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.

When Must a Summary Witness Testify as an Expert?

Federal courts may allow a summary witness to explain how documents and testimony fit together. The Court of Appeals for the Fifth Circuit recently rejected the argument that a summary witness needed to testify as an expert to explain the government’s case.

Facts of the Case

Carl Nicholson is a certified public accountant. He was charged with eleven tax crimes, including filing false tax returns for himself and assisting clients in the preparation of false tax returns. A jury found Nicholson guilty on all counts. A judge sentenced him to five years in prison.

Nicholson was a partner in an accounting firm. Pursuant to firm policy, Nicholson was entitled to use his personal credit card for business expenses and to request reimbursement from the firm. Nicholson was reimbursed for charges to his American Express (“Amex”) account that were incurred for personal reasons, including family travel.

Nicholson did not report the improper reimbursements as income on his personal tax returns. Some of the criminal charges related to his failure to disclose taxable income.

Nicholson’s partners bought out his interest in the firm in 2015. To calculate the amount of profit Nicholson earned from that sale, Nicholson claimed to have paid $150,000 for his interest in the company and an additional $300,000 that he paid overtime on the firm’s behalf. The firm’s managing partner testified that the additional payments of $300,000 were never made. Although the managing partner recalled that Nicholson made an initial investment of $150,000, financial statements showed that he actually paid $100,000. Nicholson was thus accused of inflating his investment in the firm by $350,000 to reduce the amount of taxable profit he made when he sold that interest.

Summary Witness

The government relied in part on testimony given by IRS Agent Bradley Luker. Through Luker, the government introduced summary charts of Nicholson’s tax returns. The charts also summarized Nicholson’s Amex reimbursement requests.

The Federal Rules of Evidence allow summaries to be introduced into evidence “to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” However, the summaries may not introduce evidence that the jury has not already heard.

All of the information in Luker’s charts was taken from earlier testimony and documents that had been received into evidence, including tax returns and bank statements. The jury was instructed that “summary charts and witnesses are no better than the underlying testimony and the documents upon which they are based and are not themselves independent evidence.”

In the Fifth Circuit, at least, a summary witness is entitled to “sort through the evidence” to show how the documents that were introduced into evidence “related to each other and to the charges in the indictment.” However, summary evidence may not be used to “fill in holes” in the party’s case by assuming the existence of facts that have not been independently established.

Was Lurker an Expert Witness?

Nicholson argued that Lurker should not have been allowed “to state his conclusions about whether Nicholson’s income tax returns were ‘false’ and what the ‘correct’ amounts should have been.” Lurker was not an accountant and did not testify as an expert. Nicholson argued that only an expert should be allowed to state opinions about tax matters.

The court of appeals concluded that Lurker was merely summarizing other testimony and therefore did not testify as an expert. Since the court did not quote Lurker’s testimony, it is difficult to evaluate whether he offered his own opinion about how income should have been reported.

Nicholson also contended that Lurker’s testimony was not summative but was in conflict with other testimony. Lurker testified that a $66,000 payment from one of Nicholson’s clients was not for accounting services. The client testified that he was billed for accounting services and, while he disputed whether the money was owed, he paid the bill. Since the client had an agreement with Nicholson’s firm that he would not be charged for accounting services, there was evidence to support the conclusion that the $66,000 was not for accounting services. The court found no conflict in the testimony despite evidence that the client told Nicholson to record the funds as a payment for accounting services.

Nicholson also complained that Lurker contradicted the managing partner, who testified that he recalled Nicholson making an initial investment of $150,000 in the firm. The court of appeals noted that Lurker did not characterize the managing partner’s testimony as false but did testify about the $100,000 investment shown on financial statements. Since those statements were in evidence, there was no conflict between Lurker’s testimony and facts in evidence.

Finally, the managing partner testified that he did not authorize reimbursement of funds for family vacations and other expenses for which Nicholson charged the firm. The managing partner did testify that whether some of those expenses were legitimate might be a matter of opinion, but in his opinion they were not. Lurker testified that he based his chart of improper expense reimbursements on the managing partner’s testimony.

The court of appeals rejected the claim that Lurker essentially testified as an expert who agreed with the manager’s opinion as to the legitimacy of the expense reimbursements. The court also rejected the argument that Lurker improperly bolstered the managing partner’s testimony. It was up to the jury to decide whether to believe that Nicholson improperly reimbursed himself for nonexistent business expenses and failed to claim those reimbursements as income.

The court of appeals nevertheless recognized that the case involved issues of accounting, business arrangements, and tax preparation that went beyond the knowledge of average jurors. Given the thin line between showing how documents relate to each other and explaining the documents, perhaps the government should have relied on an expert witness to help prove its case. Since Lurker merely summarized testimony and documents that were already in evidence, however, he did not testify as an expert. To the extent that an expert might have been in a better position to give that testimony, the court regarded any error as harmless.

Federal Advisory Committee Considers Significant Change to Rule 702

After the Supreme Court’s Daubert decision, judges may only admit expert testimony that is based on a reasonable methodology. A question that divides federal courts is whether expert opinions should be admitted if a jury could reasonably regard the expert’s methodology as reasonable even if the judge doesn’t. A federal advisory committee may soon propose a change in the rule that resolves that question in favor of judges rather than juries.

A Brief History of Rule 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The first version of the rule, adopted with the other Rules of Evidence in 1973, allowed qualified witnesses to express expert opinions if their “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue.” The rule made the expert’s qualifications a matter of “knowledge, skill, experience, training, or education.”

The rule said nothing about the judge’s role in determining whether the expert’s opinions were reliable. When Rule 702 was adopted, federal courts followed the Frye standard of admissibility. Using that standard, courts admitted expert opinions based on scientific techniques that were, in the judge’s opinion, “generally accepted” as reliable in the relevant scientific community.

The Frye standard prevented juries from hearing opinions that were based on new or novel theories that, while reliable, were not yet generally accepted. The standard therefore kept juries from hearing reliable evidence that might help them decide the case. At the same time, the Frye standard allowed juries to hear unreliable testimony because courts had been ruling for years that the testimony was “generally accepted” as reliable. The Frye standard was particularly harmful in criminal cases. Unreliable forensic evidence, including bite mark and hair comparisons, has contributed to the widespread phenomenon of wrongful convictions.

In 1993, the Supreme Court purported to cure the deficiencies of the Frye standard by creating a new rule. The Daubert standard (named after the case in which it was adopted) expands the judge’s “gatekeeper” role in deciding whether evidence is sufficiently reliable to be admitted.

The Daubert decision held that Rule 702 was inconsistent with the Frye standard. The Court noted that the drafting history of Rule 702 did not mention Frye and concluded that “a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony’.”

The Daubert court jettisoned the Frye standard. To fill the void, it created a new rule that, as interpreted by some judges, is incompatible with the “liberal thrust” of Rule 702 and its goal of relaxing barriers to expert testimony.

The Daubert standard broadened the admissibility of expert opinions by making reliability, rather than general acceptance, the dominant consideration in the judge’s analysis. At the same time, the standard narrowed the admissibility of expert opinions by requiring the judge to exclude expert opinions unless they are based on a reliable methodology that the expert applied to adequate facts in a reliable way.

Rule 702 was amended in 2000 to reflect the Daubert holding. The rule was amended again in 2011 to clarify its language. The current rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

Criticisms of Current Rule

The Daubert standard as embodied in the current version of Rule 702 has been criticized for its lack of clarity. Some judges view the Daubert standard as expanding the admissibility of expert testimony. Those judges typically leave it to juries to decide whether to accept or reject expert opinions that could reasonably be regarded as reliable. Other judges view their role as determining reliability according to their own strenuous standards without regard to how a jury might view the evidence.

Critics who believe judges too often allow juries to evaluate expert testimony are advocating another change in the rule. Echoing the views of the insurance defense industry, those critics claim that judges are failing to exercise their role as the “gatekeepers” of reliability.

The critics cite anecdotal evidence to create the illusion of a widespread problem. One journalist, relying on his distant memory of an expert witness who gave allegedly inconsistent testimony in two different cases, recently wrote that he “wouldn’t believe a word from an ‘expert’ witness.” The journalist did not seem to appreciate that experts base opinions on facts and that different facts in different cases lead to different opinions.

