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.

People partying at a beach during sunset

Expert Opinion Supports Challenge to Panama City’s Spring Break Ordinances

Spring break is a tradition fueled by sunshine, alcohol, and — on occasion — rowdy behavior. Panama City recently passed ordinances that, according to their proponents, are meant to “tone down” disturbing behavior during spring break.

Some of the city’s nightclub owners are challenging those ordinances in federal court, claiming that they are motivated by racial bias. The nightclubs have enlisted an expert witness to decode the explanations that city officials have offered in support of the new laws.

Panama City Ordinances

Publicity about bad behavior during spring break prompted a response from Panama City officials that nightclub owners and related businesses do not welcome. The incidents that motivated the response include an allegation of sexual assault on a crowded beach, the non-fatal shootings of seven people at a house party, an altercation after a concert involving Mississippi State’s quarterback, and increasing numbers of arrests for firearms possession.

To address spring break crime, city officials passed ordinances that prohibit drinking on the beach and in commercial parking lots and that ban the sale of alcohol after 2:00 a.m. The ordinances are in effect only during the month of March.

The most controversial ordinance places restrictions on “special events,” including concerts. The ordinance requires city approval of special events and restricts the number of people who can attend them.

Business Owners File Lawsuit

Some Panama City businesses, including nightclubs, contend that the new ordinances will hurt their businesses. They filed a lawsuit seeking compensation for their losses.

Among other legal challenges to the ordinances, the businesses allege that the ordinances are racially motivated. According to their federal court complaint, the ordinances coincide with an increase in African-Americans who visit Panama City during spring break. The complaint states that “officials have suggested that spring break is now rife with ‘predators’ and other ‘interlopers’,” language that allegedly refers to African-Americans.

Perhaps the strongest evidence of racial bias is the claim that city officials told club owners to stop hosting hip-hop events because they attracted too many black attendees. In apparent response to those allegations, the city recently amended the “special events” ordinance to prohibit the city manager “from denying any permit based upon the identity of any speaker or entertainer or the viewpoint, content, or type of speech or expression to be displayed so long as such speech or expression is lawful.” In other words, the city cannot give less favorable treatment to hip-hop events than to other music events based on the content of the performance.

Expert Opinion

To support its claim of racial bias, the businesses bringing the lawsuit plan to present the expert testimony of Moneque Walker-Pickett, an associate professor of criminal justice at St. Leo University. Walker-Pickett based her preliminary report on a review of minutes from city council meetings at which the ordinances were discussed, and on the extensive coverage of Panama City’s “spring break problem” by Fox News. The businesses argue that Fox News’ coverage depicted African-Americans in an unfavorable light and that the coverage influenced the passage of the ordinances.

According to Walker-Pickett, the council used “color-blind” or racially neutral language to mask conscious and subconscious racial bias. Walker-Pickett opined that the council’s frequent references to “undesirables” and “unintended guests” were code words for African-American visitors. She also cites:

  • Televised references by local police to the “hundred milers,” a coded reference to members of ethnic groups living within a hundred miles of Panama City, who (according to the police) travel to Panama City to “prey upon” the spring break visitors.
  • Screenshots from Fox News and other media sources that overwhelmingly depict African-Americans while commentators are discussing criminal activity in Panama City during spring break.
  • Council members’ repeated reference to media coverage and other adverse publicity during discussions of the proposed ordinances.
  • Council members’ use of other code words, including “thugs,” “ghetto,” “trashy,” and “bad element” as substitutes for “African-Americans.”
  • The use of code words like “good kids,” “fine kids,” “responsible,” and “college kids” to refer to white students who traveled to Panama City for spring break.

Based on her review of the evidence, Walker-Pickett concluded that racial bias played a role in the implementation of Panama City’s spring break ordinance.

The report was filed in opposition to a motion to strike claims from the complaint concerning racial bias. It has not yet been subjected to a Daubert challenge, which will doubtless be forthcoming if the racial bias claims survive the pending motion.

 

Gold Scales of Justice on wood table

Missouri Debates Adoption of Daubert Standard

Missouri is the latest state to consider jumping on the Daubert bandwagon. The Daubert standard for the admissibility of expert opinion testimony requires judges to exclude opinions that are not based on reliable methodology. Proponents of the Daubert standard argue that it protects against jury verdicts based on “junk science.” The difficulty of deciding whether opinions are based on “junk science” is summed up in the title of a scholarly article that examines the issue: “Our Science is Sound Science and Their Science is Junk Science.”

The Daubert standard governs expert testimony in federal court. About 35 states have adopted some form of the Daubert standard, although (as ExpertPages recently reported) the Florida bar is asking its state supreme court to reject the Florida legislature’s adoption of Daubert. Most of the remaining states adhere to the Frye standard, which admits expert testimony if it is based on scientific methods or findings that have gained general acceptance within the relevant scientific community.

Missouri follows neither Daubert nor Frye. The Missouri test of admissibility, adopted by the state legislature in 1989, requires “the facts and data upon which the expert relies to be of a type reasonably relied upon by experts in the field” provided that the testimony is “otherwise reasonably reliable.”. As is true in federal court, the threshold question in Missouri is whether expert testimony would assist the jury in finding a fact or understanding the evidence.

Critics Attack Missouri Standard of Admissibility

Testifying in support of a bill that would adopt the Daubert standard of admissibility in Missouri, Brian Bunten, the general counsel for the Missouri Chamber of Commerce and Industry, told a legislative committee that “Missouri state judges have their hands tied by an outdated rule for admitting expert testimony—a rule that dates back to 1923 and has been abandoned by the vast majority of states in one form or another.” Bunten’s reference to the Frye standard was misguided, however, since the Missouri legislature rejected Frye when it adopted the current standard in 1989.

It is nevertheless accurate that the current Missouri standard is less restrictive than Daubert. Bunten testified that the U.S. Chamber of Commerce ranked Missouri’s judicial system 42nd out of 50 and said that “the American Tort Reform Association ranked Missouri’s judicial system the fourth worst judicial hellhole in the United States, explicitly citing the lack of Daubert standard in our courtrooms as the reason for the poor rating.”

