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.

crash

Expert Witness Establishes GEICO’s Failure to Pay Reasonable Cost of Windshield Replacements

A Florida judge in Hillsborough County consolidated eleven lawsuits that Glasso, Inc. filed against GEICO. In each case, Glassco replaced windshields that were damaged in cars insured by GEICO. Glassco took an assignment of the insurance benefits from the car owners and billed GEICO directly for the replacement cost.

The lawsuits alleged that GEICO paid less than the invoiced amount. GEICO admitted that it did not pay the invoices in full. It relied on a clause in its insurance contract that limits its liability to the “prevailing competitive price” for repairs. GEICO contended that Glassco’s billings exceeded the prevailing competitive price for windshield replacements.

To support its claim, Glassco relied on the testimony of owners of businesses that make windshield repairs. Glassco also called an expert witness. The judge agreed with the expert’s opinion and entered judgment in favor of Glassco.

Facts of the Case

At trial, the owner of Glassco and the owners of two competing auto glass companies explained how they determine pricing. They take into account the cost they pay for replacement glass and for the materials (molding, clips, and adhesive) they use to install the glass. They also take into account their labor costs. All of those depend on the make, model, and year of the vehicle that needs a replacement windshield.

To reach a final price, the owners add profit to their costs. To calculate profit, the owners take into account the amounts charged by competitors in their same market. They also consider the charge that most insurance companies will pay without dispute.

The owners of Glassco’s competitors testified that Glassco’s pricing structure was consistent with prevailing market prices. They also testified that 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of insurance companies pay their bills without dispute. Glassco has a similar rate of undisputed payment.

Expert Testimony

Barrett Smith testified as an expert witness for Glassco. Smith is an expert in the appraisal of collision damage repair. He operated an auto body repair shop before joining the insurance industry. As a claims adjuster, Smith evaluated collision damages and estimated reasonable repair costs. He returned to the collision repair industry before founding a business that provides expert appraisal and mediation services regarding collision damage.

Smith testified that he was hired to “perform comparative market research regarding the products and services provided in windshield replacement service” and to tender an opinion “as to the prevailing competitive price of the goods and services.” He concluded that Glassco’s prices were competitive and prevailing within its market.

Smith surveyed 24 glass repair facilities to determine their pricing structure. Based on that survey and his considerable experience in the collision repair and insurance industries, he found that Glassco’s prices were at the lower end of the prevailing range of prices in the market.

GEICO’s Defense

GEICO did not contest that Glassco performed the windshield repairs competently. GEICO did not disagree that Glassco was conveniently situated to the owners who brought their vehicles in to be repaired.

GEICO offered no expert testimony. It instead relied on the testimony of a corporate representative who handles glass litigation claims. She testified that GEICO paid invoices according to its own determination of the “prevailing competitive price.” She based her opinion of that price on GEICO’s glass pricing agreement with its affiliate SGC/Safelite.

Court Decision

The court decided that Glassco had the initial burden of offering “substantial, competent evidence to establish its prima facie case for what the prevailing competitive price is” because Glassco could not prove a breach of contract without demonstrating that it invoiced the prevailing competitive price. If Glassco succeeded in making a prima facie case, the burden shifted to GEICO to establish that the invoices exceeded the prevailing competitive price.

Glassco met its burden with industry and expert testimony. In particular, the court credited Smith’s expert testimony that Glassco’s pricing was at the low end of the prevailing range of competitive pricing.

To rebut that testimony, GEICO offered only the opinion of its own employee. The court faulted GEICO’s representative for failing to offer any data to support her conclusory opinion. GEICO’s pricing agreement with a single affiliate did not establish a prevailing price within the industry. The court therefore agreed that GEICO breached its insurance contracts by failing to pay the full amount that Glassco billed for its services.

Lesson Learned

Glassco’s lawsuit illustrates the impact that expert evidence can have in litigation. While Glassco may have prevailed by relying only on the testimony of glass company owners, the court might have regarded that testimony as self-serving, given the owners’ interest in maximizing their profits by forcing GEICO to pay their bills.

By calling an expert witness with years of experience in both the collision repair industry and in the insurance industry, Glassco offered important support for its claims. The expert collected a significant amount of survey data to support his opinion, giving the court a strong basis for understanding the prevailing competitive price structure for auto glass repair. The court’s favorable view of that expert evidence clearly contributed to Glassco’s litigation success.

 

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

Eighth Circuit Discusses Whether an Expert Considered “Sufficient Facts” to Support a Conclusion

Joseph and Cindy Hirchak sued W.W. Grainger, Inc. and its subsidiary for selling and failing to warn about an allegedly defective product. They based their claim that Grainger sold the product on the opinion of an expert witness. A federal judge in Des Moines ruled that the expert’s testimony was inadmissible and granted summary judgment to Grainger. The Court of Appeals for the Eighth Circuit affirmed that decision.

Facts of the Case

Grainger distributes industrial equipment, including web slings. A web sling consists of straps or webbing. The webbing is typically made from polyester or a similar synthetic material. Web slings are wrapped around heavy objects and attached to a lifting device (such as a crane). The sling supports the objects as they are being lifted.

Joseph Hirchak was employed by Weiler Inc. Hirchak was working at Weiler’s plant when a web sling broke. The sling had been holding a load of steel tubing. The tubing fell on Hirchak, causing injuries.

While workers’ compensation is generally an exclusive remedy against an employer, an injured employee can bring injury claims against third parties if their negligence contributed to a work injury. Hirchak’s suit against Grainger alleged that Grainger supplied a defective web sling to Weiler and failed to warn Weiler about the defect.

Grainger distributes a variety of slings, including slings made by Juli Sling Company. Juli is a Chinese company. Hirchak alleged that the Grainger sold the defective Juli sling to Weiler. Grainger admitted that Weiler has an account with Grainger but denied that it supplied the defective sling to Grainger.

Grainger relied on its sales records and on the absence of Weiler purchase records evidencing sling purchases from Weiler. Grainger also argued that the Juli slings it distributes have sewn-in tags that the defective sling lacked. According to Grainger, those tags are sewn in by Juli. Grainger therefore contended that the defective sling was not a Juli sling.

Expert Evidence

To prove that Grainger supplied the defective sling, Hirchak relied on an expert opinion. Hirchak’s expert identified similarities between the defective sling and slings manufactured by Juli and distributed by Grainger. The expert based that comparison on two Juli slings that Grainger distributed, including a sling purchased from Grainger for the purpose of comparison and one furnished by Weiler. How Weiler determined that the sling was acquired from Grainger was unclear to the appellate court.

Grainger challenged the expert report. Grainger argued that virtually all web slings distributed in the United States share the similarities that the expert identified, regardless of their manufacturer. Grainger also argued that the expert failed to establish that it distributed the defective sling.