Unfortunately, the reporter’s perspective advances the strange but popular belief that expert opinions do not reflect objective reality but are simply what the expert chooses to regard as true. That belief is encouraged by political assertions that objective facts are “fake news” and by attacks upon scientific experts who warn the public about dangers (such as global warming) that politicians would prefer to ignore. Attacks on expertise have given birth to a subculture that rejects expert opinions in favor of biased opinions on the ground that an unsupported opinion is just as valid as one based on facts, experience, education, and sound reasoning.

Some critics have suggested that judges should restrict expert testimony in civil cases to prevent “runaway juries” from deciding cases based on emotions rather than facts. Since those critics rarely express concern that juries convict innocent defendants because of emotional reactions to evidence of victimization, the critics seem to be more interested in protecting businesses from the consequences of their carelessness or misconduct than in protecting the right of litigants to have disputed facts resolved by juries.

Critics who complain that judges are inadequate gatekeepers often represent or work for industries that are sued for harming the public with dangerous products or environmental hazards. Those critics tend to brand experts as unscrupulous, but only when they testify for plaintiffs. The critics argue that Daubert was meant to limit expert testimony offered by plaintiffs despite the Supreme Court’s recognition that “relaxing the traditional barriers to opinion testimony” was the very purpose of Rule 702.

Proposed Revision of Rule 702

A recent report from the Advisory Committee suggests a change in Rule 702 that the committee may ask the Supreme Court to adopt. The change results from the concern that “in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable.” The Committee appeared to be horrified by the thought that jurors are just as capable of evaluating the reliability of evidence as judges. A who allows jurors to evaluate testimony that they could reasonably view as reliable does so because the judge respects the jury’s role in evaluating evidence.

Judges, after all, are not scientists. There is no reason to believe that judges are any more capable than jurors of understanding and evaluating expert testimony. As a Fourth Circuit decision reminded us in 1934, “Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.”

Some members of the committee, however, have concluded that only judges have the wisdom to decide whether an expert’s methods are reliable. Their argument that judges should substitute their view of an expert’s reliability for a reasonable view that a jury might take is consistent with a disturbing trend to remove cases from juries — a trend that some scholars decry as reflecting a pro-business bias. Their apparent goal is to change gatekeepers into gate closers.

The report proposes “an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.” In other words, even if a jury could reasonably find that an expert’s methodology was reliable, a judge who feels otherwise can prevent the jury from making that determination. The proposal represents one more effort to chip away at the American ideal that juries, not judges, should decide cases.

As Judge Kathleen O’Malley recently wrote, the jury is a vital tool in a deeply divided country, a tool that “protects all of us from overreach by the other two branches of government.” In Judge O’Malley’s view, “If two minds are better than one, nine or twelve are better still.” Judge O’Malley is confident that jurors acting collectively are just as capable as judges of evaluating expert testimony, and that it is arrogant for judges to suggest otherwise.

The advisory committee meets again in June 2021. Whether and when the committee will decide to propose a revision of Rule 702 is unclear. Equally uncertain is whether the Supreme Court would agree that it is wise to undermine expert testimony by giving judges more power to prevent juries from considering expert opinions that jurors might reasonably regard as being based on a reasonable methodology.

Potential Bias of Expert Witness Does Not Create Exception to Florida’s “Learned Intermediary” Doctrine

After being diagnosed with a pelvic organ prolapse, Charlotte Salinero elected to have an abdominal sacrocolpopexy, a procedure that uses a graft to support the top of the vagina. The surgery was performed by Dr. Jaime Sepulveda in 2012.

While the patient’s own tissue can be used as a graft, it is common to perform the procedure using a synthetic mesh. In 2011, the FDA warned that “serious complications associated with surgical mesh for transvaginal repair of [pelvic organ prolapse] are not rare.”

The warning advised physicians that “it is not clear that transvaginal [pelvic organ prolapse] repair with mesh is more effective than traditional non-mesh repair . . . and it may expose patients to greater risk.” Complications typically arise when the mesh erodes, leading to pain, infection, bleeding, and other health concerns.

Dr. Sepulveda elected to implant Artisyn Y-Mesh, a product made by Ethicon, a subsidiary of Johnson & Johnson. Dr. Sepulveda discussed surgical risks with Salinero but did not disclose or discuss his decision to choose Artisyn Y-Mesh as the material he would use for the graft.

Surgical mesh materials can lead to adhesions that cause organs and tissues to stick together. A few years after her surgery, Salinero developed a rectovaginal vesical fistula, a condition that occurs when the rectum or bladder becomes connected to the vagina.

Dr. Sepulveda removed the implant and separated the adhesion of Salinero’s bladder and rectum. Dr. Sepulveda was able to remove the mesh in one piece, apart from two small segments that he subsequently removed. Salinero continued to experience debilitating complications after the surgery that she attributed to the Artisyn Y-Mesh.

Florida’s Learned Intermediary Defense

Salinero sued Ethicon, alleging that a polypropylene mesh is “biologically incompatible with human tissue and promotes an immune response in a large subset of the population.” Among her other claims, Salinero alleged that the Artisyn Y-Mesh “Instructions for Use” did not adequately warn of the risks associated with the implant.

The lawsuit was filed in a federal court in Florida. The court applied Florida law regarding the duty to warn patients of risks associated with a medical device. Under Florida law, a medical device manufacturer only has a duty to warn the physician who chooses the device, not the patient who receives it. The physician is regarded as a “learned intermediary” between the manufacturer and the patient.

As a learned intermediary, the physician weighs the risks and benefits of a particular medical device when deciding whether to recommend it for the patient’s needs. To bring a successful failure to warn claim against a manufacturer, the patient must prove that the physician would not have chosen the device if the physician had been adequately warned.

The court granted summary judgment in Ethicon’s favor because Dr. Sepulveda testified in a deposition that he was fully apprised of the risks associated with the Artisyn Y-Mesh, that he believed his decision to use the Artisyn Y-Mesh was appropriate even in hindsight, that his implantation of the Artisyn Y-Mesh was the best option, and that he would do it again. That deposition testimony made it impossible for Salerno to establish that Dr. Sepulveda would not have implanted Artisyn Y-Mesh if he had been given any additional information about the risks associated with the product.

Learned Intermediaries Who Act as Expert Witnesses

Salerno appealed. Salerno argued that the “learned intermediary” rule assumes that doctors are objective evaluators of medical evidence who put the interests of their patients ahead of the interests of medical device manufacturers. In their view, Dr. Sepulveda did not qualify as a learned intermediary.

For decades, Dr. Sepulveda has had a financial relationship with Johnson & Johnson, the parent company of Ethicon. In addition to being paid as a consultant on product evaluations and mesh trials, he has served as an expert witness for Johnson & Johnson in more than twenty cases. Over the years, Johnson & Johnson has paid Dr. Sepulveda more than $2 million.

Given that financial relationship, it would be reasonable to question whether Dr. Sepulveda would act as an objective intermediary when deciding whether to recommend a Johnson & Johnson product to a patient. Testifying that he would have recommended a different product if the warning had been adequate might have placed a lucrative income stream at risk.

Given his financial interest, a jury might question Dr. Sepulveda’s credibility when he testified that he received adequate warnings and that he would have performed the procedure using the same mesh if the warning had been more complete. A doctor who is paid millions of dollars by a company might be satisfied with inadequate warnings while a doctor with no financial incentive to support the company might testify differently.

The “learned intermediary” doctrine may work to the disadvantage of patients who retain doctors who worked as expert witnesses for medical device manufacturers. Salerno accordingly argued that a physician who is paid for expert testimony by a company cannot stand as a learned intermediary between the company and an injured patient.

No “Financial Interest” Exception

The Court of Appeals for the Eleventh Circuit affirmed the summary judgment. The federal court noted that Florida courts have not been asked to recognize a “financial bias exception” to the learned intermediary rule. When a state court has not decided a controlling question of state law, federal courts usually try to decide how the state court would decide the issue.

