Category Archives: Expert Opinions

#9867034 Mallet And Stethoscope Over Sound Block In Court

Expert Medical Opinion Held Admissible When Expert Expresses Confidence in the Opinion

Luzi Bartsch was injured in a car accident caused by Irma Lage. She settled with Lage and then brought an underinsured motorist claim against Geico, her insurer. Coverage was available only if Bartsch suffered a permanent injury. Two experts testified that Bartsch’s injuries were permanent. The court nevertheless dismissed the lawsuit because Bartsch’s doctors did not testify that they held their opinions to a reasonable degree of medical probability.

The issue before the Superior Court of New Jersey Appellate Division is one that arises when lawyers fail to ask expert witnesses to express confidence in their opinions using specific language. The standard for expert opinions is often expressed as an opinion that is held to a “reasonable degree of certainty.” Recognizing that medical science is inherently uncertain and that honest medical experts often balk at the term certainty, the judicial trend is to allow medical opinions to be admitted when they are held to a “reasonable degree of medical probability.”

Incanting those magic words has sometimes been deemed necessary to the admissibility of an expert’s opinion. The judge who presided over Bartsch’s trial concluded that the absence of those words was fatal to her claim.

Expert Opinions

Geico called Dr. Edward Decter, an orthopedic surgeon who examined Bartsch at Geico’s request. He opined that the pain Bartsch described in her medical records was consistent with spinal degeneration and not consistent with the part of her neck that was injured in the accident. He also opined that her injuries were not permanent.

Interestingly, Dr. Decter had been admonished by a professional organization for slanting his expert opinions in the past to favor the party that hired him. The trial judge disallowed reference to that evidence of Dr. Decter’s “bad character” and the appellate court agreed with the judge’s ruling.

Bartsch relied on the testimony of a chiropractor and a pain management physician. The chiropractor, Dr. Mark Rodrigues, testified that Bartsch suffered from cervicalgia and lumbalgia, conditions that were caused by the car accident. He also testified that those conditions were unrelated to back pain he had treated several months before the accident. When asked whether he was certain of those opinions, Dr. Rodrigues answered, “Without a doubt.”

The pain management specialist, Dr. Clifton Burt, testified that the car accident caused cervical and lumbar radiculopathy. When he was asked whether that condition would be permanent, he testified that “it’s a good possibility that the original cause and the original disc bulges can lead to permanent symptoms.”

Both experts provided written reports prior to trial in which they expressed their opinions to a reasonable degree of medical probability. However, since neither expert used those words when they testified, the trial court dismissed Bartsch’s case.

Appellate Opinion

In New Jersey, a medical expert must express an opinion to a reasonable degree of medical probability. However, as is true in most states, the expert is not required to use those “magic words.” Rather, the court must be satisfied that the expert is reasonably confident in the opinion expressed.

The appellate court held that Dr. Rodrigues’ testimony expressed the requisite degree of certainty. He testified that he believed the car crash damaged Bartsch’s spine and that he believed the damage was caused by hyperflexion or hyperextension induced by the accident. He did not say he believed the crash “might have” caused an injury. By testifying to an unqualified belief as to causation, he expressed confidence in his opinion.

When Dr. Rodrigues later testified that he had “no doubt” that Bartsch sustained a permanent injury as a result of the car accident, he made his confidence even more clear. The appellate court had no difficulty reversing the trial court’s ruling.

Dr. Burt’s testimony, on the other hand, would not have supported a verdict in Bartsch’s favor. He testified that a permanent injury was a “good possibility,” but an opinion that permanence is possible cannot be equated with an opinion held to a reasonable degree of medical probability.

Since Dr. Burt did not express confidence in his opinion as to permanence, the jury was not entitled to base findings on his testimony. Nevertheless, Dr. Rodrigues’ testimony alone would have allowed the jury to find that Bartsch’s injuries were permanent. Bartsch was entitled to a new trial, regardless of Dr. Burt’s insufficient testimony.

Lessons Learned

It is surprising that the trial judge insisted that medical experts must use the words “reasonable degree of medical probability,” given that New Jersey’s focus is on the expert’s expression of confidence, not on the specific words used to express confidence. At the same time, it is surprising that Bartsch’s lawyer did not ask the simple question: “Do you hold the opinions you’ve expressed today to a reasonable degree of medical probability?”