“Judicial hellhole” is a buzzword that is typically used to describe states in which consumers and injury victims have a better-than-average chance of winning compensation from juries. Notably, the Chamber of Commerce and the American Tort Reform Association both represent the business community, which has an interest in shielding businesses from jury verdicts. Advocates for injury victims and consumers are likely to prefer Missouri’s current standard.

Does the Standard Matter?

Since “junk science” is not generally accepted by any scientific community, expert opinions based on unreliable methodologies should be inadmissible under either Frye or Daubert. It is not clear that the standard adopted by a state actually has a real-world impact on trial outcomes. It is also unclear that judges, who typically lack a scientific background, are more capable than juries of evaluating the reliability of methodologies employed by forensic scientists and other experts.

A widely cited study by law professors Edward Cheng and Albert Yoon suggests that whether a state follows the Daubert or Frye standard makes little difference, at least in tort cases. If there was ever a serious problem of expert witnesses relying on “junk science,” as proponents of the Daubert standard claim, judicial awareness of that problem has increased, regardless of the standard the state applies. As judges have developed a stronger understanding of what makes an expert opinion reliable, they have become less inclined to allow juries to consider unreliable opinions.

In addition, the fact that jurors are allowed to consider an expert opinion does not mean that jurors will accept it. The fear that juries are swayed by junk science finds little support in empirical studies. Juries are usually capable of distinguishing treasure from junk.

In some instances, the Daubert standard authorizes the admission of expert testimony that the Frye standard would disallow. Opinions that are derived from reliable methodology are admissible under Daubert even if they have not gained general acceptance in the scientific community. To the extent that Daubert liberalizes the admissibility of expert opinions, it may not be the shield that some members of the business community believe it to be.

As Robert Underwood wrote, “nothing fosters belief like self interest.” That can be true of experts who tailor opinions to favor the party who pays for those opinions. It can also be true of lawyers who argue for standards of admissibility that they regard as improving their chances of winning cases. In the end, expert testimony plays a vital role in the justice system and will continue to do so regardless of the standards of admissibility that states choose to adopt.

Utah Supreme Court Upholds Lower Court Decision to Disallow Testimony of Eyewitness Identification Expert

At the end of 2015, the Utah Supreme Court reversed a decision the Utah Court of Appeals that granted a new trial to a defendant who was not permitted to call an eyewitness identification expert at his trial. The decision, based on a conclusion that the trial judge did not abuse its discretion in disallowing the expert testimony, reaffirms the Utah Supreme Court’s recognition that eyewitness identification experts are, at least in some cases, an essential safeguard of a defendant’s right to a fair trial. The decision also stands as a reminder that lawyers who want to call expert witnesses must be prepared to explain why the expert’s testimony is important.

Eyewitness Identification Experts

Juries often consider eyewitness testimony to be the strongest evidence in a criminal trial. While jurors have faith in eyewitness identifications of people who are charged with a crime, studies have established that eyewitnesses are often wrong when they identify a suspect. A 1996 review of 28 wrongful convictions in which the defendant was exonerated by DNA evidence revealed that each conviction was supported by one or more false identifications of an innocent defendant. The Innocence Project reports that mistaken identifications play a role in more than 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all convictions that are later overturned as a result of DNA evidence.

Research confirms that eyewitness identifications are tainted by:

  • Suggestive lineups or photo arrays in which police subtly encourage a witness to identify a particular suspect.
  • The likelihood that a witness will misidentify a suspect after seeing that suspect’s picture in a photo array or newspaper.
  • The difficulty of focusing on the details of a criminal’s appearance and imprinting a memory under stressful conditions that usually exist while the crime is occurring, particularly when a weapon is present.
  • The malleability of memory — that is, the fact that what we “remember” changes as we receive new information, so that memories we believe to be reliable have in fact been altered.
  • The absence of a strong correlation between a witness’ certainty that a memory is accurate and the actual accuracy of that memory.
  • The difficulty that eyewitnesses have when they attempt to identify a suspect of a different race.
  • Conditions that impair the ability to make a careful observation, including poor lighting, distance, and the brevity of time during which the criminal is in view.

A comprehensive review of these and other factors by the National Academy of Sciences points to the important role that psychologists and neuroscientists play in explaining perception and memory to juries when a prosecution is founded on an eyewitness identification. Expert testimony conveys research findings to juries that explain why “common sense” understandings of memory and perception are often mistaken.

Studies of jury decision-making establish that eyewitness identification experts have a beneficial impact on jury deliberations. Research also confirms that cautionary jury instructions, advising a jury of potential pitfalls of eyewitness identifications, have no significant impact on a jury’s evaluation of eyewitness testimony.

Clopten Decision

Prior to 2009, appellate court decisions in Utah discouraged trial judges from admitting expert witness testimony. The decisions created a presumption that, in most cases, jurors were capable of evaluating eyewitness identifications without the assistance of an expert. Expert testimony was seen as invading the jury’s province as the sole evaluator of witness credibility. The Utah Supreme Court repeatedly held that an instruction regarding the evaluation of eyewitness testimony was adequate to guide the jury, and that expert testimony would be superfluous and confusing.

The Utah Supreme Court jettisoned that presumption in 2009 when it decided State v. Clopten. The Clopten decision acknowledged that jurors rarely understand the limitations in human perception and memory that are critical to the accuracy of an eyewitness identification. The court determined that cross-examination and cautionary jury instructions are inadequate substitutes for expert testimony as tools for conveying the reasons that an eyewitness identification might be mistaken. The court decided that expert testimony is the best method for educating the jury about the vagaries of eyewitness identification. Accordingly, the court followed a growing trend by ruling that trial courts should admit expert testimony whenever it might help the jury evaluate the reliability of an eyewitness identification.

Guard Decision

In a case decided on December 31, 2015, the Utah Supreme Court revisited the issue of expert testimony in eyewitness identification cases. In that case, a stranger tried to kidnap a 9-year-old girl at knifepoint. The girl kicked and punched her assailant, freeing herself from his grasp. She then ran home.

