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.

Lawyer Faulted for Failing to Retain Expert Witness Regarding Voluntariness of Confession

Kenneth Richards beat his wife to death with a baseball bat in their Massachusetts home. He testified at trial that he acted in self defense after his wife stabbed him in the chest. A jury found him guilty of first-degree murder.

While Richards was in the hospital recovering from his stab wound, he gave the police a statement that was used against him at his trial. On appeal, Richards argued that an effective lawyer would have called an expert witness to challenge the voluntariness of that statement. The appellate court agreed that the lawyer erred but affirmed the conviction.

Facts of the Case

The Rowley police received a 911 call from Richards’ young daughter, who advised the dispatcher that her father had a hole in his stomach. When the dispatcher asked why, the daughter said that her mother might have dug the hole. She also told the dispatcher that there might also be something wrong with her mother.

An EMT found Richards covered in blood with a knife at his side. Richards had the kind of lacerations on his hands and arms that are consistent with defending against a knife attack. The EMT also observed that Richards’ wife was dead and that her skull had been fractured.

Richards was rushed to the hospital. Emergency surgery saved his life. Just prior to the surgery, he was given anesthesia and muscle relaxants. During surgery, he was given powerful opioids, including fentanyl and morphine.

As Richards was being transferred to the ICU following his surgery, a nurse asked him if he knew why he was in this hospital. Richards responded, “I stabbed myself and I killed my wife.” He complained of pain and was given additional morphine.

Twenty minutes later, while Richards was still under the influence of narcotics, the police questioned him in the ICU. Interrogating suspects while they are under the influence of thought-altering drugs is an unfortunate but common police practice.

Although Richards was mumbling, not always coherent, and complaining of pain, the police gave him a Miranda warning and accepted his statement that he understood his rights and was willing to waive them. The police made no inquiry into the effect of narcotics on his thought process.

Richards told the interrogating officers that he beat his wife with a bat because she was cheating on him. When asked whether she provoked him, he answered “no.” During another interview a few hours later, while he was still being treated with narcotics, Richards provided similar information and added that he stabbed himself in the chest after cutting his wrists and neck.

Trial Testimony

A state crime lab employee, identified as a forensic biologist, testified about bloodstain patterns. In the expert’s view, some of the bloodstains were consistent with hitting the victim after she stopped moving.

A medical examiner who autopsied the victim testified that she died from blunt injuries to the head. He opined that the victim died about fifteen to thirty minutes after the attack.

The defense consisted almost entirely of Richards’ testimony. He testified that he argued with his wife about her decision to stop taking medication for her bipolar condition. Richards said that at some point after they went to bed, he woke to find his wife kneeling over him. He fell out of bed and had difficulty breathing. At that point he noticed a hole in his chest.

Richards testified that he picked up a bat and used it as a crutch to help him stand. He saw his wife coming toward him and he swing the bat. He told the jury that he was in fear for his life and wasn’t thinking rationally. He said he only recalled hitting her once but conceded that he might have hit her multiple times.

Voluntariness of Confession

Richards’ trial testimony could be reconciled with the physical evidence but it was wholly inconsistent with statements he gave to the police while he was hospitalized. Although Richards’ lawyer challenged the admissibility of those statements, he failed to support that challenge with expert testimony.

The constitutional right to be free from self-incrimination has two components. First, it allows statements a defendant makes to the police to be used as evidence only if they were made voluntarily. Police officers cannot torture suspects to produce a confession. Nor can they use coercive tactics, although courts have a narrow definition of “coercive.” For example, the police can lie to suspects about evidence they don’t have in order to trick a suspect into giving a confession.

Second, suspects must be warned that they have the right to remain silent. The Supreme Court’s Miranda decision was a response to decades of inconsistent court decisions about whether a confession was voluntary — decisions that often excused the infliction of psychological abuse as a tactic to encourage confessions. If a suspect is warned that a statement will be used against him, and is warned that he can choose to remain silent or to consult with a lawyer before deciding whether to answer questions, a suspect who chooses to talk is presumed to have given a voluntary statement.

The Miranda warning is only required if the suspect is in custody. Whether a hospitalized suspect is “in custody” depends on the facts, but the issue did not arise in Richards’ case because he was given a Miranda warning before he was questioned. The question was whether, given his drugged condition, he was capable of understanding his rights or of making a voluntary statement.

Richards’ Expert Witness on Voluntariness

After Richards lost his appeal, he filed a post-conviction motion asking for a new trial. He contended that his trial lawyer was ineffective for failing to use expert testimony in support of his motion to suppress his confession.

Richards’ motion for a new trial relied on the affidavit of Dr. Adam J. Carinci, the director of the Massachusetts General Hospital Center for Pain Medicine. Dr. Carinci is board certified in anesthesiology and pain medicine. Based on a review of medical records, Dr. Carinci concluded that over a five-hour period, Richards was administered “at least eight distinct medications classified as either general anesthetics, benzodiazepines, opioids, cholinesterase inhibitors, or anticholinergics.”

Dr. Carcini stated as a “medical fact that the residual effects of” these medications “detrimentally impact consciousness, awareness, cognition, orientation, concentration, dexterity, comprehension and recall.” He concluded that the drugs “negatively impacted” Richards’ “ability to comprehend his Miranda rights at the time that they were read to him and the voluntariness of the statements that he made to [Trooper] LaBarge.”

Effective Assistance of Counsel

Richards argued that a reasonably effective attorney would have presented the expert testimony of Dr. Carcini or another medical expert to establish that Richards was in no condition to understand the Miranda warnings or to make a voluntary statement. To his credit, Richards’ trial attorney agreed that he should have done so. The attorney stated that he might not have recommended that Richards testify at trial if his incriminating statements had been suppressed.

Both the trial judge and the appellate court agreed that Richards’ lawyer deprived Richards of his constitutional right to effective advocacy by neglecting to retain an expert witness. The recorded interviews should have made it apparent to Richards’ lawyer that Richards “remained, to some extent, impaired by the medications he had received at the hospital and by the physical pain he was suffering from his wounds and from the surgical procedure.”

The appellate court held that “it was manifestly unreasonable for trial counsel not to retain a medical expert to help him understand the effects of the defendant’s medications and physical pain on the voluntariness of his statements or the knowing and voluntary nature of his Miranda waivers.” In other words, the lawyer neglected his duty to his client by not hiring an expert witness.

The trial judge held that he would not have suppressed the evidence even if the expert had testified. The judge was aware that Richards was under the influence of drugs but considered his recorded responses to be coherent and consistent with a clear understanding of his situation. The appellate court deferred to that conclusion. Since the failure to call an expert at the suppression hearing would not have changed the outcome, that failure did not entitle Richards to a new trial.

The appellate court also concluded that expert testimony at trial would not have changed the verdict. Had the expert testified, the jury might have been instructed to disregard Richards’ confession if it concluded that he did not give the confession voluntarily. In the appellate court’s view, however, Richards’ apparent understanding of the Miranda warnings and his clear-headed answers during the interrogation would likely have convinced the jury that Richards’ acted voluntarily, notwithstanding the expert’s opinion.

Lessons Learned

Appellate opinions necessarily make predictions about whether an outcome would have been different if errors had not been made. Those predictions amount to best guesses. The fact is, nobody — including the trial judge — knows whether the trial judge would have suppressed the confession if he had heard Dr. Carcini’s expert testimony before ruling. Nor does anybody know what a jury would have done if it had heard the same testimony.

The odds may be that Richards would still have been convicted if he had hired an expert witness, but defense attorneys have an obligation to assure that a client, innocent or guilty, receives a fair trial. This case stands as a reminder that retaining an expert witness can be a critical part of assuring that trials are fair.

Judge Refuses to Hear Expert Testimony in FTC’s Deceptive Practices Lawsuit

To satisfy the Daubert test, some judges require expert witnesses to explain their reasoning in exhaustive detail. When experts fail to support their conclusions with a high level of detail, parties risk the exclusion of expert testimony.