The lesson to learn is that lawyers should familiarize themselves with court decisions in their state that explain the level of certainty or confidence an expert must express in order to make the expert’s opinions admissible. Prefacing questions with the phrase “Do you have an opinion to a reasonable degree of medical probability” about the cause or nature of an injury, followed by “What is that opinion?” will avoid the risk that a trial judge might take a case away from a jury. Of course, it is also important to explain those standards to the expert during witness preparation so that the lawyer’s question and the expert’s response will not come as a surprise.

court

Psychiatrist To Testify in NXIVM “Cult” Trial

The prosecution in the case against NXIVM leader Keith Raniere has filed notice that it plans to call psychiatrist Dr. Michael Welner as an expert witness at trial to help establish that NXIVM is similar to a cult.

NXIVM

NXIVM is a multi-level marketing company based in Albany, New York, that offers personal development seminars. NXIVM has been accused by former members of the organization of being a recruiting platform for a cult operating within it that was known as DOS or The Vow where women were branded into sexual slavery.

In early 2018, NXIVM founder Keith Raniere and his associate Allison Mack were arrested and indicted on charges including racketeering conspiracy, forced labor conspiracy, wire fraud conspiracy, sex trafficking conspiracy, sex trafficking, attempted sex trafficking, and conspiracy to commit identity theft.

Dr. Michael Welner’s Background

Dr. Welner is a clinical and forensic psychiatrist and Chairman of the Forensic Panel. He has acted as a lead forensic psychiatric examiner in many criminal proceedings. Dr. Welner is also known for innovations in forensic science, forensic psychiatry and justice, and protocols for prospective peer review in forensic medicine consultation.

Dr. Welner is best known for his work on cases including the Etan Patz disappearance and murder, the Elizabeth Smart kidnappers, the Xerox mass murders in Hawaii, and Andrea Yates’ trial for the murder of her five children.

Dr. Welner has also consulted for courts and examined defendants who have been involved in mass shooting and attempted mass shooting cases including Colorado’s James Holmes; NBC gunman William Tager; corrections officer George Banks, who killed 13; Tavares Calloway; and bias-hatred mass shooters Richard Baumhammers, Ronald Taylor, and Ronald Crumpley.

The Filing  

The prosecution’s filing indicates that Dr. Welner will testify about how Raniere and his associates engaged in practices that are similar to other cult-like groups. These practices include: aggressive recruiting tactics that are intended to lure recruits and foster their dependence, grooming the members’ moral and value systems to comply with the group, undermining the members’ senses of self, leveraging emotional vulnerability and trust to control the member, creating extreme power imbalances, isolating members from friends and family, and controlling the sex lives of members.

The filing states, “Dr. Welner has studied … cult-like organizations, large-group awareness trainings, the ‘human potential movement’, religious sects and chain-marketing organizations (the ‘comparative groups’), including financial and sexual exploitation and the psychological dynamics within the comparative groups. This includes the techniques of how intense attention and recruitment contributes to special relationships within which such exploitation takes place, and then to isolation through which recruits are controlled and exploitation perpetuates. As a clinical psychiatrist, Dr. Welner also has experience treating people who have left organizations like those described above.”

The prosecution also indicated that it is planning to call other expert witnesses to testify about: the psychiatric and physiological effects of social, perceptual, and occupational isolation; the behavior of victims of sex crimes including common misconceptions about victim behavior; and the psychiatric and physiological effects of lack of sleep and severe calorie restriction.

Expert Has Performed Autopsy on Jeffrey Epstein

New York City’s chief medical officer has performed an autopsy on Jeffrey Epstein, but the results were inconclusive.

Jeffrey Epstein’s Apparent Suicide

On Saturday, August 10, the U.S. Federal Bureau of Prisons announced that Jeffrey Epstein was found unresponsive in his cell at the Metropolitan Correctional Center in Manhattan. The agency called Epstein’s death an apparent suicide. Epstein, 66, was being held on sex trafficking charges.

Federal prosecutors charged Epstein with sex trafficking girls who were as young as 14 and orchestrating a sex trafficking conspiracy.  The indictment noted Epstein’s connections to numerous prominent figures including President Donald Trump, Bill Clinton, and Prince Andrew.

In 2008, Epstein avoided federal criminal charges after prosecutors allowed him to plead guilty to state charges of solicitation of prostitution from a minor and serve just 13 months in jail. While Epstein was in jail, he was allowed to leave for 12 hours a day, six days a week, to go to work at his office.

