Category Archives: Expert Opinions

Understanding Dementia and Medical-Legal Implications

Understanding Dementia and Medical-Legal Implications

By Sanjay Adhia, M.D.

 Dementia encompasses degenerative disorders to the brain. It can be subtle and fluctuate in severity even from day to day.  It can accompany genetic factors, or be associated with an injury or repeated injuries to the brain and head. It is serious and marked by symptoms that can impair making informed decisions or manage the most basic tasks we take for granted in living our daily lives. 

 What does “Dementia” Mean?

Dementia is formally known as a “Neurocognitive Disorder,” or NCD. It is described by the CDC as a “general term for the impaired ability to remember, think, or make decisions that interferes with doing everyday activities.” [1]

 Diagnosing and Stages of Dementia

Dementia has a variety of stages, from Mild to Major.[2] Dementia itself is not a disease, but rather a broad term that encompasses several conditions, including Alzheimer’s disease.

There are distinct elements to the stages and diagnoses of Dementia [3]. For example, Mild Cognitive Impairment [4] is the transition from normal aging to more serious decline into Dementia.

Disease of the Elderly

Dementia is usually seen in older people. However, while some elderly people may have mild age-related cognitive decline, most do not develop Dementia. This is not to say that young people never develop Dementia, but the reasons are usually different and not as common.

Thinking Clearly

Regardless of the age of a person with Dementia, this serious condition can impact a person’s ability to make important decisions that require clarity of thought. Arguably, a person is impaired if they no longer can lucidly think through the benefits and consequences of a decision.

Informed Decisions, Dementia and Competency

If a person with Dementia is making a will or trust, selling real estate or a business, or making gifts of money, art or other tangible items, the potential legal consequences are troubling. Signing or revoking a financial power of attorney are also acts that require competency, as is signing or revoking a medical power of attorney, sometimes called a “living will.”

Assessing if Dementia is or is not present is a job for a physician qualified to assess neurocognitive disorders.

Everyone, including doctors, are alerted by signs and symptoms that raise the possibility Dementia is present.

Signs and Symptoms

Dementia involves problems with memory, attention, communication, reasoning and visual perception. Signs of Dementia may include:

  • getting lost in a familiar neighborhood
  • forgetting the name of someone close
  • forgetting cherished memories
  • losing the ability to complete tasks independently, such as activities of daily living (ADLs) or instrumental activities of daily living (IADLs)
  • confusion that is out of character
  • personality or behavior changes
  • apathy and withdrawal
  • depression
  • paranoia
  • difficulty with balance, walking and eating
  • incontinence
  • communication impairments, struggling with word choice, changed mastery of vocabulary, aphasia (loss of ability to understand or express speech)

Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL)

How we cope with a daily routine of tasks can change when Dementia is present. This figure illustrates the differences between ADLs and IADLs. Dementia can impact both. Difficulty carrying out ADLs or IADLs may be an alert that a physician should assess if Dementia is present or in the early stages. Dementia can be severely disabling when people cannot perform the basic tasks of life, from bathing to paying bills.

 Causes

There are many disorders and conditions that result in the loss or damage of neurons and their connections in the brain, leading to Dementia.

This table contains some of the most common causes or features of conditions associated with Dementia, such as Alzheimer’s Disease, Lewy Body Dementia, Stroke (Vascular Dementia), Parkinson’s Disease, TBI, and others.

Alzheimer’s Disease Most common cause of Dementia (60–80% of all cases). Symptoms include initial loss of recent memory, later loss of remote memory, and eventual personality changes and difficulty with walking and talking.
Vascular Dementia 10% of Dementia cases are caused by strokes or other vascular problems. Progresses in a stepwise fashion with sudden drops in functioning.
Parkinson’s Disease Dementia Parkinson’s Disease Dementia and Lewy Body Dementia result in memory deficits. There may also be movement or balance problems such as stiffness or trembling. Additional symptoms may include changes in alertness, visual hallucinations, and insomnia.
Fronto-temporal Dementia (FTD) There often are prominent changes in personality and behavior leading to impaired judgment and inappropriate behavior. Problems with language skills may also be present.
Mixed Dementia Some people with Dementia who are typically 80 or over may have a combination of conditions causing their Dementia, such as concurrent Alzheimer’s disease and Vascular Dementia.
Reversible Causes [6] Dementia can be due to a reversible cause such as medication side effects, increased brain pressure, thyroid hormone abnormality, subdural hematoma, brain cancer, infections, poisoning, normal-pressure hydrocephalus, anoxia, or vitamin deficiency.
Other Causes Other causes of Dementia may include Traumatic Brain Injury (TBI), Huntington’s disease and Creutzfeldt-Jakob disease. TBI and mTBI (mild TBI, i.e., concussions) can lead to Dementia. We see this in sports injuries like repeated concussions in boxers or football players.

 

Diagnosis

Diagnosing Dementia involves a clinical exam with a history and physical along with a mental status exam. The workup may also include labs, neuroimaging (such as an MRI [7]) and neuropsychological testing.

Psychiatrists, neurologists, geriatricians and physical medicine and rehabilitation (PMR) doctors are the specialists who generally diagnose Dementia. Neuroradiologists can assist with the diagnosis.

Neuropsychological tests administered by a qualified licensed neuropsychologist can be helpful to the physician in diagnosing Dementia.

Many physicians, myself included, are trained and certified to perform the Montreal Cognitive Assessment (MoCA), a frontline screening test. The MoCA is a cognitive screening test designed to detect mild cognitive impairment (MCI) and Alzheimer’s disease. Administering the MoCA is a decision for a neuropsychologist or physician certified to do so. A MoCA is not indicated in every case. It is worth noting that neuropsychological testing or neuroimaging in and of itself may not be sufficient to render a diagnosis.

Delirium vs. Dementia

It is important to be able to distinguish Delirium from Dementia. Delirium is generally caused by a medical condition or toxicity. Often, they can co-occur. Generally, Delirium is characterized by:

  • Acute onset
  • Fluctuating course
  • Altered consciousness

Typically, Dementia has a more gradual onset and progressive course and is usually with intact consciousness.

Treatment

Treatment for Dementia depends on the cause. Some causes, like Alzheimer’s Disease, have no cure, but there are treatments that can modestly improve cognition in some individuals or slow the rate of decline.

Additionally, there are medications that can be useful in protecting the brain or helping with mood or behavioral disturbances.

Maintaining a healthy lifestyle with diet and exercise and maintaining social contacts can be preventive.

Dementia and Medical-Legal Implications

Dementia can impact a variety of cognitive domains and other abilities. It may result in changes in competency or behavior.

People of all ages are used to making decisions, presumably informed and logical. 

Civil litigation and criminal cases generally involve decision-making moments. If Dementia in any way impairs a person’s competency, the Trier of Fact is better able to make a judgment when a forensic evaluation is conducted to determine if a Neurocognitive Disorder like Dementia is a factor. Thus, Dementia may present with a variety of medical-legal consequences.

Malpractice and Medical Negligence

Some individuals with Dementia are in institutional settings such as nursing homes, assisted living, or geriatric psychiatric facilities where there could be instances of medical malpractice.

In fact, Dementia can interfere with a person’s ability to assess their own medical care and/or report malpractice or negligence. In advanced Dementia, self-advocacy is unlikely if not impossible.