The Federal Trade Commission (FTC) sued Innovative Designs, Inc. for violating a federal law that prohibits using “unfair or deceptive acts or practices” in commerce. The FTC supported its claim with the expert testimony of David Yarbrough. At the conclusion of a bench trial, the court decided that Yarbrough’s testimony failed to satisfy Daubert because Yarborough did not explain potential deficiencies in his reasoning. The court struck the testimony and later dismissed the case.

Facts of the Case

Innovative Design sells a product called Insultex. The product is marketed as a house wrap that is installed just behind the exterior walls of homes. House wraps are intended to prevent rain from penetrating a home and to allow water vapor to escape so moisture does not accumulate inside the walls.

Innovative Design advertised Insultex as an energy saving product. Its advertising claimed that Insultex products have specific R-values. An R-value is a measurement of a product’s ability to restrict the loss of heat. The FTC argued that Innovative Design overstated the product’s R-value and thus misrepresented the energy-saving properties of its product.

The heart of the dispute at trial concerned the measurement of R-value. The FTC maintained that a particular ASTM standard is the “consensus standard” to measure R-value. ASTM standards are developed by an international organization that creates voluntary technical standards that various materials and products should meet. The court agreed that the ASTM standard for R-value measurement is the prevailing industry standard.

Innovative Design advertises the submitted products as having an R-rating of R-3 and R-6. Innovative Design submitted Insultex for testing to two laboratories in 2009. Using standard testing, the laboratories rated the products as R-0.2 and R-0.3, far less than their claimed R-values.

Innovative Design then paid a different laboratory to build a modified testing device. The new device incorporated air gaps that aren’t present in the standard testing device. A third-party accreditation company inspected the device and accredited it to determine an R-value.

Using the modified device, the testing lab certified that Insultex Products had an R-3 or R-6 value. The certificates of analysis stated that the testing complied with ASTM testing guidelines. Whether a testing device that departs from the ASTM standard by incorporating air gaps is reliable was a disputed question at trial.

Pretrial Rulings Regarding Experts

Innovative Design argued Yarborough’s testimony should be excluded because Yarborough had an employment relationship with a company that Innovative Design once hired to test Insultex. Since Insultex did not provide Yarborough with any confidential information, the court disagreed that he was disqualified from acting as an expert witness.

The FTC also disclosed Anastassios Mavrokefalos as an expert witness and Jonathan Malen as a rebuttal expert. Mavrokefalos had been disclosed as an expert witness for Innovative Design. When the FTC took his deposition, however, he changed his opinions. Innovative Design then withdrew Mavrokefalos as an expert witness. The FTC disclosed that it might use Mavrokefalos’ deposition as evidence in support of its case. The judge denied Innovative Design’s motion to exclude that evidence.

Innovative Design designated Donald Garlotta as an expert witness. The court denied the FTC’s Daubert motion to exclude his testimony after finding that the motion should be treated as a challenge to Garlotta’s credibility. The court said it would determine Garlotta’s credibility at trial. However, Innovative Design did not call Garlotta, or any other witness, to provide expert testimony.

Yarborough’s Testimony

Yarborough testified that an experienced lab technician tested Insultex under his supervision. Applying the relevant ASTM standard, Yarborough concluded that, regardless of the thickness of the specific product, Insultex’s R-value was “negligible at best.” Yarborough also testified that, given the structure of Insultex, the claimed R-values are not theoretically possible.

On cross-examination, Yarborough testified that the lab technician’s testing device was calibrated with a fiberglass board, not with a material that is similar to Insultex as the ASTM standards require. Yarborough explained that testing modifications were necessary because Insultex is an unusual material. If no material with a known R-value is similar to Insultex, it is obviously impossible to calibrate the machine using a similar material.

Examining these and other difficulties with Yarborough’s methodology, the court decided that Yarborough’s explanation of his departure from standardized testing methods was conclusory. While the court recognized that nonstandard testing techniques may be necessary when nonstandard materials are tested, the court concluded that departures “need to be well explained.” The court was not satisfied that Yarborough’s explanation of his decision to calibrate the machine with a fiberglass board established the reliability of his methodology.

The FTC argued that Yarborough employed methods used by other testing labs. The court was not persuaded by that argument because the FTC did not establish that the methods used by other labs are generally regarded as acceptable by the relevant scientific community. The court therefore concluded that Yarborough’s testimony did not satisfy Daubert and declined to rely upon it.

Mavrokefalos’ Expert Testimony

At trial, the FTC contended that Innovative Design engaged in deceptive advertising by promoting values of R-3 or R-6 when standard testing never found a value above R-0.3. The FTC hoped to persuade the court that Innovative Design was trying to game the system by creating a modified testing device that would return the results it wanted without revealing the modification in its advertising.

After Yarborough’s testimony was excluded, the only expert evidence that the FTC introduced in its case-and-chief consisted of Mavrokefalos’ deposition testimony. The FTC wanted to use the deposition because it was more favorable to the FTC’s position than the report Mavrokefalos wrote on behalf of Innovative Design.

After reviewing Yarborough’s report, Mavrokefalos investigated the modified testing device and concluded that it did not always return reliable results. Mavrokefalos believed that the modified device used to test the R-value of Insultex distorted the results by “incorporating the value of the air gaps into every reading.”

Based on his own testing, Mavrokefalos expressed the belief that the Insultex’s R-value was less than R-1. He essentially changed his mind about the reasonableness of Innovative Design’s R-value claims after conducting his own testing.

Court’s Ruling

Since Innovative Design moved for pretrial judgment before putting on any evidence, the court did not consider Malen’s expert opinions when it addressed the motion after the trial concluded. Since Malen had been designated as a rebuttal expert, his opinions could not be used to bolster the FTC’s case-in-chief.

While the FTC claimed that Innovative Design misrepresented the R-value of its product, the court concluded that the claim could only be proved by expert testimony. Since Yarborough’s opinions did not satisfy Daubert and Malen’s could not be considered, the FTC was left with only the expert opinion of Mavrokefalos.

The court declined to credit Mavrokefalos’ testimony because he relied on non-standard testing and failed to give a satisfactory explanation of his departure from the standard testing. Moreover, Mavrokefalos had no experience with the tests that he employed. He did not explain whether those tests are relied upon by the scientific community to determine an R-value. He did not explain whether the tests had a known error rate and did not testify that his methods had been peer-reviewed.

The court faulted some of the tests because they were performed on components of Insultex rather than the product as a whole. Finally, the court found that Mavrokefalos’ credibility was impaired by writing a report that favored Innovative Design and then changing his opinions.

A different court might have deemed Mavrokefalos’ credibility to have been enhanced by his willingness to admit that he was wrong, even after he was paid to give an opinion that favored Insultex. While experts are often condemned for being “hired guns,” Mavrokefalos’ opinions were clearly not influenced by money.

Lessons Learned

Although the laboratories that used standard tests found that Insultex has a minimal R-value, the FTC did not introduce those test results as expert evidence. Since the court did not know whether the testing comported with ASTM standards, the earlier tests could not be relied upon as proof that Innovative Designs made deceptive representations.

The FTC was apparently confident in the opinions formed by Yarborough. However, this case stands as a reminder that even the most competent expert must explain opinions in detail.

When an expert departs in any way from an accepted methodology, the expert must be prepared to justify the departure by explaining why the departure was necessary and why it returned reliable results. The failure to elicit that testimony may result in a trial loss even when the evidence in support of a party’s position seems compelling.

North Carolina Court Disallows Expert Testimony About Impact of Methamphetamine Consumption Upon Shooting Victim

A defendant who alleges that he committed a violent act in self-defense must usually establish a reasonable basis for believing that his safety was threatened. Courts have recognized that evidence of drug use may be relevant when the defendant was attacked by a drug user whose violent conduct can be explained by the ingestion of drugs. An expert witness can help a jury understand why the use of a particular drug may have caused the attacker’s aggressive behavior, thus posing a threat to the defendant.

The defendant in a recent North Carolina case argued that he should have been allowed to use an expert witness to bolster his theory that he acted in self-defense after being attacked by a methamphetamine user. In an opinion that fails to recognize the important role that expert witnesses play in helping juries understand evidence of drug intoxication, an appellate court affirmed the decision to disallow the expert testimony.

