Category Archives: Expert Opinions

Book Questions Science of Criminal Investigation

A new book questions the science behind criminal investigations by examining a 27-year-old arson and murder case.

Jo Ann Parks’ Conviction

On April 9, 1989, the garage apartment of Jo Ann Parks went up in flames. Parks escaped, but her three young children were still inside. She ran next door to her neighbor’s house to call the police. Investigators initially believed that the fire was accidental, but eventually concluded that it was arson. Parks was accused of arson and the triple murder of her children.

At Parks’ trial, fire investigators testified that the fire was caused by human origin. One investigator testified that he believed that there had been two fires, one that was started in the living room and one that started in the children’s bedroom. Two points of origin meant that the fire was caused by arson because an accidental fire would only have one point of origin. Investigators also testified that they believed that one of the children had been trapped in a closet that had a door that was blocked by a laundry hamper.

Parks was convicted of first-degree murder and sentenced to life without the possibility of parole.

Humes’ Book

On January 8, 2019, Edward Humes published Burned: A Story of Murder and a Crime That Wasn’t.  In his book, Humes recounts the story of the fire and its repercussions. Humes explains how on the night of the fire, Parks asked a police officer repeatedly if her children were okay and then complied with the request that she wait at a police station a few blocks away. Some of the jurors said that Parks’ acquiescence with that request without demanding to see her children was the deciding factor in their vote to convict her of arson.

Humes examined the way that evidence was collected in Parks’ case. Humes explained that the arson experts who testified at Parks’ trail relied on their mapping of the fire’s path. Humes explained that the arson experts did not fully understand flashover, which happens when a fire gets so hot that “every flammable surface in the room not already burning will ignite in rapid succession.”

To illustrate flashover, Humes explained an experiment that was conducted at the Federal Law Enforcement Training Center in Glynco, Georgia the same year that Parks’ trial took place. The experimenters set two rooms on fire and asked veteran arson investigators to examine each room and choose the quadrant of the room where the fire had started. While the participants thought that this would be an easy task, they chose the wrong quadrant more than 90 percent of the time. Humes explained that this and other similar experiments showed that flashovers made determining the cause of domestic fires very difficult. Despite the fact that flashover had occurred in Parks’ apartment, arson investigators testified that the burn patterns implicated Parks in the arson.

Humes notes that arson investigation is just one of many of the forensic techniques that have been recently discredited. He points to bite marks, hair and fiber comparisons, matching fingerprints, and lineups as examples of forensic investigation techniques that have been routinely discredited by later comparisons of DNA samples.

Dna Forensic

Forensic DNA Scientist Links Evidence to Accused Murderer

A forensic DNA scientist has linked several pieces of evidence to an accused murderer who is standing trial for the beating, stabbing, and strangling of a Temple University student.

The Murder

On September 2, 2017, George Stabilito had breakfast with his wife and then went to her property eight miles away to check on her yard. He looked inside the lakeside shed, into which snakes occasionally made their way. Instead of finding snakes, Stabilito found a large blue storage bin with a body inside.

The body of Jenna Burleigh, a 22-year-old Temple University Student, was stuffed inside the plastic storage bin. Her body was naked, her midsection was covered with a blanket, and her right leg was bent and contorted. Burleigh had sustained more than 143 injuries, including two stab wounds and more than 39 head injuries.

The Investigation

When authorities watched surveillance videotapes from a few nights before Burleigh’s body was found, they saw Joshua Hupperterz and Jenna Burleigh sitting and talking together at a bar and then leaving the bar together at around 2:00 a.m. The two were then seen walking toward Hupperterz’s apartment building.

According to prosecutors, Joshua Hupperterz met Burleigh at a bar on August 31, 2017, and they went back to his apartment to have consensual sex. They contend that the sex turned violent and Hupperterz beat Burleigh, stabbed her, smashed a cereal bowl over her head, and strangled her on the kitchen floor.

Hupperterz has since admitted to transporting Burleigh’s body to his mother’s garage and then to his grandmother’s property, but denies killing her. Instead, Hupperterz claims that his roommate, Jack Miley, intervened in the fight and strangled Burleigh. Miley has denied any role in the crime.

Huppertz was charged with murder, abuse of a corpse, and separate drug-related charges. Assistant District Attorney Jason Grenell said that the District Attorney’s Office offered Hupperterz a plea deal, but he rejected the deal. The plea deal was for Hupperterz to plead guilty to third-degree murder and be sentenced to 30 to 60 years in state prison. Since Hupperterz chose to go to trial, he faces a mandatory sentence of life in prison if he is convicted of first or second-degree murder.