Federal courts in other states have declined to apply the learned intermediary doctrine when there is evidence that the intermediary might be biased. Others require evidence of actual bias. The Eleventh Circuit declined to follow those decisions on the ground that the Florida Supreme Court would probably reject them. The evidence of how the Florida Supreme Court would decide the issue is nevertheless slim.

In a different context, the Florida Supreme Court decided that the learned intermediary defense does not apply when the manufacturer “provides an incentive to the intermediary to withhold the necessary information from the consumer.” In the Eleventh Circuit’s view, paying a doctor to act as an expert witness more than twenty time does not provide an incentive to the doctor to look the other way when warnings about a medical device might be inadequate. A jury might think otherwise.

Regardless of how a jury might view the credibility of a doctor who earsns significant income testifying as an expert for a medical device manufacturer, the court of appeals essentially held that all doctors can be trusted to do what’s right. Since the Florida Supreme Court has not decided the precise issue before the court, the Eleventh Circuit declined to adopt an exception to the learned intermediary doctrine that Florida courts have not adopted.

Expert’s Testimony About Behaviors that Are Common to Chat Room Participants Who Engage in “Age Play” Deemed Inadmissible

The Colorado Court of Appeals relied on a New Yorker cartoon to illustrate the issue it confronted in People v. Battigalli-Ansell. The cartoon features a dog at a keyboard telling another dog, “on the internet, no one knows you’re a dog.”

The internet site Omegle is essentially a chat room. The site connects users randomly and encourages them to engage in anonymous conversation. Users probably won’t chat with a dog, but they might be connected to someone who has created a false persona. The site encourages users to “have fun” and does not require them to disclose their true identity.

David Battigalli-Ansell began chatting with a user who identified herself as “Brooke.” Brooke claimed to be a fourteen-year-old girl. Omegle does not require users to be adults, so it was possible that the user was telling the truth. Battigalli-Ansell is an adult.

Battigalli-Asell and Brooke exchanged sexually suggestive messages. Brooke then sent Battigalli-Asell her telephone number. To confirm that the person to whom he was chatting was actually a female and not a male engaged in role playing, Battigalli-Ansell texted the number and asked Brooke to send him a picture. In response, he received a picture of an 18-year-old woman. Battigalli-Ansell then sent Brooke a picture of his penis.

A Colorado statute makes it illegal to invite, by means of a computer network, “a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to . . . observe the actor’s intimate parts.” Battigalli-Asell was charged with violating that law.

At trial, Battigalli-Ansell testified that he assumed Brooke was a role-playing adult. If he actually made that assumption, he was correct. “Brooke” was a part played by an adult male law enforcement officer. The picture that “Brooke” sent Battigalli-Ansell was a picture of an adult intern. At no time did Battigalli-Ansell communicate with a 14-year-old.

The statute, however, makes it unlawful to send an intimate picture by text or internet message if the sender “believes” the recipient to be under the age of 15. The prosecution contended, and the jury agreed, that Battigalli-Ansell believed Brooke was a 14-year-old girl based on the law enforcement officer’s false representations about his true identity.

Exclusion of Expert Testimony

The question of what Battigalli-Ansell believed is difficult to answer. Nobody can read minds. The jury knew that Battigalli-Ansell was told that Brooke was 14, but it also knew that Battigalli-Ansell received a photo of an 18-year-old that purported to be a photo of Brooke. It is not beyond the realm of possibility that Battigalli-Ansell believed he was talking to an adult female who was playing the role of a 14-year-old girl.

To bolster his defense, Battigalli-Ansell retained an expert witness. Marty Klein, a licensed marriage and family therapist and certified sex therapist, proposed to testify that:

scientific studies establish that fantasy role playing is a normal part of human sexual interaction;
millions of adults play erotic games centered around age play;
fantasy age play does not necessarily indicate a desire to have sex with actual minors or to repeat role-playing behaviors outside the realm of fantasy;
transcripts of the chats in which Battigalli-Ansell engaged with “Brooke” are consistent with fantasy age play by an individual who has no desire to move the fantasy behaviors to reality; and
“the normalcy of sexual fantasies is not well understood in the general population and . . . often intimate partners fail to recognize and accept, without therapeutic help, the benign nature and normalcy of such fantasies in their partners.”

The trial court agreed that Klein could explain the nature of fantasy role playing in the context of a chat room. The court also allowed Klein to give “brief testimony that sexual fantasies about adult and adolescent sex partners are common and are not abnormal,” but did not permit more extensive testimony on the ground that it would be “a needless waste of time, might create confusion and would not be helpful to the jury.”

In particular, the judge excluded the testimony summarized in the bullet points above. However, when the prosecutor asked Klein on cross-examination whether people “fantasize about having sex with children,” the question opened the door to additional testimony. The court allowed Klein to testify on redirect that people fantasize about sex with “teenagers” and that “fantasies about having sex with minors [do] not predict . . . sexual behavior with minors.”

Battigalli-Ansell was convicted. He based his appeal, in part, on the exclusion of Klein’s full opinions.

Appellate Opinion

Battigalli-Ansell argued on appeal that Klein offered additional opinions in his expert report that were improperly excluded. However, the trial judge expressly asked whether Klein would be offering opinions other than those summarized in the bullet points above. Battigalli-Ansell’s counsel said that he would not. That statement waived the right to challenge the exclusion of other opinions.

The appellate court agreed that the opinions described in the bullet points were inadmissible. The question before the jury was whether Battigalli-Ansell believed he was sending an intimate photo to a person who was 14 years old. According to the court, whether fantasy role playing is a normal part of sexual interaction, whether millions of Americans engage in age play, and whether age play is a predictor of pedophilia are not opinions that shed light on Battigalli-Ansell’s beliefs.

It is true that pedophilia was not an issue in the case. Pedophilia is, by definition, a condition that describes an attraction to prepubescent children, not to 14-year-olds.

In any event, it is unlawful in Colorado to send an intimate picture to a 14-year-old, whether or not the sender is a pedophile. Whether Battigalli-Ansell actually wanted to have sex with the recipient of the photo was not relevant. Sending the photo to someone whom the sender believes to be a minor (even if the belief is mistaken) is unlawful regardless of the sender’s desire to have contact with the recipient.

On the other hand, the normalcy of age play does tend to make Battigalli-Ansell’s position easier to understand. A jury that does not know that age play is widespread might conclude that “nobody would do that.” Evidence that millions of people do, in fact, play fantasy games is relevant because it would tend to make the jury understand that Battigalli-Ansell might be part of that very large group.

Improper Comment Upon Credibility

Klein’s key opinion was that transcripts of the chat were “consistent” with fantasy age-play. The appellate court noted that prosecution experts in child sexual assault cases often testify that an allegedly abused child’s behavior (such as failing to report abuse) is consistent with the behavior of child abuse victims. Klein’s opinion that the chat was consistent with behavior observed by fantasy role players was arguably admissible on the theory that experts are generally allowed to educate jurors about common behaviors of individuals that are outside the ordinary experience of most jurors.

The court nevertheless observed that prosecution experts cannot give opinions about perceived behaviors of child abuse victims that tend to bolster the alleged victim’s credibility. Courts generally prohibit testimony when an expert’s testimony would suggest that the expert believes a child is telling the truth. The veracity of a witness is not a proper subject of expert testimony. The court saw no reason not to apply the same rule outside the context of sexual assault cases.

The issue that the court confronted is tricky. Testimony that a person’s behavior was consistent with behavior that is common to a particular group does not invariably suggest that the expert believes a witness is telling the truth. Police officers routinely testify that a driver’s behavior was consistent with the behavior of drunk drivers. Courts routinely admit that testimony on the theory that it assists the jury, even if it might suggest that the officer disbelieved the driver’s claim to be sober. There is no obvious reason to disallow expert testimony that signals a belief that a witness is telling the truth while allowing testimony that signals a belief that a witness is not telling the truth.

The court acknowledged that the “line between opinion testimony that improperly bolsters a witness’s credibility and admissible testimony that may only collaterally enhance the witness’s credibility is sometimes a difficult one to draw.” Experts who testify about the prevalence of delayed reporting by child sexual assault victims might be seen as bolstering the credibility of a child who delays reporting an alleged assault, but that testimony is routinely permitted. Doctors often diagnose health conditions by determining that a patient’s symptoms and behaviors are consistent with those of other patients who suffer from a particular condition. When doctors testify about a diagnosis that is based on symptoms disclosed by the patient and on consistency with other patients who have the same condition, the doctor signals a belief that the witness is telling the truth about her symptoms.