District Court Opinion

The district court decided that the expert’s opinion was not based on sufficient facts. Assuming that the points of comparison were sufficient to identify the defective sling as a Juli sling, that identification did not prove that Grainger distributed the sling. Weiler could have acquired it from any of Grainger’s competitors.

After excluding the expert opinion, the district court asked whether the remaining evidence established that Grainger distributed the defective sling. Finding none, it granted summary judgment in Grainer’s favor.

Appellate Opinion

The Eighth Circuit noted that experts must base opinions on sufficient facts to assist the jury in deciding factual disputes. When are facts “sufficient”? One measure of sufficiency is whether the facts both support the expert’s opinion and allow the expert to exclude other possibilities.

The court recognized that it isn’t necessary to rule out every possible alternative conclusion. It is, however, necessary to consider enough facts to account for obvious alternatives. The failure to rule out obvious alternatives suggests that the expert either failed to consider sufficient facts or failed to explain why the expert’s reasoning makes the expert’s conclusion more sound than alternative conclusions.

The court decided that the expert failed to consider sufficient facts to rule out the conclusion that a different distributor supplied the defective sling to Weiler. The expert’s focus was on facts tending to show that Juli manufactured the sling. The expert considered only a few facts to prove that Weiler obtained the sling from Grainger.

The expert compared the defective sling to two Juli-manufactured slings that came from Grainger. That comparison supported a conclusion that Grainger sells slings that are similar to the defective sling. Since other distributors also sell Juli-manufactured slings, the facts upon which the expert relied were not sufficient to rule out the alternative conclusion that a different distributor supplied the sling to Weiler.

Hirchak argued that, since Weiler had a Grainger-distributed Juli sling in its plant, it is reasonable to infer that Weiler acquired the defective sling from Grainger. Oddly, the court of appeals held that the expert could not draw that inference because only the jury could do so. Yet by granting summary judgment, the court deprived the jury of the opportunity to draw the inference.

A better analysis might focus on whether the inference is sufficiently reasonable that it would support a jury verdict in Hirchak’s favor. The fact that Weiler had one Juli-sling that was distributed by Grainger does not imply that all of its other slings came from Grainger.

While an expert may well have been able to identify the manufacturer of the defective sling, identifying its distributor was probably beyond the realm of expert testimony. Purchases and sales are typically proved by purchase records or the testimony of sellers or buyers. In the absence of that evidence, Hirchak had little hope of proving his case through expert testimony.

 

Court

Court Relies on Expert Witnesses in Affirming Dismissal of Challenge to Harvard Affirmative Action Policy

The controversy surrounding university admissions policies that consider race has been fueled by lawsuits alleging that the policies discriminate against Asians. In a recent appellate victory for Harvard, the court considered competing expert witness testimony in ruling that Harvard’s admissions policy did not violate the law.

Students for Fair Admissions (SFFA) sued Harvard University, alleging that its admissions policies discriminated against Asian Americans. The SFFA has initiated similar suits against the University of Texas at Austin and the University of North Carolina as part of a national litigation strategy to overturn U.S. Supreme Court rulings that permit a very limited form of affirmative action to promote racial diversity in student populations.

Harvard Admissions

Harvard selects about 1,600 students each year from a pool of about 35,000 applicants. Since it cannot give a position to each applicant who is likely to achieve academic success, academic excellence is only one of several factors that guide its admissions decisions.

Harvard recruits students who have good grades and high college admission test scores without regard to their race. To expand its applicant pool, Harvard also recruits minority students who did not do as well on standardized tests. Whether Harvard recruited a student, however, is not a factor that Harvard considers when it makes admission decisions.

Applications provide Harvard with a wealth of information, including the applicant’s standardized test scores, transcripts, extracurricular and athletic activities, awards, teacher and guidance counselor recommendations, intended field of study, a personal statement, and other information an applicant would like Harvard to consider. Applicants can reveal their race but are not required to do so.

Consideration of Race in Admissions Decisions

Admissions officers give applications a numerical rating in various categories of achievement: academic success, extracurricular pursuits, athletic pursuits, school support (as measured by the strength of teacher and guidance counselor recommendations), and a personal rating that considers the positive effect the student might have on the Harvard community. The personal rating considers the applicant’s perceived leadership, maturity, integrity, personality, ability to overcome setbacks, concern for others, and whether the applicant is “a good person to be around.”

Experiences pertaining to race, such as an applicant’s struggle to overcome discrimination, might inform the personal rating. However, race does not play a direct role in the personal rating and Harvard instructs admissions officers not to consider the race of applicants when assigning a personal rating.

Finally, admissions officers assign an overall rating. They can consider “tip factors” when assigning an overall rating. Tip factors include legacy status and athletic ability. About 30{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of Harvard’s students are legacy applicants, the children of donors, the children of faculty members, or recruited athletes. Applicants in those categories have a significantly higher chance of being admitted than applicants outside of those categories.

Other tip factors include race and ethnicity, geographical location, and economic background. Apart from legacy status (which often rewards alumni who contribute to the school) and recruited athletes, one goal of tips is to achieve a racially, ethnically, geographically, and economically diverse student body. Harvard also considers an applicant’s intended field of study to assure adequate student interest in the classes that it offers.

Expert Testimony

A good bit of the trial addressed the legal validity of Harvard’s policy of promoting racial diversity in its student body. Supreme Court precedent prohibits racial quotas or “racial balancing” in admissions. It also prohibits race from being a mechanical factor that gives applicants a decisive advantage. Precedent nevertheless allows schools to consider race as one of many factors for the purpose of promoting diversity, which the Court recognizes as a compelling educational interest. However, race can only be considered if no race-neutral alternative is available that would achieve the same diverse student body.

The trial and appellate courts were persuaded by expert testimony that race was not a decisive factor in Harvard admissions. Even SFFA’s expert witness admitted that Harvard rejects most Hispanic applicants, and almost half of African American applicants, who are “among the top 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} most academically promising applicants to Harvard in terms of standardized test scores and GPA.” Harvard’s admissions process is so competitive that it admits only highly qualified students, regardless of race.

The expert evidence did not suggest that Asians who were rejected were any more likely to succeed at Harvard than black and Hispanic applicants who were accepted. In fact, the evidence established that ancestry enhanced the opportunity of some Asian applicants to be accepted.

The district court rejected SFFA’s racial balancing claim. It determined that Harvard treats every applicant as an individual and that every applicant competes for every seat. The court of appeals accepted that finding after noting that SFFA presented no expert evidence to support its claim that Harvard denies the applications of Asian American applicants in order to promote admissions of non-Asian applicants.

A statistical analysis presented by Harvard’s expert witnesses established that “the share of Asian American applicants admitted to Harvard has increased roughly five-fold since 1980 and roughly two-fold since 1990.” Expert analysis also demonstrated that the annual admission of Asian applicants varies more than the number of applications submitted by Asians, a finding that undercuts the claim that Harvard engaged in racial balancing.