Facts of the Case

Shirley Hollifield left her home at midnight to put gas in her car. A man confronted her. The man was later identified as Chris English. Hollifield texted Jerry Echols, the boyfriend with whom she lived, to tell him about the confrontation. She was sobbing when she returned home twenty minutes later.

Echols wanted to know why English had approached Hollifield late at night. Echols and Hollifield drove to a neighborhood where they spotted English. They testified that English was babbling before he got down on all fours and started growling at them. English then charged at Echols and Hollifield.

English fought with Echols, who got on top of him. After Echols let English go, English again got on all fours, started growling, and rushed toward Echols. Echols pulled a handgun from his pants and shot English. Echols testified that he believed English was armed. Echols and Hollifield then drove away.

English had been a regular user of methamphetamine since his release from prison about a year earlier. English suffered from paranoia and hallucinations. On the night of the shooting, English was “talking crazy” and “not making any sense” before he was seen to use drugs. He then began smoking methamphetamine with other users. One of those users testified that English was growling like a dog when she last saw him.

The police discovered English’s body at 1:00 a.m. A couple of days later, Echols fled from a police officer who tried to pull him over for running a red light. The officer arrested Echols and, during a search of his car, found the handgun he used to shoot English.

Expert Evidence

Echols was charged with murder. At his trial, an expert witness testified that she matched Echols’ handgun to the shell casings found at the scene of the shooting.

Echols wanted to introduce the expert testimony of Wilkie A. Wilson, a neuropharmacologist. Wilson would have testified that English’s aggressive and bizarre behavior was consistent with methamphetamine intoxication. Echols contended that Wilson’s testimony would have bolstered his contention that he was acting in self-defense after being attacked by a person who was seemingly deranged.

The trial judge ruled that Wilson’s proposed testimony was based on speculation rather than a reliable application of scientific principles and methods to the facts of the case. The defense countered that the evidence established English’s use of methamphetamine and that Wilson’s specialized knowledge of the behavioral effects of methamphetamine ingestion supplied a reliable basis for his expert opinion.

The trial judge also ruled that the relevance of Wilson’s testimony was outweighed by its prejudicial nature because English was behaving strangely before he ingested methamphetamine. Yet there was no evidence that English was behaving aggressively, much less getting on his hands and knees and growling like a dog, until he used the drug.

Appellate Analysis

In a decision that strikes a blow to the ability of defendants to use expert witnesses to educate juries, the North Carolina Court of Appeals ruled that Wilson’s testimony was inadmissible. According to the court, Wilson’s testimony was not supported by sufficient facts and was therefore speculative. The court noted that Wilson did not examine English, but failed to explain why an examination was necessary to opine about the pharmacological effects of methamphetamine ingestion.

Wilson based his opinion about English’s drug use on the testimony of other witnesses, as experts are entitled to do. Those witnesses saw English smoking methamphetamine. Wilson explained that abundant studies prove that methamphetamine ingestion causes the kind of behaviors that English exhibited. That evidence supplied a factual basis for Wilson’s conclusion that English was suffering from methamphetamine intoxication when he attacked Echols.

The trial court ruled that there was “a real problem” concerning whether the facts upon which Wilson relied were correct. But deciding whether facts are correct is the jury’s duty. Courts improperly deny parties the benefit of a jury determination when they take it upon themselves to decide disputed facts. Since the evidence would have permitted the jury to rely upon the facts that informed Wilson’s opinion, the opinion should not have been rejected simply because the court had a “real problem” with those facts.

The trial court drew a distinction between testimony that methamphetamine makes people behave in the way that English behaved — a conclusion that, as the court conceded, is well established by science — and testimony that English was violent because he used methamphetamine. That distinction is illusory. Would a court say that an expert can testify that alcohol impairs driving but disallow testimony that the driving ability of a driver who drank a bottle of bourbon was impaired by alcohol consumption?

Courts routinely allow experts to draw conclusions about human behavior, at least when the experts testify for the prosecution. Disallowing Echols the opportunity to use an expert in his defense was plainly unwarranted.

Lawyer Is Qualified to Give Expert Testimony About Physician’s Right to a Hearing on Revocation of Hospital Staff Privileges

Lawyers might be experts in a field of law, but they are not typically experts in the practices followed by other industries. The California Court of Appeal identified an exception to that rule in a case involving a lawyer who was proposed as an expert witness in medical industry practices concerning a physician’s right to a hearing before the termination of hospital staff privileges.

Facts of the Case

Farzin Tayefeh signed a two-year agreement to work with Somnia, Inc. as an anesthesiologist at Kern Medical Center (KMC) in Bakersfield. Somnia’s anesthesiologists were independent contractors rather than employees.

Tayefeh’s agreement with Somnia required him to maintain his hospital staff privileges at KMC. The suspension or termination of hospital privileges was a ground for the immediate termination of the agreement.

Somnia’s anesthesiologists were given an application for temporary hospital privileges at KMC. If privileges were granted and if Somnia decided that it was satisfied with the anesthesiologist’s work, it would ask KMC to give the anesthesiologist full staff privileges.

By signing the application for temporary privileges, Tayefeh agreed to obey KMC’s bylaws. The bylaws provided that, with one exception, temporary privileges could be terminated with or without cause and without a hearing. The bylaws entitled a doctor to a hearing if termination was based on a “medical disciplinary cause or reason.”

Tayefeh represented on his application for temporary privileges that he was not subject to any pending disciplinary action. About two weeks after Tayefeh was granted temporary privileges, the Medical Disciplinary Board notified KMC that it had filed a complaint against Tayefeh for prescribing medication without a patient examination and without maintaining adequate records. The complaint was filed before KMC granted temporary privileges to Tayefah.

The KMC bylaws require doctors with hospital privileges to notify KMC within ten days after a disciplinary action is commenced. Tayefeh did not notify KMC of the complaint. KMC terminated Tayefeh’s privileges for two reasons: (1) failure to report the disciplinary action and (2) the serious nature of the accusations involved in the complaint.

KMC did not give Tayefeh a hearing because it did not regard either justification for termination as a “medical disciplinary cause or reason.” Because he no longer had staff privileges, Somnia terminated its agreement with Tayefeh.

Tayefeh sued KMC for failing to give him a hearing. The trial judge decided that the meaning of “medical disciplinary cause or reason” was subject to conflicting interpretations as the term applied to Tayefeh’s conduct and should therefore be resolved by a jury.

Expert Witness Dispute

A California statute defines “medical disciplinary cause or reason” as any aspect of a doctor’s “competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.”

At trial, KMC called an expert witness to educate the jury about the application of the term “medical disciplinary cause or reason” to the termination of Tayefeh’s hospital privileges. The expert testified that, in his opinion, the reasons for terminating Tayefeh’s privileges did not include medical discipline as that term is understood in the medical industry.

Tayefeh wanted to call Arthur Chenan as an expert witness. Chenan is not a physician. He has never participated in making a decision to revoke or suspend a physician’s hospital staff privileges.

Chenan is an attorney who has advised hospitals and medical staffs about whether state law required them to report a physician’s conduct to the medical board. Reporting is mandatory when staff privileges are suspended or revoked for a medical disciplinary cause or reason.

The court decided that Chenan was not qualified to testify as an expert. The court concluded that Chenan was not a doctor and was thus unqualified to testify about the medical industry. Accordingly, the jury only heard expert testimony from KMC. By a 9-3 vote, the jury ruled in favor of KMC.

Appellate Court Analysis

California law permits courts to rely on extrinsic evidence — any evidence that goes beyond the words themselves — to interpret ambiguous contract language. The court applied that same rule to the bylaws that were referenced in Tayfeh’s contract.

The appellate court agreed with the trial court that the phrase “medical disciplinary cause or reason” was ambiguous. Expert testimony about the meaning that is customarily given to that phrase in the medical industry was therefore the kind of extrinsic evidence that is admissible in a trial that hinged upon the interpretation of that language.

California follows the customary rule that a witness “is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The appellate court rejected the trial court’s conclusion that only a doctor or a hospital administrator can testify about the customary meaning given to a term used in medical bylaws.