Negligence in care is not limited to medical treatment. Those with Dementia may also have a higher risk of falls due to multiple reasons, including getting lost or the effects of medications. Staff in facilities caring for those with Dementia will benefit from training about such risks.

Additionally, certain medications, both prescribed and over-the-counter, can complicate or worsen Dementia. Impairment in cognition, for example, can co-occur with the use of certain prescription or over-the-counter medications, such as oral antihistamines like Benadryl (with anti-cholinergic activity)[8]. Caregivers need to be aware of these concerns.

Disability: Impact on Life and Work

Those with Dementia may have decreased ability to perform work-related duties. A Fitness for Duty or other occupational evaluation may be appropriate in such a situation.

Many jobs require appropriate behavior and interpersonal functioning, which may be problematic with those with Dementia. Additionally, adequate memory is necessary for many essential job functions, i.e. fundamental tasks to perform one’s job.

Some of the moderate and severe cases of Dementia involve individuals who have decreased ability to perform activities we take for granted. The chart above does an excellent job of demonstrating activities of daily living that can be diminished by Dementia, ranging from basic hygiene to balancing a checkbook.

Contractual Competency

Individuals with Dementia may lack capacity to execute contracts, which could include:

  • irrevocable or revocable trust
  • life insurance trust (irrevocable)
  • sale of an asset
  • purchase of an asset
  • obtaining a loan or refinance on real property

Testamentary Capacity [9]

Those with Dementia may not be able to understand the prerequisite elements of a will. In many will-contest cases, the individual in question is deceased. When the estate is being distributed, unexpected bequests may lead beneficiaries to wonder if the testator (person making the will) was competent when they signed the document.

To determine testamentary capacity posthumously requires some detective work to opine on the person’s mental state in the past. If an autopsy is ordered, the deceased’s brain and other findings may provide clues about Dementia or other neurocognitive disorders.

In addition, a close review of medical records and collateral interviews with the deceased’s treating physicians, family, friends or caregivers are always a consideration for the forensic evaluator. As a Forensic Psychiatrist, I also scrutinize the observations of anyone who benefits emotionally or financially.

Undue Influence

Those with Dementia are emotionally and cognitively susceptible to undue influence. Undue influence is often litigated with questions of testamentary capacity.

Probate litigation may address a range of behaviors by the testator that give rise to the legal conflict. The behavior of others around the testator may also be relevant to the extent they appear to manipulate or control the testator with Dementia.

Just because a person has Dementia does not mean they will be unduly influenced for someone else’s gain. However, it is a risk factor.

Undue influence is complex. Psychological and medical factors are usually at play, and a detailed discussion is outside the scope of this article.

Fraud

Scams can seek to exploit diminished cognitive capacity in the elderly. Above I identify several ways in which Dementia can manifest. For example, “Confusion that is out of character” may cause a person to believe an unlikely “story” that involves transferring money to someone they do not know. Another form of fraud is manipulating a person to sell or give away their assets in an uncharacteristic manner. This does not have to be a family member, though that may be the case.

The capacity for self-advocacy and critical thinking is crucial to defend against fraud.

Elder Abuse

Those with dementia could be susceptible to elder abuse. Elder abuse can involve physical abuse, psychological abuse, sexual abuse, financial exploitation, medication abuse, passive or active neglect.

Criminal Cases: Competency, Dementia and Culpability

Dementia may influence alleged criminal acts or lead to incompetency to stand trial. It is important to remember that dementia is not only seen in the elderly. Brain injuries are believed to be associated with early onset dementia, for example. As a result it is possible dementia is a factor in competency to stand trial or culpability.

Unlike some cases of incompetency due to schizophrenia, those with Dementia are generally more likely to be unrestorable (e.g., treatment will not restore them to be competent to stand trial). Dementia may provide the basis for an insanity defense or sentence mitigation. In some states, such as Texas, a forensic certification in psychiatry or psychology is required to opine in Insanity or Competency to Stand Trial cases. Geriatric psychiatrists and neurologists without forensic certification would not be permitted in some states to opine on these questions.

Choosing a Dementia Expert

In choosing an expert witness for cases involving Dementia, take note of the expert’s background.

It may appear logical to an attorney with a case involving claims of Dementia to consider an expert in Dementia-related medical specializations. Note that diagnosis and treatment is the training of those Board-Certified in specializations such as geriatric medicine, Neurology, Internal Medicine, Psychiatry and others.

However, in treatment-focused medical specializations, no training is received in medico-legal considerations. This can have consequences in a lawsuit.

Training in medical diagnosis and treatment does not include application to medico-legal considerations. As a result, a physician may arrive at a diagnostically sound opinion that is not helpful to a jury considering a legal matter with complex and unique features and consequences.

Forensic Psychiatry is the only medical specialization that addresses the interface of psychiatry and law, e.g., interpreting and opining about complex medical-legal features relevant in a lawsuit.

A doctor Board-Certified in Forensic Psychiatry with further subspecialty certification in brain diseases, i.e., Brain Injury Medicine, may be a better expert witness than a physician with other specializations.

If more than one physician in complementary specialties best serves a jury or judge, a team of a Forensic Psychiatrist and another specialist may be indicated, depending on the complexity of the case.

Although neurologists are adept at treating Dementia and the neurological causes of Dementia, they may not have the experience to evaluate the psychiatric complications of Dementia, which can have the types of medical-legal implications described in this article.

As a Forensic Psychiatrist Board-Certified in Brain Injury Medicine, I regularly treat both the psychiatric and neurocognitive manifestations of Dementia due to TBI, stroke and other neurological conditions. In addition to NCD due to TBI, which is of more immediate onset, TBI can elevate the risk of developing Alzheimer’s disease years after the brain injury. My patients at TIRR Memorial Hermann include individuals who may have developed an NCD after, for example:

  • A severe blow to the head, such as in a car accident or fall. Traumatic brain injury can occur.
  • A stroke that could result in a Vascular Dementia.
  • Repeated concussions (mTBI) like those suffered by an athlete in a sport where brain injuries are a significant risk. This is described by some as causing Chronic Traumatic Encephalopathy (CTE), though research is inconclusive.

In summary, it would be advisable to retain an expert who has both medical-legal expertise in conducting IMEs, such as a Board-Certified Forensic Psychiatrist, and experience in treating those with Dementia. Testamentary capacity and Undue Influence are legal concepts with unique features relevant in a lawsuit but not in treatment.

Conclusion

Dementia is a neurocognitive disorder that can profoundly impact a person’s quality of life, independence, and ability to make decisions. Scientists and doctors continue to research the causes and risks of Dementia to help discover effective ways to treat and prevent it.

As competency is a feature of many adjudicated matters, Dementia has numerous medical-legal implications. If Dementia is a possible factor in a case, the Trier of Fact may wish to have this assessed with a forensic evaluation conducted by a qualified physician.