The court nevertheless concluded that Klein was bolstering Battigalli-Ansel’s testimony by stating that Battigalli-Ansel acted in conformity with the behavior of people who engage in age play. According to the court, Klein was signaling his belief that Battigalli-Ansel was telling the truth, at least in part because “Klein was not acting as a ‘cold’ expert —one who ‘knows little or nothing about the facts of the particular case, often has not even met the victim, and has not performed any forensic or psychological examination of the victim,’ and who educates the jury regarding certain general characteristics.” Klein’s testimony was accordingly inadmissible.

Lessons Learned

Courts are notoriously inconsistent in deciding whether an expert can opine that a person’s behavior was consistent with behaviors seen in members of particular groups. Battigalli-Ansel might have been better served by an expert opinion that simply avoided using the words “consistent with.” It isn’t clear whether Klein ever met Battigalli-Ansel, but establishing that he was a “cold” expert might have improved the chance of making his opinions admissible.

The court suggested that the outcome might have been different if Klein had confined his testimony to explaining “what characteristics of a dialogue generally inform his determination that the dialogue is ‘consistent with’ role-playing, as opposed to opining on the nature of the specific communications between Battigalli-Ansell and ‘Brooke’.” Unfortunately, the opinion does not make clear whether the trial judge gave Battigalli-Ansell the option to introduce more limited testimony. Had the trial judge parsed the testimony as carefully as the appellate court, Klein might have been able to give the limited testimony that the appellate court thought would be proper.

It is always perilous for experts to testify that the behavior of one person is “consistent with” the behavior of a group of persons. Unless precedent clearly establishes that such testimony is not an inadmissible comment upon credibility, experts might want to couch their opinions in terms that avoid making such comparisons.

Challenge to Expert Testimony Rejected in Lawsuit Against Unite the Right Organizers

A Unite the Right rally in Charlottesville during August 2017 brought together several white nationalist groups, much to the dismay of Charlottesville residents who support the American values of diversity and equal rights for all. The groups made Charlottesville a target because city leaders planned to remove a statute of Robert E. Lee.

Hundreds of white nationalists carried torches while chanting anti-Semitic, homophobic, and racially offensive slogans. Dozens of people were injured by mob violence. One participant in the rally drove a car into a group of counter-protestors, killing a 32-year-old woman and injuring more than 30 others. He was later convicted of federal hate crimes and sentenced to life in prison.

In the aftermath of the rally, ten injury victims sued individuals and organizations who organized the rally. The lawsuit was filed in federal court in the Western District of Virginia. The suit alleges that the defendants “joined together for the purposes of inciting violence and instilling fear within the community of Charlottesville and beyond.” The lawsuit is premised on a conspiracy to violate the civil rights of the plaintiffs. The case has been set for trial in October 2021.

Expert Opinions

The plaintiffs intend to call two expert witnesses to testify about strategies used by white supremacist organizations as a shield against accountability. The experts, Kathleen Blee and Peter Simi, are sociology professors who study white supremacy. The plaintiffs want to educate the jury with expert opinions about strategies of “double-speak” or “just joking” that white supremacist organizations and their adherents use to create “plausible deniability when conveying certain racist or violent messages.” The experts also “intend to testify that certain communications between Defendants and online comments they made were consistent with those strategies.”

In the words of plaintiffs’ counsel, Blee and Simi drew upon their research and scholarship “to describe a distinct white supremacist culture that, throughout its lengthy history, has informed the (often coded) language, tactics, and symbols of those who are immersed in that culture.” As summarized by the court, the experts drew these conclusions:

The white supremacist movement (WSM) “has consistently utilized, supported, and glorified violence as a strategy to promote its message and secure white supremacy.”
The defendants “were active in and knowledgeable about the culture and networks of the WSM prior to [Unite the Right].”
Unite the Right “was organized to promote the agenda of the WSM.”
The defendants organized Unite the Right by using “the cultural symbols, rituals, slogans, language, and references to historical figures that are the hallmarks of the WSM.”
The defendants “shaped and made use of WSM culture and networks to recruit participants and to plan and execute [Unite the Right].”
The “coordinated race-based violence facilitated and committed by Defendants at [Unite the Right] is emblematic of WSM tactics.”
The defendants employed a coordinated strategy to obfuscate their aims through the use of “double-speak, front-stage/back-stage behavior, and a discrete and new-age communication platform.”

Some of the defendants moved to exclude the expert testimony. The district court judge denied that motion.

The court was puzzled by the defendants’ failure to articulate a clear theory for excluding the expert testimony. They did not challenge the qualifications of Blee and Simi to form the proffered opinions. They did not challenge the methodology employed by the experts or the reliability of their conclusions. Instead, they raised three challenges that, in the district court’s view, lacked merit.

Double-Speak

Blee and Simi explained that “double-speak” is a way of communicating coded meaning to members of the WSM through messages that appear to have an innocuous meaning to outsiders. They cited Pepe the Frog as an example. Pepe the Frog is an internet meme that was used on blog and internet forums to communicate surprise, anger, and other emotions. Blee and Simi explained that the WSM appropriated Pepe the Frog “to signify the ideas of racism and anti-Semitism,” though “outside of white supremacism, Pepe lacks those connotations.”

Blee and Simi also explained that certain organizations, including the American Identity Movement and Patriot Front, used rebranding strategies to conceal their true agenda, allowing them to recruit more freely on college campuses and among mainstream college campuses. They cite the replacement of swastikas with business suits as an example.

Relying on social science research, Blee and Simi explain how jokes are circulated among the WSM to communicate ideas to movement members, including the advocacy of violence, that are obscure to outsiders. The ability to say “just joking” preserves the ability to deny the advocacy of race-based violence.

The defendants argued that the expert opinions usurped the jury’s function by telling the jury how to interpret the intent underlying the defendants’ communications. The court rejected that argument. It noted that courts “routinely admit expert testimony explaining the meaning of complex, obscure, or coded language to juries.” Expert testimony about coded language is particularly common in criminal trials, where police officers who base opinions on considerably less social science research purport to explain drug jargon and gang references.

Expert testimony is also admissible to explain “the history, structure, leaders, or operations of an unfamiliar organization or subculture.” While court discussions discussing that testimony have again focused primarily on criminal gangs and terrorist organizations, the decisions are equally applicable to the obscure organizations that comprise the WSM.

The defendants also argued that the expert opinions were not relevant to any issue. The court determined that the testimony was relevant because it was directly tied to the facts of the case. Bree and Simi provided a detailed explanation of how Unite the Right organizers used double-speak in public communications to attract individuals with a violent agenda to their rally while using private communications (including “burner phones”) to coordinate violent and illegal activities in secret. Bree and Simi explained how public expressions of the right to exercise self-defense were part of a false narrative that was used as a pretext for violence. They also explained how “joking” references to violence and the use of the Confederate flag as a recruiting symbol communicated a violent purpose underlying the rally.

Because the proffered testimony is “not only helpful but necessary for jurors to have an informed understanding of language” used by the defendants, it is admissible. The testimony does not tell the jury how to decide the case. The testimony might, if believed by jurors, guide the jury’s understanding of the defendants’ intent, but the defendants are free to introduce evidence of alternative explanations. “The fact that Plaintiffs’ experts’ interpretation may be different from Defendants’ does not render it improper.”

References to White Supremacist Movement

The defendants argued that the experts should not be allowed to use the phrase “white supremacist movement.” In their view, the term implied an organized effort or a conspiracy. The court noted that the defendants did not invent the phrase WSM. Their characterization of the beliefs and goals that unite the defendants is relevant to the plaintiffs’ conspiracy allegations. The defendants are free to dispute the characterization, but they made no convincing argument that expert testimony using the phrase would be unfair to them.

The defendants also objected to “testimony regarding certain traits, methods, or characteristics shared by various white supremacist groups,” including the embrace of violence to achieve a white-dominant society. The experts’ proposed testimony provided a context that would help the jury understand the shared beliefs of WSM adherents. The expert testimony was therefore relevant to prove that the defendants intentionally conspired with each other to violate the civil rights of nonwhites.