When the police interviewed her, the girl described a man with curly hair and a beard, but said she did not see his face. She was able to describe some of his clothing, including his shoes and a distinctive t-shirt and cap. The next day, a police detective showed her six photographs, and she identified the photograph of Jimmy Guard with certainty. Further investigation found two neighborhood residents who, after looking at Guard’s photograph, said they saw a man who looked like Guard in the area of the assault on the day that it occurred. Another child, who was a block away when the assault occurred, confirmed the victim’s general description of the assailant.

The police arrested Guard two days later. They searched his home but could not locate the cap, t-shirt, or shoes that the victim described. Guard described stores he had been in at the time of the assault. The police waited a week before they interviewed the store employees, none of whom recalled Guard. Guard also told the police that he visited a library in addition to the stores. Unclear photographs from a surveillance camera at a library may have depicted Guard’s image.

Guard’s attorneys wanted to call an expert witness to testify about the problems with attention, perception, and memory that influence eyewitness identifications. The trial court refused to allow the expert testimony. After Guard was convicted and while his appeal was pending, the Utah Supreme Court decided Clopten.

The Utah Court of Appeals decided that Clopten should apply retroactively to Guard’s case. It made that decision notwithstanding a Utah Supreme Court decision that declined to apply a newly announced rule of criminal procedure to cases that are pending on appeal when the new rule represents a “clean break” from past decisions. Since Guard’s case went to trial at about the same time as Clopten’s, the Court of Appeals thought it would be fundamentally unfair to deny Guard the protection of the new rule.

Abandoning the “clean break” rule, the Utah Supreme Court agreed that the Clopten decision should apply to Guard’s case. The court nevertheless ruled that the trial judge was entitled to disallow the expert’s testimony. The court held that Guard failed to establish that the proposed testimony was reliable. Following Utah’s version of the Daubert test, the Utah Supreme Court concluded that Guard failed to make a pretrial showing of the eyewitness identification factors that the expert deemed relevant or how those factors could have influenced the identifications in Guard’s case. Responding to the trial court’s confusion, Guard’s counsel had offered to provide a written summary of the expert’s proposed testimony before trial, but failed to do so. Under those circumstances, the supreme court concluded that the trial court did not abuse its discretion in disallowing the expert testimony.

The Guard decision should not be viewed as an abandonment of the Clopten ruling, which the Utah Supreme Court expressly reaffirmed. Instead, Guard illustrates the importance of making a strong pretrial showing of the relevant testimony that an eyewitness identification expert will offer. Guard’s attorney probably could have made that showing and might have rendered ineffective assistance of counsel by failing to do so. In the end, Guard is the unfortunate victim of poor advocacy rather than poor rules governing the admission of expert testimony.

Sixth Circuit Upholds Admission of Shaky Expert Testimony Regarding Lost Profits

Lost profits are almost always a difficult element of damages to prove. Expert testimony is essential, but courts that employ the Daubert test will not admit an expert’s opinion about lost profits unless it is based on a reliable methodology. A recent decision from the United States Court of Appeals for the Sixth Circuit, however, illustrates that even “shaky” testimony might be admissible in a trial judge’s discretion.

Wayne State’s Relationship with CDG

Wayne State University had a long business relationship with Contract Design Group (CDG), a company that sells and installs floor coverings. Wayne State’s 2008 contract with CDG required CDG to bill on a time and materials basis and to pay Michigan’s prevailing wage to its employees. Wayne State severed its relationship with CDG after it became concerned that CDG was not in compliance with Michigan’s prevailing wage law. It also withheld contract payments, arguing that CDG had breached its contract by failing to provide evidence that its employees were paid the prevailing wage.

Notwithstanding the terms of the blanket contract (which included no specifications for any particular project), a facilities manager at Wayne State typically accepted lump sum estimates for assigned projects. The practice of entering into lump sum contracts began before, and continued after, Wayne State entered into time and materials contracts with vendors. Pursuant to CDG’s agreement with the manager, Wayne State paid CDG lump sums for specific projects without demanding that CDG adhere to the blanket time and materials contract. The manager who entered into those lump sum agreements was later fired.

Representatives of Wayne State and CDG met several times after Wayne State alleged that CDG was not withholding FICA from payments it made to its subcontractors. At Wayne State’s request, CDG submitted wage records purporting to demonstrate its compliance with Michigan’s prevailing wage law. Wayne State alleged that those records were falsified.

CDG denied falsifying any records. Some of the information upon which Wayne State relied apparently came from individuals who hoped to benefit if contracts with CDG were diverted to their own business. When Wayne State began debarment proceedings that would disqualify CDG from being awarded future contracts, Wayne State refused to disclose the evidence upon which it relied in deciding that CDG had falsified its certified payrolls.

Wayne State reluctantly held a debarment hearing after making clear that it did not intend to change its debarment decision. Debarment proceedings continued even after Michigan’s Wage & Hour Division declined to accept jurisdiction over a complaint that CDG violated the prevailing wage law. The Wage & Hour Division concluded that the complaint concerned subcontractors to whom the law did not apply.

CDG’s Lawsuit

CDG sued Wayne State in federal district court on a variety of theories, including breach of contract, intentional interference with business relations, violation of CDG’s right to due process, and defamation. At trial, the jury determined that Wayne State failed to pay CDG’s account for services rendered, breached its contract with CDG, and violated CDG’s right to due process. Wayne State was required to pay CDG’s attorney’s fees on the federal due process claim. The court entered a total judgment against Wayne State for about $1.3 million.

On appeal, the Court of Appeals for the Sixth Circuit determined that the jury awarded duplicate amounts on payments that were owed to CDG for the services it rendered, and remanded the case with instructions to reduce the award by eliminating the duplicated damages. The other significant issue raised on appeal concerned Wayne State’s argument that the trial court improperly admitted expert testimony on its claim for lost profits.

Expert Testimony

CDG claimed damages for lost profits as the result of Wayne State’s cancellation of its contract. It employed Ted Funke to prepare a report and to testify about the profits that CDG lost as a result of Wayne State’s actions.

Federal courts are often skeptical about lost profit claims. They take care to exclude expert testimony about lost profits when that testimony is “overly speculative,” particularly when the testimony depends upon predictions of future demand for a new product or service.