The original article can be found here: https://www.forensicpsychiatrynow.com/understanding-dementia-and-medical-legal-implications/

 

Author Bio

 

Dr. Adhia is a triple Board-Certified Psychiatrist in Forensic Psychiatry, Psychiatry and Brain Injury Medicine. He is a practicing neuropsychiatrist and clinical psychiatrist.  Dr. Adhia is fascinated by the unique interface of neuropsychiatry and the law. His interests led him to obtain experience and Board Certification in Brain Injury Medicine. He treats patients with brain injuries, strokes, spinal cord injuries and other neurological disorders at TIRR Memorial Hermann, a teaching hospital in Houston and national leader in neurorehabilitation. Many of the patients with TBI and stroke have Dementia along with anxiety disorders and mood disorders. Research also suggests a correlation between spinal cord injuries and Dementia.[10] Some of his patients have rare neurological disorders that could cause Dementia, such as brain cancer and hydrocephalus. Other conditions such as multiple sclerosis may not cause NCD but can cause some neurocognitive deficits.  Dr. Adhia explains more about Brain Injury Medicine on his site and Brain Injuries in particular in Brain Injuries Explained.      

Sanjay Adhia, M.D., Forensic Psychiatrist (832) 746-5905

sgamd@sgamd.com       www.forensicpsychiatrynow.com

Endnotes:

I encourage readers to learn more about Dementia. Here are some sources you may find interesting. This is not an endorsement of the sources’ validity.

  1. Centers for Disease Control and Prevention. What Is Dementia? (2019, April 5). Retrieved from https://www.cdc.gov/aging/dementia/index.html.
  2. American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders(5th ed.), p. 602. https://doi.org/10.1176/appi.books.9780890425596.
  3. Mayo Clinic. Dementia: Symptoms and causes. (2021, June 17). Retrieved from https://www.mayoclinic.org/diseases-conditions/dementia/symptoms-causes/syc-20352013.
  4. Mayo Clinic. Mild cognitive impairment (MCI). (2020, September 02). Retrieved from https://www.mayoclinic.org/diseases-conditions/mild-cognitive-impairment/symptoms-causes/syc-20354578.
  5. Legislative Analyst’s Office. A Long-Term Outlook: Disability Among California’s Seniors. The California Legislator’s Office Non Partisan Research Fiscal and Policy Advisor, p. 6. Retrieved from https://lao.ca.gov/reports/2016/3509/disability-long-term-outlook-112816.pdf.
  6. Op cit.
  7. Chandra, A., Dervenoulas, G., Politis, M. et al. (2019). Magnetic resonance imaging in Alzheimer’s disease and mild cognitive impairment. Journal of Neurology, 266, 1293–1302. https://doi.org/10.1007/s00415-018-9016-3.
  8. ElderConsult. Anticholinergic Meds. (2019, September 9). Retrieved from https://www.elderconsult.com/resources/medication/anticholinergicmeds/.
  9. The term “testamentary capacity” is often used in connection with the signing of a will. In fact, a will may not be the guiding instrument to distribute a person’s estate. The term “testamentary capacity” is used here to generally describe questions of competency that apply to estate planning decisions.
  10. Huang, S. W., Wang, W. T., Chou, L. C., Liou, T. H., & Lin, H. W. (2017). Risk of Dementia in Patients with Spinal Cord Injury: A Nationwide Population-Based Cohort Study. Journal of Neurotrauma, 34(3), 615–622. https://doi.org/10.1089/neu.2016.4525

Maryland AG Names Team to Review Ex-Chief Medical Examiner’s Work

The Maryland Attorney General has selected an independent panel of experts to investigate the police custody deaths that took place during the tenure of the state’s former chief medical examiner, Dr. David Fowler.

Fowler’s Judgment Called into Question

Fowler served as a key witness in the trial of Derek Chauvin, whose high-profile trial ended with a jury convicting the former Minneapolis police officer of murder and manslaughter in connection with the death of George Floyd.

At trial, Dr. Fowler testified that Floyd died of cardiac arrhythmia due to his heart disease while being restrained by the police and that Floyd’s cause of death was “undetermined” and not a homicide. Dr. Fowler’s testimony was contradicted by several other experts who testified that Floyd died due to a lack of oxygen.

Fowler testified that his “opinion was formulated after the collaboration of thirteen other highly experienced colleagues in multiple disciplines” and wrote that “our evaluation set an ethical standard for the work needed in sensitive litigation.”

Following Dr. Fowler’s testimony at Chauvin’s trial, the former medical director of Washington, D.C., Roger A. Mitchell wrote a letter to Maryland Attorney General Brian Frosh, saying that Dr. Fowler’s testimony and conclusions were so far outside the bounds of accepted forensic practice that all his previous work could come into question.  This letter was signed by 431 doctors from around the country.

After receiving this letter, Maryland Attorney General Brian Frosh made the decision to review all cases from 2002 to 2019, which fell under Dr. Fowler’s tenure.

The Panel of Experts

As the first step of this review process, Maryland Attorney General Brian E. Frosh has selected a panel of experts to decide how to investigate the police custody deaths that were overseen by former Maryland chief medical examiner David Fowler.

The panel of experts will be composed of seven members, who have national and international expertise in the fields of forensic pathology and behavioral science. The panel will develop its own process for reviewing the in-custody death determinations.

According to Raquel Coombs, a spokeswoman for Frosh, the panel will “shape the scope and methodology of the audit, including the manner in which cases for review will be selected.” Once the panel has designed the audit, Frosh will select the team members who will conduct it.

The members of the panel are:

● Stephen Cordner, a retired professor of forensic pathology who heads the international program of the Australia-based Victorian Institute of Forensic Medicine.

● Jack Crane, the former state pathologist for Northern Ireland.

● Deborah Davis, a professor of psychology at the University of Nevada at Reno who has served for decades as an expert witness on eyewitness memory, interrogation and confession, sexual consent communications, and forensics.

● Itiel Dror, a Harvard-educated expert in human cognition and decision-making who serves at University College London.

● Michael Freeman, a consultant in forensic medicine and forensic epidemiology and a professor at Maastricht University in the Netherlands.

● William C. Thompson, professor emeritus at the University of California at Irvine, where he has held academic appointments in criminology, psychological science and law.

● Alfredo E. Walker, a registered forensic pathologist in Ontario.

Mental Health

Death Sentence Thrown Out Due to Misleading Expert Testimony

A federal judge has thrown out a death sentence for a man who was convicted of murder due to misleading experts and insufficient investigation into the defendant’s mental health.

The Crime

In November 2003, Dru Katrina Sjodin, a 22-year-old University of North Dakota student, was abducted while walking to her car after finishing her shift working at the mall. Sjodin had been on the phone with her boyfriend at the time, who heard her say “Okay, okay,” before the phone call ended. Sjodin’s body was later found in Minnesota on April 17, 2004.

On May 11, 2004, Alfonso Rodriguez Jr. was charged with the kidnapping and killing of Sjodin. Rodriguez had a history of sexual assault and had been released from prison about six months before Sjodin’s murder. A jury found Rodriguez guilty and sentenced him to death for his role in Sjodin’s death.

The Appeals

Rodriguez appealed to the Eighth Circuit Court of Appeals in 2009 and lost his case. The U.S. Supreme Court refused to hear his case. In October 2011, his attorneys filed a federal habeas corpus motion, which is considered the last step in the appeals process. Rodriguez’s habeas corpus motion came before Judge Ralph Erickson.

Death Sentence Thrown Out

Judge Erickson ruled that the misleading testimony of the coroner, the failure of defense counsel to outline the possibility of an insanity defense, and the evidence of severe post-traumatic stress disorder had violated Rodriguez’s constitutional rights. Judge Erickson threw out Rodriguez’s death sentence and ordered a new sentencing hearing be conducted.