Nor would it be unfairly prejudicial to the defendants to discuss belief systems that jurors might find abhorrent. If abhorrent beliefs motivated the conspiracy, it isn’t unfair to discuss those beliefs at trial.

Comments Upon Credibility

Finally, the defendants argued that the expert testimony would improperly comment upon the credibility of the defendants, some of whom may characterize the Unite the Right rally in non-conspiratorial terms. The plaintiffs advised the court that the experts would not comment upon the credibility of any defendant.

The court noted that the defendants are free to deny participating in a conspiracy to violate civil rights. The jury will then decide whether the defendants’ behavior suggests their joint support of the WSM. Expert testimony about the beliefs and goals of WSM adherents is not a comment upon the credibility of the defendants. The expert testimony is therefore admissible.

Child Abuse Pediatrician Removed from Roster of Expert Witnesses After Making False Statements in Court

Medical experts can play a significant role in diagnosing child abuse. As medical science has evolved, however, the judicial system has come to realize that expert testimony about whether an injury or death was caused by abuse can be problematic.

Medical experts are not present when an injury occurred and have no firsthand knowledge of its cause. To decide whether an injury was caused accidentally or intentionally, experts must engage in deduction. The line between deduction and speculation can be exceedingly thin.

Until recently, a pediatrician in Tacoma was regarded as one of Washington’s leading child abuse experts. Authorities believed she had an uncanny ability to detect “subtle” signs of child abuse. Unfortunately, “subtle” evidence is usually synonymous with “ambiguous” evidence. The pediatrician’s opinions have been called into question, in part because she provided untrue information about her expertise.

Dr. Elizabeth Woods

Government authorities in Washington routinely relied on Dr. Elizabeth Woods to provide expert opinions about child abuse. Those opinions provided the foundation for criminal proceedings and for civil actions to remove children from their parents.

Until recently, Dr. Woods was the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma. On several occasions, Dr. Woods’ professional opinions were controversial.

In one case, Dr. Woods opined that a mother had abused her 5-year-old daughter by seeking excessive and harmful medical treatments. Authorities responded by removing the 5-year-old and the mother’s 8-year-old (who was never alleged to be a victim) from the mother’s custody.

In another case, Dr. Woods concluded that a 2-year-old child’s bruise was caused by abuse. Although her opinion contradicted a pediatrician’s opinion that the bruise was consistent with the parent’s explanation that the child accidentally fell on a heating grate, authorities who regarded Dr. Woods as a child abuse expert removed the child from the parent’s home.

Those cases and others were the subject of an extensive investigation by NBC News and one of its affiliates. NBC discovered that Dr. Woods “lacks key medical training for assessing potential abuse cases.”

Lack of Credentials

In some cases, the results of child abuse are so obvious that most pediatricians can readily determine that injuries could only have been inflicted with the intent to harm the child. In other cases, the evidence is less clear.

Pediatricians who specialize in child abuse now receive extensive training that helps them identify abuse. In addition to general training in pediatrics, a child abuse pediatrician completes a 3-year child abuse pediatrics fellowship. The physician must then pass an examination to become board certified in child abuse pediatrics.

In the case of the 5-year-old who was allegedly subjected to unnecessary treatment, Dr. Woods admitted on cross-examination that she did not complete the medical fellowship that is required to specialize as a child abuse pediatrician and was not board certified in the field. She claimed that the training is unnecessary.

While the necessity of specialized training might be a matter of opinion, Dr. Woods also testified about facts that are simply untrue. Dr. Woods testified that there “are approximately 250 of us nationwide that function as child abuse consultants” and “a very small minority of those have received training.” She also claimed that she had not completed the training because it was first offered three years before she testified.

NBC reported that the child abuse subspecialty was created in 2009, while Dr. Woods was still in medical school. NBC also reported there are 375 certified child abuse pediatricians in the United States, all of whom either completed the training or were allowed to take the board exam based on years of experience prior to the 2009 creation of the subspecialty.

The pediatrician who determined that a child’s bruise was consistent with accidentally falling on a grate was astonished that child welfare authorities accepted Dr. Woods’ claim that the bruise was caused by abuse. The authorities claimed they believed Dr. Woods because of her “extensive training,” prompting the pediatrician to ask, “Where’s the extensive training?”

How Training Shapes Opinions

Certified child abuse pediatricians have been trained not to give opinions that exceed the bounds of medical knowledge. For example, Dr. Woods prepared a report that claimed two young parents probably abused their child because, in her opinion, they didn’t display an appropriate emotional reaction when they learned that their baby had suffered several fractures. Medical knowledge does not allow a doctor to identify abusers by their emotional reactions. In any event, certified child abuse pediatricians are trained to understand that their role is to identify abuse, not to identify the abusers.

In another case, Dr. Woods reported that twin babies who suffered multiple fractures must have been the victim of abuse because “a motor vehicle collision” would be the only possible alternative cause of those injuries. Dr. Woods identified no medical basis for that opinion, but child welfare authorities accepted it without question and removed custody of the children from their parents.

Three medical experts later concluded that the fractures were probably caused by a mineral deficiency that weakens bones, a potential cause that Dr. Woods failed to identify. A well-trained specialist would have ruled out all potential alternative causes of the injuries rather than jumping to the conclusion that they resulted from abuse.

Having appropriate training is important because child welfare authorities generally defer to medical experts. If an expert claims that an injury was likely caused by abuse, child welfare authorities tend to err on the side of protecting the child. That often means removing children from their parents, even if the parents are entirely innocent. Authorities who base decisions on suspicions rather than solid evidence often harm, rather than help, the children they are charged with protecting.

Slow Response

Hospital leaders were slow to recognize that Dr. Woods held herself out to be an expert in the absence of credentials possessed by actual experts. A spokesperson for Mary Bridge Children’s Hospital claimed that Dr. Woods “has treated thousands of children over her many years of dedication to this field.” There is a difference, however, between treating an injured child and determining the cause of the injury. The fact that Dr. Woods has years of experience doesn’t mean she has a history of correctly identifying child abuse when the medical evidence is ambiguous.

The spokesperson also praised Dr. Woods for being “an ally to the vulnerable children in our community.” Unfortunately, experts who regard themselves as an ally for a cause often slant their opinions to serve that cause. An expert who regards herself as an advocate for children will tend to find abuse when the evidence is ambiguous. An expert witness should be an advocate for the truth, not for a cause, even if the cause is as worthy as preventing child abuse.

For a time, officials at Mary Bridge and Seattle Children’s Hospital, which manages the state’s child abuse medical consultation network, simply ducked questions about Dr. Woods’ misstatements under oath. They apparently did not consider whether Dr. Woods should be trusted to form reliable opinions about child abuse if she could not give reliable answers about her credentials.

Belated Removal from Role as Child Abuse Expert

While reluctant to accept an uncomfortable truth, Washington authorities and hospital administrators belatedly acknowledged that Dr. Woods’ credibility is open to challenge. Dr. Woods is no longer the director of the child abuse intervention program at Mary Bridge. Internal documents obtained by NBC imply that hospital officials initiated the change in response to a review of the program that the hospital asked an outside expert to conduct.

Last month, Dr. Woods was removed from the roster of doctors who provide expert medical reports to Washington’s child welfare agency. Dr. Woods’ removal was celebrated by parents whose children were taken away based on Dr. Woods’ expert opinion. Some of those parents have told their stories in a Facebook group devoted to wrongly accused families.

At least two Washington prosecutors have taken the honorable step of reviewing cases in which Dr. Woods testified. One prosecutor is notifying defense attorneys in those cases that grounds exist for challenging Dr. Woods’ credibility. Prosecutors in two counties added Dr. Woods to their list of potentially discredited expert witnesses, and the prosecutor in Kitsap County is considering whether it should add Mary Bridge Children’s Hospital to that list.

Lessons Learned

Expert witnesses for both the prosecution and the defense provide critical testimony in criminal cases. Expert reports in civil cases can persuade child welfare authorities to take the drastic but common step of separating children from their parents out of an abundance of caution, an action that may inflict more harm on children than it prevents.