The Trial

At trial, the state trooper who was present at the autopsy testified that the medical examiner took nail clippings from each of Burleigh’s hands. The Philadelphia forensic scientist and DNA expert took the stand and testified that the genetic profile from the nail clippings matched the DNA of Hupperterz, and not his roommate.

The forensic DNA scientist from the Philadelphia crime lab also testified about evidence that was found at the scene of the crime. The expert matched Hupperterz’s genetic profile to a knife that was found next to the sink. The scientist told the jurors about a boot that was found in the closet of Hupperterz’s roommate, Jack Miley. Prosecutors say that Burleigh was wearing that boot on the night that she died.

The scientist testified that the genetic profile of the material found on the buckle and side of the boot was consistent with Hupperterz. He testified that the DNA was one in 12.64 duodecillion (which includes 39 zeroes) times more consistent with Huppertz than anyone else in the Caucasian population.

Power Plant

Expert Contradicted by Own Email

An expert witness has been contradicted by his own email in a hearing before Rhode Island’s Energy Facilities Siting Board.

Proposed Plant

Invenergy Thermal Development LLC has proposed to build a $1 billion fracked gas and diesel oil-burning power plant in northwest Rhode Island. The proposal is currently before Rhode Island’s Energy Facilities Siting Board (EFSB).

The proposed plant will be a nearly 1,000-megawatt natural gas and diesel facility in Burrillville, Rhode Island. Opponents of the project argue that the plant is unnecessary.

Expert Testimony

Invenergy retained Ryan Hardy to testify at the hearings before the Energy Facilities Siting Board. Hardy opined that the power-purchase agreement or capacity supply obligation (CSO) that was awarded to Invenergy was proof that the plant was needed to keep the lights on and the electric grid running smoothly in Rhode Island.

Jerry Elmer from the Conservation Law Foundation and Michael McElory, attorney for the town of Burrillville, argued that the termination of the CSO by the operator of the regional power grid meant that the proposed power plant was unnecessary.

Hardy argued that the loss of the CSO and the subsequent confirmation by the Federal Energy Regulatory Commission was the result of Invenergy failing to meet construction and approval benchmarks. It did not have anything to do with “whether or not the plant is needed.” Hardy said, “I don’t agree that it condemns the (power plant). In the state of Rhode Island, a facility needs an EFSB permit to be built. It does not need a CSO.”

The Independent System Operator filed its request to terminate the CSO when Invenergy pushed back the targeted date of operation from 2019 to 2021 or later.

Email Contradiction

However, an email that Hardy sent to two Invenergy senior managers, John Niland, and Ken Parkhill, on October 4, 2017, seems to contradict his testimony.

In his email, Hardy wrote, “Based on our experience before the Rhode Island EFSB and NTE Killingly’s (power plant) experience before the (Connecticut) Siting Council, it appears that the applicable state permitting boards are unlikely to approve the construction of new natural gas plants without having secured a CSO through an FCA (ISO New England auction).”

When Elmer questioned Hardy about his email, Hardy explained that the email was only about potential issues and questions that Niland may encounter during an upcoming meeting. He said, “This is not my opinion. These are talking points that were for Mr. Niland to have a discussion with the ISO New England.”

Elmer said that Hardy’s response shows that he was being dishonest with Invenergy or asking Invenergy to be dishonest with ISO New England. Elmer said, “This casts Invenergy in a very, very unfavorable light…. [T]he fact that they would lie to the ISO is very revealing and damaging to Invenergy. ISO depends on getting accurate information from power-plant operators all over New England. They use that information to keep the grid running. If a plant operator gives false, dishonest information to the ISO, the ISO is unable to do its job.”


FTC Experts Fail to Persuade Judge that DIRECTV Advertising Was Deceptive

The Federal Trade Commission (FTC) relied on the testimony of two expert witnesses in bringing an unsuccessful claim of deceptive advertising against DIRECTV. The judge’s analysis of the expert testimony sheds light on how experts may need to design consumer surveys to satisfy federal judges.

The FTC’s Claims Against DIRECTV

The FTC sued DIRECTV to enforce two federal laws that protect consumers from unfair or deceptive advertising and marketing practices. The FTC did not contend that DIRECTV made false statements in its advertising, but federal law regards advertising as deceptive when an advertiser “hides” information that would be important to a consumer’s purchasing decision by failing to disclose it before the purchase is made. In addition, federal law requires online vendors to obtain a consumer’s informed consent before making recurring charges to the consumer’s credit card.