The federal Daubert standard for expert opinion admissibility considers whether an expert’s opinion is based on a valid methodology. Courts are more likely to admit expert opinions about lost profits when they are grounded in historical trends and typical industry profit margins. Methodologies that ignore factors that might cause a business to fail or to suffer reduced profits tend to fail the Daubert test, as do opinions that make questionable comparisons (such as comparing the anticipated profit margin of a startup business to profit margins earned by industry leaders).

Wayne State made a pretrial Daubert objection to Funke’s prediction of lost profits. Its challenge contended that Funke was unqualified, that his opinions were not based on adequate data or a reliable methodology, and that he did not reliably apply the methodology to the facts. The trial judge decided that CDG made a preliminary showing of reliability and that Wayne’s State’s challenge went to the weight of Funke’s testimony rather than its admissibility.

Funke calculated CDG’s lost profits by examining CDG’s historical monthly sales to Wayne State over a period of 18 months prior to its debarment. He multiplied the monthly average by 41 to estimate lost income for 41 months after debarment.

A key question on appeal was whether Funke should have been allowed to testify about the loss of gross profits rather than net profits. The Court of Appeals agreed that basing a lost profit calculation on gross rather than net profits is usually inappropriate. Funke testified, however, that there was no net profit on the lost jobs and that gross profit was the correct measure of the loss. That testimony was challenged on cross-examination and by Wayne State’s own expert. The trial judge acknowledged that Funke’s testimony was “shaky,” but decided that the testimony presented a factual dispute that the jury was capable of resolving.

On appeal, Wayne State argued that Funke relied upon financial information provided by CDG that was not independently verified, that Funke did not take a potential economic downturn into account, and that he had no basis for assuming that CDG would continue to win contracts for 41 months. While acknowledging that Funke’s calculation was “not a model of precision” and that the admissibility of Funke’s testimony presented a “close call,” the Court of Appeals noted that Funke based his opinions on historical data, that he limited his projection of lost profits to a reasonable time period, and that he explained his reasons for believing that gross rather than net profit was the correct measure of loss. Funke’s analysis might have been imperfect but it generally followed a reliable methodology. The jury had the opportunity to consider the countervailing testimony of Wayne State’s expert and was entitled to decide how much weight it should give to the opinions rendered by each expert. Under the circumstances, the Court of Appeals decided that the trial court did not abuse its discretion by allowing the jury to consider Funke’s opinions.

Expert Witness Featured in Movie Concussion

The movie Concussion opened on Christmas Day. Concussion tells the story of Dr. Bennett Omalu’s impact on professional football. Dr. Omalu (played in the movie by Will Smith) is a forensic pathologist who is credited with discovering chronic traumatic encephalopathy (CTE), a degenerative brain disease that afflicts people who have experienced multiple concussions and other forms of repeated brain trauma. Known colloquially as “gridiron dementia,” CTE causes memory loss, aggression, depression, and other personality changes. It may also lead to premature death.

Notably, one of the movie’s first scenes depicts Dr. Omalu testifying as an expert witness in a murder trial. Board certified in neuropathology and forensic pathology, Dr. Omalu has testified in hundreds of civil and criminal cases since 2009. Much of that testimony has resulted from Dr. Omalu’s position as the Chief Medical Examiner of San Joaquin County, California.

Concussion spotlights Dr. Omalu’s successful quest to force the NFL to take concussions seriously. Due in part to his pioneering work, other expert witnesses are playing vital roles in civil cases that involve brain injuries caused by repetitive concussions.

CTE Lawsuits

Concussions occur in a variety of contexts, including falls and car accidents. The plaintiffs in all of those cases may require a neurologist or other medical expert to prove the extent of the injury.

Multiple concussions in sporting events, however, are the only known cause of CTE. In addition to football, athletes who participate in boxing, wrestling, and hockey are at risk of developing CTE. Soccer, a game played without protective headgear, is not a contact sport, but collisions frequently lead to concussions.

Experts are playing a critical role in developing the link between sports and CTE. In addition to conducting research, experts have testified or assisted in court cases that have revolutionized injury management in athletic competitions.

Five thousand former NFL players joined a lawsuit accusing the league of hiding the risks of concussion from them. A federal judge approved a settlement of that lawsuit that authorizes multimillion dollar payments to former players who are suffering from severe neurological disorders, including CTE. The total outlay by the NFL may exceed one billion dollars. The settlement will not become final, however, until appeals are resolved.

The lawsuit motivated the NFL to implement new safety measures to protect players from CTE. Starting with the 2013-14 season, the NFL agreed to have an independent neurologist on the sidelines of every game to evaluate players who may have suffered a concussion.

The family of hockey player Steve Matador recently sued the NHL on similar grounds. Matador, a former defenseman for the Chicago Blackhawks, died at the age of 35. An autopsy revealed that he suffered from an extensive case of CTE. His family alleges that “the league did not do enough to warn them of the long-term effects of repeated blows to the head or protect them from the hits.”

Matador’s lawsuit is only the latest to accuse the NHL of concealing the risk of concussions from players. A potential class action involving 60 former NHL players is pending. Depositions of expert witnesses in that case are expected to begin soon.

Expert testimony will likely be the key to Matador’s lawsuit and to the class action. The NHL’s commissioner maintains that “from a medical and science standpoint, there is no evidence yet” that playing in the NHL leads to CTE. While neurosurgeon and CTE researcher Julian Bailes agrees that much about CTE remains to be discovered, he points out that the “only known risk factor for CTE is having had multiple concussions and cranial impacts in contact sports.”

Student Athletes

While concussions sustained by professional athletes have fueled research by experts like Dr. Omalu, student athletes who have sustained repeated concussions have also been found to suffer from CTE. A recent study suggests that CTE may afflict a significant percentage of amateur athletes who play contact sports.

Medical and statistical experts who assisted in crafting the settlement of a class action concussion lawsuit against the NCAA concluded that college athletes who play contact sports have about the same risk level as NFL players to have symptoms related to CTE. The settlement includes $70 million for medical monitoring while permitting injured athletes to bring individual claims for compensation for concussion-related injuries.

