Category Archives: Business Development for Experts

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Damages Expert Excluded for Failure to Do Independent Verification

A plaintiff damages expert has been excluded in a false advertising case under the Lanham Act for failure to do any independent verification of the plaintiff’s cost estimates.

The Dispute

Natera and CareDx are manufacturers of kidney transplant tests. Natera created an advertising campaign aimed at showing that its kidney transplant rejection test is superior to CareDx’s AlloSure organ transplant diagnostics.

CareDx sued Natera, claiming false advertising. CareDx argued, “Natera has begun a false advertising campaign designed to deceive doctors, healthcare professionals, insurance companies, and patients — as well as investors — into believing that Natera’s ‘me too’ test is superior to AlloSure when that has simply not been shown…Natera’s dissemination of false and misleading claims about AlloSure is an attempt to poison the marketplace and must be stopped.”

CareDx specifically accused Natera of one count of false advertising in violation of the Lanham Act, one count of trademark disparagement under the Lanham Act, one count of common law unfair competition, and one count of unfair or deceptive trade practices under Delaware law.

Lanham Act Damages

According to CareDx, under the Lanham Act, 15 U.S.C. § 1117(a)(2), “a successful false advertising plaintiff can recover the costs of any completed advertising that actually and reasonably responds to the defendant’s offending ads.”

CareDx presented James Malackowski as a damages expert at trial to establish the actual costs of corrective advertising spent in 2019 and the first half of 2020 and the projected costs of continued corrective advertising for the second half of 2020 and 2021. Malackowski did not perform independent analysis of the marketing spend. Instead, Malackowski relied solely on the CareDx Chief Executive Officer’s deposition testimony containing an estimate about what the company had spent on corrective advertising.

Natera moved to exclude CareDx’s proposed expert under Rule 702 and Rule 403 of the Federal Rules of Evidence. Federal Rule of Evidence 702 requires that an expert be qualified, reliable, and fit. Federal Rule of Evidence 403 allows a court to exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The United States District Court for the District of Delaware agreed with Natera. The court determined that Malackowski’s corrective advertising opinions failed to meet all three requirements of Rule 702:

(1) The challenged opinions did not contain specialized knowledge outside a juror’s common understanding; therefore, they failed both the qualification and fit requirements.

(2) The challenged opinions were also unreliable. The expert’s efforts were limited to reading the CareDx CEO’s deposition, interviewing the CEO, and reviewing one SEC filing. The court noted that Malackowski failed to review ledgers, invoices, or interview any marketing or other personnel who could provide more specific data.

The court also noted that even if the challenged testimony were admissible under Rule 702, it should be excluded under Rule 403 as unfairly prejudicial, misleading to the jury, and needlessly presenting cumulative evidence.

The court excluded Malackowski’s testimony.

New Scam Targets Expert Witnesses

A new scam in the Indiana area is targeting professionals, demanding money for not appearing as expert witnesses in court.

The Scam

Dr. Allison Bush, a physical therapist, says that she got a phone call from someone claiming to be Sergeant Donald Gilmore from the Vanderburgh County Sheriff’s Office. The caller gave her a badge number and told her that she owed more than $8,000. He claimed that the fee was owed because she had failed to show up as an expert witness at trial. Dr. Bush said that she initially believed the caller because this type of thing could happen in her line of work.

Dr. Bush said that the caller kept saying, “Do you understand this? Do you understand this? Okay 10-4.” The caller told her that someone had signed her name on a subpoena that she had been sent in the mail, but if they determined that the signature was a forgery, they would reimburse her.

Dr. Bush said that the caller insisted that she tell him the make and model of her car and that she meet him on Martin Luther King Boulevard to send the money over on a kiosk. The caller would not let Dr. Bush speak with her lawyer and threatened her with jail time if she did not pay the fine.

Dr. Bush said, “He tells me I have a gag order on me, and that the gag order means I can’t talk to anybody, not even my lawyer.” Dr. Bush eventually hung up on the caller and called the Vanderburgh County Sheriff’s Office to check up on the caller’s story.

Verifying the Facts

When Dr. Bush spoke to a detective at the Vanderburgh County Sheriff’s Office, the detective was not surprised. The detective told Dr. Bush that others had reported the same scam. “Was it Donald Gilmore?,” he said, “You’re the third person today to call me today on this scam.” The detective told Dr. Bush that the call was definitely a scam and not to give the caller any information.

Eyewitness News for TriStateHomepage.com spoke to a detective at Vanderburgh County Sheriff’s Office. The detective advised that scammers have been running similar scams for a while. Sometimes the scammers will give victims fake names and badge numbers and speak in police lingo in an attempt to seem legitimate. The detective advised that sheriff’s deputies would never call and request payment for a failure to appear in court. This would be something that would be handled by the court.

The Vanderburgh County Sheriff’s Office has even posted a notice on its website warning that scammers have been calling victims and impersonating law enforcement officers. Sheriff Dave Wedding advised, “At no time would a member of the Vanderburgh County Sheriff’s Office call someone to demand payment. If someone says they are from the Sheriff’s Office and asks for money, request their name and badge number and then call the Sheriff’s Office directly.” The website warned not to trust caller ID, because this can easily be spoofed to make a call appear legitimate.