In the FTC’s opinion, DIRECTV violated those laws by advertising its satellite television services without disclosing that:

  • the introductory price only lasts 12 months;
  • the subscriber must agree to receive services for 24 months;
  • a subscriber who cancels before the end of the 24 months is charged a fee of $20 per month for the remaining months of the agreement; and
  • a subscriber who requests a “free” premium channel (like HBO) for 3 months must cancel the channel before the 3-month period ends to avoid further charges.

DIRECTV advertised its services on television, through internet banner ads that (if clicked) would lead consumers to its website, in circulars that were distributed in Sunday newspapers or mailed directly to consumers, and by a variety of similar advertising tactics. Much of the FTC’s case was based on the contention that when DIRECTV disclosed the terms mentioned above, it buried them in fine print or hid them behind hyperlinks.

To prove that DIRECTV violated the law, the FTC needed to establish that a reasonable consumer’s net impression of DIRECTV’s purchase terms, after reviewing DIRECTV’s advertising, would have been more favorable than the actual terms. For example, if a consumer’s net impression would be that the introductory offer could be cancelled at no charge after 12 months when, in fact, DIRECTV would charge a cancellation fee, the advertising would be misleading.

To prove that DIRECTV’s advertising would cause reasonable consumers to have an inaccurate net impression of DIRECTV’s purchase terms, the FTC relied on expert testimony. Dr. Tülin Erdem conducted an online survey that asked respondents to view a print advertisement that DIRECTV distributed in 2013. She testified that the advertisement was representative of other DIRECTV ads.

Court’s Analysis of the DIRECTV Print Ads

Before reaching the survey results, the court noted its own impression of the ad. The judge (who presumably reads ads with greater care than average consumers, particularly when the ads are introduced as trial exhibits) thought the ad sufficiently disclosed that the promotional price for a 24-month contract would only last 12 months and that a $20 per month cancellation fee would be charged if a customer cancelled the contract before it ended.

Those disclosures appear at the bottom of the ad in print that is considerably smaller than the promotional price, which is prominently advertised as lasting for 12 months. The judge nevertheless thought that consumers would read the entire ad because deciding upon a particular DIRECTV package requires consumers to consider a wealth of information. The judge cited no evidence to support his view that consumers read fine print before making complicated decisions.

The judge accepted that it was not possible for DIRECTV to disclose the price increase that consumers would face after the 12-month promotional price ended because DIRECTV had not yet decided what fee it would charge in the following year. The judge accordingly concluded that failing to disclose the price increase in advance was not deceptive. By that logic, DIRECTV could impose an outrageous price hike and consumers, having no reason to suspect that prices could increase so dramatically, would nevertheless be stuck paying a $20 per month cancellation fee for services they were no longer receiving.

Expert Testimony – Dr. Erdem

Since experts survey ordinary consumers, not federal judges who closely scrutinize exhibits offered in lawsuits, the court was required to consider Dr. Erdem’s opinion about how a consumer who received a DIRECTV ad in the mail would have understood it. Dr. Erdem presented survey participants with the original ad and with an ad that she modified to disclose the contract terms more conspicuously. She found that the modified ad increased consumer understanding of the terms.

The court concluded that the survey did not reveal whether the original ad was likely to mislead reasonable consumers based on the net impression that the ad created. The court agreed with DIRECTV that changing the ad did not test whether the original ad was misleading. The survey did not test the overall impression of consumers, which was the relevant question. The fact that the ad could have been better didn’t mean that the existing ad violated the law.

The court faulted Dr. Erdem for not doing a deception study that would have tested the overall impression that consumers draw from the ad. The court also faulted Dr. Erdem for lumping together participants who said they “did not know” the contract terms and those who “did not remember” the terms.

Because Dr. Erdem asked no follow-up questions, she could not determine whether a participant’s failure to recall the contract terms was related to the way information was presented in the ads. Nor could she determine whether participants who did not recall the terms had formed an incorrect impression of the terms after reading the ad.

Finally, the court was skeptical of the value of a web-based survey that focused on a print ad. A consumer reading the ad could view it as a whole and read the fine print by looking at the bottom of the page. A survey participant needed to scroll to reach the disclosures.

While it seems reasonable to believe that survey participants who are asked to look at an ad on a computer screen would scroll through the ad, the court thought that survey participants might not realize that it was important to read the entire ad and therefore might not do so. Of course, people who receive newspaper flyers might not realize it is important to read the fine print at the bottom of the ad, which was the point Dr. Erdem tried to make when she testified that “a majority of consumers don’t read the fine print.” The court was unimpressed by that testimony.