Given the importance of expert opinions, it is vital that child abuse experts have appropriate training. It is just as vital for experts to have integrity. Experts should base opinions on their best assessment of medical evidence, not on a well-intentioned desire to protect children. Any bias that grows out of an expert’s desire to advance a cause necessarily compromises the expert’s objectivity and impairs the expert’s value to prosecutors and child welfare agencies.

Expert Witnesses Properly Barred After Removal of Case from State to Federal Court

After a case is removed from state court to federal court, the federal rules of evidence apply. A federal appellate decision regarding a lawsuit that was filed in Massachusetts makes clear that lawyers cannot expect to be rescued by reliance on state rules when they fail to make the expert witness disclosure required by federal rules. Nor can lawyers gain back door admissibility of expert opinions by filtering them through a disclosed expert who lacks the qualifications to render those opinions.

Facts of the Case

A doctor in Massachusetts prescribed Levaquin to Kevin Carrozza. Levaquin is a quinolone antibiotic. Carrozza took the prescription to a CVS pharmacy to be filled. Neither Carrozza nor the prescribing doctor knew that Carrozza had an allergy to quinolones.

The CVS computer system alerted the pharmacist on duty, Richard Wokoske, of Carrozza’s allergy to quinolones. Wokoske checked Carrozza’s patient profile, which indicated that Carrozza had been prescribed Levaquin in the past and had denied knowledge of a quinolone allergy.

Pursuant to CVS policy, Wokoske used his own judgment in deciding how to resolve the conflicting information. He chose to dispense the prescription.

Carrozza took the Levaquin and suffered an allergic reaction. He alleged that the reaction caused permanent damage to his eyes. Carrozza sued CVS for dispensing the medication after being alerted to his allergy.

Carrozza’s lawsuit was removed to federal court. CVS filed a motion to preclude the testimony of Carrozza’s expert witness, Dr. Kenneth Backman. Carrozza filed a motion to take a deposition of a second expert witness, Dr. Stephen Foster. The trial court denied the motion to take Dr. Foster’s deposition because the discovery deadline had passed. The court then granted summary judgment in favor of CVS.

Dr. Foster’s Opinion

Carrozza initially based his case on information provided by Dr. Foster, an ophthalmologist. Dr. Foster executed an affidavit in which he opined that Carrozza’s ingestion of Levaquin caused his eye injuries.

The affidavit was arguably admissible evidence under Massachusetts law, which makes an exception to its hearsay rule for certain sworn statements from physicians, including “the opinion of such physician or dentist as to proximate cause of the condition so diagnosed.”

Federal law has no corresponding exception. When the case was removed to federal court, Carrozza could no longer rely on Dr. Foster’s affidavit as trial evidence. Carrozza nevertheless filed a motion, relatively early in the case, to admit the affidavit as evidence. The district court ruled that the affidavit was essentially an expert report. The court advised Carrozza that if he wanted to rely on Dr. Foster’s affidavit, he needed to designate Dr. Foster as an expert witness and to comply with federal rules governing the disclosure of expert opinions.

Dr. Backman’s Opinions

Carrozza did not designate Dr. Foster as an expert. He instead designated Dr. Backman. Carrozza supplied an affidavit from Dr. Backman opining that Wokoske’s decision to dispense Levaquin despite the warning was a breach of the standard of care. Dr. Backman also opined that Carrozza’s ingestion of Levaquin was the likely cause of his injuries.

Dr. Backman’s medical background includes a specialization in allergies and immunology. During his deposition, Dr. Backman admitted that he did not know the standard of care applicable to pharmacists. Dr. Backman also testified that he based his opinion about Carrozza’s eye injuries on Dr. Foster’s affidavit.

Denial of Motion to Depose Dr. Foster

CVS moved to exclude Dr. Backman’s testimony on the ground that he had no relevant knowledge of Carrozza’s injuries but was merely channeling the information in Dr. Foster’s affidavit. In response to that motion, Carrozza asked the court for permission to take Dr. Foster’s deposition so that he would have an admissible expert opinion.

The district court denied the motion. The court noted that Carrozza had never disclosed Dr. Foster as an expert witness despite having ample time do so. The court had warned Carrozza that Dr. Foster’s affidavit would be inadmissible hearsay at trial. Dr. Foster’s opinions might have been admissible as the opinions of an expert witness, but Dr. Foster was never designated as an expert. Taking his deposition would not result in admissible evidence because expert opinions can only be offered by witnesses who have been identified as experts.

The court of appeals determined that the district court reasonably exercised its discretion in denying the motion. Carrozza did not explain why he failed to designate Dr. Foster as an expert witness despite having sufficient time to do so after his motion to admit Dr. Foster’s affidavit was denied. In the absence of that designation, Carrozza had no grounds to reopen discovery so that he could take Dr. Foster’s deposition.

Exclusion of Dr. Backman’s Testimony

There isn’t much doubt that a party who fails to disclose an expert can’t use the expert. The more meaningful question in Carrozza’s case was whether he was entitled to use Dr. Backman as an expert. There was no dispute that Carrozza made a timely disclosure of Dr. Backman.

Dr. Backman testified that he had no personal knowledge of the standard of care that applied to pharmacists. Carrozza argued that as an allergist, Dr. Backman understood whether a pharmacist should dispense Levaquin to a patient after being alerted of the patient’s allergy to quinolones.

The appellate court disagreed. While Dr. Backman is qualified to discuss the standard of care an allergist would follow, the question here is how a pharmacist should react when the pharmacist has inconsistent information about a customer’s possible allergy to a particular drug. Dr. Backman’s admission that he did not know the standard of care that applies to pharmacists made him unqualified to render an expert opinion.

Nor did Dr. Backman’s testimony establish his familiarity with the cause of Carrozza’s eye injury. Dr. Backman relied on Dr. Foster’s affidavit in forming the opinion that Levaquin caused the injury.

Experts are entitled to rely on the opinions of other experts to the extent that experts in the field would generally do so, but that rule does not permit experts to serve as a back door conduit to admit an expert opinion that is otherwise inadmissible. Since Dr. Backman had no expertise of his own in ophthalmology and was not familiar with the causes of an eye condition like Carrozza’s, he was not qualified to render an expert opinion as to the cause of Carrozza’s injury.

Lessons Learned

A standard of care expert is nearly always needed to prove a professional negligence claim. Lawyers risk exclusion of expert testimony if their expert does not have experience in the same field as the negligent professional. An allergist is unlikely to have significant knowledge about the standards that are routinely followed by pharmacists when they determine whether it is safe to dispense medications. A pharmacist would have been an appropriate expert on standard of care in Carrozza’s case.

Dr. Foster might have been an appropriate expert to prove that Levaquin caused Carrozza’s eye injury. However, Dr. Foster was not identified as an expert. Lawyers who are accustomed to filing cases in state court and following state rules of evidence should take note of the Carrozza case. When a lawsuit is removed to federal court, the federal rules of evidence apply, including rules governing the disclose of expert witnesses and their reports. The failure to follow those rules will doom a party’s ability to rely on an expert witness.

Maryland Investigating All Police Custody Deaths Examined by Chauvin Expert Witness

Dr. David Fowler gained national attention — most of it unfavorable— when he testified as a defense expert in Derek Chauvin’s trial. Chauvin was convicted of murdering George Floyd by kneeling on his neck for more than nine minutes, preventing an adequate supply of oxygen from reaching his heart. Prosecution experts testified that Chauvin’s actions caused Floyd’s heart to fail.

Fowler offered an alternative explanation. He suggested that it was impossible to pinpoint a cause of death, but attributed the death to a variety of circumstances, including preexisting heart disease, Floyd’s ingestion of fentanyl and methamphetamine, and carbon monoxide poisoning from vehicle exhaust.

The jury rejected Fowler’s explanation when it found that Chauvin caused Floyd’s death. But Fowler has frequently rendered expert opinions that favor police officers when a suspect dies in their custody. Whether Fowler based his opinions on medical facts or a pro-police bias is now under investigation.