United States Supreme Court Building

Failure to Request Funding for Expert Violates a Defendant’s Rights

The importance of retaining expert witnesses in criminal cases was underscored by a recent decision of the Michigan Supreme Court. The court concluded that defense counsel was ineffective for failing to seek funding for an expert and that the failure was prejudicial to the defense.

Hinton v. Alabama

The U.S. Supreme Court has made clear that criminal defense attorneys must retain a qualified expert witness to counter prosecution experts when a defense expert’s testimony could create a reasonable doubt as to the defendant’s guilt. In 2014, the Supreme Court decided that Anthony Hinton’s lawyer failed to provide Hinton with the effective assistance of counsel that the Constitution requires. The lawyer asked for funding to hire a ballistics expert. The judge authorized $1,000 but invited the lawyer to request more if he needed it.

Hinton’s lawyer mistakenly believed that $1,000 was the statutory maximum and did not request additional funding. He could not find a qualified expert who would work for $1,000, so Hinton called an expert who had no significant training or experience in ballistics to counter the testimony provided by the prosecution experts.

After Hinton was sentenced to death, his new lawyers produced three highly qualified expert witnesses who testified that the bullets recovered from the murder victim could not be matched to Hinton’s gun. Alabama argued that the lawyer was not ineffective because he found an expert to testify. In the state’s view, all experts have equal value.

The Supreme Court disagreed. The Court held that a reasonably capable lawyer would have understood that additional funding was available. The lawyer knew his expert wasn’t qualified but failed to seek funding for an expert who was qualified. Recognizing that “incompetent or fraudulent prosecution forensics experts” pose a “threat to fair criminal trials,” the Court held that defense attorneys have a duty to retain “a competent expert to counter the testimony of the prosecution’s expert witnesses.” Since Hinton’s lawyer did not do so, his performance was deficient.

 People v. Ceasor

The importance of the Hinton decision is illustrated by the prosecution of Terry Lee Ceasor in Michigan. Ceasor was convicted of first-degree child abuse. The prosecution’s expert, Dr. Holly Gilmer-Hill, gave familiar testimony that the child’s injuries could only have been caused by violent shaking. Her testimony attempted to impeach Ceasor’s explanation that the child accidentally fell from a couch. In fact, her “shaken baby” theory has been repeatedly discredited by advances in medical knowledge.

Ceasor appealed his conviction. His appellate lawyer argued that his trial lawyer was ineffective because he did not hire an expert to refute Dr. Gilmer-Hill’s testimony and did not request public funding to cover the cost of the expert’s testimony. The Michigan Court of Appeals held that Ceasor could not demonstrate that trial counsel’s failure was prejudicial because his appellate counsel did not ask for an evidentiary hearing. Without calling an expert witness at a hearing, Ceasor was unable to prove that an expert would have challenged Dr. Gilmer-Hill’s opinion. Nor was Ceasor able to prove that trial counsel’s failure to call an expert witness was not dictated by his trial strategy.

Ceasor later made a post-conviction motion that challenged the effectiveness of his appellate attorney. Ceasor supported the motion with affidavits from pathologists, a neurosurgeon, and a biomedical engineer. The expert witnesses opined that Dr. Gilmer-Hill’s opinion was based on discredited science. In Ceasor’s view, an effective appellate advocate would have requested a hearing and presented the expert evidence that his post-conviction lawyer was offering.

Apparently misunderstanding the nature of Ceasor’s post-conviction motion, the trial judge concluded that Ceasor was reframing issues that had already been decided. The Michigan Court of Appeals declined to hear an appeal from that decision.

Failure to Request Public Funding

Ceasor then raised the ineffectiveness of both his trial and appellate counsel in a federal habeas corpus proceeding. The district court held Ceasor to an impossible standard of proof by ruling that he needed to establish that a request for an evidentiary hearing would have been granted if he had requested one. Parties can only prove how a judge should rule, not how a judge would rule.

On appeal, the Court of Appeals for the Sixth Circuit concluded that Ceasor would have been entitled to a hearing if his appellate attorney had requested one and if he had presented the same evidence his post-conviction counsel mustered. The Sixth Circuit noted that Michigan law allows a court to “provide public funds for indigent defendants to retain expert witnesses.” Although it is not required to do so “on demand,” trial counsel neglected to ask for funding. He therefore deprived Ceasor of the opportunity to call an expert witness to challenge the prosecution expert’s testimony.

The Sixth Circuit concluded that trial counsel did not make a strategic decision not to call an expert, but simply didn’t realize that he could apply for public funding of expert testimony. Applying Hinton, the Sixth Circuit held that trial counsel’s performance was deficient because lawyers are expected to know the law. Counsel was unfamiliar with the Michigan statute that authorized public funding and with the Hinton decision.