That Chenan is not a doctor or a hospital administrator does not mean he lacks knowledge of industry standards when the term “medical disciplinary cause or practice” is applied in the hospital peer review industry. Chenan was not asked to testify about medical matters that require a physician’s training. Nor was he asked about a topic that only a hospital administrator would be qualified to explain.

Knowledge and experience do not need to be gained by working in a particular field. Chenan has taught courses and has published articles in the area of medical staff credentialing, hospital peer review, physician discipline, and restriction of staff privileges.

The court acknowledged that general litigation experience might be insufficient to qualify an attorney as an industry expert. The court noted that a lawyer who handles bad faith claims against insurance companies is not necessarily an expert in insurance industry standards for approving or denying claims.

While an attorney who occasionally represents doctors in employment matters might not have the requisite experience to support an expert opinion, Chenan had years of experience “advising hospital boards, medical staffs, and physicians specifically about peer review matters.” He frequently advised those entities whether a suspension or revocation of staff privileges triggered a reporting requirement because it was based on a “medical disciplinary cause or practice.”

Chenan’s testimony was not founded on knowledge gleaned from litigation experience, but on specific work as an advisor to the medical industry on peer review matters that required the application and interpretation of hospital bylaws. Given Chenan’s experience, the fact that he is a lawyer advising the medical industry rather than a hospital administrator working within the medical industry did not disqualify him from rendering an expert opinion.

The divided jury verdict indicated that this was a close case. Excluding the plaintiff’s expert testimony left the defendant’s expert testimony unchallenged by another expert. The trial court’s erroneous exclusion of Chenan’s testimony might therefore have affected the verdict. The appellate court accordingly reversed and remanded for a new trial.

Expert Who Did Not Keep Time Records Deemed Unqualified to Testify in Maryland Medical Malpractice Case

At the urging of the medical and insurance industries, Maryland adopted an unusual law that limits the ability to call an expert witness in malpractice cases. At the time Brown v. Falk & Karim P.A. was litigated, Maryland law prohibited the use of an expert witness in malpractice cases if the expert spent more than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his or her professional time acting as an expert witness.

The question in Brown was whether an expert’s word about the time spent working as an expert witness is sufficient to satisfy the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. On appeal, the court decided that an expert should be prepared to surrender detailed time records to prove the percentage of time spent in medical practice versus the time spent as an expert witness.

Facts of the Case

Brenda Brown sued Dr. Joel Falik for medical malpractice after her husband died. Brown alleged that Falik’s negligence during her husband’s back surgery caused her husband’s death.

Maryland law required Brown to certify, at the time the lawsuit was filed, that her case was supported by an expert opinion. Brown certified that Dr. Sanford Davne, an orthopedic surgeon, would testify that Dr. Falik failed to recognize that Brown’s husband was a high-risk patient and failed to advise Brown’s husband about less dangerous treatments for his back pain.

Dr. Davne’s certification stated that less than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his annual activities were devoted to testifying as an expert. Dr. Davne testified in a deposition that the statement was accurate, but explained that he kept no records of time devoted to expert witness work and time devoted to other work.

The trial court eventually ordered Dr. Davne to produce his tax returns. The defense apparently regarded his income from various kinds of work as a proxy for the amount of time he spent working to produce that income.

At trial, the defense claimed that Dr. Davne had not produced sufficient tax returns to prove that he satisfied the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. The judge denied a motion to disqualify Dr. Davne and denied a motion for judgment after Brown presented her case.

The jury returned a verdict in Brown’s favor and awarded her more than $900,000 in damages. The judge eventually concluded that Dr. Davne was not qualified to testify and granted a motion for judgment notwithstanding the verdict. Brown appealed.

The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} Rule

For decades, the medical and insurance industries have worked diligently to make it more difficult for victims of medical negligence to prove their cases. Some of their efforts have focused on vilifying experts who testify for plaintiffs. Compliant legislators have responded to industry lobbyists by enacting a variety of laws to prevent qualified experts from testifying for plaintiffs.

Maryland’s 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule was one such law. The law was later amended to exclude expert witnesses who devoted more than 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of their time to testifying as an expert during the previous year.

The fact that a doctor often testifies as an expert has no rational relationship to whether the doctor is competent to testify. While the medical and insurance industry refers to such experts as “hired guns,” they use that term exclusively to refer to experts hired by plaintiffs. Insurance companies hire the same experts to testify over and over in toxic tort cases, but they never refer to their own experts as hired guns. Whether the frequency of testimony affects an expert’s credibility is a decision that should be made by juries, not by legislators who serve the interests of corporate lobbyists.

As the Baltimore Sun argued, the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule is an arbitrary standard. It applies only in medical malpractice cases because the insurance industry knows how difficult it is for plaintiffs to find a doctor who is willing to testify against another doctor. Brave experts who are willing to give truthful testimony in response to a malpractice epidemic are in demand, so the insurance industry strives to limit their availability.

Notably, nobody claims that Dr. Davne’s lacks the training or experience to advance an expert opinion. Nor does anyone claim that, but for the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule, a jury would not be entitled to accept Dr. Davne’s testimony as credible. The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule therefore took compensation away from the widow of a malpractice victim that a jury decided she deserved.

Appellate Opinion

At the time of trial, Maryland law required a plaintiff to prove that the expert witness did not “devote annually more than 20 percent of [his] professional activities to activities that directly involve testimony in personal injury claims.” Maryland courts view the statute as requiring a mathematical calculation. Courts divide the amount of time that the witness is directly involved in expert testimony by the amount of time that the witness spends performing all professional activities.

After disavowing the need for an “exhaustive accounting of an expert’s timesheets,” the court criticized Dr. Davne for failing to produce timesheets that accounted for the time he spent on patient care and other professional activities. The court also faulted him for not producing a list of every case in which he had ever provided services as an expert.

Dr. Davne did provide an affidavit that described the time he spent on professional activities and expert witness activities, but Dr. Davne’s word was not good enough for the appellate court. He also produced his tax returns, but the court wasn’t satisfied that a calculation could be made from the income information supplied to tax authorities.

The court also thought that Dr. Davne’s testimony about the income he received from expert testimony undermined his affidavit. Since expert testimony often commands a higher hourly rate than other work, it is difficult to correlate time spent on an activity with income received from that activity. In any event, the court of appeals agreed that Dr. Davne’s failure to produce detailed records of his time spent as an expert and in professional practice disqualified him from testifying.

Lessons Learned

Whether an expert has the training, experience, and knowledge to opine about a standard of care is wholly unrelated to how much time the expert devotes to giving that testimony. The Maryland rule harms malpractice victims by depriving juries of valuable testimony while shielding negligent doctors from the consequences of their malpractice.

In light of the Maryland rule, however, plaintiff’s lawyers bringing malpractice cases in Maryland must be careful to select experts who keep track of the time they spend in their professional practices and the time they spend working as an expert witness. Gathering that data will not be as easy as the court seems to suggest.

Since billing records do not reflect the hours a doctor spends reading medical journals or engaging in other nonbillable work that is part of the practice of medicine, witnesses may need to estimate their hours in practice by examining the hours they spend in the office (or attending continuing education seminars) each year. They can probably rely on hourly billing records to determine the time they spend testifying as an expert witness. Doctors who regularly testify as experts should take note of Maryland law and retain those records so that they are qualified to testify in Maryland.

New Damages Trial Granted Because Jury Ignored Expert Testimony

Bradley Myers sued Frank Sebastianelli and his business, Ameripride Fence Company, for personal injuries. Myers was employed as a truck driver. He delivered materials to Sebastianelli’s company. The only forklift at Ameripride was inoperable, so Myers attempted to unload the materials by hand.

Bundles of pipe were placed across dunnage (similar to landscaping timbers) on the floor of the truck. The dunnage allows the fork of a forklift to slide beneath the bundles of pipe. As Myers was attempting to unload the pipe, a piece of dunnage swung in his direction, fracturing the tibia and fibula in his left leg. He also suffered a torn rotator cuff in his shoulder.

Myers argued that Sebastianelli was negligent for failing to supply a working forklift to unload the materials from the truck. A jury apportioned negligence to each party, finding that 51{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the fault for the accident rested with Sebastianelli while attributing the remaining 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to Myers.