In his ruling, Judge Erickson characterized Ramsey County Medical Examiner Michael McGee’s testimony as “unreliable, misleading and inaccurate” about the cause of Sjodin’s death. Judge Erickson pointed to McGee’s interpretation of the sexual assault evidence. The judge noted that McGee had offered opinions at trial that were not in his autopsy report—specifically that semen was found during his examination of the body and that it had been deposited in the body within 24 to 36 hours of Sjodin’s death.

Judge Erickson noted that new evidence had demonstrated that McGee was simply guessing and that his opinions were not scientifically supported by literature or any other expert who testified at trial. He wrote, “Few trials are perfect. Admittedly, even fewer trials are riddled with error because expert testimony is later proven to be so unreliable that had all the circumstances been known it would have been inadmissible…But, these post-conviction relief proceedings have uncovered credible evidence demonstrating that in the trial of this case, the truth was obscured.”

Judge Erickson further noted that if the jury had been made aware of the “severity of Rodriguez’s mental health condition,” then it was likely that at least one of them would have voted against the sentence of death.

He wrote, “An adequate investigation would have exposed a possible insanity defense, and, at a minimum, information indicating that Rodriguez suffers from post-traumatic stress disorder (‘PTSD’) so severe that he sometimes has dissociative experiences…Because this evidence was not developed for trial, during the trial the government was able to discount and dismiss any possibility that Rodriguez suffers from PTSD.” 

He continued, “The government told the jury repeatedly that this case was about Rodriguez’s intentional and deliberate choices. A choice to search for a female on November 22, 2003; a choice to sexually assault that female; and a choice to kill that female. That may not be the truth.”

Late Disclosure of Underlying Data Does Not Bar Damages Expert from Testifying

Plaintiffs in wrongful death cases routinely ask expert witnesses to compute the loss of the victim’s anticipated contributions to a family. The experts generally rely on past earnings as part of their analysis. Whether the belated disclosure of that data renders an expert’s opinions unreliable or otherwise requires exclusion of the expert’s opinion was the issue in a recent federal case in the District of Nevada.

Facts of the Case

Nickles and Dimes, Inc., a company that owns and operates amusement arcades in shopping malls, employed Charles Wyman as a route manager. Wyman was electrocuted while servicing a “claw” game machine in Las Vegas. The machine was manufactured by and purchased from Smart Industries Corporation. 

Unbeknownst to Wyman, the claw machine was electrically charged because a power wire and a grounding wire inside the machine were reversed. Wyman was in contact with the electrified machine for about ten minutes before a firefighter unplugged it. Wyman died without recovering consciousness.

Wyman’s estate, several of his surviving family members, and the company that insured Nickles and Dimes filed lawsuits against Smart and other entities for wrongful death. All of the lawsuits were eventually removed to federal court and consolidated. 

Some claims have been settled or dismissed. The remaining liability question is whether the claw machine left the factory in a defective condition. The disputed damages issue relates to lost financial support arising from Wyman’s death.

Expert Report

Terrence Clauretie prepared a preliminary expert report on behalf of the Wyman family members. His report calculated the financial support Wyman would have contributed to his family if he had not died. That report was disclosed within the time set by the court’s scheduling order.

Years after the preliminary report was filed, Smart moved to strike Clauretie as an expert witness. Smart complained that the expert report was incomplete when it was filed because Clauretie did not produce income records in support of the report. Smart also complained that the family members did not provide income records in discovery and that the income information Clauretie reviewed was so vaguely described that Smart could not “discern with certainty” the information he received. 

The family members responded that the preliminary report made clear that it was based on incomplete information and that additional information would be provided later. The preliminary report stated that the final calculation was unlikely to differ significantly from the preliminary calculation. 

After discovery closed, Clauretie received tax information from 2011 to 2013 and prepared a supplemental report that included a final estimate of loss. The final estimate did not differ from the preliminary estimate. 

Smart’s Objections

Smart premised its motion to strike on the argument that a preliminary report does not contain a “complete statement” of all the expert’s opinions as required by Rule 26(a)(2)(B). It also argued that Clauretie’s preliminary report did not include all facts and data he considered or exhibits that would be used to support his opinions.

Smart also objected that Clauretie based his report on statistical data regarding average households rather than Wylie’s actual income. That methodology, in Smart’s review, is unreliable and rendered his opinion speculative.

Smart conceded that Clauretie may have reviewed tax information before he prepared his preliminary opinion but complained that it did not know what information he reviewed. Smart asked the court to strike Clauretie as an expert witness because it could not conduct meaningful discovery of the facts that supported his final opinion.

Reliability Is a “Flexible Concept”

The district court reviewed Clauretie’s opinions for relevance and reliability. Clauretie’s calculation of lost financial support was obviously relevant to an award of damages in a wrongful death case. 

Unlike judges who view themselves as the ultimate authority on reliability, the court recognized that its job was not to determine whether the expert’s opinions are sound but whether the expert used a sound methodology to arrive at those opinions.

The court also recognized that reliability is “a flexible concept.” The court recognized that experts are not required to use a perfect methodology, or even the best methodology. Experts have discretion to choose among various reliable methodologies. Whether that choice affects the reliability of their opinions is for the jury to decide.

The district defined its gatekeeping role as screening out “nonsense opinions.” It is not the court’s job to reject impeachable opinions. Unless the expert “lacks good grounds” for an opinion, it is opposing counsel’s job to expose weaknesses in the expert’s analysis through cross-examination, and it is the jury’s job to decide whether to accept or reject the opinion. 

Reliability of Clauretie’s Opinions

The court rejected the argument that Clauretie failed to identify the facts upon which he based his opinion. The preliminary report identified the substantial information upon which it was based, including Clauretie’s review of tax returns from 2014 and 2015.

The court also rejected Smart’s claim that it never received those tax returns. The returns were attached to a disclosure that the plaintiffs filed but later withdrew after Smart objected that it was filed after the discovery deadline expired. The court did not allow Smart to pretend that it never received the tax returns. Since discovery was later reopened, Smart could have asked to depose Clauretie concerning his reliance on those tax returns. 

The preliminary report indicated that earlier tax returns were not likely to change Clauretie’s opinion significantly. After Clauretie received the 2011 to 2013 tax returns, he prepared a brief supplemental report and confirmed that the additional data did not change his calculation. Nothing in that sequence of events, including the belated disclosure of the 2014 and 2015 tax returns, rendered Clauretie’s opinion unreliable.

Late Disclosure

The court also considered whether the belated filing of Clauretie’s supplemental report justified striking him as an expert witness. Rule 26 requires expert reports to be filed within the time designated by the court. While Rule 26(e) permits supplemental reports, that rule does not create a loophole that permits experts to file incomplete reports before the disclosure deadline.

Rule 37 generally requires the exclusion at trial of opinions and data not included in the report that Rule 26 requires.  The court recognized that the rule nevertheless permits relief from its “harsh requirements” when a failure to disclose was substantially justified or harmless. In addition, the rule authorizes the court to impose sanctions that are less harsh than the exclusion of evidence.

Different judges apply Rule 37 in different ways. Judges who take a mechanistic approach require strict adherence to deadlines and believe that courts should rarely decline to exclude expert evidence when the rule is violated. Judges who believe that cases should usually be decided on their merits by juries, not by judges as a sanction for rules violations, are more inclined to exercise their discretion to avoid harsh results.