Since the prosecution based its case almost entirely on Dr. Gilmer-Hill’s testimony, a reasonable attorney would have known that her testimony required a response. When “the expert is the case,” refuting expert testimony with other expert testimony is essential whenever the prosecution expert’s opinions can be challenged.

Concluding that it is “objectively unreasonable to fail to take steps to retain an expert” when one is necessary, the court held that habeas relief was warranted. It remanded the case to the district court so that the court could decide whether the testimony of Ceasor’s experts might have raised a reasonable doubt.

In the district court, the parties stipulated that Ceasor was prejudiced because his appellate lawyer’s failure to request an evidentiary hearing deprived Ceasor of the opportunity to litigate “a claim of ineffective assistance of counsel that was reasonably likely to succeed.” The district court granted Ceasor a new state court appeal.

Michigan Proceedings

Ceasor pursued his appeal. The trial judge stubbornly decided that defense counsel was not ineffective, an issue that was already resolved to the contrary in federal court. Defense counsel attempted to shift blame to Ceasor, who (according to counsel) had led him to believe that his mother would pay for an expert. Counsel claimed he only learned two weeks before trial that Ceasor would not be able to fund an expert. Counsel also testified that he never heard of a case in which a court agreed to fund an expert when the defendant had retained counsel privately. The court of appeals affirmed the judge’s finding that, given those facts, counsel was not ineffective in failing to seek public funding for an expert witness.

The Michigan Supreme Court made short work of the appellate court’s analysis. It was undisputed that Michigan law allows public funding of experts. Ceasor’s lawyer had arranged for an expert to testify. He had time to apply for public funding of that testimony prior to trial and chose not to make that application. Counsel’s belief that a court would not fund an expert when counsel is retained privately was belied by the plain language of a statute that authorizes courts to do so. Failing to make the request was therefore objectively unreasonable. The court granted Ceasor the fair trial that he deserves.

Lessons Learned

Ceasor has traveled a long road in his pursuit of a fair trial. Assuming the district judge credits his expert witnesses — and there is no reason the judge shouldn’t — Ceasor will likely be granted a new state appeal, which may lead to additional appeals, which should ultimately lead to a new trial.

Had Ceasor’s lawyer recognized that Michigan law allows the funding of expert witnesses, and had he retained experts to challenge Dr. Gilmer-Hill’s discredited “shaken baby” testimony, Ceasor’s years of incarceration might have been avoided. His case is a reminder to all defense attorneys that they should always recognize the need to hire defense experts when the prosecution rests on expert testimony that can reasonably be challenged.

 

California Law Legal System Concept

California Bill Would Improve Quality of Forensic Evidence in Criminal Cases

The quality of forensic evidence used in support of criminal prosecutions has been a subject of continuing controversy. In response to a 2009 report by the National Academy of Sciences that criticized the state of forensic science, the Obama administration asked the President’s Council of Advisors on Science and Technology (PCAST) to identify actions that would improve the validity of forensic evidence used in the legal system. The resulting PCAST report represented a serious attempt to restore credibility to forensic science.

Shortly before President Biden’s inauguration, the Trump administration issued an unsigned statement denouncing the PCAST report on the ground that it “contained several fundamentally incorrect claims.” Critics suggest that the Department of Justice undermined the PCAST report to protect junk science that prosecutors rely upon in criminal prosecutions.

It is too early to know how the Biden administration will respond to the forensic evidence controversy. A California state senator, Scott Weiner, has weighed in on the issue by authoring the “End Wrongful Convictions Act.”

End Wrongful Convictions Act

According to Sen. Weiner, “inaccurate expert testimony and faulty forensics are the largest factors in [California’s] high rate of wrongful convictions, with approximately 200 people wrongly serving extended jail sentences for serious crimes like rape or murder in California since 1989.”

The “End Wrongful Conviction Act” (California SB 243) would raise the bar on the admission of expert testimony in criminal cases. The relevant text states:

In any criminal proceeding, a court considering whether expert testimony is based on matter that is of a type that reasonably may be relied upon by an expert in forming an opinion pursuant to this article, shall determine whether the expert’s opinion, and any underlying literature, studies, research, and other materials on which the expert relies in forming that opinion, are based on a reliable foundation, proper methodology, and sound logic. If the opinion or underlying literature, studies, research, or other materials lack a reliable foundation, proper methodology, and sound logic, they are not matter that may be reasonably relied upon.

The bill is similar to Daubert in its requirement that expert opinions must be grounded in a reasonable methodology and a reliable application of that methodology to the facts of the case (which might be considered the equivalent of basing an opinion on “a reliable foundation” and “sound logic”). While California has not formally adopted Daubert, the state supreme court has moved state law in that direction. Still, courts tend to be more cautious about expert testimony offered by plaintiffs in civil cases than they are about expert testimony offered by prosecutors in criminal cases.

The bill would likely render inadmissible the “junk science” of bitemark evidence and shaken baby syndrome. It might also restrain experts who overstate the reliability of their opinions by claiming, without a factual basis, that they can be completely certain that their opinion is correct. Opinions of that nature are often advanced, for example, by fingerprint experts, despite studies demonstrating that opinions based on fingerprint comparisons are often wrong.