Lawsuit Against Fowler

Fowler was recently sued by the family of Anton Black, a young man who died under circumstances described as “chillingly similar” to Floyd’s death. During a police encounter, officers in a Maryland town took Black to the ground and pressed against his neck.

An autopsy concluded that “the stress of his struggle” with police contributed to Black’s death, along with bipolar disorder and underlying heart issues, but found no evidence “that restraint by law enforcement directly caused or significantly caused or significantly contributed” to the death. Fowler gave final approval to the conclusion that the death was accidental.

The lawsuit accuses Fowler “of obstructing the officer-involved death investigation by delaying the release of an autopsy for months, being improperly influenced by police and clearing the path for police to ‘develop a narrative that absolved the involved officers of their wrongdoing’.” The autopsy was released to Black’s family only after Maryland’s governor intervened.

Maryland Investigation

Now Fowler is facing an investigation in Maryland, where he was the state’s chief medical examiner from 2002 to 2019. The investigation was announced by the Maryland attorney general and the governor’s office. It will ask independent experts to probe all investigations of deaths in police custody that were overseen by Fowler.

The investigation followed a letter signed by 432 doctors around the country who accused Fowler of advancing an expert opinion for Chauvin that was “outside the standard practice and conventions for investigating and certification of in-custody deaths.” The letter states that professional disagreement with Fowler’s opinion in Chauvin’s case was not a matter of opinion but a question of ethics.

Fowler argues that his opinion in the Chauvin trial was “formulated after the collaboration of thirteen other highly experienced colleagues in multiple disciplines” and that his evaluation “set an ethical standard for the work needed in sensitive litigation.” Other experts disagree with Fowler’s claim of professionalism.

Families Complain About Fowler’s Conclusions

Fowler’s pattern of exonerating the police when deaths occur in police custody is not limited to his opinions concerning the deaths of Anton Black and George Floyd. The families of Karreem Ali and Tyrone West have spent years asking authorities to review Fowler’s conclusions.

Witnesses saw West die after police officers beat him and attacked him with pepper spray. Fowler decided that West, age 44, died of a heart condition that was exacerbated by the summer heat and the stress of his police encounter. The city of Baltimore settled the family’s wrongful death claim for $1 million, a settlement that suggests the city’s lack of confidence in Fowler’s opinion.

Ali died after the police shocked him with a Taser 16 times. Fowler attributed the death to “schizophrenia induced agitated delirium,” a condition that, in the view of most medical authorities, doesn’t exist. Montgomery County paid $450,000 to settle a wrongful death suit brought by Ali’s family.

Expert Accountability

A website that supports medical examiner and death investigation reform has compiled resources that address the lack of accountability for medical professionals who offer cause-of-death opinions in court. The website contends that 66{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of deaths in police custody during 2015 were misclassified by medical examiners and coroners. Most pathologists report that they have felt pressure to change their findings in death investigations.

The county coroner system is particularly problematic. The website reports that 43{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of forensic pathologists have had a cause of death changed by a coroner who prepared a death certificate. Many county coroners have no medical training at all.

Proposed reforms include:

Assuring that medical examiner offices are independent of law enforcement offices. When medical examiners see themselves as working to help the police, they may feel a need to justify the actions of officers who cause deaths.
Implementing systems that allow medical examiners to report attempts to pressure them to exonerate police or to influence death investigations. The system should include protection against retaliation for making a report.
Eliminating elected county coroners who have no medical training yet pronounce a cause of death.
Requiring all autopsy reports to be prepared by certified pathologists.

When pathologists testify as expert witnesses, accountability needs to come from licensing bodies. Experts may legitimately disagree with other. It isn’t unethical to express an honest opinion that others do not share. It is unethical to slant an opinion in favor of the party who is paying the expert to testify.

The review of Fowler’s work by independent experts is a belated attempt to bring accountability to expert opinions that are far outside the mainstream. Ideally, every suspicious death in police custody should be subjected to independent review when a medical examiner exonerates the police.

Forensic Pathologist and Other Expert Witnesses Help Innocent Woman Avoid a Return to Prison

Kimberly Long was convicted of murder in 2005. It took years for lawyers, with the assistance of forensic experts, to establish her innocence.

Long spent seven years in prison before she was released. The prosecution’s appeal of the order granting her a new trial left her wondering whether she would return to prison for a crime she didn’t commit. Fortunately, her freedom is now assured.

Facts of the Case

Long returned to her home in Corona, California, where she found the body of her boyfriend, Oswaldo Conde. Lacking any obvious suspects, the investigating officers in the Corona Police Department focused their investigation on the belief that Long had murdered him. They based that belief on the fact that Long was in an intimate relationship with Conde, she admitted having an argument with him before he died, and she called the police to report finding his body.

Long passed a polygraph test. Polygraph results are inadmissible in court, but the police like to use them to confirm their own suspicions. When the polygraph does not confirm their suspicions, they tend to dismiss the results.

A man named Jeff Dills told the police that he dropped Long off at her home 49 minutes before she called 911. Long told the police that she called 911 immediately after she discovered Conde’s body. The police viewed the discrepancy between Dills’ and Long’s timelines as evidence that confirmed Long’s guilt. Dills was also a suspect until he offered to cooperate with police.

Long was charged with murder based on Dills’ statement. Dills testified at a preliminary hearing but he died before Long’s trial. His preliminary hearing testimony was introduced as evidence at Long’s trial.

The first jury to hear the case hung, with nine jurors voting for acquittal. The second jury found her guilty. The verdict surprised the trial judge, who said that he would have acquitted her if the case had been tried to the court. California’s appellate courts nevertheless affirmed the conviction.

Federal courts that reviewed the conviction declined to vacate it, in part because federal statutes governing habeas corpus review severely restrict the power of federal judges to do justice in state criminal prosecutions. A district court judge said it was “unfortunate” that Long was convicted on the basis of preliminary hearing testimony given by a witness who died before trial. An appellate judge opined that it would have been nearly impossible for Long to commit the murder and eliminate all evidence of her involvement in the 49 minutes that she was allegedly with Conde before she called 911.

New Forensic Evidence

Eleven years after her conviction, Long asked for a new trial based on expert evidence that her trial lawyer failed to present. A forensic pathologist determined that Conde died hours before the time that Dills claimed he brought Long home. That evidence destroyed the prosecution’s weak theory of Long’s guilt.

Long also presented an expert opinion that Conde’s blood would have splattered onto his killer. Crime scene photos showed that blood had splattered in all directions from Conde’s body. No blood was found on Long’s clothing or body.

Finally, DNA evidence was detected at the crime scene that had not been previously analyzed. The DNA belonged to an unknown male.

The trial judge decided that Long’s attorney failed to provide Long with effective legal assistance. The lawyer should have retained experts and presented the evidence that Long identified eleven years later. The lawyer should also have discovered and presented evidence of death threats that Conde received from his ex-girlfriend.

Rather than conceding that it prosecuted an innocent person, the state appealed the judge’s order granting Long a new trial. The court of appeals decided that the performance of Long’s attorney was not deficient.

Supreme Court Decision

Long appealed to the California Supreme Court. The supreme court reversed the court of appeals’ decision.

The court recognized that an effective attorney would have consulted a time-of-death expert. The prosecution’s case depended entirely on the assumption that Long killed Conde less than an hour before she called 911. Given that fact, it was important for the defense to determine whether Conde actually died within that limited window.

The only expert consulted by Long’s lawyer was an accident reconstruction expert. That expert was an engineer who had no medical training that would allow him to determine a time of death.

A law professor with years of experience as a criminal defense lawyer testified that a reasonable lawyer would consult with a pathologist to obtain time-of-death evidence when time of death is critical to the prosecution’s case. Relying on an engineer was unreasonable.

The supreme court agreed with the trial court’s decision to grant Long a new trial. Facing a complete lack of evidence that Long murdered Conde, the prosecution recently announced that it would not retry Long. Whether the police will make a belated attempt to identify the actual killer is unclear.

Lessons Learned

The defense attorney testified that he didn’t do more because he assumed that time of death estimates cover a wide range of time and that the range would not have excluded Long as a possible killer. The supreme court pointed out that the lawyer made that assumption without consulting an expert witness.