Expert testimony established that the elimination of race as a factor in Harvard’s admissions policy would reduce the African American share of Harvard’s student body from 14{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 6{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} and would reduce the Hispanic share from 14{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 9{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. Experts examined race-neutral alternatives proposed by SFFA, such as strengthening recruiting and financial aid, eliminating standardized testing, and eliminating tip factors. The expert witnesses concluded that none of those alternatives were viable means of assuring racial diversity.

Discriminatory Intent

The SFFA relied on the expert testimony of Peter Arcidiacono, an economics professor at Duke University, in its effort to prove that Harvard intentionally discriminated against Asians. Harvard countered with the expert testimony of David Card, an economics professor at UC-Berkeley. Both experts relied on statistical models that used regression analysis to explain how one variable (race) affected admissions while controlling for all other variables (such as grades and test scores).

The models suggested that Asian applicants tended to receive better scores than other applicants based on academic criteria but slightly worse scores based on personal factors. While the personal rating was correlated with race, the court of appeals agreed with the district court that correlation does not prove causation. In other words, the expert evidence did not establish that race influences the personal rating. The court regarded the statistical evidence of intentional discrimination as inconclusive and therefore held that SFFA failed to prove that Harvard violated the law by intentionally discriminating against Asian applicants.

 

Ethics

Lawyer Sanctioned for Intimidating Expert Witness

In an ideal world, all the players in the legal system, including judges, lawyers, and expert witnesses, would behave professionally at all times. Professional behavior includes treating other professionals with civility.

In the real world, participants in the legal system do not always bring a professional demeanor to court. A lawyer who tried to intimidate an expert witness recently learned that unprofessional behavior has consequences.

Intimidating Comments

Rudy W. Gorrell, Jr. is an attorney in Louisiana. He represented Brienne Russ in separate custody cases against the fathers of her two children. Both fathers were represented by Terrance Prout.

Prout called the same pediatric psychologist to testify as an expert witness in each case. She appeared in court three times.

On the first occasion, Gorrell approached the expert in the courtroom before she testified. Gorrell told her: “I’m coming for you”; “You’re not needed here”; “You’re not going to get on the stand”; and “I’m going to make you sit here all day.”

Before the expert testified, the hearing was continued to a new date. The expert appeared again on that date. Before the hearing started, Gorrell approached her in the courthouse parking lot and said, “I’m not sure why you’re here” and “You’re not going to testify again today.” The expert explained that she was in court because she had been subpoenaed to appear. Gorrell then said, “Well, you can’t testify to the child’s anxiety, and I am going to get you.” He added, “I don’t know why you are coming up, because we don’t need you to come up here [to testify].”

The hearing was again continued. The expert returned for the third court date. As she was sitting next to one of Prout’s clients on a bench outside the courtroom, Gorrell approached her and said, “You better stop messing with me, I will get you.”

The expert was finally able to testify at the third hearing. However, she was intimidated by Gorrell’s remarks and at times felt physically afraid of him.

Gorrell’s Explanation

At his disciplinary hearing, Gorrell denied threatening the expert or telling her she didn’t need to be present. He claimed that he merely suggested she should be on call rather than sitting around waiting to testify.

Gorrell testified that he told the expert that he disagreed with the relevance of her opinions because they were based on anxiety the children had experienced two years earlier. Why Gorrell would deem it appropriate to discuss the relevance of testimony with the witness rather than opposing counsel or the court is unclear.

Gorrell suggested that Prout’s animosity toward him accounted for the expert’s accusations. He admitted, however, that he could not think of any reason why the expert would lie about him.

Discipline Imposed

The hearing committee that considered the ethics complaint resolved the conflicting testimony in the expert’s favor. The committee concluded that Gorrell’s comments to the expert “caused her to feel intimidated and had no substantial purpose other than to delay or burden her.”

While the expert felt intimated, the hearing committee noted that Gorrell’s conduct caused no actual harm because it neither delayed the proceedings nor influenced the expert’s testimony. The committee nevertheless recognized the potential for harm. Witness intimidation can discourage witnesses from giving truthful testimony.

Intimidation can also discourage professionals from providing expert testimony in future cases. Experts who suffer abuse may decide that providing expert testimony isn’t worth the trouble.

The Louisiana Supreme Court agreed with the hearing committee. The court noted that Gorrell had no prior discipline during a long career. It therefore agreed with the committee that a public reprimand was warranted as discipline for his unprofessional conduct.

The Need for Civility

Commentators have long bemoaned the loss of civility in the legal profession. Supreme Court Justice Neil Gorsuch has argued that the loss of professional civility reflects a larger “civility crisis” in society. In Justice Gorsuch’s words, the growing tendency to shout down and insult people with whom we disagree reflects a failure to embrace the American ideals of freedom and equality. Maintaining a free society requires “treating each other as equals — as persons, with the courtesy and respect each person deserves — even when we vigorously disagree.”

The Gorrell decision should remind lawyers that the duty to provide vigorous advocacy in the courtroom does not justify an attempt to discourage an expert witness from testifying. Lawyers who disagree with an expert witness can attempt to expose flaws in the expert’s opinions through cross-examination. Confronting and attempting to intimidate an expert witness outside the courtroom is never acceptable behavior.

 

dollar bills

Expert Witness Helps Gambler Deduct Losses

People who gamble and win are required to report their winnings as income on their tax returns. Gamblers frequently attempt to offset that income by reporting their gambling losses. The IRS allows filers to report losses up to, but not in excess of, their winnings.

Gamblers sometimes try to offset winnings with losses they can’t easily substantiate. For example, a taxpayer might report $7,000 in winnings from bets placed in casinos. The taxpayer might then claim $7,000 in losses from casino betting. Significant casino winnings are documented in a W-2G form but no comparable tax form is issued to document losses.

The IRS has developed detailed recordkeeping requirements for taxpayers who want to deduct gambling losses. Taxpayers who don’t follow those rules typically learn that the IRS assumes one of two things are true: undocumented losses did not occur or undocumented losses were offset by unreported winnings.

While the IRS usually wins those disputes, a taxpayer recently made use of an expert witness to convince the Tax Court that his gambling losses exceeded his winnings. The case is a reminder that the creative use of expert witnesses can make the difference in difficult cases.

John Coleman’s Gambling

John Coleman retired in 2004. He earned a modest income after retirement from an insurance consulting business.

Coleman was a compulsive gambler. He began gambling on card games in high school. He played slot machines in Atlantic City and gambled closer to home when casinos opened in Maryland. After his retirement, he gambled more frequently.

As is true of most compulsive gamblers, Coleman’s gambling interfered with his life. He became delinquent on property taxes and utility bills. In 2019, he began treatment for a gambling disorder.