Benefits of Assuring Reliability of Forensic Evidence

Faith in the criminal justice system is shaken whenever news articles remind the public that bad science has caused an epidemic of wrongful convictions. Weiner believes his bill would “boost public confidence that the criminal justice system is working the way it is supposed to.”

Weiner also notes that every wrongful conviction means that a guilty person has gone free. Public safety may therefore be endangered by reliance on poor forensic evidence. Research suggests that guilty criminals who benefit from the wrongful conviction of the innocent often commit new crimes.

Unfortunately, by the time a case goes to trial, police and prosecutors tend to be locked into their view of guilt. “Not guilty” verdicts rarely persuade the police to look for a more likely suspect. They are more likely to think that the jury got it wrong than to admit they made a mistake.

Wrongful convictions have an additional cost. The expense of incarcerating the innocent, hearing their post-conviction legal challenges, and settling lawsuits arising out the convictions is substantial. One study concluded that over a twelve-year period, wrongful convictions in California alone cost taxpayers more than $282 million. Avoiding wrongful conviction by improving expert evidence offered by forensic scientists would therefore benefit the public as well as the wrongly accused.

Criminal Forensics, word cloud concept 11

Does the CSI Effect Hurt Prosecutors Who Don’t Rely on Expert Witnesses?

It has become an urban legend, at least among prosecutors, that jurors have been conditioned by the CSI franchise (CSI: Crime Scene Investigation, CSI: Miami, CSI: NY, and CSI: Cyber) to expect guilt to be proved beyond doubt by forensic evidence. Prosecutors fear that they will lose cases if they try to prove guilt the old-fashioned way: with confessions, eyewitness testimony, or inferences based on motive and opportunity.

It isn’t unreasonable for jurors to expect prosecutors to rely on expert witnesses when they can. After all, the Constitution requires guilt to be prove beyond a reasonable doubt. If fresh blood found at the scene of the crime isn’t analyzed for DNA, a jury might reasonably wonder why the government didn’t do everything in its power to determine whether the blood belonged to a criminal suspect.

Still, forensic evidence isn’t available in every case. Sometimes there’s no physical evidence to analyze. In other cases, budgets may be inadequate to fund an expert. When those circumstances occur, does a case become unwinnable?

Concerns About the CSI Effect

A state’s attorney in McLean County, Illinois recently warned readers of a Central Illinois newspaper that CSI is not realistic. When he questions potential jurors, he asks them whether they “expect to see satellite imagery and laser grid analysis.” His questions are intended to remind jurors that high tech evidence isn’t needed or available in every case.

Whether the CSI effect actually exists is open to debate. A 2006 survey asked participants whether they would expect to see various kinds of evidence in seven different cases ranging from murder to theft. Participants were asked, for example, whether they would expect to see “eyewitness evidence,” “some kind of scientific evidence,” “fingerprint evidence,” and “DNA evidence.”

The survey found that 46% of participants expected to see some kind of scientific evidence in every criminal case, 32% expected to see ballistic evidence in every criminal case, and 22% expected to see DNA evidence in every criminal case. Since ballistic evidence pertains to firearms and since most crimes are committed without a firearm, the survey results might indicate that participants were not given sufficient information to make rational responses.

The survey also found that participants who watched a CSI show regularly were more likely to demand scientific evidence in every case than participants who rarely or never watched CSI. Those results were dutifully reported by the Central Illinois journalist who fretted about the impact of CSI on jurors.

The journalist neglected to report the survey’s central finding: Participants were not more likely to acquit a defendant simply because guilt was not supported by expert evidence. A recent article in the ABA Journal notes that the 2006 survey was followed by an urban survey in 2008-09 that found even less reason to believe that a CSI effect results in unwarranted acquittals. A judge who helped design the survey attributed worries about the CSI effect to “grumbling prosecutors.”

While survey participants said that the absence of scientific evidence would not make them more inclined to acquit, they were more likely to doubt guilt in the absence of eyewitness testimony. Ironically, eyewitness testimony is among the least reliable forms of evidence in a criminal prosecution. The defense lawyer in a case that turns on eyewitness identification should give automatic consideration to the need for an expert witness who can explain why identifications are so often mistaken.

Should Jurors Be Cautioned About the CSI Effect?

How participants respond to hypothetical questions on a survey is probably a poor measure of how they will judge the evidence in an actual trial. It makes little sense to think that jurors will worry about the absence of ballistic evidence in a case that does not involve a gun. No judge would allow a defense attorney to question the absence of evidence that isn’t relevant to the case.

The judge who was interviewed in the ABA Journal article argued that prosecutors might actually trigger a CSI effect by asking potential jurors whether they expect guilt to be proved by scientific evidence. If potential jurors aren’t thinking about scientific evidence before the prosecutor talked to them, they may wonder about its absence when the prosecutor calls attention to it.