The court agreed that the plaintiffs offered no satisfactory explanation for their late production of either set of tax returns. While the belated disclosure might not have been entirely harmless, if only because the delayed resolution of a case is theoretically harmful to the administration of justice, the court decided that “the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions” weighed against striking Clauretie as an expert witness.

While Smart did not benefit from timely production of the tax returns, it did receive the preliminary expert report on time. That report incorporated a number of exhibits and explained how Clauretie arrived at his opinions. Smart had the tax returns before discovery was reopened. It manufactured its own prejudice by failing to take Cluaretie’s deposition so it could question him about the tax returns. Nor did Smart move to compel disclosure of the tax returns.

The court noted that Smart was not required to take Clauretie’s deposition or to move to compel disclosure of documents that Rule 26 requires to be produced. At the same time, Smart was not in a position to argue that it was harmed when it knew of Clauretie’s opinions, had his report, and had the opportunity to depose him. Smart could not claim to have been surprised by Clauretie’s opinions since they did not change from the time the preliminary report was filed. Since Smart received the tax returns before a trial date had even been set, the exclusion of Clauretie’s testimony would be an unduly harsh sanction.

The court decided that a lesser sanction than exclusion was appropriate. It allowed Smart to take Clauretie’s deposition and required the Wymans to pay all expenses associated with it. It also required the Wymans to pay attorneys’ fees associated with the motion to strike.

Lessons Learned

The district court judge wisely avoided a knee-jerk response to belated discovery disclosures. The judge’s ruling was tailored to the lack of harm associated with the late disclosure. 

Lawyers should understand that some judges are more concerned with enforcing their scheduling orders than with producing just results. Experts and the lawyers who hire them should always do their utmost to either (1) produce reports and data relied upon to support opinions by the date set in the court’s scheduling order, or (2) move for an extension of time to produce that data with a showing of good cause for the delay. Violating a rule and hoping that the judge will not impose a harsh sanction is never a good strategy.

California Law Legal System Concept

California Court Limits Rule that Expert Can’t Give Declaration Contrary to Prior Discovery Responses

A recent California court decision has limited a rule that an expert witness cannot give a declaration that is contrary to prior discovery responses.

The Underlying Dispute

From August 1973 to May 1974, Michael Harris worked on the U.S.S. San Jose as a hull maintenance technician for the United States Navy. Thomas Dee Engineering Company performed repairs on the boiler aboard the U.S.S. San Jose during the fall of 1973.

Michael Harris was diagnosed with mesothelioma in March 2014. Two months later, he and his wife Beth filed a complaint against Thomas Dee Engineering Company and other defendants for negligence, strict liability, and loss of consortium. The complaint alleged that Thomas Dee’s work on the U.S.S. San Jose had exposed Harris to asbestos. 

Michael passed away in October 2014. In July 2015, Beth and her children amended the complaint to include wrongful death and survival claims.

Motion to Dismiss

In June 2017, Thomas Dee filed a motion for summary judgment on the issue of asbestos exposure. The company argued that Harris had testified that he had not seen anyone working on the boilers and Harris’ expert had testified that Harris would not have been exposed to asbestos if he was not present when the work was being done.

To oppose the motion, the Harrises offered their expert’s “re-entrainment theory,” an opinion which was not previously disclosed and contradicted by his deposition testimony. Under the re-entrainment theory, Harris would not have needed to be present during Thomas Dee’s work to be exposed to asbestos. The trial court granted Thomas Dee’s motion for summary judgment. The Harrises appealed.

Court of Appeal of the State of California, First Appellate District

On appeal, the Harrises argued that the trial court erred by refusing to give weight to their expert’s declaration and that the declaration raised a triable issue as to whether Thomas Dee’s activities exposed Harris to asbestos.

The court of appeals noted that the trial court should not have disregarded the Harrises expert’s declaration simply because it wasn’t mentioned in his deposition. Prior cases had prevented experts from testifying at trial about opinions that exceeded the scope of deposition testimony. The court distinguished the current case — here, the introduction of the re-entrainment theory came in a motion in opposition to summary judgment, not at trial. If the theory was new, there was nothing that prevented Thomas Dee from re-deposing the expert prior to trial.

The court also noted that the fact that the expert’s declaration and his deposition testimony contradicted each other did not necessarily eliminate the declaration’s evidentiary value. Here, the expert’s declaration related to a scientific theory he had not mentioned in his deposition and his statement did not directly contradict any prior testimony regarding facts that he had observed. 

The court noted that it was a decision for the ultimate factfinder to decide what weight to give to the expert’s testimony in light of his previous deposition testimony. Therefore, the trial court erred by refusing to give the expert’s declaration any weight and granting summary judgment. The court of appeals reversed the order granting summary judgment in favor of Thomas Dee.

Gavel and Stethoscope on Reflective Table

Civil Commitments in North Carolina May Require Expert Witnesses to Act as Lawyers

State laws typically allow the civil commitment of an individual who is dangerous to himself or others because of a mental disease. The procedures that must be followed to secure a commitment order vary from state to state.

When the allegedly dangerous person is brought into the mental health system by a police officer, states typically require a government attorney to represent the interest of the state is seeking a commitment. The person who might be committed has the right to a lawyer and may be entitled to a public defender.

The procedure in North Carolina is unusual. While North Carolina provides a lawyer to the subject of the commitment proceeding, it only requires the state to be represented by counsel when the proceeding is held at a state facility, such as a state-owned mental health hospital. 

North Carolina law gives the attorney general discretion to assign or not to assign a lawyer to commitment proceedings held in private facilities. That quirk in the law effectively forces expert witnesses to make legal decisions about what testimony they should give rather than responding to questions asked by a lawyer.

A recent appellate decision asked whether the subject of a commitment receives a fair hearing when the expert witness rather than a lawyer is the person who, as a practical matter, represents the state. The North Carolina Court of Appeals decided that the procedure is fair.

Facts of the Case

Police officers brought Q.J. to the emergency department of the Duke University Medical Center. The officers advised hospital staff that Q.J. was “having thoughts of harming his mother,” had threatened to slit her throat in the past and was threatening suicide.

Dr. Naveen Sharma signed a Petition for Involuntary Commitment of Q.J. The petition represented that Duke University Medical Center was familiar with Q.J., that he had a history of schizoaffective disorder, that he wasn’t taking his medications, and that he had been hospitalized many times in the past under similar circumstances. 

Dr. Sharma expressed the opinion that Q.J. needed treatment to prevent further deterioration of his mental condition. Dr. Sharma believed that he would become dangerous without treatment. Dr. Sharma’s petition alleged that Q.J. was unable to care for himself adequately in the community and required inpatient hospitalization for stability and safety.

Based on the petition, a magistrate found that Q.J. was mentally ill and a danger to himself or others. The magistrate authorized a temporary inpatient commitment pending a full hearing. That hearing was held about three weeks later.

Q.J.’s Commitment Hearing

Q.J. was represented by counsel at the commitment hearing. No representative appeared on behalf of the state. Q.J.’s counsel objected to the failure of either the District Attorney’s office or the Attorney General’s office to represent the state. In their absence, a mental health expert from Duke Medical Center was the only individual representing the interests of the state.

Dr. Kristen Shirley testified in support of the commitment petition. She had never evaluated Q.J. Dr. Shirley is not a lawyer. The judge overruled Q.J.’s objection to proceeding with a doctor representing the state in an adversarial proceeding.