During 2014, Coleman gambled away a good bit of a $150,000 insurance settlement he had received. Four casinos gave Coleman W-2G forms that documented about $350,000 in gambling winnings. He won that money by playing slot machines. Casinos must issue a W-2G form when a gambler wins a slot machine jackpot of $1,200 or more.

Two of the casinos made no record of Coleman’s slot machine losses. Nor did those casinos keep track of Coleman’s smaller slot machine winnings that they were not required to report on W-2G forms.

At the other two casinos, Coleman sometimes signed into slot machines using player cards that the casinos issued. Those cards tracked all winnings and losses. However, Coleman did not always use those cards. Sometimes he didn’t have his card with him when he decided to enter the casino. Sometimes he stopped using the card because he thought his luck might change if he didn’t sign into a machine.

Coleman established that he regularly withdrew $2,000 to $3,000 per day from his bank account to fund his gambling. He also established that he made ATM withdrawals and received credit card advances while he was gambling.

Coleman’s Expert Witness

Coleman failed to file a 2014 tax return. After the IRS estimated his income, Coleman challenged the estimate and attempted to file a return that the IRS refused to accept. By the time the case came to tax court, the IRS agreed that Coleman’s reported income and deductions were correct in most respects. The IRS disagreed that Coleman was entitled to offset his gambling winnings with an equal amount of gambling losses.

At trial, the IRS maintained that Coleman could not prove his gambling losses because he had not kept a daily record of his losses at each casino. To overcome his poor recordkeeping, Coleman presented the expert testimony of Mark C. Nicely.

The Tax Court recognized Nicely “as an expert in mathematics, the casino gaming industry, and casino gaming equipment, particularly slot machines.” Nicely worked as a computer software engineer who specialized in algorithm development before focusing his career on the gaming industry. He has testified as an expert witness in a variety of cases that involve gambling.

Nicely made mathematical calculations of Coleman’s probable losses based on the frequency with which he gambled and the expected win percentage of the slot machines in the casinos where he gambled. He based his conclusions on the mathematical likelihood that Coleman lost more often than he won.

Slot machines in Maryland and Delaware are programmed to return 87{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of gamblers’ bets as winnings. A gambler might beat the odds by placing a bet, winning, and going home, but a gambler who continues to gamble on slot machines over a significant period of time is statistically destined to lose more money than the gambler will win. Based on Nicely’s calculations, the odds that Coleman could have won more than he lost over the course of 2014 were about 140 million to one.

Tax Court Decision

While noting that deductions must be supported by evidence, the court recognized that not all gamblers keep meticulous records of their losses. In the absence of those records, the Tax Court can estimate losses, but only if the estimate can be substantiated by reliable evidence.

In Coleman’s case, Nicely’s expert testimony provided that evidence. The court found that Nicely’s testimony was consistent with evidence that Coleman made substantial cash withdrawals to support his gambling habit. In addition, Coleman’s lifestyle and debt problems suggested that Coleman did not spend gambling winnings on anything other that continued gambling. The Court was satisfied that Nicely’s expert methodology confirmed that Coleman’s gambling losses offset his winnings.

Don’t Try This at Home

Coleman benefited from playing slot machines that have a fixed ratio of wins versus losses. Nicely was able to calculate Coleman’s probable losses based on that ratio. When gambling depends on skill as well as luck — poker, for example — an expert may not be able to save a taxpayer who did not keep adequate records.

Gamblers on horse racing sometimes try to claim losses by gathering losing tickets that other gamblers have discarded. Since they are so easily acquired, the IRS will not accept losing tickets as evidence of gambling losses. For the same reason, the Tax Court is unlikely to so.

Taxpayers rarely win disputes with the IRS about their gambling losses. The safest practice is to avoid disputes by keeping a daily log of money spent gambling and by supporting that log with bank records and other documentary evidence. Under some circumstances, however, the Coleman case demonstrates that expert testimony can help gamblers avoid substantial tax liability.

 

Expert Witness

Expert Testimony on Branding Disallowed in Copyright Infringement Case

A company called Afropunk produces music festivals. It paid photographer Mamba Bayoh $1,200 for photographs. According to Bayoh, the photographs were to be used on Afropunk’s website and Instagram account to promote a festival in Brooklyn. Bayoh complained that Afropunk improperly used the photographs in other marketing materials.

After selling the photographs, Bayoh registered the photographs with the Copyright Office. Bayoh then sued Afropunk for copyright infringement. The belated registration prevented Bayoh from seeking statutory damages.

To prove actual damages from the copyright violation, Bayoh relied on two expert witnesses. Afropunk filed a motion to exclude the testimony of Bayoh’s experts. After applying a Daubert analysis, the court granted the motion.

Brand Consultant Expert Testimony

Robert Wallace is a brand consultant. He believed Bayoh’s photographs were “distinctive” and “compelling.” Wallace compared the photographs that Afropunk used before it acquired Bayoh’s photographs and concluded that the earlier photographs were less effective in branding the company. Wallace also concluded that the Bayoh photographs influenced the look of the photographs that Afropunk used subsequently.

Wallace concluded that Bayoh’s photography style is “highly unique, recognizable” and protectable intellectual property. He opined that Afropunk’s brand success was attributable in part to its use of Bayoh’s photographs and to the influence of those photographs on its marketing designs.

To validate his opinions, Wallace surveyed individuals who had purchased tickets for and attended recent African American cultural events. He showed Bayoh’s photographs to half of the survey participants and showed photographs that Afropunk used in marketing prior to acquiring Bayoh’s photographs to the other half.

While 86{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of survey participants said that Bayoh’s photographs made them more likely to attend an Afropunk event based exclusively on the imagery, only 74{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} said that non-Bayoh photographs made them more likely to attend. Participants who saw the Bayoh photographs were also more likely to attend other Afropunk events and to purchase related merchandise.

Infringement Valuation Expert Testimony

Weston Anson chairs a firm that values and monetizes trademarks and copyrights. Anson calculated a figure he assumed to the Afropunk’s profits over a four-year period. Although Afropunk claimed a loss in three of the four years, Anson subtracted an operating expense category from total expenses that he assumed would represent salaries paid.

After deciding that the industry-wide licensing rate for intellectual property is about 6{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}, Anson calculated a “brand value” attributable to the photographs for each year. He concluded that Afropunk’s brand value increased by about $4 million from 2015 to 2018.

Daubert Analysis

The court concluded that Wallace could not testify about Afropunk’s alleged intent to infringe Bayoh’s copyright. Wallace has no expertise in discerning intent. Nor could he express the conclusion that Afropunk actually violated Bayoh’s intellectual property rights. That was a question for the jury to decide.

