testify in Heather Elvis Kidnapping Case

Video Recording Experts Will Testify in Heather Elvis Kidnapping Case

A South Carolina judge has ruled that the prosecution will be allowed to call an expert witness to testify in the trial of a husband and wife who are charged with kidnapping. The disappearance of Heather Elvis made national headlines. Coverage included a feature on the Missing in America series on Dateline NBC. News commentary sparked a social media frenzy that may have fueled ill-considered murder charges.

Murder Charges Filed

Heather Elvis disappeared in 2013. The 20-year-old woman went on a date on December 17. She returned to her apartment at about 2:00 a.m. on December 18. She called a friend and chatted about the date, then made a few other calls.

The next day, Heather’s car was found at a boat landing. The doors were locked. Neither her purse nor her cellphone were inside the car. The police began searching for Heather on December 20. Her location remains a mystery.

In February 2014, Sidney and Tammy Moorer were arrested and charged with kidnapping, obstruction of justice, and indecent exposure. On February 24, they were charged with Heather’s murder. Prosecutors expressed confidence that they had a strong case.

Gag orders have limited the information available to the press about the evidence against the Moorers. However, prosecutors apparently believe that Heather had an affair with Sidney Moorer and that Tammy Moorer learned about the affair at some point in 2013. Prosecutors contend that Tammy changed the password on Sidney’s cellphone and handcuffed him to the bed at night to prevent him from having further contact with Heather.

At the Moorers’ bond hearing, prosecutors told the court that they had evidence of threats that Tammy Moorer made to Heather prior to Heather’s disappearance. The indecent exposure charges were based on the claim that Tammy used her cellphone to record herself having sex with Sidney inside their car, which was allegedly parked in a public place. Prosecutors said that Tammy then sent the video to Heather in a text message.

The prosecution contends that Sidney called Heather from a payphone on December 18, 2013, after Heather returned home from her date. Less than an hour later, Heather called Sidney’s cellphone and had a four-minute conversation. Cellphone records suggest that she then drove to the boat landing where her car was found. Additional calls to Sidney’s cellphone went unanswered. The boat landing is about three miles from the Moorers’ home.

Murder Charges Dropped

The defense attorneys contend that the Moorers cooperated fully with the police investigation and that the charges against their clients are based on speculation rather than substantial evidence. They argue that the police were under pressure to solve the crime and that they rushed to arrest the Moorers without conducting a careful investigation. Although prosecutors deny that the police acted hastily, the police were searching for new evidence as recently as January 2015.

As the case dragged on, a judge reduced the bond that had been previously set for the Moorers. He then allowed the Moorers to move to Florida, where Tammy Moorer is now working. Heather’s family initiated an online petition to remove the judge who reduced the Moorers’ bond from presiding over the murder case.

In a surprise twist, prosecutors subsequently dismissed the murder charges. They also dismissed the indecent exposure charges and the obstructing justice charge that had been filed against Tammy. Citing the gag order, the prosecutor declined to explain the dismissals, but it is almost certain that the charges were dismissed because the prosecution lacked sufficient evidence to prove either of the Moorers guilty of murder beyond a reasonable doubt.

The kidnapping charges and the charge of obstructing filed against Sidney Moorer are scheduled for trial in June 2016. In connection with those charges, the defense asked the court to disallow expert testimony that the prosecution proposed to introduce into evidence.

Expert Evidence Challenged

The case against the Moorers seems to be based largely on video recordings that were made by two surveillance cameras along the road between the boat landing and the Moorers’ home. One of the cameras is connected with a private home while the other belongs to a business. Both cameras recorded a pickup truck driving toward the boat landing from the direction of the Moorers’ home. The cameras recorded the pickup truck driving in the opposite direction a few minutes later. The first recording of the truck was made about 20 minutes after records show a conversation took place between Heather’s cellphone and Sidney Moorer’s.

The FBI and the South Carolina Highway Patrol determined that the video showed “a dark 2013 or 2014 Ford F-150, with silver toolbox in the bed, a moon roof, silver rims and high-end bulbs in the headlights.” The Moorers own a truck that matches that description, but more than 80 pickup trucks of that model and age are registered to owners in the county where the crime occurred.

The prosecution’s expert is Grant Fredericks, a forensic video analyst who teaches video sciences at the FBI National Academy. During a pretrial hearing, Fredericks testified that the pickup truck in the video was the same truck that belonged to the Moorers.

The defense countered with the expert testimony of Bruce Koenig. While Koenig did not disagree with Fredericks’ methodology, he testified that it was impossible to rule out the possibility that the truck captured by the video cameras did not belong to the Moorers.

Since the question before the court concerned the validity of the conclusion that Fredericks drew and not the reliability of his methodology, the judge decided that Fredericks would be allowed to testify. The defense would then presumably present the testimony of Koenig, leaving it to the jury to decide which expert is more persuasive.

Google's Android Logo

Google and Oracle Each Try to Limit the Other’s Experts

Oracle, the nation’s second largest software developer, sued Google in 2010, claiming that Google violated the patents and copyrights that protect its Java programming language. Oracle alleged that Google used Java application programming interfaces (APIs) to develop its popular Android operating system. An API allows one program to communicate with another. Oracle claimed that Google “replicated the structure, sequence, and organization of the overall code” of 37 API packages.