The judge began by asking Dr. Shirley to “tell me what it is you want me to know about this matter.” Dr. Shirley testified about the results of Q.J.’s two mental health evaluations following his detention. She opined that Q.J. responded well to medication but has limited insight into his mental health status and was likely to stop taking medication if he was released to the community. 

Dr. Shirley testified that Q.J. posed a high risk of decompensating if he were released. In her opinion, decompensation might cause him to become suicidal or homicidal. Dr. Shirley testified that a community treatment team recommended hospitalization to stabilize Q.J.’s condition, including treatment with a long-acting injectable medication. Dr. Shirley recommended a 30-day commitment.

Q.J.’s attorney cross-examined Dr. Shirley. In the absence of any lawyer representing the state, the judge conducted his own redirect examination. The judge found that Q.J. was mentally ill and that the mental illness made him dangerous to himself and others. The judge ordered a 30-day civil commitment.

Expert Witness as Representative of the State

Q.J. appealed. The most significant issue on appeal was whether, in an adversarial system of justice that depends on two opposing parties being represented by counsel, a civil commitment proceeding can proceed when the only advocate for the state is a testifying expert witness, not a lawyer.

When a lawyer represents the state, the lawyer asks questions and the expert witness answers them. The judge’s role is limited to ruling on objections. Under those circumstances, the judge can remain impartial.

With no lawyer representing the state, the judge left it to Dr. Shirley to decide what testimony to give. When the judge invited her to “tell me what you want me to know,” the judge put the expert in the position of making legal judgments about the evidence that the judge should hear. The expert likely had some awareness of the evidence that is required to meet the legal standard for a commitment, but she was trained to make medical judgments, not legal judgments about the relevance of particular facts.

Q.J. complained that placing the expert in the dual role of lawyer and witness raised questions about the judge’s impartiality. The court got the ball rolling by asking Dr. Shirley to tell him what she wanted him to know, arguably asking the kind of question that a lawyer for the state would have asked. 

More troubling were the questions that the judge asked on redirect in an apparent attempt to rehabilitate Dr. Shirley’s testimony. On cross-examination, Dr. Shirley admitted that Q.J. had not actually engaged in violent behavior before the police took him into custody, that he made no threats and expressed no suicidal thoughts while he was being evaluated, and that he had no history of harming others. When, on redirect, the judge asked Dr. Shirley if her testimony was that Q.J. was a danger to himself and whether he was a danger to others, the judge was asking the kind of rehabilitative questions that a lawyer for the state would be expected to ask.

The appellate court concluded that North Carolina law does not require the state to be represented by counsel when commitment hearings are held at a private hospital. The court further concluded that there is no constitutional barrier to having an expert witness present all the testimony required to support a commitment without having a lawyer elicit that testimony. 

Perhaps because it was unwilling to upset the apple cart of North Carolina’s unusual procedure, the court concluded that the judge always remained impartial. While it is true that judges are entitled to question witnesses to clarify testimony if they do so without becoming an advocate for a party, the judge’s redirect examination was exactly the kind of questioning one would expect from an advocate, not from an impartial judge.

Policy Issues

North Carolina’s commitment procedure places expert witnesses in a difficult position. It is usually improper for a witness to give narrative testimony rather than responding to specific questions. Narrative testimony makes it difficult for opposing counsel to object since no question has been posed to which an objection can be lodged. Narrative testimony also makes it more likely that a witness will stray from the facts that are relevant to the proceeding.

Appellate judges are extraordinarily reluctant to find that trial judges were anything other than impartial. While the record makes clear that the judge acted as an advocate for the state by asking questions to rehabilitate the testimony of the expert witness, the appellate court refused to equate advocacy with partiality. As long as North Carolina continues to leave the presentation of evidence at commitment proceedings to expert witnesses rather than lawyers, the fairness of commitment proceedings — and unfairness to expert witnesses — will continue to be an issue.

Defense Expert’s Opinion About Life Expectancy Was Properly Excluded in Washington Wrongful Death Case

Doy Coogan operated an excavation business. During his lifetime, he repaired several cars, as well as industrial equipment that the business used. To make the car and equipment repairs, Coogan purchased brakes, clutches, and other asbestos-containing parts from local NAPA stores.

Coogan was diagnosed with mesothelioma, a disease that has only known cause: asbestos exposure. The cancer metastasized and Coogan’s condition deteriorated. After enduring severe pain as his organs progressively shut down, he died at the age of 67.

Coogan’s estate and his wife sued NAPA for wrongful death. The lawsuit was based on evidence that NAPA auto parts were the only source of Coogan’s asbestos exposure. After a 12-week trial, the jury found in favor of Coogan’s estate and awarded $81.5 million in damages. The verdict included $20 million for Coogan’s wife to compensate her for loss of consortium. The trial court denied a motion to overturn that verdict. 

The Washington Court of Appeals remanded the case for a new trial on damages. The court ruled that NAPA should have been allowed to introduce expert testimony regarding Coogan’s life expectancy if he had not been exposed to asbestos. It also concluded that the verdict was excessive because it “shocked the conscience.” 

The Washington Supreme Court ruled that the state Constitution places greater weight on the jury’s role in awarding damages than the court of appeals recognized. The supreme court concluded that the verdict was not unjust simply because it was substantial. In the absence of “some malign influence or egregious impropriety” that might have affected the jury’s verdict, the court of appeals had no basis for concluding that the verdict was the product of passion or prejudice. In Washington, the size of the verdict alone is not cause for substituting the court’s view of appropriate damages for the jury’s opinion.

Expert Testimony Regarding Life Expectancy

The court of appeals also concluded that the trial court erred by excluding the testimony proffered by one of NAPA’s expert witnesses. The appellate court’s remand for a new trial was based on the exclusion of that expert testimony.

The damages claim, including the loss of consortium claim, was premised on actuarial tables showing that a 67-year-old man has an average life expectancy of 15 years.  NAPA wanted to introduce the expert testimony of Dr. Gary Schuster that Coogan had a shorter life expectancy. Dr. Schuster is a specialist in internal medicine.

Dr. Schuster would have testified that Coogan had advanced cirrhosis of the liver due to a history of heavy alcohol use. In Dr. Schuster’s opinion, Coogan’s life expectancy was only 5 years.

The trial court excluded Dr. Schuster’s proposed testimony, finding it to be of “minimal probative value.” The court of appeals concluded that even if the probative value of Dr. Schuster’s opinion was minimal, it was admissible because it was probative of a central issue in the case: Coogan’s life expectancy.

Speculative Opinion Testimony

The Washington Supreme Court concluded that the trial court properly exercised its discretion in excluding Dr. Schuster’s testimony as “overly speculative.” Dr. Schuster based his opinion that Coogan suffered from cirrhosis (a stage 3 level of liver disease) on the fact that Coogan had ascites, or fluid buildup, around his liver and spleen. Dr. Schuster believed that ascites is indicative of cirrhosis because, in its absence, a patient is only at stage 2.

Schuster assumed that liver disease caused the fluid buildup. Coogan’s physicians, on the other hand, attributed the ascites to his mesothelioma. Dr. Schuster admitted that Coogan’s cancer was “a significant source” of the fluid buildup. He also admitted that there is no way to separate ascites caused by mesothelioma from ascites caused by liver disease. He acknowledged that whether liver disease caused zero percent or twelve percent or any specific percentage of the ascites was impossible to determine.