Expert Testimony

Myers supported his claim for damages with expert testimony from several witnesses. An orthopedic surgeon testified that he surgically inserted a metal rod in Myers’ leg. Myers needed a second surgery after he developed compartment syndrome. Following that surgery, he developed chronic regional pain syndrome, accompanied by swelling in the leg. The surgeon testified that the pain syndrome is a permanent condition that prevents Myers from returning to his former work. The surgeon later removed the rod and discussed amputation as an alternative to living with the pain.

A reconstructive surgeon testified about treating wounds to Myers’ leg following the surgery and the permanent scarring that those wounds caused. An expert in rehabilitative medicine testified about limitations in Myers’ leg that make it difficult for him to walk. The doctor testified about pain treatment for Myers’ syndrome and confirmed that Myers is only able to work at light duty jobs involving very limited standing or sitting and no climbing or significant lifting.

Another orthopedic surgeon testified about surgical repairs made to Myers’ torn rotator cuff. The parties agreed that the cost of medical care Myers had received for his leg and shoulder injuries to date was about $530,000.

An expert in nursing, nurse life-care planning and projecting future medical costs testified that the future cost of pain management and medical treatment will be about $910,000. Additional costs of about $200,000 will be incurred if Myers elects to have an amputation and to use a spinal stimulator to ease his pain.

Finally, Myers offered the testimony of a vocational expert and forensic economist. That expert calculated that the injuries caused Myers to lose wages and benefits of about $212,000. He testified that Myers’ loss of future earning capacity and benefits has a value of about $1 million.

Challenge to Jury Verdict

The defense did little to challenge the expert testimony regarding Myers’ damages. The defense focused instead on liability. It succeeded to the extent that the jury found Myers to be 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault. Under North Carolina law, that finding caused he amount the jury awarded to Myers as damages to be reduced by 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

Inexplicably, the jury awarded Myers nothing for past or future medical expenses. It also awarded nothing for lost earnings or loss of future earning capacity. The jury awarded $500,000 for past and future pain and suffering.

Myers moved for a new trial. He argued that the expert testimony established that he had incurred medical expenses and a wage loss because of his injuries. The expert testimony also related his wage loss and loss of future earning capacity to his accident injuries. Myers contended that the jury had no basis for ignoring the expert testimony when it awarded him no damages for those losses.

The trial court decided not to disturb the jury verdict for pain and suffering. It did, however, award Myers a new trial regarding his economic damages.

Appellate Decision

Both parties appealed from the order granting a new trial. Sebastianelli argued that juries decide damages and that the jury had spoken. In the absence of any argument that Myers received an unfair trial, Sebastianelli asked the appellate court to respect the jury’s decision.

The Pennsylvania Superior Court agreed that jury verdicts are not typically disturbed, but it concluded that the trial court did not abuse its discretion in granting a new trial as to economic damages. Pennsylvania law permits a damages verdict to be “set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instruction of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.”

The jury found that Sebastianelli was negligent and that his negligence caused harm to Myers. No evidence suggested that any other cause contributed to those injuries. Medical expenses were obviously part of the harm that Sebastianelli’s negligence caused. Expert testimony established that Myers’ accident injuries required medical attention. Sebastianelli offered no expert evidence to the contrary.

The parties stipulated to the amount and reasonableness of Sebastianelli’s past medical expenses. The jury was not free to disregard that stipulation. Nor was it free to disregard uncontradicted expert evidence that the expenses were incurred because of Myers’ accident.

The jury may have had more leeway in awarding future medical expenses, given the absence of a stipulation about the likely amount of those expenses. In addition, there was a factual dispute as to whether the expense of an amputation and/or a spinal cord stimulator should be included in the verdict, given that Myers had refused both treatments.

If the jury had awarded an amount for future medical expenses that was in the ballpark of the expert’s projection, after subtracting the cost of an amputation and spinal cord stimulation, Myers would not likely have been given a new trial as to future medical expenses. However, since the expert testimony that he would need some amount of future health care was uncontradicted, the jury was not free to ignore that testimony and to award Myers nothing.

The same analysis required an affirmance of the trial court’s decision to grant a new trial regarding lost wages. Myers’ serious injuries clearly prevent him from returning to work as a truck driver. While there may have been a dispute about Myers’ alleged failure to mitigate his damages by not agreeing to an amputation or spinal cord stimulation, the expert evidence that he lost income and will continue to lose income because of his inability to work as a truck driver was unchallenged. A verdict of zero was not supported by the evidence.

Jurors Cannot Ignore Uncontested Expert Evidence

Jurors are free to disbelieve expert testimony if they have a rational basis for doing so. The Superior Court agreed with the trial court that there was no rational reason to disregard uncontradicted expert testimony regarding damages.

Sebastianelli argued that the jury may have returned a compromise verdict. While the Superior Court noted that Pennsylvania law regarding compromise verdicts is “murky,” it deferred to the trial judge’s conclusion that the verdict did not result from a compromise.

It is difficult to understand how a rational compromise could have resulted in a decision to award damages for pain and suffering resulting from an accident but not for medical expenses and lost wages resulting from the same accident. The trial judge was in the best position to decide whether the jury’s verdict likely represented a compromise rather than an irrational failure to award damages that were clearly established by the evidence.

Sebastianelli argued that if a new trial is granted, it should address all categories of damages, including pain and suffering, not just economic damages. Myers did not oppose that request, probably because most juries return a larger award for pain and suffering than they award for medical expenses. The appellate court agreed to allow Myers to present expert testimony as to all issues of damages.

Illinois Court Refuses to Upset Conviction Based on Denial of Expert Eyewitness Identification Testimony

Andre Brown was convicted of murder on the strength of five eyewitnesses. He brought a postconviction challenge to his conviction alleging, among other grounds, that his right to due process was violated by the court’s decision to bar him from calling an expert in eyewitness identification. The trial court denied the challenge.

The Illinois Appellate Court affirmed that ruling. The decision stands as the most recent example of the judiciary’s failure to recognize the importance of defense experts who could educate the jury about the perils of eyewitness identification.

Facts of the Case

A man on a bicycle shot Enrique Fuentes as Fuentes was sitting on a Chicago street corner. The police were alerted to look for a black man riding a mountain bike. The man was described as wearing a black jacket, black cap, and dark pants.

Brown was riding a mountain bike when the police stopped him. He was wearing a black-and-silver Oakland Raiders jacket. He was also wearing a black knit cap with a white Nike swoosh on the front. While the Raiders insignia and the Nike swoosh are easily recognizable, the police decided that Brown matched the generic description of the suspect and arrested him.

Brown had no gun. The police searched the likely path from the murder scene to the point of arrest but found no gun. Brown did not appear to be fleeing or in any particular hurry when the police arrested him.

The police took Brown back to the murder scene. His bicycle was sticking out of the trunk of the squad car, making it obvious that Brown was apprehended while riding a bike.

The police pointed out Brown to five witnesses, only one of whom actually saw the bike rider shoot Fuentes. The others were in the area and advised police that they saw a man on a bike either before or after they heard shots fired.

Brown was sitting in the back of the squad car when the witnesses identified him. In at least one case, the police used a flashlight to spotlight his face. In at least one case, Brown was removed from the car in handcuffs when the witness said it was too dark to see him in the back of the car. The five witnesses identified Brown as the bicyclist they saw.

Eyewitness Identification Issues

Research demonstrates that some identification procedures are better than others. If Brown had been placed in a lineup with other black males wearing similar clothing, his identity as the shooter would not have been signaled to the witnesses. If the witnesses picked him out of a lineup, the legal system could say with greater confidence that Brown was the man they saw.

A showup (presenting only the suspect to the witness when the suspect is obviously in police custody) is inherently suggestive of guilt. Research shows that witnesses are more likely to assume that the suspect is guilty and therefore to misidentify the suspect when they view the suspect in a showup.

Research also shows that misidentifications are more likely when witnesses learn that another witness has identified the suspect. One person’s mistaken identification will tend to encourage the other witnesses to make the same misidentification.