In 2012, a jury decided that Google did not infringe on Oracle’s patents. The same jury found that Google infringed Oracle’s copyright on its API code but could not agree whether Google was entitled to the “fair use” of the APIs.

Before the trial moved forward to allow the jury to consider an award of damages, the judge decided that the Java APIs replicated by Google were not subject to copyright protection. The judge therefore dismissed that portion of the lawsuit.

The court of appeals disagreed. It concluded that the structure, sequence, and organization of the API packages was entitled to copyright protection. The court of appeals therefore reversed the district court’s dismissal of the copyright claims and instructed the district court to reinstate the jury’s infringement verdict.

The case is now set for a second trial. The jury will be asked to decide whether Google made “fair use” of the APIs under copyright law and, if not, what damages it should pay as a result of its copyright infringement. Oracle is asking for $8.8 billion in damages. That’s almost twice the profit that Google’s parent company earned last quarter.

Before the trial starts, however, the court will need to decide what testimony the parties’ damages experts will be permitted to give. Each side has moved to exclude proposed testimony that the other side wants to offer.

Oracle’s Economic Expert

Oracle proposes to call Dr. Adam Jaffe to testify about the market harm that resulted from Google’s use of the 37 Java APIs. Google filed a Daubert motion, asking the court to decide whether Jaffe’s proposed testimony is based on a reliable application of valid principles and methods to the facts of the case. Google’s motion urges the court to exclude key portions of Jaffe’s testimony.

The fair use doctrine requires an evaluation of the effect of the use upon the potential market for the copyrighted work. Google argues that the copyrighted works are Java SE 1.4 and Java SE 5.0. According to Google, Jaffe overreached by analyzing the effect of Google’s Android system on Oracle’s potential market for the entire Java platform, rather than limiting his analysis to the potential market for Java SE 1.4 and 5.0. Google also argues that Jaffe considered the effect of Android as a whole on the potential market for Java, when he should have considered the effect of the 37 infringed APIs on the Java market. Since Jaffe did not limit his analysis to the relevant market or to the specific copyrights that were infringed, Google contends that his analysis is unreliable and unhelpful, and should therefore be excluded.

Google’s Technical Expert

Oracle moved to exclude certain proposed testimony of Google’s expert, Dr. Owen Astrachan, regarding fair use. Google argues that it made fair use of the APIs because it changed their expressive content. In other words, it transformed the copyrighted APIs into something new. Astrachan would testify that Google’s use of Oracle’s APIs was transformative because Google wrote its own code to implement the APIs as part of Android. Oracle contends that Astrachan is misapplying the legal standard because incorporating the APIs into Android did not change the APIs and is therefore not transformative.

In addition, the Court of Appeals concluded that Google could have written its own code instead of copying the API packages. According to Oracle, Astrachan would testify that Google had no choice but to copy the API packages because Android could not have used the Java language without doing so. In Google’s view, the court of appeals’ decision forecloses that testimony.

Finally, Oracle argues that Astrachan should not be allowed to express an opinion about potential harm to the market that was caused by the copyright infringement because Astrachan is an expert in computer programming, not in economics. Oracle argues that Astrachan did not apply a reliable economic methodology to arrive at his opinion about market harm. According to Oracle, his opinion amounts to “pure speculation” that must be excluded under Daubert.

Daubert hearing

The objections remain unresolved, but the judge made some interesting remarks at the Daubert hearing. He suggested that the question of market value comes down to “what could [Oracle] have sold the copyrighted work for before and after” the infringement. The judge expressed skepticism that Oracle could have used Java to “hit a home run” in the smartphone market as Google did with Android, since Android’s development consisted of considerably more than the copied Java APIs. The judge seemed to agree with Google that the APIs embedded within Android are a very small part of a very large work.

The judge also questioned whether he should rule that Google’s use of the APIs was transformative instead of leaving that question for the jury to decide. The judge expressed concern that if he ruled that Google’s actions were not transformative as a matter of law, he would be “cutting [Google] off at the knees.”

Although the judge has not yet decided the motions, he did lament his role as “gatekeeper” under Daubert. The judge asked “Do I have to go through and excise every detail of expert testimony on a granular level?” Despite the thousands of court decisions that have applied Daubert, judges still have differing philosophies about when a gatekeeper should prevent a jury from hearing expert testimony and when a judge should let the jury sort through the testimony to decide whether it is reliable. Where the judge in the dispute between Oracle and Google will draw that line will soon be determined.

(Photo Credit: “Android” by Saad Irfan is licensed under CC BY-SA 2.0.)

a judge's chair

PG&E Seeks Exclusion of Government’s Experts in Pipeline Safety Prosecution

Following a natural gas pipeline explosion in the San Francisco suburb of San Bruno, the government charged Pacific Gas & Electric (PG&E) with eleven counts of violating the U.S. Pipeline Safety Act. The blast killed 8 people, injured 58, and caused the destruction of 38 homes. Alleging that PG&E impeded an investigation by the National Transportation Safety Board, the government also charged a count of obstructing justice.