Lawsuits by students often focus on coaches and training staff who clear a player to return to the field after violent contact without adequately screening the player to determine whether a concussion occurred. Players who sustain a second concussion after returning to play are at substantially greater risk of developing permanent brain damage.

Lawsuits have also claimed that schools fail to provide needed treatment that would prevent brain injuries. A school district in Iowa paid a million-dollar settlement to a permanently disabled football player whose complained of headaches to a school nurse after being tackled. The student continued to practice and play despite his complaints. He eventually fell into a coma.

In all of these lawsuits, expert witnesses play a vital role. In addition to providing testimony about the likely cause of an athlete’s brain injury, experts testify about the adequacy of a school’s protocol for evaluating athletes and returning them to play after they may have experienced a concussion. The failure to develop or to follow protocols is often the kind of negligence that leads to concussion-related lawsuits against educational institutions.

Prosecutor Accused of Improperly Influencing Expert Witness

Jane Laut is charged with killing her husband, Dave Laut, a 1984 winner of an Olympic bronze medal in shot-putting. Prosecutors allege that Laut shot her husband at their Oxnard, California home on Aug. 27, 2009.

At least at this stage, Laut’s likely defense appears to be that she suffered from battered women’s syndrome, a post-traumatic stress disorder, at the time of the shooting. The defense has engaged the services of Gail Pincus, an expert on battered women’s syndrome, and Kay Emerick, a clinical psychologist, who may testify as expert witnesses during her trial.

A defense based on battered women’s syndrome is typically used to explain why victims use force that, under ordinary circumstances, would be considered excessive to defend themselves from an attack. It can also be used to explain why the use of deadly force when a victim is not facing imminent danger can be a delayed response to violence that the victim faced in the past.

Since the defense experts based their opinions at least in part on interviews with Laut, the court granted the prosecution’s motion to allow its own expert, forensic psychologist Kris Mohandie, to interview Laut. The court required the prosecution’s expert to record the interview and prohibited him from asking Laut about events that occurred on the night of the killing. The court did allow Mohandie to ask Laut about her state of mind when the shooting occurred.

Defense Allegation of Improper Influence

The defense alleged that Senior Deputy District Attorney Rameen Minoui (or an investigator from his office) improperly influenced Mohandie by speaking to him prior to his interview with Laut. The defense relied on telephone records showing that Mohandie talked to Minoui for 47 minutes before Mohandie contacted Laut. Minoui responded that it is “no surprise that a party who hires an expert is going to communicate with that expert.”

At a motion hearing, Mohandie testified that after he met with Laut, he wanted to ask her some additional questions. Since he was going out of town, he called Minoui to ask whether he could contact Laut by telephone to ask those questions.

Asked whether Minoui told Mohandie what questions he should ask, Mohandie answered “Absolutely not.” The defense contends that Mohandie asked about issues he could only have learned about from Minoui. The judge did not allow Laut’s lawyer to ask Mohandie how he arrived at the follow-up questions he posed to Laut.

On the basis of the evidence presented at the hearing, the judge ruled that he would not limit the testimony that Mohandie would be allowed to give. The case is scheduled for trial early next year.

What “Influence” of Expert Testimony is Improper?

Laut’s lawyer faced an uphill battle. As a general rule, it is not improper for a lawyer who hires an expert to talk to the expert. Lawyers need to understand the expert’s opinions and generally need to prepare them to testify. On the other hand, it is improper for a lawyer to tell an expert witness what the witness should say. The line between preparing testimony and influencing testimony is not always easily drawn.

The rules of ethics require a lawyer to walk a line between two distinct duties. The first is the duty to provide competent representation. That rule requires a diligent investigation of the facts, including the basis for any opinions an expert witness has formed. Competent representation also demands preparation for trial. That includes preparing witnesses to testify.

The second duty prohibits lawyers from offering evidence that they know to be false. Lawyers cannot elicit evidence that they know to be untrue and cannot assist witnesses in giving false testimony. A comment to the Model Rules of Professional Conduct suggests that “improperly coaching witnesses” is forbidden. But what coaching is improper?

Witness preparation generally includes telling the witness what questions the witness will be asked in court and listening to the responses the witness plans to give. The lawyer can ask a witness to think about rephrasing an answer if the answer that the witness gives is confusing, incomplete, or inaccurate. The lawyer can even suggest alternate wording for the witness to consider, provided that the wording does not change the meaning that the witness intends.

Courts have held that lawyers “must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Influencing testimony is clearly improper if the lawyer coaches the witness to give an answer that is untrue or misleading. Suggesting that the expert testify about opinions the expert does not actually hold would be improper.

Provided that lawyers do not try to change the intended meaning of the answers an expert witness proposes to give, it is proper to influence testimony by encouraging an expert to explain concepts in simpler language, to give shorter or more direct answers, and to avoid jargon. Meeting with an expert to learn how the expert plans to form an opinion, and meeting again to discuss the opinions that the expert will give in court, is simply part of the lawyer’s duty to provide competent representation.

Expert Testimony Improperly Excluded in Securities Fraud Trial

A federal jury in Connecticut convicted Jesse Litvak of multiple crimes, including securities fraud, making false statements to the United States government, and defrauding the government. A recent decision of the U.S. Court of Appeals for the Second Circuit concluded that Litvak should receive a new trial on the securities fraud counts because the District Court improperly limited the expert testimony that Litvak wanted to present.

Litvak’s Trial

Litvak was a securities broker and trader at an investment banking firm. The government charged Litvak with multiple counts of securities fraud and of making false statements to government officials, as well as a single count of fraud against the United States. The accusations arose from transactions in Residential Mortgage-Backed Securities (RMBS). Typical RMBS are collections of mortgages that have been purchased from lenders and packaged together. Shares of the packages are then sold to investment funds and other investors.

Litvak was accused of making false statements to investment managers about the price his firm paid to acquire certain RMBS, the price he had negotiated to sell them, and his firm’s role in the transactions. The indictment alleged that Litvak made the misrepresentations in order to earn secret profits on the transactions. The jury convicted Litvak of nine counts of securities fraud, four counts of making false statements to the government, and one count of defrauding the government.