Unfortunately, most jurors are unaware of the body of research that casts doubt on the validity of eyewitness identifications made during showups. Eyewitness identifications expert play a vital role in educating jurors who would otherwise be inclined to believe that five eyewitnesses who are in agreement could not possibly be mistaken.

Brown’s Trial

The witnesses who identified Brown in the showup also identified him at trial. Having seen what Brown was wearing in the squad car, their description of the shooter’s attire became more detailed.

Police witnesses admitted that they stopped a different black man who was on a bicycle. He was released without asking any witnesses whether they could identify him. Police witnesses also admitted that they did not test Brown’s hands for gunshot residue, in part because they thought that his sweat might have washed away any residue. They were apparently worried that a negative test result would undermine the case they were building against Brown.

The defense called an expert witness who explained that the presence of residue would be evidence that a suspect had recently fired a gun. While the expert acknowledged that residue can be washed or rubbed away, the absence of residue would provide some evidence that the suspect is innocent.

The defense wanted to call Jonathan Schooler, an expert on witness identifications and memory. Schooler would have testified that headgear, the presence of a weapon, and lighting conditions all affect eyewitness identifications. He would have testified that suggestive factors (such as showing a handcuffed suspect to a witness, shining a flashlight in his face, or making it clear that the suspect had a bicycle) could also influence identifications.

Finally, Schooler would have testified that cross-racial identifications are less accurate than same-race identifications and that the confidence a witness has in an identification cannot predict whether the identification is accurate. All of that testimony is founded on more than two decades of research by social scientists who study perception and memory.

The trial judge decided that Schooler’s expert testimony would not be helpful to the jury because commonsense and experience teach jurors all the facts that Schooler would have given them. Valuable information suggestive of innocence was thus hidden from the jury. Brown appealed his conviction.

Appellate Decision

A key issue on Brown’s initial appeal was whether the trial court erred by failing to admit Schooler’s expert testimony. The issue arises with distressing regularity. Why judges think it is bad to allow jurors to hear expert testimony that is supported by abundant science is a mystery. Cynics might say that judges who exclude eyewitness identification testimony are biased in favor of the prosecution and want to create barriers against a robust defense to accusations that the judge has decided to believe.

In 2001, the Illinois Appellate Court rejected Brown’s challenge in an unpublished opinion. That court was far from alone in upholding the decision to deny a defendant the opportunity to call an expert witness. As one commentator noted, most appellate courts give judges the discretion to admit the testimony while routinely affirming a trial judge’s decision to exclude it.

Like the judge in Brown’s case, judges often claim that eyewitness identification experts testify about facts that are matters of common sense. Yet as a federal judge has warned, studies establish that “common sense” causes jurors to “rely on inaccurate assumptions and misconceptions when they assess the credibility of others. This renders the notion of ‘common sense’ as a tool for accurately deciding credibility not only a ‘myth’ but also a tool for ‘erroneous assessments of credibility’.”

Judges who value the scholarship provided by experts agree that lay jurors do not have the experience or data that is needed to overcome the “commonsense” belief that people are reliable reporters of what they see. In the words of Judge Easterbrook, jurors “who think they understand how memory works may be mistaken, and if these mistakes influence their evaluation of testimony then they may convict innocent persons.”

Postconviction Proceeding

More than ten years after losing his appeal, Brown sought postconviction relief based on his actual innocence. Brown presented new exonerating eyewitness evidence, the recantation of one of the original eyewitnesses, and alibi evidence. He also offered the testimony of Brian Cutler, another expert in eyewitness identification. Finally, he pointed to a 2016 Illinois Supreme Court decision that belatedly recognized the value of expert eyewitness identification evidence.

The 2016 decision acknowledged that the science of eyewitness identification is well established, strongly supported, and outside the ken of ordinary jurors. It also recognized the value of expert witnesses who can explain that science to juries. Yet the appellate court in Brown’s case decided that the state supreme court’s 2016 decision did not entitle a defendant to call an expert witness in every case.

In any event, the appellate court decided that Brown could not benefit from the 2016 decision because the supreme court’s decision did not bring about a “watershed” change in Illinois law. That opinion is doubtful.

Before the 2016 decision, appellate courts routinely gave their blessing to trial court rejections of expert eyewitness identification testimony. The 2016 decision made clear that expert testimony should usually be allowed as a component of the defendant’s due process right to fair trial. That seems like a change of seismic proportion — a watershed change intended to benefit a defendant like Brown, who could not have been convicted in the absence of the eyewitness identifications.

Unfortunately, the supreme court’s 2016 recognition that expert witnesses play a necessary role in educating juries about the perils of eyewitness identification came too late to benefit Brown. He may or may not be innocent, but it is plain that the denial of an expert witness assured he would not have a fair trial. Unless the state supreme court makes its 2016 decision retroactive, he will likely never have the benefit of a jury that has been informed by an expert witness.

Can an Expert Witness in a Criminal Case Give Remote Testimony?

As the COVID-19 pandemic continues to take lives, courts have been cautious about protecting trial participants from the risk of infection. Many trials have been delayed. When a criminal defendant is detained while awaiting trial, however, judges must weigh the defendant’s right to a speedy trial against the dangers of holding a trial.

Criminal trials are moving forward in many jurisdictions. Courtrooms have been reconfigured to allow mask-wearing jurors to practice social distancing. The number of observers allowed in the courtroom is typically limited. Yet problems arise when witnesses are unwilling to risk an infection by traveling during the pandemic.

Remote Testimony

In civil cases, many courts have permitted remote testimony of witnesses. In some instances, the testimony is taken in the form of a videotaped deposition prior to trial that is then played to the jury. In other cases, witnesses give live testimony through videoconferencing technology.

Remote testimony can be frustrating for a number of reasons. Low bandwidth can cause the audio or video feed of live testimony to freeze, interrupting the flow of direct or cross-examination. It is also more difficult for juries to assess the credibility of a witness on a television screen than a witness who is testifying from the witness chair.

Confrontation Clause Issues

Constitutional considerations come into play when remote testimony is requested in criminal cases. For example, suppose the prosecution wants to call a crime lab analyst as an expert witness. If the analyst has a health condition that increases the expert’s vulnerability an infection, the expert might ask to testify remotely. A court will likely be forced to deny that request.

In Crawford v. Washington, the Supreme Court held that the Confrontation Clause allows a defendant to insist that testimony be given in person. In Melendez-Diaz v. Massachusetts, the Court held that the results of forensic testing cannot be introduced in the form of a report unless an expert witness gives live testimony about the results.

The Supreme Court has not decided whether and when live testimony given from a remote location satisfies the Confrontation Clause. However, the Court decided in Coy v. Iowa that child witnesses could not be permitted to sit behind a screen while testifying because the Confrontation Clause demands face-to-face cross-examination. Although a later case carved out a narrow exception that permits a child witness to be shielded from the defendant while testifying in person, that exception applies only when a child witness would be traumatized by exposure to the accused.

When the prosecution wants to call an expert witness, the decisions in Crawford and Coy suggest that the witness will need to testify in person unless the defendant agrees to remote testimony. Expert witnesses are not children who will be traumatized by testifying in the defendant’s presence. The Confrontation Clause arguably gives defendants the right to look experts in the eye while the expert testifies.

Lower courts are nevertheless divided as to whether remote testimony in criminal cases is permissible under at least some circumstances. Courts generally agree that only circumstances implicating important policies would permit a prosecution witness to testify outside the presence of a defendant. Some courts have been willing to find that any circumstance more compelling than convenience can serve as an “important policy,” including protecting the health of a seriously ill witness.

The risk of a COVID-19 infection affects everyone who enters the courtroom, including the defendant. Since a prosecution expert will not usually be at greater risk than anyone else, it should be rare that a court will allow a prosecution expert to give remote testimony. Whether the rule is different for a defense expert witness was an issue that recently came before a judge in Yolo County, California.

Defense Expert Refuses to Testify in Person

Keith Whelan is charged in Yolo County Superior Court with multiple counts of having sex with a minor. The alleged victim reported in 2019 that the sexual contact had occurred regularly since 2016.

Whelan’s public defender asked to call two witnesses remotely. One was a social worker who had contact with the alleged victim after she made her allegations. The social worker lived in New York and did not want to travel to California to testify.