The court also excluded Wallace’s opinion that Bayoh’s photographs contributed to the success of Afropunk’s brand. The court faulted Wallace for not studying “the extent to which Bayoh’s photographs were used in marketing a particular Afropunk festival or the extent to which those photographs contributed to the revenues of that festival (as opposed to other marketing materials or the popularity of the festival performers).”

The court concluded that Wallace’s survey did not provide evidence that was relevant to the infringement claim. The fact that survey participants were more engaged by Bayoh’s photographs than other photographs did not prove that the alleged infringement caused an actual loss to Bayoh. Wallace’s analysis would require the jury to speculate on the impact Bayoh’s photographs might have had on Afropunk’s revenues.

The court decided that Anson’s testimony did not close that analytical gap. Anson’s opinions did not provide a causal link between Afropunk’s revenue and the alleged infringement. In the absence of evidence that Afropunk’s revenue increase was caused by Bayoh’s photographs rather than other factors, Anson’s calculation of increased revenues was not relevant. Neither Anson or Wallace employed a methodology to established that “brand value” accounted for the revenue increase.

Finally, the correct measure of actual damages for a copyright infringement is the fair market value of a license covering an infringing use of the copyrighted works. Bayoh offered no evidence of the fair market value of a license for his photographs. Wallace’s analysis focused on brand value rather than the fair market value of a license.

Since neither Wallace nor Anson used a methodology that created relevant evidence, the court excluded the testimony of both expert witnesses. Although Bayoh cannot prove damages, he has argued that he is still entitled to an injunction prohibiting Afropunk from using his photographs in the future.

Timesheet

Court Rules Expert Testimony Not Needed in a Don and Doff Overtime Claim

Rodney Tygar brought an unpaid overtime claim against Precision Drilling Corp. and related companies. Tygar contended that his employer failed to pay workers employed as rig hands for the time they spent putting on personal protective equipment (PPE) prior to their shift and removing it after the shift ended.

Tygar presented expert testimony in support of the overtime claim. The district court excluded the testimony and granted summary judgment to Precision. The Court of Appeals for the Third Circuit reversed after concluding that expert testimony was not needed to prove the claim.

Facts of the Case

Tygar was employed as a rig hand to work on oil and gas rigs. Pursuant to company policies and in compliance with federal regulations, Tygar was required to wear PPE during his work shifts.

The PPE included flame-retardant overalls, steel-toed boots, gloves, goggles, earplugs, and hardhats. The PPE is necessary because it protects against common hazards that rig hands face, including chemical exposures, falling objects, slippery surfaces, and electrical shock.

Rig hands are covered with chemicals at the end of their shifts, some of which are caustic. It was undisputed that the overalls and other PPE reduced the risk that workers would be harmed by exposure to those chemicals.

It takes time to don (put on) and doff (remove) PPE. Precision required its rig hands to don the PPE before clocking in for a shift and to remove the PPE after clocking out. That policy prevented rig hands from being compensated for their donning and doffing time.

If Tygar had been “on the clock” while donning and doffing, Precision would have owed him overtime. Believing that the Fair Labor Standards Act (FLSA) required Precision to compensate rig hands for their donning and doffing, Tygar brought a collective action for unpaid overtime on his own behalf and on behalf of rig hands who were subject to the same compensation policy.

Summary Judgment

The FLSA requires employers to include donning and doffing in an employee’s compensable “hours worked” if wearing the equipment is “integral and indispensable” to their principle job duties. Since federal regulations require employers to provide PPE to employees who are exposed to chemical irritants and hazards, it should seem obvious that donning PPE is an integral and indispensable part of working safely as a rig hand.

The trial judge, however, decided that the “integral and indispensable” question could only be resolved by expert evidence. The court was apparently not certain that caustic chemicals are actually harmful.

Tygar proffered an expert report prepared by Ronald Bishop, an expert in chemical hygiene. Bishop’s report discussed “the health risks associated with exposure to certain hazardous materials on the rigs, in addition to the benefits of wearing PPE.”

In particular, Bishop offered four opinions. First, Precision’s rig hands come into contact with chemicals and substances that are hazardous. Second, PPE protects workers from those substances. Third, PPE becomes coated with hazardous substances as rig hands work. Fourth, it would be unsafe to leave the worksite before removing soiled PPE.

The court denied summary judgment motions filed by both parties after concluding that whether wearing PPE is integral and indispensable to the duties of a rig hand was a disputed factual question. Precision then filed a Daubert motion challenging Bishop’s methodology.

The trial court granted the Daubert motion, excluded Bishop’s testimony, and invited Precision to renew its summary judgment motion. After deciding that whether PPE is integral and indispensable to the job of a rig hand can only be determined on the basis of expert testimony, the court granted summary judgment to Precision because no admissible expert testimony could establish that fact.

Daubert Analysis

The Third Circuit described Daubert as requiring an analysis of qualifications, reliability, and fit. The “overriding consideration” is whether the expert evidence will assist the judge or jury in deciding the facts.

The appellate court did not question Bishop’s qualifications or the relevance (“fit”) of his opinions to determining whether donning and doffing PPE is an integral and indispensable part of a rig hand’s duties. Rather, the court affirmed the district court’s decision that Bishop’s methodology was unreliable.

The district court concluded that Bishop had insufficient factual support for his opinion that it was important for rig hands to don and doff their PPE on site. According to the court, Bishop lacked quantitative data about the amount of chemical exposure that would be hazardous.

Why that data is necessary to Bishop’s opinion is unclear. The amount of exposure is likely to change from day to day and worker to worker, depending on the hazardous substances with which they happen to be splattered on a given shift. The court did not dispute that the chemicals are hazardous or that PPE protects workers. Just how hazardous the chemicals might be at any given moment is not a fact with obvious relevance to Bishop’s opinion. Still, in a rather cursory analysis, the Third Circuit decided that the district court did not abuse its discretion in excluding Bishop’s testimony.

Need for Expert Testimony

After satisfying itself that Bishop’s expert testimony was inadmissible, the court decided that it was also unnecessary. A work activity is indispensable if an employee must engage in that activity to perform his or her job. Wearing PPE is a job requirement, so rig hands were not allowed to work if they did not first put on their PPE.

The district court steered an incorrect course when it based summary judgment on the failure to prove the degree of toxicity of the chemicals to which rig hands are exposed. The relevant question is whether rig hands could dispense with PPE and still perform their jobs. Tygar presented lay evidence that it would be impossible to perform the work of a rig hand without donning and doffing PPE. The FLSA does not require donning and doffing evidence to be presented in the form of expert testimony.

Since expert testimony was unnecessary, the Third Circuit reversed the district court’s summary judgment decision. The appellate court left it to the district court to decide whether the lay evidence creates a jury issue as to whether donning and doffing PPE is indispensable to the work of a rig hand.