Materiality of Litvak’s False Statements

The false statements that Litvak made to investors were included in reports that were filed with the Treasury Department. The government relied on those reports as proof that Litvak made false statements to the government and that he defrauded the government.

All of those crimes depended on proof that the statements were material, meaning they were the kind of statements that could influence a decision made by a person who relied upon them. The Court of Appeals concluded that the investors, not the Treasury Department, relied upon Litvak’s statements when making investment decisions. Since the Treasury Department made no decisions that could have been influenced by Litvak’s false statements, the Court of Appeals reversed his convictions for making false statements to the government and for defrauding the government.

The Court of Appeals arrived at a different conclusion with regard to the securities fraud counts. The court concluded that the jury was entitled to find that Litvak’s misrepresentations to the investment managers were material to their decisions to purchase the RMBS. While Litvak was not entitled to a reversal of his securities fraud convictions on the ground that they were unsupported by evidence, the Court of Appeals next asked whether Litvak was denied a fair trial when the District Court excluded his expert testimony.

Expert Testimony Regarding Materiality

Litvak wanted to call Ram Willner as an expert witness. In addition to serving as a professor of finance, Willner gained extensive experience in the purchase and sale of RMBS during his employment with various investment firms.

While the government did not directly challenge Willner’s qualifications as an expert, the trial court questioned whether he could give expert testimony when his opinions were not based on a scientific methodology. In a footnote, the Court of Appeals noted that the Federal Rules of Evidence permit a wide variety of expert testimony, not just opinions based on science. Expertise can be gained from experience and specialized training and, in appropriate cases, can be based on personal knowledge that is not gained from traditional scientific methods. If it is helpful to the jury, testimony about industry practices is admissible when it is based on specialized knowledge.

Litvak proposed to have Willner testify about the process investment managers use to value RMBS. In Willner’s view, the price that a seller paid for RMBS is not relevant to the buyer’s determination of their value, and therefore cannot be material to a decision to buy or not to buy them. In essence, Willner would have testified that assertions sellers make about their acquisition costs are never reliable and everybody knows that, so investment managers do not rely upon them when they value the security.

The Court of Appeals concluded that Willner’s opinion that Litvak’s misrepresentations were not material may have been inadmissible because it addressed the ultimate legal conclusion that only the jury could make. However, Willner proposed to testify not just about whether Litvak’s misrepresentations were material to the investors’ decisions to buy shares from his firm, but about the unlikelihood that statements of that nature would be material to a reasonable investor.

The Court of Appeals decided that Willner’s proposed testimony concerning the way that investment managers make decisions to buy RMBS at particular prices (including their disregard of a seller’s claimed acquisition costs when they make those decisions) was relevant to the jury’s assessment of the materiality of Litvak’s misrepresentations. The proposed expert testimony undermined the testimony of the investment managers who claimed that Litvak’s representations about his firm’s purchase price influenced their decisions to pay the agreed-upon price for the RMBS shares they purchased from Litvak’s firm. Had the jury heard Willner’s testimony, it could have decided that Litvak’s misrepresentations were not likely to have influenced the investment managers and were therefore not material.

The Court of Appeals held that excluding Willner’s testimony unfairly deprived Litvak of an opportunity to defend against the securities fraud charges. The Court of Appeals therefore reversed those convictions and granted Litvak a new trial.

Expert Testimony Regarding Agency

Litvak also proposed to call a second expert witness, an attorney who had substantial experience working as a compliance officer in the securities industry. The attorney would have testified that brokers in Litvak’s position do not work as agents for investors who buy shares in RMBS. Rather, they act on their own behalf in an arm’s-length relationship with investors.

At least one of the investment managers called by the government testified that he viewed Litvak to be acting as an agent rather than a principal. In light of that testimony, the jury might have concluded that the investment manager placed great reliance on Litvak’s statements (and that the statements were therefore material to the transaction) because they were coming from the investment manager’s agent. If the jury had heard an expert explain that Litvak was not, in fact, an agent for the investment manager, the jury would have been less likely to conclude that Litvak’s false statements were material to the investment manager’s purchasing decisions. Consequently, if the government takes Litvak to trial again, the District Court must permit expert testimony that Litvak was not acting as an agent for the investors.

Tom Brady Relies on Experts to Challenge “Deflategate” Suspension

Experts are weighing in on “Deflategate,” the name the media have bestowed upon the allegedly conspiratorial events that resulted in Tom Brady’s four game suspension from the NFL. The initial investigation of underinflated footballs relied heavily on expert opinions. Brady also relied on an expert when he appealed his suspension to NFL Commissioner Roger Goodell.

A federal court lifted the suspension for reasons that were largely unrelated to the expert testimony. That ruling is now on appeal.

Deflategate Investigation

The New England Patriots battled against the Indianapolis Colts for the right to advance to the 2015 Superbowl. According to an investigative report “concerning footballs used during the AFC championship game,” the Colts questioned the inflation levels of the footballs the Patriots were using during the first half of the game. An NFL rule requires footballs to be inflated to a pressure within the range of 12.5 to 13.5 psi during league games.

At halftime, the officiating crew tested the balls that had been used by both the Patriots and the Colts. The officials found that all of the Patriots’ footballs were underinflated. The footballs supplied by the Colts were within the accepted range, at least according to one of the two pressure gauges that were used to test them.

The report concluded that a locker room attendant and an assistant equipment manager employed by the Patriots participated in a scheme to deliberately circumvent the NFL rules by releasing air from the footballs after they were examined by the officiating crew. The report also concluded that Brady was “generally aware” of their inappropriate activities.

Experts Analyze Football Inflation

The investigative report relied in part upon the input of experts, including Dr. Daniel Marlowe, a professor of physics at Princeton, who coordinated testing and analysis provided by an engineering firm. The experts determined that a reduction of air pressure in a football between the start of the game and halftime is a natural result of footballs moving from warm locker rooms to chilly playing fields. The experts nevertheless determined that the drop in air pressure within the Patriots’ footballs was greater than the laws of physics could explain without the intervention of someone releasing air from the balls. The experts also concluded that a deliberate release of air was the only credible explanation for the greater reduction of air pressure in the footballs used by the Patriots than those used by the Colts.