While Dr. Schuster opined that if Coogan’s enlarged spleen and large portal veins were indicative of cirrhosis, he admitted that those symptoms alone, in the absence of ascites, would not support a diagnosis of cirrhosis. Since he did not know the cause of the ascites, he could only speculate that the other symptoms supported a diagnosis of cirrhosis.

At Coogan’s age, a diagnosis of stage 2 liver disease would not have shorted his life expectancy. Dr. Schuster’s opinion that Coogan had only a 5-year life expectancy was dependent upon his assumption that Coogan had reached stage 3. While it is true that Coogan might have had cirrhosis, an expert opinion has little probative value when it is based on facts that might be true. It did not become more probative simply because it was rendered by an expert. Experts must base opinions on facts that are true or that the jury could reasonably believe to be true, not on speculation about facts that cannot be established.

The supreme court also concluded that the trial court was entitled to exclude Dr. Schuster’s opinion on the ground that it was more prejudicial than probative. Evidence that Coogan was a hard drinker might affect a jury’s view of Coogan for reasons that relate to his character. The evidence was only relevant to life expectancy.  To the extent that Coogan’s character was an issue in the case, it wasn’t an issue that could be proved by a doctor’s speculative testimony about the condition of his liver.

Expert Testimony Properly Excluded

The supreme court concluded that the court of appeals erred by substituting its judgment for the trial court’s reasoned decision. While the court of appeals decided that prejudice could have been avoided by barring any reference to Coogan’s alcohol consumption, the trial court’s disagreement with that assessment was not unreasonable. It is difficult to believe that some jurors, at least, would not associate cirrhosis with heavy drinking. 

In any event, it does not matter that the court of appeals would have admitted the evidence because admissibility must be decided by the trial court. The only question for the reviewing court is whether the trial court’s decision to bar the evidence was reasonable. The supreme court concluded that the decision was reasonable and that it should therefore have been affirmed.

gun and bullets

Court to Evaluate Validity of Forensic Ballistics

A Virginia court will evaluate the validity of forensic ballistic and firearm examination.

The Crime

On February 17, 2018, 74-year-old Mary Jackson and her pregnant granddaughter, 33-year-old Tiffany Byers, were found shot to death at home. The body of Byers’ husband, 45-year-old Aaron Byers, was later found in a shallow grave on a property owned by 37-year-old Paul Brock.

Justin Collins, who was Mary Jackson’s grandson and Tiffany Byers’ brother, testified that he was at the property at the time of his grandmother’s and sister’s shooting. Collins said that he heard a gunshot and did not see the shooter, but heard his sister say, “Paul, you shot me.” Collins later identified a photo of Paul Brock as a person that he recognized as previously visiting his home.

Brock was charged with three counts of capital murder, fetal homicide, tampering with physical evidence, and being a first-degree felony offender in connection with the deaths. Brock would later admit to killing Aaron Byers, but said it was done in self-defense. Brock claims that he had nothing to do with the deaths of Mary Jackson and Tiffany Byers.

The Forensic Examination

A forensic examiner took apart and examined the bullets that were used to kill Mary Jackson, Tiffany Byers, and Aaron Byers. She examined the pieces under a microscope and determined “that the lands and grooves on each individual bullet were of similar agreement, which is what they call it to determine if they were fired from the same gun … all the bullets from all the bodies came from the same weapon.”

The Commonwealth wanted to present this evidence, but Brock’s defense team objected. The court held a Daubert hearing to determine whether the evidence should be admitted.

The Daubert Hearing

Gregory Klees, an examiner with the Bureau of Alcohol Tobacco Firearms and Explosives, testified as an expert witness for the Commonwealth. Klees testified that the firearms testing was valid and that the theories and techniques of ballistics examination have been subject to review for over 100 years. When asked whether he knew of any jurisdictions that did not allow firearms examination testimony, Klees responded, “Except for some individual court cases, I don’t know of any standard or federal courts that have excluded it all together.”

Brock’s defense team called Dr. Jeff Salyards, a Principal Analyst with Compass Scientific Consulting and former Chief Scientist for the US Army Criminal Investigation Laboratory as an expert witness. Dr. Salyards noted his concern with the validity of the peer-review process used by ballistic examiners. Dr. Salyards testified that until recently, the firearms examination field did not use blind review studies. Dr. Salyards also stated that the average industry error rate of less than 2 percent could be attributable to the way that studies surrounding the forensic science had been set up.

At the conclusion of the hearing, Whitley County Circuit Court Judge Dan Ballou ordered both sides to submit briefs on their arguments. The case is scheduled for one additional status hearing prior to Brock’s jury trial, which is scheduled to begin on September 8, 2021. 

Opioids

Opioid Manufacturers Challenge Addiction Expert’s Testimony

The attorneys for the manufacturers of opioids have challenged the credibility of an addiction expert who testified that their client’s misleading marketing materials helped to cause the opioid epidemic that has plagued thousands of families in Long Island since the late 1990s.

The Case

The lawsuit at issue was filed in New York State Supreme Court. It alleges that drug manufacturers and distributors created a public nuisance by misleading physicians and patients with marketing that minimized the dangers and addiction risks of opioids.

State and county officials have stated that they hope to hold the drug manufacturers and distributors responsible for the death and suffering caused by the opioid epidemic and to recover hundreds of millions of dollars for treatment, recovery, and prevention.

The drug manufacturers and distributors have denied responsibility. They claim that they followed all regulations and are being blamed for the actions of health regulators who encouraged opioid use and the doctors who overprescribed them.

The case is before Supreme Court Justice Jerry Garguilo — In re Opioid Litigation— New York Supreme Court, Suffolk County, No. 400000-2017. It will be the first case of its kind to go before jurors in the United States. This case puts the entire opioid supply chain on trial. In similar cases, only a small number of the companies that were actually sued were taken to court. Most parties reached settlements in those cases before the trials began. Hundreds of witnesses are expected to be called over the course of the trial.

Expert Witness Dr. Anna Lembke

The state and the counties retained Dr. Anna Lembke to testify as an addiction expert. Dr. Lembke is a professor of psychiatry at Stanford University and a physician who treats patients who are struggling with substance abuse.

Dr. Lembke testified that the drug manufacturers and distributors’ marketing materials helped to fuel the opioid epidemic. She stated that defendants Teva Pharmaceuticals, Endo Pharmaceuticals, and Allegan Finance, used misleading promotional materials to convince health care providers that their opioid medications were safe.

Cross-Examination

Attorneys from the drug companies attempted to discredit Dr. Lembke. Under cross-examination from Teva Pharmaceuticals attorney Harvey Bartle, Dr. Lembke admitted that she had been paid hundreds of thousands of dollars to appear as an expert witness for plaintiffs who have been suing opioid makers in recent years. 

Bartle played a video of Dr. Lembke at a 2015 Stanford panel on opioids. During this panel, Dr. Lembke also stated that opioid prescriptions surged in the 1980s because of a “groundswell” among doctors who feared that they were not doing enough to alleviate pain. Dr. Lembke also stated that this increase in opioid prescriptions “came from a really good place” and “really needed to happen.” Dr. Lembke responded that Bartle had mischaracterized her testimony.