In some cases, however, a defense lawyer’s comments about the prosecution’s failure to present forensic evidence is legitimate. The Journal article reports a Maryland case in which a criminal defense lawyer called the jury’s attention to the absence of scientific evidence to prove that the defendant had handled a screwdriver or tape found at the scene of the burglary.  No expert witness testified about fingerprints or DNA samples that one might expect to find on that evidence.

It is commonplace for lawyers to argue that a police investigation was incomplete and that the failure to make a diligent search for evidence creates reasonable doubt. The trial judge in the Maryland case nevertheless instructed the jury that ““there is no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case.” That’s true, but there is a legal requirement that prosecutors prove guilt beyond a reasonable doubt.

An appellate court found that the instruction improperly undermined the defense theory that the absence of scientific evidence contributed to reasonable doubt. The defense lawyer did not argue that the prosecution had an obligation to present expert evidence. Rather, the lawyer argued that the prosecution had the ability to ask experts to analyze the evidence and that its failure to conduct a complete investigation of the evidence created a reasonable doubt about the defendant’s guilt. That argument did not warrant a jury instruction regarding the prosecution’s failure to produce scientific evidence.

Similar instructions have come to be known as “anti-CSI instructions.” Prosecutors argue that the instructions are needed to overcome the CSI effect. Since there is little evidence that the CSI effect actually exists, fair judges keep their thumb off the scale and avoid giving instructions that seem to excuse a prosecutor’s failure to introduce expert evidence when a case seems to call for it.

 

Criminal Forensics, word cloud concept 11

New Paper Condemns Failure to Establish Reliable Error Rates in Forensic Science

“Junk science” has been the rallying cry of lobbyists for the insurance and pharmaceutical industries. The term has largely been used to condemn expert evidence offered by plaintiffs in civil suits. While the claims that plaintiffs base cases on “junk science” have been largely overblown — the claims are intended, after all, to minimize the opportunity of juries to evaluate evidence of corporate negligence — there were a few well-publicized cases in which bad science may have influenced verdicts in civil cases. The Daubert revolution was a judicial and legislative response to those cases.

Since outrage about junk science has been carefully nurtured by corporate lobbyists, it has focused on expert evidence presented by plaintiff’s lawyers in civil cases. The outraged attacks upon experts tend to overlook questionable science that is funded by and relied upon by industries and their insurers to avoid liability.

Until recently, even less attention was paid to junk science advanced by prosecutors in criminal cases. If Daubert has value, judges should apply it consistently to all expert evidence, regardless of the side that offers it and regardless of whether the evidence is offered in a civil or criminal case. Yet judges routinely allow prosecutors to present testimony by forensic scientists that unbiased experts recognize as junk science.

Forensic Science Reliability

Slate recently called attention to a scientific paper that it deemed worthy of greater media attention. The paper (Misuse of Scientific Measurements in Forensic Science by Itiel Dror and Nicholas Scurich) discusses error rates in forensic science.

Error rates are a poorly understood factor in the application of the Daubert standard. Daubert demands that experts employ reliable scientific methodologies. A methodology that has a high error rate should generally be rejected as unreliable. While it is easy to understand that the reliability of a methodology is a function of how often the methodology produces an accurate result, the measurement of error rates to validate a methodology is less intuitive.

Dror and Scurich point out that the error rate for many forensic science methodologies is unknown. Crime lab employees often cover up that deficiency by claiming complete confidence in their results. Confidence, however, is not a substitute for science.

Fingerprint examiners, for example, often tell juries that the science of fingerprint comparison is infallible. As Dror and Scurich explain, there is no such thing as an error rate of “zero,” despite improper testimony to that effect. In fact, they cite a study demonstrating that the same expert comparing the same fingerprints on two separate occasions will reach a different result about 10% of the time.

Well prepared defense attorneys may be able to counter claims that fingerprint comparison is infallible with examples of mistaken fingerprint identifications that police agencies have relied upon in the past. The question, however, is whether the examiner should be permitted to testify at all — and whether a defendant should be placed at risk of a wrongful conviction — if the examiner can’t cite an error rate to prove that identifications are nearly always reliable.

Dror and Scurich lament that judges have often admitted the opinions of forensic science experts who rely on methodologies that “have no properly established error rates and even when experts have implausibly claimed that the error rate is zero.” How can a judge regard a methodology as reliable when the judge has no idea how often the methodology returns an erroneous result?

Error Rate Determinations in Forensic Science

Dror and Scurich argue that forensic sciences have difficulty measuring an accurate error rate because they classify opinions that a methodology returned an “inconclusive” result as correct. Rendering the opinion that a comparison is inconclusive does not mean that the opinion is correct.

Assume, for example, that nine of ten fingerprint examiners exclude the defendant as the source of a fingerprint on a pane of glass. If the tenth examiner testifies that the comparison is “inconclusive,” the examiner is likely wrong. Yet that incorrect opinion will be deemed “correct” in an analysis of error rates.