Expert Testimony – Dr. Patkanis

Dr. Anthony Pratkanis also testified for the FTC as an expert witness. He discussed general principles of “social influence,” including the principle that making a “lowball” offer — an initially discounted price or a free gift — will induce consumers to purchase goods or services, even if the price will later increase.

Dr. Patkanis pointed to two representative print ads that employed a lowball strategy by calling attention to the promotional price by using a large font and a brightly colored background while relegating the less favorable terms to a small black font against a white background at the bottom of the page.

Favoring his own impressions over those of Dr. Patkanis, the court concluded that the ads were not deceptive. The court gave “minimal weight” to Dr. Patkanis’ testimony because he conducted no surveys to determine whether the ads were likely to confuse consumers and because some of his testimony (such as his opinion that consumers would regard a “slashed out” price as the regular price) were not supported by empirical research.

Web-Based Ads

Given the court’s reliance on its own understanding of the advertisements and its disagreement with the analysis offered by the expert witnesses, the court ruled against the FTC and concluded that the DIRECTV print ads were unlikely to deceive ordinary consumers. The court reserved judgment, however, with regard to DIRECTV’s website.

Dr. Erdem’s consumer survey regarding the website supported her conclusion that the website created a net impression that deceived consumers. The court noted that the website conspicuously disclosed that the 12-month discounted price was offered as part of a 24-month contract, but other significant details (including the early cancellation fee) were only revealed by hovering over an “offer details” link.

Consumers had to click through other pages to make a purchase, but full details continued to be hidden behind links. While those links were labeled “additional offer details,” nothing called attention to the importance of those details. Even the shopping cart page hid critical information behind a “terms and conditions” link.

Victory for DIRECTV

The court had not yet heard DIRECTV’s evidence when it evaluated the testimony of the FTC experts. Although it was willing to dismiss the FTC’s claims regarding the print ads, it deferred its ruling regarding the website until hearing all the evidence, including the testimony of DIRECTV’s experts. At the same time, the court observed that the FTC’s evidence that various iterations of the website were misleading was “far from overwhelming.”

Probably seeing that the handwriting was on the wall, the FTC decided to dismiss the case. Since it was seeking a judgment of $4 billion, the dismissal represented a significant victory for DIRECTV, and may have provided an object lesson in how experts should design surveys that might satisfy federal judges.

Legal Services

Michigan Court of Appeals Rules Experts Not Absolutely Immune

A Michigan Court of Appeals panel has ruled that licensed professionals who serve as expert witnesses owe the same duty to the party that hires them as they would to any client and that witness immunity is not a defense against professional malpractice.

Foreclosure Case

Diana and Spiro Voutsaras defaulted on a commercial mortgage that was held by Gallagher Investments. They hired Murphy & Spagnuolo PC to represent them in foreclosure proceedings. The law firm advised the Voutrsarases to file a counterclaim against Gallagher and a third-party claim against some of Gallagher’s principal actors for malpractice. The firm hired Kenneth Mogill as a legal ethics expert and Slucter and Gannon Group as experts in real estate brokerage. The law firm then informed the Voutsarases that their litigation strategy was bound to fail. The district court granted summary judgment against the Voutsarases.

Malpractice Case

Following Diana Voutsaras’ death in January 2015, her estate filed a suit against Murphy & Spagnuolo and the retained experts. The estate claimed that the law firm had failed to advise it of a favorable settlement offer and that it had deliberately concealed the fact that the estate’s claims were frivolous in order to increase pretrial costs. The estate also claimed that the expert witnesses had breached their duties to the estate by failing to properly investigate the facts required to formulate their opinions, failing to understand the applicable standards, and failing to provide a competent professional opinion.

The law firm settled with the estate and the expert witnesses filed a motion for summary judgment arguing that they were protected by witness immunity. The district court granted summary judgment to the expert witnesses, using a broad interpretation of the witness immunity standards. The estate appealed.

Court of Appeals

On appeal, the estate argued that the expert witnesses owed to it a legal duty and that they breached that duty. The expert witnesses claimed that the trial court was correct in its determination that all witnesses enjoy total immunity for any relevant testimony provided during judicial proceedings. The trial court and the expert witnesses relied on the 1999 Michigan Supreme Court case, Maiden v. Rozwood.

The Michigan Court of Appeals panel ruled that Maiden was only partially applicable to this case.  The court agreed that the witness immunity doctrine protects any witness based on the substance of their testimony or evidence. However, the panel ruled that witness immunity did not necessarily protect a witness from giving professionally incompetent testimony.