The government intends to call two expert witnesses (as well as dozens of lay witnesses) to prove its case. PG&E has filed a motion to prohibit the experts from testifying.

Prosecution of PG&E

Prosecutors hope to prove that PG&E knew of manufacturing problems regarding the natural gas pipeline before it exploded. The prosecution contends that PG&E failed to conduct required pipeline assessments and deliberately disregarded federal pipeline safety regulations. The government asserts that those decisions were driven by a corporate culture that prioritized profits over safety.

The government plans to call former PG&E employee Leslie McNiece to testify that after the pipeline exploded, she found records concerning the pipeline in a dumpster outside of PG&E’s gas operations facility. McNiece is also expected to testify that she was instructed to destroy pipeline records and that she “encountered opposition and pushback from top executives” when she tried to improve the company’s recordkeeping concerning its pipelines. PG&E says that the discarded documents were copies and the originals had been scanned into the company’s recordkeeping system.

Expert witness – Corporate Culture and Spending

The government intends to call Henry Lubow, a consultant with 40 years of experience in utility regulation, to explain how PG&E’s finances, budgeting, and cost-cutting measures adversely affected its commitment to safety. Based on a review of company documents, Lubow would testify that PG&E places more emphasis on profits than safety. Lubow would also testify that he found multiple examples of employee warnings concerning safety issues that were ignored or not taken seriously by management.

PG&E has objected to the testimony on the ground Lubow would merely be placing his own “spin” on documents that he would summarize for the jury. In PG&E’s view, Lubow’s opinions reflect no expert analysis and require no expertise. Lubow’s opinions are the sort of argument that a prosecutor might make in a closing argument, but “previewing” a closing argument is not, in PG&E’s judgment, an appropriate use of expert testimony.

The government also wants to use Lubow’s testimony to bolster its proof that PG&E acted willfully. The testimony would help the government establish that PG&E had a financial motive to disregard government regulations. PG&E argues that an expert who has no connection with a corporation is not qualified to testify about the corporation’s intent.

Finally, the government expects Lubow to testify that PG&E spent less on safety precautions than the amount authorized by the California Public Utilities Commission (CPUC). PG&E contends that for most years, the CPUC did not specify a spending allowance when it set PG&E’s rates, and that Lubow’s attempt to “impute” a spending level that PG&E should have followed is based on unsound methodologies.

The government responded that expert testimony about the requirements imposed upon regulated utilities would help the jury understand PG&E’s obligations. The government argues that Lubow’s experience with safety regulatory standards enables him to express opinions as to whether PG&E met those standards, based on his review of relevant documents. Since the Federal Rules of Evidence allow witnesses to base testimony on hearsay, the government argues that Lubow is entitled to base his testimony on a document review rather than personal experience with PG&E.

The government denies that Lubow would testify about PG&E’s corporate intent, but argues that he should be allowed to testify about facts (such as cost-saving measures) that would permit a jury to infer that PG&E willfully failed to pay sufficient attention to safety in order to strengthen its profits. The government contends that Lubow’s testimony will show that PG&E allocated money to executive compensation when it could have been correcting deficiencies in recordkeeping and pipeline maintenance. The government argues that the jury could infer from those facts that PG&E intentionally disregarded regulatory duties to pursue priorities other than safety.

The government faults PG&E’s attack on Lubow’s analysis of PG&E’s spending because it views the attack as going to credibility, not to reliability. The government says that that Lubow will testify about the amounts of money PG&E told CPUC it would spend and will compare those estimates to the amount that PG&E actually spent. Whether Lubow’s accounting is correct is a question for the jury to decide and not, according to the government, a basis for excluding expert testimony.

Expert Testimony – Regulatory Requirements

The government also proposes to call Steve Nanney, a senior engineer at the Pipeline and Hazardous Materials Safety Administration, to testify about the requirements of the Pipeline Safety Act and the regulations that implement that law. PG&E contends that experts cannot explain the law to the jury. According to PG&E, the judge is the only authority on the law, and the jury learns about the law from the instructions it receives at the end of the trial, not from experts.

The government counters that an expert explanation of “complex and technical regulatory requirements” does not run afoul of the general rule that an expert cannot explain the law. Since the regulations are promulgated by an administrative agency, the government argues that a witness from that agency should be allowed to explain the regulatory framework and how specific regulations within that framework are meant to be implemented. The government denies that the expert will usurp the judge’s role because the expert will not be offering legal conclusions in his testimony.

Daubert Hearing

The court will presumably conduct a Daubert hearing before deciding whether the government’s witnesses can testify. After hearing evidence, the court will decide whether the expert testimony is relevant and reliable.

It may be some weeks before that hearing takes place, as PG&E is complaining that the government recently produced 100,000 pages of records, some of which may have a bearing on the expert testimony. PG&E’s lawyers told the court that they would need three weeks to review the newly produced documents before further assessing the proposed expert testimony.

Photo Credit: Public Domain. FastilyClone.