The experts examined and ruled out a number of alternative explanations for the pressure drop, including natural leakage, the repeated insertion of inflation needles, defects in the gauges the officials used to measure pressure, the relative humidity in the rooms where the balls were stored, and rough handling of footballs during the game. In particular, the experts discounted the explanation offered by Patriots’ Coach Bill Belichick, who claimed during a press conference that the vigorous rubbing of footballs in preparation for the game accounted for their loss of pressure.

The investigation was based on interviews and a variety of evidence, including text messages between the locker room attendant and the assistant equipment manager discussing Brady’s displeasure with the degree to which footballs are inflated. The locker room manager called himself “the deflator” in one of the texts while other texts refer to an inflation needle that the assistant equipment manager said he would provide to the locker room manager. A video showing the locker room manager carrying a bag of footballs into a bathroom before he carried them onto the field was particularly decisive evidence. The expert evidence nevertheless contributed substantially to the investigative results by ruling out innocent explanations for the discovery that the footballs used by the Patriots were underinflated during the first half of the championship game.

Brady’s involvement was suggested by his gift to the locker room manager of an autographed jersey and two autographed footballs during the week before the championship game. The text messages also suggest that Brady knew of the plan to deflate the footballs. The suspicious timing of telephone calls between Brady and the assistant equipment manager immediately after concerns were raised about the football inflation level also contributed to the conclusion that Brady was at least generally aware of the plan to deflate the footballs. The report did not find sufficient evidence to accuse Brady of directly participating in the deflation conspiracy.

Expert Helps Brady’s Challenge

The NFL imposed a four game suspension on Brady. Brady appealed to NFL Commissioner Roger Goodell. At the appeal hearing, Brady testified that he knew nothing about a scheme to deflate footballs. He was unable to explain, however, what happened to the cellphone that he used on the day of the championship game. He said it was “missing” when the investigators asked to inspect text messages on that phone.

The player’s union, on Brady’s behalf, called Edward Snyder, a professor of economics and Dean of the Yale School of Management, as an expert witness. Snyder challenged the findings of Marlowe’s team. Snyder testified that Marlowe failed to factor timing into his analysis of the different pressure drops. The amount of time each ball spent in a warm locker room after being carried in from a cold field would affect the ball’s pressure. The Colts’ footballs were inspected after the Patriots’ footballs, and that reason alone would account for the Colts’ balls having higher pressure, but Snyder believed that Marlowe’s team did not account for the timing differences.

Two gauges were used to measure pressure at halftime and, since they consistently showed different results, Marlowe’s team applied an adjustment to account for the difference. Snyder faulted Marlowe’s team for failing to apply that same adjustment to the gauge used to measure ball pressure before the game started. Snyder concluded that had they done so, the pressure level in eight of the Patriots’ footballs would have been at an acceptable level.

Although Snyders’ interpretation of Marlowe’s test results was challenged on cross-examination, other experts have recently criticized the methodology used by Marlowe’s team. In the end, it is likely that Goodell placed more weight on text messages and video evidence than he placed on the scientific analysis. Goodell upheld the suspension.

Brady’s Court Case

Brady successfully challenged his suspension in federal district court. The court ruled that the NFL gave Brady no notice that “general awareness” of tampering with footballs or a failure to cooperate with the ensuing investigation would result in a suspension from play. The court also noted that the NFL violated Brady’s procedural rights by denying him access to evidence prior to his appeal hearing.

The NFL appealed and Brady’s case is now before a federal court of appeals. At this point, quarrels about expert opinions are less relevant than Brady’s contention that the NFL did not treat him fairly and that it failed to follow its own rules by imposing a four game suspension, rather than a fine, for his “general awareness” of football tampering.

Medical Malpractice Trial in Maine Hinges on Expert Testimony

Whether a jury in Maine will believe that Dr. Larry Labul committed medical malpractice while caring for 84-year-old Maxine Turner will likely depend upon how they evaluate the testimony given by competing medical experts. Their differences of opinion could not be more sharply drawn.

Malpractice Allegations

A wrongful death lawsuit filed by Maxine Turner’s estate alleges that Dr. Labul committed several medical errors before discharging Ms. Turner from Franklin Memorial Hospital in Franklin, Maine. Ms. Turner died three hours after the discharge.

Ms. Turner suffered from a number of health conditions that are common to a person of her age, including congestive heart failure, diabetes, and restless leg syndrome. She was on oxygen therapy to help her with her breathing.

Ms. Turner was admitted to the emergency room after she fell out of a chair. A doctor advised her to breathe deeply several times a day to clear her lungs so that she would not contract pneumonia. He also recommended that she wear a rib belt.

Ms. Turner’s family made sure that Ms. Turner followed that advice. They also arranged for 24-hour care as the doctor advised.

Five days later, Ms. Turner’s granddaughter observed that Ms. Turner was no longer breathing as deeply as she should. She was also falling asleep continually. The granddaughter called Ms. Turner’s doctor, who suggested that Ms. Turner might have pneumonia and that her medications might need to be adjusted if they were making her too sleepy. He advised the granddaughter to take Ms. Turner to Dr. Labul for treatment.

Dr. Labul read Ms. Turner’s records, administered some tests, and decided to treat her for chronic obstructive pulmonary disease after noting a deterioration of her oxygen saturation. The granddaughter testified that she asked about pneumonia but Dr. Lubal did not answer. Dr. Labul noted that Ms. Turner was hallucinating and prescribed a psychotropic medication.

Over the next three days, Dr. Labul gradually increased Ms. Turner’s oxygen intake from 2 to 6 liters per minute. He discharged Ms. Turner from the hospital when her oxygen saturation reached an acceptable level. Ms. Turner was still hallucinating at that time. Dr. Labul recommended that Ms. Turner should enter a nursing home or an assisted living center. She was released to a skilled nursing facility, where she died within hours.