It wrote, “To the extent plaintiff’s claims rest on the Mogill defendants having provided damaging testimony or evidence intended for consideration by the trial court, the Mogill defendants are clearly protected by the doctrine of witness immunity. However, we find nothing in Maiden, or any other Michigan case law, suggesting that any other claim of professional malpractice by a client is precluded merely because the professional was expected to provide expert testimony.”

The panel concluded, “We hold only that the Mogill defendants are not absolutely immunized from professional malpractice claims where they already owed a duty of professional care, merely because part of their retention included the provision of expert testimony.”

Fingerprint Experts Question Fingerprint Science

Judge Allows Expert Fingerprint Testimony Despite Other Matches

A judge has decided to allow expert fingerprint testimony in a murder trial, despite concern that there were also other fingerprint matches.

The Murder

The body of 35-year-old Tara O’Shea-Watson was found in December 2016 with stab wounds all over her throat, chest, and stomach. Her body was found in her home near two Christmas trees, covered with a blanket that was decorated with Disney princesses and flowers.

Prosecutors allege that Jeremiah Monell killed his estranged wife O’Shea-Watson in front of their 12-year-old son and then evaded the police for two weeks. The boy and his 5-year-old sister went to the home of a neighbor after the alleged murder of their mother. The neighbor said that the two showed up at her house on the day of the murder. When she asked the boy where his mom was, he said, “Mommy is dead. Daddy killed her.”

O’Shea-Watson left behind two children with Monell, along with three others from different relationships. She had a restraining order against the alleged killer at the time of her death.

Monell was charged with first-degree murder, weapons offenses, and contempt in connection with O’Shea-Watson’s death. If convicted on the murder charge, he faces a prison term of life without the possibility of parole.

Murder Trial of Jeremiah Monell

At Monell’s trial, his attorney JoEllyn Jones proclaimed his innocence and asked the jury to determine whether everything that is said during the trial makes sense. She said, “You’re going to be left with more questions than answers…. All the pieces won’t neatly fit in a puzzle and give you the picture that the government just painted for you.”

The first three witnesses to be called to the stand were State Police Sergeant John Dehart, Detective Sergeant Eric Crain, and Detective Michael Hughes.

Sergeant Dehart testified that when he arrived, he saw a body covered by the blanket and nearby Christmas trees. After surveying the scene, another office pulled back the blanket. He said, “I saw a white female that had a cut to her neck and multiple puncture wounds that appeared to be on her torso…. I also observed a small portion of blood underneath the body.” Detective Hughes and Detective Crain described a similar scene.

Fingerprint Testimony

Defense attorneys made a motion to exclude Detective Sergeant Eric Crain’s expert testimony on fingerprint identification and analysis. Detective Crain testified that he collected prints from a bloody knife from O’Shea-Watson’s home and another bloody knife that was found behind the kitchen stove.

Crain explained that an Automated Fingerprint Identification System lab found 40 points of comparison to Monell’s prints. Crain made his own comparison and then had another detective verify the results. There were eight other possible matches for fingerprints, but Monell’s was the top-ranked match.

One of Monell’s attorneys, Nathan Perry, argued that the results were “unreliable” because there were eight other possible matches. Superior Court Judge Cristen D’Arrigo decided that Crain’s testimony was admissible and denied the defense’s motion.

New York US State Law Legal System Concept

New York Court Permits Life Care Planning Expert to Rely on Hearsay

Thomas Tornatore sued his chiropractor for malpractice. A New York jury determined that the chiropractor, Dr. Jean Cohen, was responsible for Tornatore’s injuries. A portion of the jury’s award of damages covered future life care expenses.

Tornatore presented an expert in life care planning to testify about his future life care expenses. The trial court rejected Dr. Cohen’s challenge to that testimony. The Appellate Division affirmed the trial court’s decision.

Life Care Plans

Attorneys for victims of permanent or long-term injuries use life care planning experts to determine the future expense of coping with a disabling condition. A life care plan considers all of the injury victim’s future needs that arise from the injury, including future medical treatment, rehabilitative therapy, medical equipment and supplies, and medications.

Life care plans assess the injury victim’s ability to live independently in the future. They consider whether the injury victim will need a caretaker or home health aide to assist with the activities of daily living as well as other tasks. A life plan considers whether and when the injury victim will need to reside in an assisted-care facility. If the injury victim’s mobility has been compromised, the life plan will consider the kinds of transportation assistance that the victim will require.

After gathering that information, a life planning expert then determines the accident victim’s life expectancy and investigates the cost of providing for future needs over the course of the victim’s remaining lifetime. All of that information is then presented in a report that becomes the basis for the expert’s testimony.