Crime lab employees too often have a bias in favor of prosecutors and police officers who are hoping for a particular result. When they know the police are hoping for a ballistics match that they cannot find, they may decide that the comparison is “inconclusive” to avoid damaging the prosecution’s case. If no match can be made, the opinion is wrong.

Since “inconclusive” results are not reflected in forensic science error rates, error rate computations by forensic scientists are skewed toward making the methodology seem more reliable than it actually is. As Dror and Scurich argue, “not ever counting inconclusive decisions as error is conceptually flawed and has practical negative consequences, such as misrepresenting error rate estimates in court which are artificially low and inaccurate.”

Lessons Learned

Defense attorneys should consider Daubert challenges whenever a prosecution is based on the testimony of a forensic scientist. The failure to rely on a methodology with an acceptable error rate may be a fruitful basis for challenging the admissibility of an expert opinion. Defense lawyers should also consider retaining their own expert for the purpose of educating the judge or jury about the danger of relying on error rates that count “inconclusive” results as if they are always accurate results.

Apple vs Samsung 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.

Expert Witness typography

The Best Expert Witness Qualities According to Social Science Research

The National Law Review has published an overview of social science studies that seek to answer the question of “what makes your expert witness the best expert witness?”

Purpose of the Overview

The overview was authored by Clint Townson, Ph.D., who works as a jury consultant at an expert witness search firm. Townson explained that when evaluating a potential expert witness, examining his or her credentials and experience is only half of the analysis. Towson noted that, especially when an expert is offering testimony on a complex issue, jurors tend to rely on heuristics such as credibility when evaluating expert testimony. Townson then reviewed some of the social science research on credibility, including knowledge, trustworthiness, dynamism, and likability.

Knowledge

Expert witnesses are primarily called to testify because of their knowledge, which includes educational credentials, publications, and experience. According to a 2012 study published in the Journal of the American Academy of Psychiatry and the Law, knowledge is also a product of “clarity in explanations, moderate assertiveness, and familiarity with the intricacies of the case.”

A 2010 study published in Behavioral Sciences & the Law noted that the best way for experts to show their knowledge is to act as teachers for the jury. Experts should aim to be consistent and coherent in their explanations, exhibit reasonable confidence in their own opinions, and demonstrate case-specific knowledge in addition to their general knowledge on the topic.

Trustworthiness

Perceived trustworthiness is a critical factor in whether a juror decides to believe an expert witness’s testimony. Experts who are patient and considerate teachers are likely to be perceived as trustworthy.

Eye contact is also important. A 2008 study published in Criminal Justice and Behavior examined the effects of eye contact on credibility and found that the expert witness’s ability to maintain eye contact with the attorneys and jurors had an effect on those expert’s credibility ratings.

Additionally, a 2000 study published in Law and Human Behavior found that the amount of pay, frequency of testifying, and level of credentials influenced jurors’ perceptions of expert’s believability.

Dynamism

Dynamism or charisma also play a factor in an expert’s credibility. According to a 2006 study published in Law & Social Inquiry, an expert’s ability to endear himself or herself to the jury is important, especially in cases where experts are asked to testify on complex issues. This can be accomplished through the use of simple terms or metaphors, the use of demonstrative examples, and remaining patient and composed through cross examination. In cases where jurors understand very little of an expert’s testimony, an expert’s dynamism combined with a show of passion for and knowledge of the subject matter may be the deciding factor.

Likability

A 1976 study published in Psychology found that likability has been tied to perceptions of trustworthiness and credibility as a whole. Jurors evaluate the likability of witnesses based upon their friendliness, the level of respect that they show, their use of informal language, and nonverbal behaviors including eye contact and vocal inflection.

 

Zoom Meeting

How to Conduct an Online Deposition of an Expert Witness

Social distancing makes cramming at least four (deposing attorney; other side’s attorney; expert witness; court reporter) and often more people into a conference room for hours on end inadvisable, even when it’s legal (i.e. when your state’s executive orders aren’t outright banning having so many unrelated persons in a room together). We don’t know how long this will go on, but smart money says that minimizing in-person contact will be with us for at least another year or more, until there’s a vaccine (knock wood). Under the current circumstances, much business — including legal business (up to and including hearings and trials) — is being conducted via Zoom or its videoconferencing equivalent. Even after a COVID-19 vaccine is widely available, there are good reasons why remote depositions will often make sense, such as minimizing travel time and therefore legal and expert expenses, or being better able to accommodate various parties’ disparate schedules, and opening up the universe of potential experts to ones who are not local.

For all these reasons, deposing experts by Zoom is becoming a must-have skill for attorneys’ toolboxes. Everything not affected by not having the participants in the same room remains the same: e.g. how to qualify experts, how to lay the foundation for their deposition, the questions to ask, the usual reservation of all objections other than as to form of question, etc. That said, there are significant adjustments you’ll have to make to the usual expert deposition “script.”