The supreme court acknowledged that time-of-death estimates are often inexact. Yet the lawyer had no reason to believe “that any range derived from the available evidence would necessarily encompass the prosecution’s time frame — a time frame that tended to rule out the possibility that someone other than Long committed the crime.” The supreme court held that it was unreasonable to “write off the possibility that a time of death estimate would help exculpate Long” without first consulting with an expert.

Lawyers can make a reasonable judgment not to call an expert witness, but only an informed judgment is reasonable. The supreme court’s decision is a reminder that defense attorneys must consult with experts whenever an expert opinion might assist the defense. Lawyers should not assume that an expert witness will be unhelpful without consulting with an expert to determine whether an expert opinion might help create a reasonable doubt about a client’s guilt.

Priest Deemed Expert in Coded Language Used by Church to Refer to Clergy Sexual Misconduct

Filing suit anonymously, John Doe 122 sued Chaminade College Preparatory and the Marianist Province of the United States for clergy abuse. The key issue in the case was whether the school knew that a counselor had abused other students and disregarded that knowledge when it failed to protect Doe from abuse.

Doe offered the testimony of an expert witness who inferred the school’s knowledge from documents in the counselor’s personnel file that made coded references to the counselor’s misconduct. The trial judge concluded that the expert testimony was inadmissible and granted summary judgment in the school’s favor. On appeal, the Missouri Supreme Court held that the trial court erred by excluding the expert testimony.

Facts of the Case

Doe alleged that he was sexually abused by his counselor, Brother John Woulfe, during his senior year at Chaminade. Doe alleged that he put the abuse behind him and didn’t think about it again until he received a letter from Chaminade, almost forty years after his graduation.

The letter advised Doe that allegations of sexual abuse had been made against Woulfe. Doe alleged that the letter brought back memories of his own abuse. Three years later, Doe sued Chaminade on several theories, including alternative counts of negligent and intentional failure to supervise Woulfe.

The trial court held that the negligent supervision claim was barred by Missouri precedent. A decision of the Missouri Supreme Court held that religious organizations have a First Amendment right to hire and retain clergy without government interference. In the court’s view, holding a religious organization liable for making negligent decisions to retain employees would violate the First Amendment.

For similar reasons, the court held that religious organizations cannot be held accountable for negligent supervision of its employees. The court drew the non-obvious conclusion that inquiring into what a church “should have known” about its employee’s conduct would “require inquiry into religious doctrine.” The court therefore held that the well-recognized claim of negligent supervision, while applying to all other employers, cannot be applied to religious organizations because doing so would create an “excessive entanglement” of church and state.

Courts in most states disagree with Missouri’s analysis of the First Amendment. Missouri precedent nevertheless foreclosed Doe’s claim for negligent supervision However, Missouri precedent allows abuse victims to sue for an intentional failure to supervise when a religious employer knows that an employee is engaged in acts of abuse and fails to take action to prevent the abuse from reoccurring.

Documents Addressing Woulfe’s Employment Issues

Doe had no direct evidence that the school or the Marianist Province knew Woulfe was abusing students in 1971, when he allegedly abused Doe. Since the school removed Woulfe in 1977 because of sexual abuse allegations, the school clearly had that knowledge six years later. The question was whether the school knew that Woulfe posed a risk to children in 1971 and disregarded that known risk.

To prove his claim of intentional failure to supervise, Doe relied on a 1968 letter that Brother Gray wrote to Woulfe in 1968. Referring to Woulfe’s departure from St. Boniface, the letter stated that “the actual grace left by this unusual situation may be one which helps you to confront and overcome the problem, which if left untended, would eventually become a serious one for religious life.”

The letter does not describe the “unusual situation” or the potentially serious “problem” to which it refers. A 1970 letter from Gray to Woulfe notifies Woulfe that he would be retained at the school despite the Provincial Council’s “considerable misgivings and reservations.” The letter does not explain the Council’s “misgivings and reservations.”

Expert Testimony

Father Doyle was proffered as an expert witness to decode the meaning of the unexplained words and phrases. Father Doyle spent more than 30 years investigating the problem of sexual abuse within the church. He has reviewed the personnel files of thousands of priests. Based on that experience, he has developed an understanding of how the church encodes specific information about sexual abuse in personnel documents.

Based on his experience, Father Doyle was qualified to determine “what will (and will not) appear in personnel records when a priest has committed acts of sexual abuse and, if reference to such conduct is made, the form such references will take.” He is therefore an expert in how the church encodes information about a priest’s sexual abuse in personnel documents.

In Father Doyle’s experience, personnel documents address most performance issues directly. When a priest has a problem with alcohol, consensual relationships with adult women, or the failure to perform his duties, personnel materials address those issues directly.

Father Doyle noted that the church uses indirect language when a priest has engaged in improper relationships with minors. In his 30 years of experience, including his review of hundreds of personnel files of priests who were accused of engaging in sexual abuse of minors, Father Doyle never saw an explicit reference to sexual abuse. Instead, the files routinely use “coded or euphemistic language” to discuss the priest’s misconduct.

Father Doyle identified references in Woulfe’s file to the “unusual situation” and to his untended “problem” as coded references to his sexual abuse of minors. In Father Doyle’s experience, the church routinely uses language of that nature to describe sexual misconduct with minors.

Father Doyle also concluded that the provincial considered removing Woulfe from the school in 1970 because of sexual abuse allegations. Its reference to retaining him “with considerable misgivings and reservations” fueled Father Doyle’s opinion that the school knew about Woulfe’s history of sexual abuse and chose to retain him.

Father Doyle also concluded that the personnel file’s failure to refer to sexual abuse before 1971 was consistent with a similar failure to refer to sexual abuse when Woulfe was removed from the school in 1977. The priest who made the decision to remove Woulfe testified in a deposition that the removal was based on sexual abuse. The school’s failure to document that reason in Woulfe’s personnel file is consistent with its failure to document its awareness of earlier instances of sexual abuse in plain language.

Court Decision

Father Doyle forthrightly acknowledged the possibility that he was wrong. He did not claim to have “metaphysical certainty” about the meaning of the terms he decoded. But he rested his opinion on the church’s decades-long practice of using similar euphemistic language to avoid making a direct reference to sexual abuse of minors.

The supreme court concluded that Father Doyle’s opinion was admissible evidence. Courts routinely admit the expert opinions of police officers who testify about the “coded language” used by drug dealers. Father Doyle’s expert opinion is no different.

The court also rejected the argument that Father Doyle’s opinion invaded the province of the jury. Father Doyle expressed no opinion as to whether Woulfe sexually abused Doe. He simply explained the meaning of terms that would allow the jury to infer the school’s knowledge of Woulfe’s sexual abuse of students prior to and during the time when Woulf was a student.

Since a jury could believe Father Doyle’s testimony and could conclude from that testimony that the school knew about Woulfe’s sexual abuse of children before he allegedly abused Doe, the jury could find that the school ignored a known danger to students by disregarding its duty to supervise Woulfe. The trial court erred by excluding Father Doyle’s expert opinion and by basing summary judgment on the absence of evidence that the school knew about Woulfe’s sexual abuse of students.

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About T.C. Kelly

Facts of the Case

Summary Witness

Was Lurker an Expert Witness?

A Brief History of Rule 702

Criticisms of Current Rule

Proposed Revision of Rule 702

Florida’s Learned Intermediary Defense

Learned Intermediaries Who Act as Expert Witnesses

No “Financial Interest” Exception

Exclusion of Expert Testimony

Appellate Opinion

Improper Comment Upon Credibility

Lessons Learned

Expert Opinions

Double-Speak

References to White Supremacist Movement

Comments Upon Credibility

Dr. Elizabeth Woods

Lack of Credentials

How Training Shapes Opinions

Slow Response

Belated Removal from Role as Child Abuse Expert

Lessons Learned

Facts of the Case

Dr. Foster’s Opinion

Dr. Backman’s Opinions

Denial of Motion to Depose Dr. Foster

Exclusion of Dr. Backman’s Testimony

Lessons Learned

Facts of the Case

New Forensic Evidence

Supreme Court Decision

Lessons Learned

Facts of the Case

Documents Addressing Woulfe’s Employment Issues

Expert Testimony

Court Decision