Expert’s Methodology

The expert in Tornatore’s case testified that he followed the methodology customarily employed by life planning experts when they develop a personal care plan. He reviewed medical records to glean an understanding of the recommendations made by Tornatore’s treatment providers. He interviewed Tornatore about his work history, injuries, and treatments. He assessed Tornatore’s level of independence before and after his injuries.

After determining Tornatore’s future healthcare needs, the expert researched the ongoing cost of coping with Tornatore’s injuries. He consulted a medical costs database in arriving at his conclusions. The expert then prepared a life care plan and reviewed its elements with Tornatore’s treating physician before finalizing his report.

Expert’s Reliance on Hearsay

Dr. Cohen moved to strike the testimony of the life care planning expert on the ground that she based her opinion on hearsay statements made by Tornatore’s treating physician. New York follows the general rule that experts must base opinions on facts that have been admitted into evidence or that are within their personal knowledge.

New York also follows the general exception to that rule that allows experts to rely on facts that members of the expert’s profession customarily regard as a reliable basis for an expert opinion. The exception allows experts to consider reliable hearsay when forming an opinion, provided that members of the profession would commonly rely on hearsay of the same nature and that the hearsay is not the sole basis for the expert’s opinion.

Applying that rule, the Appellate Division had no difficulty determining that the life care planning expert was entitled to rely on hearsay in forming his opinions. The information the expert obtained from Tornatore’s physician about Tornatore’s future medical needs was hearsay, but life care experts routinely rely upon medical opinions when they form a life care plan. The expert’s opinions were not based solely on information provided by the physician, as the opinions were only a link in a chain of reasoning that included reliance on a medical costs database, information provided by Tornatore, and the expert’s own experience.

Reliability of Expert’s Testimony

Dr. Cohen objected that the expert opined that Tornatore would require greater care in the future than he received in the past. Since the expert explained the basis for his opinion, Dr. Cohen’s objection went to the weight the jury should give the opinion, not to its admissibility.

Finally, Dr. Cohen complained that certain medical information relied upon by the expert was outside the scope of the treating physician’s expertise. However, Dr. Cohen did not move to strike the testimony on that ground. Since New York law requires such a motion to preserve the error, the Appellate Division did not address it.

UFC, fighting ring

Judge Orders Expert Witness Questioning in UFC Lawsuit

A Las Vegas federal court judge has postponed a hearing on two dispositive motions and instead ordered the questioning of seven expert witnesses in the antitrust suit that former fighters filed against the UFC.

The Lawsuit

In December 2014, former fighters brought an antitrust lawsuit against the UFC, alleging that the company used an “anticompetitive scheme” of long-term exclusive fighter contracts, coercing fighters to re-sign, and acquiring and shutting down rival MMA promoters to establish itself as the dominant presence in the MMA industry and suppress fighter compensation. The fighters claim that UFC formerly paid its fighters a higher share, but doesn’t have to anymore because it eliminated the competition.

The lawsuit noted that athletes in U.S. major team sports typically receive 50% or more of the revenue. The percentage of revenue that the UFC paid its fighters between 2010 and 2017 was “much lower” than athletes’ shares in major league sports and the percentages that were paid to fighters in other MMA promotions. The exact percentage of the revenue that the UFC pays its fighters is redacted from the public court filings, but there has been speculation that the fighters receive less than 33% of UFC revenues.

The lawsuit was filed by a group of former UFC fighters including Cung Le, Jon Fitch, and Kyle Kingsbury against UFC’s owner at the time, Zuffa LLC.  In 2016, the UFC was acquired by Hollywood agency Endeavor for $4.2 billion.

Pretrial Motions

The former fighters filed a motion to certify plaintiffs as a class. The UFC filed motions to keep out three of the plaintiffs’ experts whose opinions they claimed were “junk science.” The UFC also filed a motion for summary judgment, claiming that no reasonable jury could return a verdict for the former fighters. The motion for summary judgment contained 112 exhibits that included deposition transcripts, emails, presentations, and charts.

Judge Richard Boulware ordered a hearing on December 14, 2018 to determine whether to certify the class or dismiss the case.

The Hearing

At the hearing, Judge Boulware noted that they were not going to get to the class certification and summary judgment arguments. Instead, Judge Boulware addressed the joint motion to seal the records in the case and highlighted recent Supreme Court cases that affected the class-certification decision.