 

Expert Witness

District Court Admits Expert Testimony Regarding Specific Causation in Hernia Mesh Litigation

Thousands of lawsuits against C.R. Bard allege that the company’s surgical mesh products have harmed patients. Cases involving mesh used to repair hernias have been consolidated in the Southern District of Ohio. In a recent decision, that court considered whether a surgeon’s expert testimony about specific causation should be admitted or excluded.

MDL Litigation

When similar lawsuits from around the country end up in federal court, they may be consolidated for pretrial proceedings using multidistrict litigation (MDL) procedures. Consolidation allows plaintiffs to coordinate and share discovery. It also enables a single court to resolve pretrial issues that are common to each of the individual cases. Consolidation arguably promotes the efficient and uniform determination of pretrial motions, although whether it actually does so is the subject of much debate.

Since cases are often removed from state courts that require early designation of expert witnesses, it can be difficult for an MDL judge to resolve Daubert issues efficiently. Different plaintiffs often designate different experts. While procedures vary, a plaintiffs’ steering committee will typically select expert witnesses and other plaintiffs’ lawyers will either adopt those experts or reject them and designate their own.

Experts who testify about general causation can have a far-reaching impact on pending cases. General causation is the concept that a product or substance is capable of causing harm to a patient. When a court grants summary judgment because the consolidated plaintiffs have no admissible expert evidence that a product or substance is capable of causing an alleged harm, all the plaintiffs may lose their cases.

Specific causation focuses more narrowly on opinions that pertain to each specific plaintiff. For that reason, the decision to admit or not to admit specific causation testimony might only affect a specific plaintiff, not the entire universe of plaintiffs who have been consolidated in the MDL.

Specific Causation Expert

Steven Johns is the plaintiff in the first case selected for trial in the Bard MDL. A Bard mesh was implanted in Johns to correct a hernia. Additional surgeries followed that Johns attributed to the failure of the mesh. Johns brought claims under Utah law alleging manufacturing and design defects in the mesh as well as a failure to warn of risks associated with the product.

Johns designated Dr. David Grischkan as a specific causation expert. Dr. Grischkan opined that the Bard mesh at issue caused Johns to suffer adhesions when its coating failed. The coating covers one side of the polypropylene mesh. The coating is designed to decay slowly so that the mesh will be gradually absorbed into the organ against which it is placed. That slow decay, which Bard advertised as occurring over “less than 30 days,” is intended to safeguard against the risk that the mesh will cause adhesions. The formation of adhesions may result in organs and tissues sticking together.

According to Dr. Grishkan, the coating failed to decay slowly. Instead, the mesh was rapidly absorbed into Johns’ organs, quickly exposing them to the polypropylene mesh. Dr. Grishkan noted that Bard’s own studies show that the coating can disappear in less than seven days, which is not enough time to avoid the formation of adhesions during the healing process. Dr. Grishkan’s determined that adhesions attributable to Bard’s product caused Johns’ pain and distress, leading to surgery to remove and replace the mesh.

Expert Qualifications

Bard filed a Daubert motion to exclude Dr. Grishkan’s testimony. Bard complained that Dr. Grischkan is a surgeon, not an expert in mesh design. He did not claim expertise in the chemicals used to coat the mesh that was implanted into Johns and, according to Bard, was unqualified to opine that the coating disintegrated too rapidly.

Parsing Dr. Grischkan’s proposed testimony, the court agreed that the doctor’s experience using mesh products to repair hernias did not qualify him to explain why the coating failed to perform as advertised. He had no experience using the coated product. Nor did he have experience with bioengineering or biochemistry. He could not say how the particles in the coating are broken down by the human body. His review of animal studies and other literature fell short of making him an expert on the coating used on the Bard mesh product.

The court nevertheless recognized that Dr. Grishkan did not need to explain how the coating failed to express an opinion that it failed and that the failure injured Johns. Dr. Grishkan has years of personal experience using a variety of mesh devices to repair hernias. He has personally observed the damaging effects caused by polypropylene mesh. He is capable of recognizing complications caused by mesh when he sees them. His training and experience qualified him to testify about the ways in which polypropylene mesh causes complications after its implantation.

Reliability of Expert Methodology

Dr. Grishkan performed a differential diagnosis to rule out other possible causes of Johns’ continuing medical problems. The rapid absorption of Bard’s polypropylene mesh was the only cause he could not rule out. Dr. Grishkan was qualified to make a differential diagnosis.

The court rejected Bard’s attack on the reliability of Dr. Grishkan’s differential diagnosis. Bard made no showing that Dr. Grishkan inappropriately ruled out other potential causes. Nor did Bard identify potential causes that Dr. Grishkan failed to consider. Rather, Bard complained that Dr. Grishkan “ruled in” the fast absorption of its polypropylene mesh as a potential cause of adhesions when he had no basis for doing so.

The court recognized that Dr. Grishkan relied on medical records that supported his view of the speed at which the mesh was absorbed. Surgical findings made clear that the coating failed to protect Johns’ organs from adhesions and therefore did not serve its intended purpose. Reliance on those facts to form an opinion was a reliable methodology.

Bard also complained that Dr. Grishkan improperly relied on Bard’s internal documents. The court concluded that Dr. Grishkan based his opinion largely on his experience and a review of Johns’ medical records. Experts have wide latitude to consider a variety of facts when they form opinions. The fact that Dr. Grishkan bolstered his opinion with information he found in Bard’s corporate documents did not render his methodology unreliable.

Future Pain and Medical Care

The court agreed, however, that Dr. Grishkan’s opinion about Johns’ ongoing pain and need for future surgery was speculative. Johns’ adhesions were corrected with the same Bards’ mesh. While Dr. Grishkan thought that Johns’ current pain might result from a similar failure of that product, his opinion was not based on a new medical examination. Dr. Grishkan’s opinion that similar problems likely have similar causes did not strike the court as being based on a reliable methodology.

Accordingly, the court allowed Dr. Grishkan to testify that Johns suffered from adhesions caused by the absorption of the Bard mesh and that Johns needed another surgery because the mesh was absorbed too quickly. However, the court did not allow Dr. Grishkan to testify that any problems Johns had after that surgery are related to implantation of another mesh of the same design.

Adequacy of Warnings

Dr. Grischkan also proposed to testify that Bard’s warnings were insufficient to alert doctors about the risks associated with the surgical mesh. The warnings indicate that the coating disappears in “less than 30 days.” Yet Bard’s internal documents show that that the coating can be completely absent within seven days. Dr. Grischkan opined that doctors would want to know that information before deciding whether to take the risk of implanting the product.

Dr. Grischkan’s report stated that any reasonable surgeon would understand Bard’s warning to mean that the coating would remain intact during the healing period and that implantation was therefore safe. Because that representation was contrary to experience, and because Bard’s warning failed to mention various complications that could arise from implanting the mesh, Dr. Grischkan regarded the warning as deficient.