Ms. Turner’s granddaughter was told that a medical review of Ms. Turner’s death would be held within 45 days and that she would be invited to participate. She did not hear back from the hospital and her requests for information went unheeded. She eventually received a letter stating that the investigation had been completed and that the hospital was not at fault.

The lawsuit faults Dr. Labul for failing to stabilize his patient’s breathing before discharging her to a nursing care facility. It also alleges that Dr. Lubal or the hospital made medication errors and that Dr. Lubal failed to diagnose Ms. Turner’s pneumonia.

Dr. Labul contends that he considered and ruled out pneumonia. No autopsy was performed to establish the cause of Ms. Turner’s death. That omission might be a difficult barrier for the estate to overcome.

Expert Testimony

Dr. Thomas Masterson testified as an expert witness for Ms. Turner’s estate. He questioned whether Ms. Turner actually suffered from chronic obstructive pulmonary disease, based on negative test results in her medical records some years earlier.

Dr. Masterson also noted that the dosage of Requip prescribed to treat Ms. Turner’s restless leg syndrome doubled after her admission to the hospital. Dr. Masterson testified that the dosage was excessive and that the medication error probably contributed to Ms. Turner’s hallucinations.

Finally, Dr. Masterson noted that Dr. Labul ordered an echocardiogram but discharged Ms. Turner before it was performed. Dr. Masterson testified that the combination of medical errors were causative factors in Ms. Turner’s death.

The defense countered with the expert testimony of Dr. Joseph Zibrak, a pulmonologist. Dr. Zibrak denied that Dr. Lubal’s treatment contributed to Ms. Turner’s death. He noted that Ms. Turner’s medical records showed that she had a history of chronic bronchitis and emphysema, and expressed the opinion that both diseases are a form of chronic obstructive pulmonary disease.

Dr. Zibrak thought it was unlikely that Ms. Turner died from untreated pneumonia, given the suddenness of her death. He also saw no connection between the death and the failure to perform the echocardiogram.

Another witness who testified on behalf of the defense, Dr. Howard Sachs, testified that Dr. Labul met and sometimes exceeded the standard of care that was appropriate for Ms. Turner’s treatment. After it considers the competing views of the plaintiff and defense experts, the jury will be asked to decide whether Dr. Labul and the hospital were responsible for Ms. Turner’s wrongful death.

Experts Testify in Heather Sims Murder Trial

Heather Sims’ murder trial has relied heavily on expert testimony. She was charged with shooting her husband to death in their home near Myrtle Beach, South Carolina. She testified that her husband, David Sims Jr., stabbed her in the stomach with a kitchen knife and cut her arm before she shot him in self-defense. David Sims died from a single gunshot wound to the chest.

The Crime Scene

David Sims’s body was found in the couple’s master bathroom. Sims was lying on his back with his arms raised above his head. A knife was laying in his hand. Crime scene analysts found no sign of a struggle in the home.

Police searched the home for David Sims’ cellphone but did not find it. The officer who conducted the search claimed she looked in every drawer but did not document those actions in the report she wrote. Heather Sims later gave the phone to the police, telling them that they missed it when they searched. The phone contained no record of calls made. The prosecution suggests that Heather Sims deleted the phone’s records to conceal incriminating evidence. Sims says she wiped the phone because she wanted to use it as her own after the police confiscated her phone.

Sims argued for immunity from prosecution under South Carolina’s Stand Your Ground law. That law prohibits the criminal prosecution of an individual who was not engaged in illegal behavior and who used deadly force against an attacker in a home or business. After a hearing, the judge decided that the murder charge should proceed to trial.

Expert Testimony Regarding DNA and Blood Patterns

Paulette Sutton, a forensic expert in blood patterns, testified for the prosecution. She said that there was no visible blood on the knife handle found in David Sims’ hand. She expressed the opinion that blood on his palm probably came from grabbing his gunshot wound. In Sutton’s view, the absence of blood on the handle proves that Sims could not have been gripping the knife after he was shot.

The defense attempted to undermine that testimony by calling DNA expert Adrienne Hefney, who testified that Heather Sim’s blood was on the blade of the knife that stabbed her, and that David Sims’ “touch DNA” was present on the handle. “Touch DNA” is DNA that is transferred to an object by touching it. He agreed that David Sims’ blood was not found on the handle. The defense argued that there was no evidence that David Sims grabbed his wound and pointed to the DNA on the knife handle as proof that David Sims had held the knife. If the knife had been planted in David Sims’ hand after he grabbed his wound, there defense argued, there would have been blood on the knife handle.

Sutton also testified that blood splatter patterns show that David Sims fell to his knees and then slumped forward. The prosecution pointed to that evidence to support the claim that Heather Sims moved the body in an attempt to construct a crime scene that supported her story. As the defense pointed out, however, Sims could have been alive and moving for several minutes after he was shot.

Expert Testimony Regarding Sims’ Wounds

Earlier in the trial, the prosecution called Dr. Werner Spitz as an expert radiologist. He testified he believed Heather Sims’ stomach wounds, as well as three cuts on her forearm, were self-inflicted because they were “superficial” in nature. The defense countered that opinion with testimony from expert radiologist Dr. Joshua Bryan Tew. Dr. Tew explained that “superficial” is a medical term that, in this case, means only that the wound “stayed superficial to the abdominal wall.”
In addition, Dr. Tew disagreed with Dr. Spitz’ opinion that the puncture wound in Heather Sims’ stomach was only 3 millimeters deep. He testified that a CT scan showed the wound was actually 35 millimeters deep, or about an inch-and-a-third.

Forensic pathologist Kimberly Collins also testified for the defense. She noted that Heather Sim’s stomach wound could have been serious since the knife blade pierced the abdominal wall. Collins disagreed that the wounds on Heather Sims’ arms were self-inflicted. She testified that the wounds were “classic” defensive wounds, the kind that victims sustain when they raise their arms to defend themselves from an attack.

The judge expressed doubts about the strength of the prosecution’s evidence, but decided that it was up to the jury to resolve conflicts in the evidence. Reaching a verdict will be challenging as the jurors weigh the conflicting expert opinions.