Motion to Seal Records

Both parties wanted to protect the fighters’ personal information and the confidential financial information of the UFC and third-party promoters. Judge Boulware noted that he was leaning toward protecting fighter information, but allowing certain UFC financial information to become public. Judge Boulware then set multiple evidentiary hearings on the issue of class certification to take place in early 2019.

Class Certification Issue

Judge Boulware noted the the recent Supreme Court opinions in Comcast Corp. v. Behrend and Tyson Foods v. Bouaphakeo had “changed the landscape” and said that he needed to question the experts further about the appropriateness of their methods of calculation.

The plaintiffs’ expert Dr. Hal Singer used a wage share method of calculation, which results in damages of $1.6 billion. UFC expert Dr. Robert Topel instead used an actual wage level method, which results in zero damages.

Judge Boulware requested three days of evidentiary hearings with Dr. Singer and Dr. Topel and additional hearing with additional experts from both sides: Dr. Paul Oyer, Dr. Alan Manning, Dr. Roger Blair, Dr. Andrew Zimbalist, and former UFC matchmaker Joe Silva. Judge Boulware also requested both sides to submit briefs on the appropriate class certification standard to use in light of the two recent Supreme Court cases.


Texas Court Bars Ophthalmologist from Giving Standard of Care Testimony About Eyelid Injury Caused by Bone Surgery

Kathleen Broussard fell and fractured a bone in her eye socket. Dr. Thomas Cook, a craniofacial plastic surgeon, operated to repair the fracture. During surgery, Broussard’s lower eyelid was torn. She sued Dr. Cook and his surgical assistant for medical malpractice.

As Texas law requires, Broussard offered an expert report explaining why Dr. Cook breached the appropriate standard of care. Her expert, Dr. Peter Kastl, was a full-time professor of ophthalmology who performs and teaches ophthalmic surgical techniques. He has published more than one hundred articles in the field of ophthalmology.

Based on his examination of Broussard’s medical records, Dr. Kastl noted that Broussard’s lower lid was torn by a retractor. The surgical assistant was apparently holding the retractor while Dr. Cook was using a medical instrument that slipped from his grasp. Dr. Kastl opined that a torn eyelid is not a known complication of the surgery and could only have resulted from medical negligence.

Dr. Kastl explained that he is familiar with the type of surgery performed by Dr. Cook. He expressed the opinion that the standard of care “for a blowout fracture of the orbit is to repair the fracture without causing further injury to the patient.” That opinion seems self-evident, but Dr. Cook challenged Dr. Kastl’s qualifications to render it.

The trial court rejected the challenge and ruled that Dr. Kastl could testify at trial. Dr. Cook took an interlocutory appeal to the Texas Court of Appeals, which reversed the trial court’s decision.

Texas Law

Texas is one of many states that makes it more difficult to prove medical malpractice by limiting the range of experts who are allowed to testify about a physician’s standard of care. The law in those states requires judges to ignore the actual qualifications of the proposed expert and to apply an artificial test devised by the state legislature at the urging of medical industry lobbyists. That test often requires the expert to have recently practiced medicine in the same board-certified specialty as the allegedly negligent defendant.

Texas law is less strict. It requires an expert’s curriculum vitae to demonstrate that the expert: (1) is practicing medicine or was practicing when the claim arose; (2) has knowledge of accepted standards of medical care regarding the injury or condition involved in the claim; and (3) is “qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.”

A standard of care expert in Texas is qualified when the expert is “board certified or has other substantial training or experience in an area of medical practice relevant to the claim” and “is actively practicing medicine in rendering medical care services relevant to the claim.” An expert need not practice in the same specialty as the defendant to be qualified to offer an expert opinion. The question is “whether the expert’s expertise goes to the very matter on which he or she is to give an opinion.”

Appellate Court’s Analysis

Dr. Kastl has substantial training and experience regarding eye injuries and was actively practicing in the field of eye surgery. The question before the court was whether that training and experience qualified him to testify about a surgical standard of care when the surgery caused an eyelid injury.

The court of appeals relied on a Texas precedent that barred an anesthesiologist from testifying about the standard of care a surgeon should follow when inserting a stent and managing complications during heart surgery. The court decided that the anesthesiologist’s self-professed knowledge of the applicable standard of care was insufficient to demonstrate his expertise in heart surgery.

The court held that the anesthesiologist’s bare assertion of familiarity with a standard of care did not establish that his knowledge, skill, experience, training, or education qualified him to render an opinion about particular breaches of the standard of care applicable to a cardiologist dealing with complications arising from a surgical procedure. That decision is uncontroversial, given the difference between the medical procedures performed by an anesthesiologist and those performed by a heart surgeon.