The court concluded that Dr. Grischkan had sufficient experience with surgical mesh to testify about the warning’s adequacy. He could not testify about the adequacy of the warnings from a legal or regulatory perspective, but he could explain whether the warnings adequately disclosed risks that a surgeon would want to understand before deciding to use the product.

North Carolina

North Carolina Permits Expert Testimony Regarding Shell Casing Ejection Pattern

The North Carolina Court of Appeals faulted an attorney for challenging a decision to admit expert testimony without relying on the North Carolina Rules of Evidence. A doubtful experiment in shell casing ejection by a prosecution expert was deemed admissible because the defense attorney failed to challenge the admissibility of the experiment under Daubert.

Facts of the Case

John Turner shot Nicholas Parker. The two neighbors had a quarrelsome history. They had heated disputes about the location of their property boundary, among other issues.

Turner testified that a stray dog had been causing problems in the neighborhood. Turner said he had tried, without success, to get the dog under control.

Turner testified that he heard gunshots coming from Parker’s property. He then saw that the stray dog was injured. Believing that Parker had shot the dog, Turner armed himself with a handgun. Turner then walked down the road to find the dog.

Turner saw the dog at about the time he encountered Parker. Turner chambered a round in his gun, apparently to ready himself to end the dog’s suffering. He discovered, however, that the dog had already died.

According to Turner, Parker was enraged. Turner testified that Parker said that he shot the dog and would shoot Turner too. Turner also testified that Parker said he had been “waiting for this” and that they would “get this over with.”

Turner testified that he saw Parker reach for his waist. Assuming that Parker had a weapon in his waistband, Turner shot him. Turner testified that he was “stumbling backward” when he fired the shots. Turner then called 911 to request medical assistance for Parker.

The medical examiner testified that Parker was shot eleven or twelve times. All but two of the bullets entered Parker’s back.

Turner argued that he acted in self-defense. Even if Parker had no gun, a mistaken belief that the facts justify killing another person in self-defense could result in a conviction for the lesser crime of voluntary manslaughter under North Carolina law.

The jury found Turner guilty of murder. The jury also found Turner guilty of possessing a firearm as a felon.

Expert Testimony

Investigators discovered eight shells at the crime scene that had been ejected from Turner’s gun. The shells were in a straight line and at various distances from each other.

Kelby Glass, a forensic firearms examiner employed by the sheriff’s department, testified over objection as an expert witness for the prosecution. Glass conducted an experiment to determine the direction and distance that shells would travel after being ejected from Turner’s gun.

Glass testified that when he fired the gun while it was parallel to the ground, the ejected casings traveled backward and to the right for about eight or nine feet. When he angled the gun downward, the ejected casings traveled forward and to the right for about nine to eleven feet.

Glass offered no opinion about Turner’s location or movement when he fired the gun. Given the location of the shell casings, the prosecutor argued that Glass’ experiment disproved Turner’s testimony that he was stumbling backwards when he shot the gun.

The prosecutor argued that the position of the shell casings proved that Turner was moving toward Parker as he fired the gun. The prosecutor asked the jury to infer that Turner shot Parker in the back after Parker was already on the ground, an inference that is inconsistent with self-defense.

Potential Daubert Challenges to Expert’s Experiment

North Carolina has interpreted its Rules of Evidence in a matter that adopts the Daubert standard. Had Turner based his objection on Daubert, he could have challenged Glass’ testimony on the ground that it was not derived from a reliable methodology. Glass did not claim to have fired the gun while stumbling backwards. In the absence of that data, it is difficult to understand how Glass’ experiment could be said to disprove Turner’s testimony.

There is no suggestion in the appellate decision that Glass based his experiment on a peer-reviewed methodology. At least one forensic study concluded that a variety of factors can affect shell casing ejection patterns, including how the shooter gripped the gun. Two different people standing in the same location and holding the same gun at the same angle can produce significantly different ejection patters. That information, if placed before the court, might have convinced the judge that Glass’ experiment was incapable of returning meaningful results.

Moreover, Glass did not interpret his experimental results. The prosecutor, who certainly isn’t a forensic expert, provided an interpretation during closing argument. One wonders how an expert’s testimony about experimental results that fails to recreate the circumstances of the shooting and that is not accompanied by interpretative analysis was relevant. One might also wonder how a prosecutor with no scientific credentials at all was permitted to express opinions about the meaning of an experiment that the expert who conducted it failed to articulate.

Court’s Analysis of Turner’s Challenge

How the court might have analyzed a Daubert challenge is unknown because Turner did not make one. Instead, he relied on an older line of North Carolina cases that he viewed as more favorable to his position. While those cases, which ask whether the challenged experiment was “substantially similar” to the facts of the case, raise questions that are relevant to a Daubert analysis, they do not reflect the totality of the Daubert standard.

The court of appeals concluded that the “substantial similarity” of an experiment is no longer a standalone test in North Carolina. Rather, the Daubert analysis asks whether the expert’s opinion is based on sufficient facts or data, was the product of reliable principles and methods, and derived from a reliable application of those methods to the facts.

A strong challenge to each of those prongs could have been advanced. Turner could doubtless have found a forensic expert of his own to challenge the reliability of Glass’ methodology and the adequacy of the data that his experiment produced. He could also have challenged the relevance of an experiment that the expert witness fails to interpret. Since he didn’t, the court rejected his argument because it was based on precedent that is no longer controlling.

Lessons Learned

Although Turner did not mention the Daubert standard on appeal, the appellate court noted that it would “readily conclude” that the trial court would not have abused its discretion if it had applied the Daubert standard. On the record before the court, that observation might have merit. However, Turner’s counsel didn’t make a record that would allow the court to apply Daubert in a meaningful way.

The appellate court recognized that Glass didn’t know how Turner was gripping the gun and that Glass and Turner were standing on different surfaces when Glass conducted his test. However, Glass testified that those differences weren’t important. That was good enough for the appellate court to conclude that a Daubert challenge would have failed.

Turner could have challenged Glass’ opinion by calling his own forensic expert. The court might have come to a different conclusion after learning that research undermines Glass’ confidence that his failure to consider important variables did not influence his findings. It is difficult to understand how Glass’ experiment could have survived a Daubert analysis if an expert, relying on peer-reviewed studies, had pointed out the obvious flaws in Glass’ methodology.

There are two lessons to learn from Turner’s case. First, in a Daubert state, objections to the admissibility of expert evidence should be framed in terms of the Daubert standard. Second, when the prosecution wants to introduce an expert witness, the defense should always investigate the possibility of calling its own expert to elucidate flaws in the prosecution expert’s methodology.

 

Police Officer Was Not Qualified to Testify as an HGN Expert

Kayin Love was charged with driving under the influence of alcohol (DUI). She appealed her conviction, contending that the arresting officer should not have been permitted to testify as an expert witness.