Most of the additional questions or instructions come from the fact that you have less control over a remote deposition than one conducted in-person — you only see what the laptop camera sees, and so the expert could have colleagues, confederates, representatives of the opposing party, or others right there in the room with him or her, or otherwise feeding the expert answers or suggestions on an iPad or tablet or via a separate (and invisible to you) window on the computer or the expert’s phone. If you want to imagine what the expert could be up to, think about your last Zoom meeting and whether you were watching anything else, doing any work, or talking to or corresponding with anyone else while you were in the meeting. Now multiply that by 10, since the expert and the party hiring him or her has a real incentive to cheat, not just boredom causing one to multitask or seek diversions.

Additional Instructions

For You:

  • Make sure all parties share all exhibits at least two business days in advance, so they can be pre-marked.
  • Make sure that everyone, including the deponent, has a full hard copy of all exhibits in advance.
  • Test the “meeting” and the recording of it ahead of time (and not just 10 minutes before showtime; test it days or a week ahead, to allow time to work the bugs out) — nothing is worse than conducting the greatest expert deposition of your career but then finding out that nothing recorded.

For the Court Reporter: Make sure that you confirm not only that the deposition will be recorded but that the video will only show the expert being deposed. As vain as you may be, you don’t need your face muddying the videographic record.

For the Expert: The following should be stated at the outset and agreed to by the expert and also repeated or reiterated as necessary; see the “Additional Questions” below, which indicate places where you might reiterate certain instructions.

  • “The device on which you are participating, whether computer or phone, should have no other windows or applications open or running while this deposition is ongoing, unless and only if I have specifically given you permission to use other software or another application and have identified the software or application you may use.”
  • “You should not have any other computers or telecommunication devices ‘on’ and with you. Please turn off any other devices or remove them from the room during this deposition unless you identify the devices to me and I give you permission to have them with you and ‘on’.”

(In some cases — e.g. an expert who’s also a parent and needs to be reachable by his/her offsite children or their caregiver — you’ll have to allow them to have a phone with them and on. But in that case, you can ask them to position the phone so it is the camera’s field of vision, so that you can see if they are using or checking it.)

  • “You should not have any chat boxes or ‘messenger’ apps open at this time and if you do, please close them.”
  • “You should not have anyone else in the room with you during this deposition other than the party hiring you or representatives of that party, or the attorney(ies) for the party hiring you. If there is any other person or persons in the room with you, even family members, please ask them to leave at this time.”
  • “If anyone else comes into the room during this deposition, you are to notify me at once.”
  • “If you are using a laptop, tablet, or phone for this deposition, please pick it up and pan it around the room, so I can see the entirety of the room.”
  • “Please adjust the camera on the device you are using so that I can see your entire upper body, including your hands.”

Further Questions

Before you launch into anything substantive, you have to get the following questions in to protect the integrity of the process — feel free to change the exact wording to better capture your own style. Where there is something that you have to “fill in” so it’s accurate for your deposition — like the name of the software or app being used — we’ll put it in square brackets in italics.

  • “I want to confirm that we are engaged in a deposition and that we are doing so remotely; is that correct?”
  • “I also want to confirm that we are taking your deposition remotely due to [insert reason; e.g. COVID-19 and social distancing]; is that correct?”
  • “Are you aware that the parties have agreed to take your deposition remotely via [name of software or app being used]?”
  • “I want to confirm that we are using [name of software or app] to conduct your deposition; is that correct?”
  • “What kind of device are you using to participate in this deposition? Please identify it as precisely as possible.”
  • “Do you have any other windows or applications open, including but not limited to messenger apps or email?”
  • “If you have any other windows or applications open, what are they?”
  • (If they have any other windows or apps open, once they have identified them, reiterate the instruction to close them)
  • ‘Do you or anyone in the room with you have any other computer or telecommunication devices with you at this time? If so, please identify them to me.”
  • “If you have any other computers or telecommunications devices with you, are they currently ‘on’?”(If they have other devices, reiterate instructions to turn them off and/or remove them.)
  • “Has anyone asked you to have any messenger software or apps open during this deposition, and, if so, who?”
  • “Is any [insert name of software or app being used for the deposition; e.g. Zoom) ‘chatbox’ open? (Reiterate instructions to close all such software, apps, or chat boxes.)
  • “Where are you physically located? Please identify the state, county, municipality or unincorporated area, address, and the location or room within that address. Be as specific as possible.”
  • “Is anyone else physically in the room with you? If so, please identify them.”
  • “Will you immediately tell me if anyone enters or leaves the room?” (If there is anyone else in the room, reiterate instruction to have all other persons leave, unless the only other person(s) are the other party(ies) and/or the other party’s(ies’) attorney[s].)
  • “If I ask you a question, do you agree that you will not check your email, your texts, any messenger apps, any social media, or otherwise communicate with anyone — including counsel for the party hiring you or that lawyer’s client — to answer the question?”

Remember: the purpose of an expert deposition is only half exploratory — to learn what the expert knows, thinks, and will testify to. The other half is to create record which can use to pin the expert down or impeach him or her. If you don’t do that — if you don’t create a clear, unequivocal record  —you will have wasted your time and your client’s money.