The public defender also wanted to call William O’Donohue from the University of Nevada as an expert witness. O’Donohue’s testimony was needed to respond to the anticipated testimony of Blake Carmichael, a prosecution expert who is expected to testify about child sexual abuse accommodation syndrome. O’Donohue has published research that criticizes the controversial syndrome as “junk science.”

O’Donohue advised the defense that he was willing to testify by Zoom but would not travel to testify in person. O’Donohue noted that he is an older man at high risk of becoming seriously ill if he is exposed to the novel coronavirus. O’Donohue also takes care of his developmentally delayed daughter and was concerned that travel would interfere with his parental responsibilities.

The judge initially noted that he had rejected the prosecution’s request for remote testimony in a different case, in part to avoid violating the Confrontation Clause. But the Confrontation Clause protects defendants, not the government.

The prosecutor argued that O’Donohue had provided an 80-page expert report and expressed concern about the ability to cross-examine him effectively over Zoom, given the anticipated length of his testimony. The judge expressed sympathy for that position, advising the public defender that while the court could be “accommodating to him given his age, we are socially distancing and we are all masking, all jurors, lawyers, and staff.”

Court’s Ruling

The judge asked the defense to file a formal motion and delayed making a final decision until a subsequent hearing. When court next convened, the prosecutor renewed her objection, claiming that “it will be impossible for the People to conduct cross-examination in a fair way to preserve our right to a fair trial and our right to due process.”

The prosecutor may have been confused. The Constitution protects the right to due process when a person’s life, liberty, or property may be taken by the government. The Constitution was designed to protect individuals from the government, not to protect the government from defense attorneys. The defendant’s constitutional right to a fair trial must always trump the government’s interest in a fair trial.

While continuing to express reservations, the judge made a conditional ruling that O’Donohue should be allowed to testify remotely. The judge recognized the importance of having a defense expert who could counter testimony given by the prosecution expert. Given the limited pool of experts and O’Donohue’s legitimate concerns about traveling during a pandemic, the court concluded that Whelan should be entitled to benefit from remote testimony.

The court left open the door for requiring in-person testimony if technical obstacles to remote testimony cannot be overcome. The court instructed the lawyers to contact the IT departments in their respective offices to determine whether the prosecution’s complaints about the limitations of Zoom can be overcome.

Perhaps using software that is specifically designed for courtroom video testimony would be a better option. The judge might also want to become familiar with best practices for using video conferencing in the courtroom. In any event, obstacles that can be overcome with even modest success should not prevent the defense from offering critical expert testimony in a criminal prosecution.

Prosecutor Receives Qualified Immunity for Flawed Investigation of Bitemark Evidence

While expert evidence about bitemarks is widely discredited as unreliable, it has played an unfortunate role in assuring the wrongful convictions of innocent defendants. A defendant in Pennsylvania whose conviction was overturned because (among other reasons) it was based on bitemark evidence sued the police and prosecutors for building a case against her that they knew to be baseless. The Court of Appeals for the Third Circuit was recently asked whether the prosecutor was immune from liability for the role he played in directing the bitemark evidence investigation.

Facts of the Case

In 2001, police officers in Connellsville, Pennsylvania found the body of Curtis Haith on a sidewalk. Haith had been beaten and shot. The police asked Nancy Vernon, the District Attorney for Fayette County, to come to the scene and direct the investigation.

Police investigators learned that Haith had hosted a party and attended other parties the night before his body was discovered. They found evidence of drug use in Haith’s apartment.

Interviews with people who attended Haith’s party prompted the investigators to contact Crystal Dawn Weimer. She appeared to have minor injuries. The investigators noticed mud and blood on her clothing.

Weimer told the police that she had given Haith a ride from one party to another. She then spent the rest of the night with her mother and sisters. They confirmed spending the night with Weimer, as did her boyfriend, Michael Gibson.

Weimer explained that the blood on her clothing came from a fight with Gibson. A DNA test confirmed that the blood came from Gibson. None of Weimer’s blood was found at the crime scene, although blood was discovered that came from an unidentified male.

Nearly two years later, a man Weimer had dated before Gibson, Thomas Beal, told the police that Gibson and Weimer killed Haith. Beal claimed that Weimer admitted that the blood on her clothing came from Haith. Since DNA testing had confirmed that the blood was not Haith’s, the police should have known that Beal was lying to them.

Bitemark Evidence

The state police then joined the investigation. They saw what they believed to be a bitemark on a photograph of Haith’s hand. A local dentist compared the photograph to the teeth of Gibson and Weimer and said she could not tell which of them bit Haith.

A bitemark “expert” then compared the photograph to dental impressions from Gibson and Weimer. The “expert” opined that Weimer caused the bitemark. When a question later arose about the timing of the bitemark, the “expert” proclaimed that the bite occurred seven to ten minutes before Haith’s death. He offered that opinion without conducting any additional research.

Beal later changed his story, implicating a man who was in prison at the time of the murder. The District Attorney nevertheless decided to pursue a murder charge against Weimer based on Beal’s first story and the opinions offered by the bitemark analyst.

A prison witness surfaced who claimed that the murder was committed by Weimer, Gibson, and Beal. That witness implicated another prisoner, Joseph Stenger, who supposedly wrote a statement confessing his participation in the crime. Stenger denied writing the statement.

Weimer’s Trial

The evidence against Weimer was obviously so inconsistent that no conscientious prosecutor would have believed that it proved guilt beyond a reasonable doubt. Three years after Haith’s death, police officers nevertheless prepared a criminal complaint charging Weimer with his murder. Vernon approved the complaint, leading to Weimer’s arrest.

According to the appellate court, “the case against Weimer fell apart almost immediately.” At a preliminary examination, Beal admitted that the police had coached him to give testimony implicating Weimer. A judge dismissed the charges because of that recantation.

Undeterred, the police again approached Stenger, hoping to obtain new evidence against Weimer. Stenger agreed to testify against Weimer in exchange for a reduced sentence. A jailhouse snitch who testifies in exchange for a reward should never be viewed as a credible witness, but Weimer was recharged on the strength of that dubious evidence.

Stenger and the state’s bitemark expert provided the only significant evidence against Weimer at her trial. A jury found her guilty in 2006.

Weimer’s Exoneration

In 2015, a judge determined that police and prosecutors acted improperly to obtain Weimer’s conviction. By that time, having obtained the benefit of his lie, Stenger was willing to admit that he knew nothing about Haith’s murder and that his testimony was prepared by the police.

Other jailhouse informants testified that they never asked for or received deals in exchange for their testimony. Weimer’s new lawyers discovered letters in the prosecutor’s file proving that the informants had, in fact, offered to trade favorable testimony for favors.

Critically, the bitemark expert also disavowed his trial testimony. The expert admitted that bitemark identification is junk science.

A defense expert reviewed Haith’s autopsy and photographs of Weimer’s injuries. The expert concluded that Weimer’s injuries were consistent with her statement that they occurred a few days before Haith’s death.

Based on the new evidence, a judge granted Weimer a new trial. Having no remaining evidence other than statements by obvious liars, the prosecution then dropped the charges.

Weimer’s Civil Rights Lawsuits

Weimer sued the county and city, several police officers, and Vernon for violating her civil rights. The legal theories she asserted against Vernon included malicious prosecution and the failure to intervene to prevent the police from violating her civil rights.

Vernon moved to dismiss the complaint on the ground that prosecutors are absolutely immune from liability for their official conduct in prosecuting a case. The trial judge agreed that Vernon could not be sued for actions taken in the prosecution phase of the case, but concluded that Vernon was not absolutely immune for actions she took when she directed the police in their investigation of Weimer.

The judge dismissed the malicious prosecution claim except to the extent that it was premised on the bitemark investigation. The judge allowed Weimer to amend her complaint to allege more specific facts about the role Vernon played in directing the investigation of the bitemark.

After Weimer amended her complaint, Vernon renewed his motion to dismiss. The trial judge denied the motion. The judge ruled that Weimer alleged sufficient facts that, if proved, would demonstrate that Vernon allowed the police to build a case that Vernon knew was meritless. Vernon appealed, contending that he was entitled to absolute or qualified immunity from liability.