Under cross-examination from Jim Heirschlein, attorney for Endo Pharmaceuticals, Dr. Lembke admitted that she did not know how many physicians in Nassau and Suffolk Counties or New York State had been influenced by pharmaceutical marketing messages or how many prescriptions had been written in the states since the 1990s, when the opioid epidemic began.

Utah

Improper Testimony of Human Trafficking Expert Deemed Not Prejudicial in Utah

The phrase “human trafficking” conjures images of buying or kidnapping children or young women from impoverished countries and selling them as slaves in developed countries. Those images do not necessarily produce an accurate understanding of “human trafficking” as governments have chosen to define it. While trafficking in the sense of buying and selling humans is prevalent in some parts of the world, it is uncommon for victims from other countries to be trafficked into the United States.

A more common use of the term “human trafficking” in American law is presented in a recent appellate decision in Utah. The case involved a fairly routine charge against an adult who managed and directed the prostitution of a minor. Since that is not what “human trafficking” brings to mind, the prosecution called an expert witness to explain why the crime fit within Utah’s definition of human trafficking.

Facts of the Case

The 22-year-old daughter of Joseph Moore met a 16-year-old girl identified in the appellate decision as “Mindy.” Moore’s daughter told Mindy that they could each make $200 to $300 each time they teamed up for a sexual encounter with men they would meet through a website. Mindy agreed because she wanted money to support her drug habit.

Moore’s daughter introduced Mindy to Moore, who offered to help them provide services to men. He signed papers so that Mindy could obtain a piercing. He helped Mindy and his daughter create online profiles, drove them to their appointments, and remained in the car to provide security. In exchange, he received about 40% of their earnings.

Although Moore offered to be a “partner” with his daughter and Mindy, at some point Mindy felt that he was acting more like “the boss” than a partner. Moore decided which appointments they would accept and which they would not.

After a few months, authorities became aware of the enterprise. Moore was arrested and charged with one count of human trafficking of a child, one count of aggravated exploitation of a child prostitute, and one count of exploiting prostitution.

Expert Testimony

The prosecution called an expert witness “to educate the jury on human trafficking” and to dispel some “common misconceptions” about the subject. The appellate opinion notes only that the witness is a professor. The professor’s field of study is not identified.

The professor testified that human trafficking occurs when a person “recruits, obtains, harbors, transports . . . or entices” others through force or fraud “for the purpose of their sex or labor.” She further testified that children who engage “in sexual economies,” including prostitution and pornography, are considered “sex trafficked” because children “cannot consent to their own abuse.”

The professor testified that human trafficking “is not just an international phenomenon” and that it occurs in Utah and throughout the United States. She testified that a victim does not have to be kidnapped to be trafficked but can “be trafficked out of their own home” and even by a parent. She testified that those who are trafficked are not always “locked up in basements” or “hidden from sight,” and that while some will report the trafficking almost immediately, others may stay in “abusive conditions” for years and even decades. She stated that a trafficker “might break a person’s will to leave” by debilitating or “literally” exhausting that person.

The professor testified about recruitment methods and the different ways sex trafficking is advertised. She also testified that trafficking is a lucrative business because a trafficker can “sell a person over and over again.” She claimed that child trafficking is especially lucrative in part because of the “huge demand” for young girls known as “cherry girls” who “just had their first period.”

Throughout her testimony, the professor characterized people who have been trafficked as “survivors” and occasionally as “victims.” She acknowledged that she knew nothing about Mindy or the facts of the case. She pointed to no evidence that Mindy was a “cherry girl.” She offered no conclusion as to whether Moore had trafficked Mindy or whether Mindy was a “survivor” of human trafficking.

In essence, the professor gave the jury her own opinion about the meaning of the term “human trafficking.” The obvious question is whether an expert’s personal definition of a legal term used to define a crime is relevant to anything in a criminal trial.

Trial Court Ruling Regarding Testimony

Remarkably, Moore’s lawyer did not object to the expert testimony. After the professor testified, the trial court observed that the professor “essentially provide[d] a lecture to the jury on human trafficking,” and that some of her testimony, including the “comments about children being virgins,” were disconnected from the actual facts. 

The trial judge asked the lawyers to submit briefs regarding the admissibility of the expert’s testimony. The prosecution responded with a brief. The defense lawyer filed nothing. 

The judge ultimately instructed the jury that “Some portions of the expert testimony may not apply to the evidence you heard. You may choose not to consider any portions of the expert testimony about human trafficking that are not applicable to the evidence presented.” 

The jury found Moore guilty. He appealed, arguing that his lawyer’s failure to challenge the expert’s testimony amounted to a failure to render effective assistance of counsel to Moore.

Appellate Analysis

The appellate court made no ruling regarding the admissibility of the expert’s testimony. It is difficult to believe that any judge would regard the testimony as relevant to the charge. The prosecution introduced evidence that Moore told Mindy’s sister that he needed “to find some girls to pimp out.” Moore was prosecuted because he played the role of a pimp. No expert testimony was needed to assess his guilt of that offense.

The prosecution’s assertion that an expert was needed to dispel misconceptions about “human trafficking” did not make the testimony any more relevant. The prosecution’s decision to charge an offense that Utah calls “human trafficking” should not open the door to expert testimony about what “human trafficking” means. 

In Moore’s case, “human trafficking” means what the Utah legislature says it means. The jury instructions advised the jury of the law’s meaning. It was not proper for an expert to explain whether conduct does or does not constitute human trafficking as Utah law defines the term. The only expert in the law is the judge, and the only people who are entitled to apply the law to the facts in evidence are the jurors. 

The appeal arose in the context of a motion for a new trial based on ineffective assistance of counsel. Moore’s lawyer should have objected to the expert’s inadmissible testimony. The appellate court did not decide whether Moore’s performance was deficient. Had it done so, the inescapable conclusion is that a lawyer fails to render the competent assistance to which a client is entitled when he neglects to object to expert testimony that is obviously irrelevant.

For the purpose of its analysis, the appellate court assumed that the lawyer’s performance was deficient and asked whether Moore was prejudiced by the inadmissible expert testimony. The only honest answer to that question is “we don’t know” because the appellate court was not present during the jury’s deliberations. There is no way to determine how much weight, if any, the jury placed on the expert’s testimony. The prosecution presumably thought the expert testimony was important to its case since it called the expert as a witness. Just how important it was to the jury is impossible to say.

The appellate court concluded that there was ample evidence of Moore’s guilt and that he would have been convicted even if the expert had not testified. That might be true. Courts are often willing to tolerate unfair criminal trials if they believe the evidence of guilt was strong. 

Moore did call defense witnesses and offered evidence to attack the credibility of his accuser. How the jury would have assessed the competing evidence in the absence of an expert who explained her understanding of human trafficking, rather than the crime defined by Utah law, is impossible to determine. We know that Moore didn’t receive a fair trial. Whether he would have been convicted in a fair trial is at best an educated guess.

Lesson Learned

A criminal defense lawyer’s duty is to assure that a defendant receives a fair trial. Every time the prosecution announces an intent to call an expert witness, the defense should consider whether the expert’s testimony is admissible. When grounds exist for a motion to exclude the testimony, the lawyer should file a motion to exclude the testimony and a supporting brief. Winning the motion might not affect the trial’s outcome, but it will help the defendant receive the fair trial that the Constitution promises.