Photo by Allie on Unsplash

Arkansas Allows Chiropractor to Provide Expert Opinion About the Need for Surgery

The insurance industry has long disparaged the testimony of chiropractors in personal injury cases. Courts nevertheless agree that chiropractors may give expert testimony about the cause of injuries for which they provide chiropractic treatment as well as the necessity of that treatment.

Courts are less likely to agree whether chiropractors are qualified to testify about the causation of injuries for which medical treatment is provided or the necessity of that treatment. A recent decision in Arkansas rejected a blanket rule and decided that the expert’s qualifications depend on the expert.

Facts of the Case

On a rainy day in 2010, Karen Elder visited a Dollar General store in Mt. Ida, Arkansas. She slipped on the wet sidewalk outside the store’s entrance. Elder reported her fall to an assistant manager.

Elder had preexisting back pain for which she had received chiropractic treatment since 2004. After her fall, Elder had neck, back, and shoulder surgery. In 2013, she sued Dollar General for negligence, alleging that Dollar General breached its duty to maintain its premises in a safe condition.

Elder intended to have her chiropractor, Eric Carson, testify about the cause of her injuries, the permanence of her disability, and the reasonableness of her medical bills. Dollar General moved to exclude much of Dr. Carson’s testimony. The motion was denied and the case went to trial.

Trial Evidence

Elder testified that the weather was misting and that she was jogging toward the entrance to avoid getting wet. She encountered a slick area on the sidewalk and fell. She testified that the slick area was not covered by a mat and that no signs warned her that parts of the concrete sidewalk were slippery.

One portion of the sidewalk has a rough surface and is presumably not as slippery, but another portion has a smooth surface. Elder relied on a safety expert to establish that the smooth portion of the sidewalk was unreasonably dangerous and that the danger was not obvious.

A former assistant manager testified that she had slipped on the sidewalk when it was wet and that she had seen at least four other people slip. She alerted her manager and the landlord about the unsafe condition and expressed concern that it might lead to a customer injury. She was told that it would be taken care of, but no action was taken.

Over objection, Dr. Carson testified that Elder’s injuries and the medical treatment Elder received for them, including her surgeries, were caused by her fall. Dollar General offered the testimony of an orthopedic surgeon that her surgeries were related to a degenerative medical condition and not to her fall.

The jury found in Elder’s favor and returned a verdict of $700,000. Dollar General appealed, arguing that Dr. Carson was not qualified to testify that Elder’s surgery was caused by injuries she sustained in her fall.

Competence of Chiropractor to Testify About Causation

Elder supplemented its discovery responses to disclose Dr. Carson’s anticipated causation testimony. Dollar General claimed to be surprised by those opinions and asked for a continuance during the trial so it could pursue additional discovery. The supreme court agreed with the trial court that the request for a continuance came too late, given that the opinions were disclosed almost three weeks before the trial.

A more troubling question was whether Dr. Carson was competent to testify about causation. There were two related issues of causation in Elder’s case. The first is whether her fall at Dollar General caused her to suffer an injury. The second is whether the medical (as opposed to chiropractic) treatment she received was caused by injuries she suffered in the fall.

Dollar General agreed that Dr. Carson was qualified to testify that injuries he actually treated were caused by the fall and that he provided necessary treatment for those injuries. Dollar General contended that Dr. Carson was not qualified to testify about the necessity of treatment provided by medical doctors.

The supreme court disagreed with the proposition that “a chiropractor may not testify as to the causal need for surgical procedures that a chiropractor may not perform.” The Arkansas precedent upon which that argument was based held that no foundation had been laid for the chiropractor’s testimony that a patient had a permanent disability. That precedent did not establish a blanket rule.

The court decided that the admissibility of a chiropractor’s opinion requires a case-by-case assessment of a chiropractor’s training and experience. Dr. Carson had extensive training in the fields of orthopedics and neurology. The trial court was satisfied that his training in those areas was similar to the training of a medical doctor.

Dr. Carson’s experience included the treatment of hundreds of patients who suffered from traumatic injuries. He acknowledged that he does not perform surgery, but he regularly diagnoses injuries and makes an informed judgment about whether the injury would respond to chiropractic care or would be better treated by a medical doctor.

The combination of Dr. Carson’s training and experience qualified him to opine that Elder’s injuries were caused by her fall, whether or not he treated them. That he was not trained as a medical doctor went to his credibility, not to the admissibility of his causation testimony.

Competence of Chiropractor to Testify About Necessity of Treatment

Dollar General next argued that Dr. Carson was not qualified to testify about the necessity of Elder’s medical treatment. Whether surgeries were related to the fall or to preexisting conditions was an issue in the case.

The supreme court noted that the reasonableness of treatment (which must generally be established to support the inclusion of medical expenses in a verdict) was not contested. Dr. Carson might not have been qualified to testify about the reasonableness of the medical treatment, but his training and experience qualified him to testify that the medical treatment was necessary. Since he was competent to testify that the fall caused the condition for which Elder was treated, he was also competent to testify that she needed the treatment she received.