Appellate Opinion

The Court of Appeals for the Third Circuit agreed that a prosecutor’s absolute immunity only extends to actions that are closely associated with the judicial phases of a prosecution, such as presenting evidence in court. Administrative or investigative actions do not entitle a prosecutor to absolute immunity.

The court agreed that Vernon’s conduct at the crime scene was investigative in nature. Vernon was also engaged in investigative duties while overseeing a police investigation that produced and relied upon conflicting statements. Vernon was not entitled to absolute immunity for those actions. She was, however, immune from liability for her decision to prosecute Weimer based on such shaky evidence.

The court nevertheless found that Vernon had qualified immunity from liability based on the claim that she failed to intervene in the police investigation. Qualified immunity is a controversial doctrine that shields government employees from liability for constitutional violations when the specific conduct for which they are sued has not been clearly established as the violation of a constitutional right. The court concluded that the right to have a prosecutor intervene to protect a defendant from a meritless prosecution had not been clearly established.

The appellate court also disagreed with the trial judge that Vernon had a clearly established duty not to tell the police to rely on the junk science of bitemark identification. Vernon realized that the mark on Haith’s hand might not have occurred on the day of his murder, so she asked the police to obtain expert evidence about the timing of the bitemark. The police returned to the expert who, without reviewing any new evidence, claimed to know that that the bitemark was caused shortly before his death. The prosecutor’s bad faith in relying on such doubtful evidence seems apparent.

The appellate court nevertheless decided that defendants have no clearly established constitutional right not to have prosecutors direct an investigation based on junk science. The court noted that during the 2002 to 2006 time frame, prosecutors often presented bitemark evidence in support of prosecutions. According to the court of appeals, the unreliability of bitemark evidence was not widely accepted until a few years later.

Prosecutors fought (and continue to fight) vigorously against the recognition that bitemark evidence is junk science. Their resistance to science that gets in the way of convictions explains why it took courts so long to agree that bitemark evidence is useless. Their success in convincing courts and juries to accept unreliable science shielded Vernon from liability for telling the police to obtain bitemark evidence from an expert who now concedes that his opinion was groundless.

Fortunately, Weimer will be able to continue her case against the police officers who allegedly coerced witnesses to change their stories and hid exculpatory evidence from the defense. When and if the case will settle or go to trial is yet unknown.

Internist Is Qualified to Give Expert Testimony About Hospitalist’s Standard of Care in North Carolina

Many states have adopted laws that limit the universe of potential experts who are permitted to testify about the standard of care in a medical malpractice lawsuit. The question before the North Carolina Supreme Court in Da Silva v. WakeMed was whether an internist is qualified to give expert testimony about the standard of care that should be exercised by a hospitalist. The court ruled that North Carolina law permits the testimony.

Facts of the Case

Before she was admitted to a WakeMed hospital, 76-year-old Dolores Pierce was taking prednisone, a prescription drug that treated her inflammatory disorder. She was admitted to the emergency room with symptoms that were diagnosed as a urinary tract infection.

Concerned that the infection had induced sepsis, a hospitalist ordered the antibiotic Levaquin to be administered intravenously. A known side effect of Levaquin is the increased risk of tendon ruptures in patients over the age of 60 and in patients who are taking prednisone or other cortical steroids.

Three hospitalists treated Pierce over the next few days. All three continued to prescribe Levaquin. They were all aware of Pierce’s age and they all continued to administer her daily dose of prednisone.

After a few days, Pierce was discharged to a rehabilitation facility. The hospitalists prescribed Levaquin and prednisone during the first four days of her stay in that facility, after which the Levaquin was discontinued. A few days later, Pierce completed her recovery and was discharged.

About a week after her discharge, Pierce ruptured her Achilles tendon. The rupture required a surgical repair, but Pierce never fully recovered. She died from pneumonia about ten months after the rupture.

Expert Testimony

The hospitalists who prescribed Levaquin for Pierce were board certified in internal medicine. The supreme court described hospitalists as “physicians who specialize in internal medicine in a hospital setting and care for hospitalized patients.”

Pierce’s estate sued the hospitalists for malpractice. They identified Dr. Paul Genecin as an expert witness regarding the applicable standard of care. Dr. Genecin is an internist who is licensed in Connecticut.

Dr. Genecin testified in a deposition that the hospitalists deviated from the standard of care by administering Levaquin to an elderly patient who was taking prednisone. A hospitalist’s standard of care, according to Dr. Genecin, would have required the hospitalist to understand the risk of an adverse drug interaction and to prescribe a different antibiotic. Dr. Genecin also testified that Pierce’s tendon rupture was caused by the interaction of prednisone and Levaquin.

The hospitalists urged the court to disqualify Dr. Genecin as an expert witness because he is an internist rather than a hospitalist. The trial court agreed with their strained interpretation of North Carolina law and disqualified Dr. Genecin. It then entered summary judgment against the estate because, with no expert witness to prove standard of care, the estate could not prove that the hospitalists were negligent.

The North Carolina Court of Appeals reversed the trial court in an unpublished decision. The hospitalists then asked the North Carolina Supreme Court to decide whether internists are qualified to give expert testimony about the standard of care that applies to hospitalists.

North Carolina Law

As is true in many states, North Carolina passed a law that makes it difficult for injured patients to find expert witnesses who will testify on their behalf. Rather than allowing a court to apply the traditional test of an expert’s qualifications — whether the expert has sufficient knowledge, skill, training, or experience to help the jury understand an issue in the case — many states narrow the range of experts who are allowed to testify in medical malpractice cases.

A North Carolina statute specifies that a medical expert who testifies in a lawsuit against a specialist must either specialize in the same field of medicine or “in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.”

To satisfy North Carolina law, the expert must also have, within the prior year, devoted the majority of his or her time to the active clinical practice of the same or similar specialty as the defendant or to teaching students in that specialty.

Appellate Decision

Dr. Genecin was board certified in internal medicine, as were the hospitalists. Dr. Genecin testified that a hospitalist is a doctor who is hired to practice the specialty of internal medicine on a full-time basis in a hospital. According to Dr. Genecin, “hospitalist” is merely a job title that describes an internist who works in a hospital.

The defendants presented no evidence to contradict Dr. Genecin’s testimony. The supreme court declined to determine whether hospitalist and internist are two terms that describe the same specialty, but the court had no difficulty concluding that the terms describe similar specialties.

Dr. Genecin explained that when internists treat hospitalized patients, they are doing the same work as hospitalists. Dr. Genecin regularly performs the same duties as hospitalists, including treating hospitalized patients, reviewing the patient’s history, interpreting test results, making referrals to other specialists, prescribing medications, and checking for adverse medication interactions.

Dr. Genecin serves as an attending physician in a hospital for two months each year. He admits and discharges patients and performs all of the other duties that hospitalists perform.

Dr. Genecin also testified that dozens of times each year, he treats hospitalized women in their 70s who suffer from serious infections, including urinary tract infections. The undisputed evidence established that Dr. Genecin had performed the procedures that, according to the complaint, were performed negligently by the hospitalist defendants. Since that evidence was undisputed, the court concluded that Dr. Genecin’s practice included the treatment of patients who were similar to Pierce.

It is difficult to understand why the trial court thought that the description of a doctor who practices internal medicine as a hospitalist rather than as an internist was a reason to disqualify Dr. Genecin as an expert witness. The supreme court determined that Dr. Genecin satisfied the requirements of North Carolina law. It therefore reversed the summary judgment against Pierce.

Lesson Learned

Finding a doctor who will testify against another doctor is always challenging. State laws protect doctors from the consequences of their negligent acts by imposing expert witness requirements that enhance the challenge of finding a suitable expert.

The court’s decision provides relief for plaintiffs’ lawyers in their search for medical malpractice experts. In a state like North Carolina, lawyers should look beyond the job titles of the defendant doctors and ask what duties they perform. A physician with a different job title might be qualified to act as an expert witness under state law if the expert performs those same duties as the defendant, particularly if the expert and the defendant doctor are board-certified in the same field of medicine.

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