Guided by that precedent, the court of appeals held that Dr. Kastl’s report failed to demonstrate that he had substantial training or experience in plastic surgery or other bone surgery. His training was in ophthalmology, a branch of medicine that focuses on the eye. While the surgery involved a bone in Broussard’s eye socket, the court held that the proximity of the eye socket to the eye “does not change the fact that this case concerns bone surgery, not eye surgery.”

That analysis would be more convincing if not for the fact that the injury to Broussard’s eyelid was caused by a retractor that was grasping the eyelid when the surgeon’s hand slipped. The training and experience of an ophthalmologist certainly includes the use of a retractor to hold an eyelid.

Dr. Kastl’s opinion that the injury resulted from an “inappropriate motion” by either the surgeon, the assistant who was holding the retractor, or both seems obvious. It should be equally obvious that slipping and causing an eyelid to tear defies any reasonable standard of care for a bone surgeon and the surgeon’s assistant. Disallowing Dr. Kastl’s opinion assures that an injury victim who had clear evidence of a medical team’s negligence will be denied compensation for her injury.

Perhaps Dr. Kastl’s report should have more clearly articulated his experience with retractors and eyelid injuries. The court of appeals concluded that Texas law prevents the court from inferring expertise. That rule, however, is another barrier that protects negligent doctors from the consequences of their malpractice while preventing injury victims from having a jury decide whether an expert with relevant medical knowledge is qualified to render a standard of care opinion.

Detention Center

ICE Claims Ex-Official Not Authorized To Testify as Expert

The United States Immigration and Customs Enforcement Agency has publicly rebuked a former official for giving testimony as a paid expert witness for GEO Group.

The Testimony

Former Immigration and Customs Enforcement (ICE) employee Tracey Valerio was retained by GEO Group to give testimony in Ugochukwu Goodluck et. al v. The Geo Group. Valerio was retained to defend the Geo Group, a large private prison and immigrant detention company that is also ICE’s biggest contractor.

The lawsuit charged GEO with violating minimum wage laws by paying immigrants who are locked up in prison as little as $1 a day to do work such as cleaning toilets or working in the kitchen. Critics of the program, which was authorized by a 1950 immigration law, say that paying immigrant detainees below minimum wage is unlawful because they have not been convicted of or pleaded guilty to any crime; therefore, there is no reason to exclude them from minimum wage law.

Valerio provided a sworn written statement indicating that she was responsible for “the development and implementation of ICE’s budget and all agency contracting was under my purview and supervisory responsibility.” Valerio stated that “ICE could not expend more than $1.00 a day for detainee wages in a ‘detention center’ without Congress setting a higher rate and appropriating the funds needed to pay the higher rate.”

Alleged Violation of the Touhy Regulations

ICE attorney Anne M. Rose wrote in a letter to the court, “As Ms. Valerio was not authorized to speak on behalf of the agency or provide the information contained in the declaration submitted, ICE objects to the submission of the declaration to the extent that it purports to be provided on behalf of the agency or express agency views.” In her letter, Rose explained that Valerio’s testimony was a violation of the Touhy regulations.

According to 6 C.F.R. §§ 5.41-5.49, or the Touhy regulations, the service of subpoenas, court orders, and other demands or requests for official information must be served on the DHS Office of the General Counsel (OGC). The Touhy regulations are an “absolute condition precedent to obtaining testimony or other information from a Department of Homeland Security (DHS) employee of which ICE is a component, and the regulations must be complied with before the DHS or ICE may respond to any such request.” Why the regulation would apply is unclear, given that Valerio was a former employee, not an employee, and was expressing her own understanding of ICE’s policies, not ICE’s official views.

Ethical Concerns

Valerio appears to be one of many top officials at ICE and the Federal Bureau of Prisons who quit their positions and then went on to take a lucrative position at GEO or another private prison company. There are laws that exist that are intended to mitigate the ethical concerns that are created when these types of job moves are made.

The Procurement Integrity Act specifically prohibits former federal officials from accepting compensation for at least one year from companies to which their agencies awarded a contract worth $10 million or more.

GEO won several contracts worth over $10 million during Valerio’s last year as ICE’s executive associate director for management and administration. GEO won more than $327 million in funding during the 2018 fiscal year.

A countervailing ethical concern, however, is the agency’s attempt to silence a former employee who has relevant expert information about the agency’s practices. The Procurement Integrity Act was intended to close the revolving door that allowed government employees to use their government connections to benefit private businesses. The concerns addressed by the Act do not necessarily implicate an independent expert who is retained by a business to provide testimony.