In an unpublished opinion, the Maryland Court of Special Appeals concluded that a police officer must be qualified as an expert to give testimony about the horizontal gaze nystagmus (HGN) test. The court ducked the issue of whether the arresting officer was an expert by concluding that the trial court did not regard the officer as an expert. The court then faulted the defense attorney — who had already objected that the officer was not qualified to testify about the HGN — for not objecting again when the officer testified about the HGN result.

Facts of the Case

Officer Robert Farmer testified that Love did not stop her vehicle behind the crosswalk of an intersection. Although she stopped before she entered the intersection, the vehicle encroached upon the crosswalk in violation of Maryland law.

Farmer detained Love and questioned her while she still in the driver’s seat. Farmer gave familiar testimony that Love had a flushed face and watery, bloodshot eyes. He asked Love if she had been drinking and she said she had one drink and one beer an hour and a half before she started driving. That quantity of alcohol in that time frame would not cause most drivers to exceed the legal limit.

A second officer arrived who apparently had more familiarity with the process of making DUI arrests. Officer William Weill provided inevitable testimony that he smelled the odor of alcohol coming from Love’s vehicle — an odor that Farmer apparently failed to detect.

Weill administered a walk-and-turn test, a one-leg stand test, and a horizontal gaze nystagmus (HGN) test to Love. Based on Love’s performance on those field sobriety tests, Weill decided he had probable cause to arrest Love for DUI.

Field Sobriety Tests

The three standardized field sobriety tests that Weill administered were developed and endorsed by the National Highway Traffic Safety Administration (NHTSA). The same contractor that developed the tests for NHTSA also validated the tests. The validation assessed the tests in controlled laboratory conditions, not as they are actually administered — on the side of road, often on an uneven surface, at night, in a variety of weather conditions. The agency’s failure to subject the tests to real-world validation and to an objective peer-review process suggest that NHTSA was more interested in helping the police justify arrests than in producing good science.

While courts routinely regard the standardized field sobriety tests as evidence that a driver has a blood alcohol content in excess of the legal limit, the tests were developed with little scientific rigor. An independent analysis of the tests found that “research that supports their use is limited, important confounding variables have not been thoroughly studied, reliability is mediocre, and that their developers and prosecution-oriented publications have oversold the tests.”

Even NHTSA agrees that the tests are not valid unless the arresting officer follows the exact procedure described in the training manual. On cross-examination, officers often reveal that they can’t recall the details of the procedure they are supposed to follow.

A larger issue arises when officers testify that the tests are valid. Officers claim the tests are valid because NHTSA says they are valid, not because the officers are familiar with the research methodologies that underlie the tests. Traffic officers simply lack the scientific knowledge and education that is required to give an expert opinion about the validity of field sobriety tests.

The HGN Test

The most doubtful of the three standardized tests is the HGN. The test assumes that a driver has a blood alcohol concentration in excess of 0.08 based on whether and when the driver’s eyes “twitch” or “jerk” while following a pen or some other object.

All eyes twitch (that is, they all show nystagmus) when people move their eyes as far as they can to the left or right. According to NHTSA, there is a correlation between an unlawful blood alcohol concentration and the onset of twitching before the eyes reach a 45-degree angle as they move to the left or right.

Unfortunately, eyes might twitch for dozens of other reasons, particularly if the driver is facing oncoming headlights or gazing in the direction of the police car’s flashing red-and-blue lights. Perhaps more problematic is that the validity of the test result depends on the officer’s accurate determination of whether the driver’s eyes have reached a 45-degree angle. Since officers do not carry a protractor in their tool belts, their estimates are unverifiable and may be wholly unreliable.

Even when the officer performs the HGN perfectly, NHTSA found that the test produces an inaccurate result 22{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time. Other researchers have determined that nystagmus may appear before the eyes reach a 45-degree angle in drivers who are well under the legal limit. Given the frequent reliance on HGN results as trial evidence, whether a test that is so prone to error meets the reliability standard of Daubert is an important question.

Weill’s Expert Testimony

At Love’s trial, Weill testified that he had “specialized training in alcohol-related offenses,” consisting of the 40-hour course that most police officers take before they are assigned to traffic duty. He also testified that he had made a large number of DUI arrests, although that testimony sheds little light on whether he conducted field sobriety tests correctly before he made the arrests.

Courts commonly hold that police officers can testify about HGN results if they have been “trained.” Yet the training only teaches officers how to administer the test. Whether the test itself satisfies the Daubert requirement that expert evidence must be based on sufficient facts and a sound methodology is not the subject of law enforcement training. Learning how to administer a test is not the same as learning whether the test has a sound scientific basis.

When Weill testified that he performed an HGN test on Love, defense counsel objected that Weill was not qualified to testify as an expert witness regarding the validity or interpretation of HGN test results. The prosecutor initially indicated that Weill would not be asked to testify about the HGN results but proffered Weill as an expert on the other two field sobriety tests. After a confusing colloquy, the court agreed that Weill was an expert on the strength of his testimony that he had been “trained.” Weill then testified about the HGN test result.

The appellate court acknowledged that Maryland precedent requires an expert witness to testify about HGN results. Weill was clearly not an expert. The appellate court overcame that obstacle by deciding that the trial court did not actually intend to qualify Weill “as an expert regarding the HGN test.”

The appellate court concluded that Love’s objection — “the State had failed to lay a sufficient foundation to qualify Officer Weill as expert with respect to the standard field sobriety tests” — did not address Weill’s testimony about the HGN test because the prosecutor claimed that Weill would not testify as an expert regarding that test. According to the appellate court, when the trial court ruled that Weill could testify as an expert, the ruling only applied to Weill’s testimony regarding the other two field sobriety tests. Because defense counsel did not object to Weill’s lay testimony about the HGN results — testimony that was plainly improper under Maryland law — she failed to preserve the issue for appeal.

Lessons Learned

Courts often bend over backwards to preserve DUI convictions. This appears to be one of those cases. The prosecutor clearly understood that the trial judge had agreed that Weill could testify as an expert regarding the HGN. Since the admissibility of an HGN result depends on a foundation of expert testimony, it would have been improper for the prosecutor to try to place the test results before the jury through lay testimony. It seems disingenuous to conclude that the trial judge and parties did not believe that Weill was testifying as an expert. Since there was no evidence of his expertise, the testimony should not have been allowed.

It is always problematic when police officers testify as expert witnesses. It is even more problematic when an officer testifies as an expert to support the officer’s own decision to make an arrest. The testimony is inevitably self-serving and rarely helpful to the jury. While defense attorneys should always object to police officers who testify as expert witnesses, Love’s case is a reminder that those objections should be lodged against every question that asks an officer to give testimony that only an expert witness is qualified to provide.