Just one day prior, thousands of documents from a civil suit had been released, implicating Epstein of sexually abusing underage girls. Epstein had previously tried to commit suicide and had just been released from suicide watch 11 days earlier. Epstein was on suicide watch from July 23 to July 29, which required him to have extra security.  There was no immediate explanation as to why Epstein had been taken off of suicide watch. The FBI said that it was investigating and Attorney General William P. Barr said that he would conduct a special inquiry into what happened.

Barr said, “I was appalled to learn that Jeffrey Epstein was found dead early this morning from an apparent suicide while in federal custody. … Mr. Epstein’s death raises serious questions that must be answered.”

According to the jail policy, Epstein was supposed to have been checked on by two guards every 30 minutes. The New York Times reported that the guards “fell asleep, failed to check on him for about three hours and falsified records to cover up their mistake.” Epstein was also supposed to be housed with a cellmate, but his cellmate had recently been transferred. This decision was another violation of the jail’s procedures.

Epstein’s defense team declined to comment on the circumstances of his death, but released a statement saying, “We are enormously sorry to learn of today’s news. No one should die in jail.”

The Autopsy

Dr. Barbara Sampson is the chief medical examiner in New York City. Dr. Sampson released a statement saying that a city medical examiner performed an autopsy on Epstein while a private pathologist observed; however, more information is needed before a cause of death determination is made.

The private pathologist, Dr. Michael Baden, observed the autopsy at the request of Epstein’s representatives. Dr. Baden was the chief medical examiner in New York City in the late 1970s and has been an expert witness in such high-profile cases as O.J. Simpson’s 1994 murder trial.

The Medical Examiner concluded that Epstein’s death was caused by hanging and that his death was a suicide. While the Medical Examiner’s conclusion refutes unfounded conspiracy theories that have surrounded the death, the private expert who observed the autopsy has not yet made a public statement about the cause of death.

Oat fields

Toxicity Experts Debate the Risk of Glyphosate Found in Children’s Cereal

The Environmental Working Group, a non-profit organization dedicated to protecting human health and the environment, recently published the results of a study that revealed that the herbicide Roundup was detected in all 21 of the oat-based cereals and snack products that it tested.  All but four of these products contained levels of glyphosate that are higher that what EWS scientists consider protective for children’s health with a sufficient margin of safety.

Environmental Working Group Study

EWG’s recent study confirms the tests that they conducted in July and October of last year. The prior tests found that levels of glyphosate were consistently above EWG’s children’s health benchmark of 160 parts per billion (ppb).

Glyphosate is one of the active ingredients in Bayer-Monsanto’s weed killer, Roundup, and similar herbicides. Glyphosate regulates plant growth and speeds up crop ripening in broadleaf plants and grasses. People can be exposed to glyphosate by breathing it in, eating food that was treated with it, or absorbing it through their skin.

Some popular food products that were found to have high levels of glyphosate include:

  • Honey Nut Cheerios Medley Crunch – 833 ppb
  • Cheerios Toasted Whole Grain Oat Cereal – 729 ppb
  • Nature Valley Crunchy granola bars, Maple Brown Sugar – 566 ppb
  • Nature Valley Granola Cups, Almond Butter – 529 ppb
  • Chocolate Peanut Butter Cheerios – 400 ppb
  • Nature Valley Baked Oat Bites – 389 ppb
  • Nature Valley Crunchy granola bars, Oats and Honey – 320 ppb
  • Nature Valley Crunchy granola bars, Peanut Butter – 312 ppb
  • Nature Valley Granola Cups, Peanut Butter Chocolate – 297 ppb
  • Cheerios Oat Crunch Cinnamon – 283 ppb
  • Nature Valley Fruit & Nut Chewy Trail Mix Granola Bars, Dark Chocolate Cherry – 275 ppb
  • Nature Valley Granola Protein Oats n Dark Chocolate – 261 ppb

The Expert Debate

In 2015, an agency within the World Health Organization, the International Agency for Research on Cancer, found that glyphosate is a possible carcinogen. In 2017, the Agency for Toxic Substances and Disease Registry, part of the U.S. Department of Health and Human Services, released a study that confirmed and strengthened the cancer agency’s research.

In California, the chemical is a Group 2A carcinogen, which means that there is sufficient evidence that it causes cancer in animals used in experiments and is probably carcinogenic to humans.  “[Glyphosate] is known to the state of California to cause cancer,” said Sam Delson, the deputy director for external and legislative affairs at the Office of Environmental Health and Hazard.

Not all experts agree that glyphosate is a carcinogen. The Environmental Protection Agency, the agency that creates the legal limits on pesticide residues, has stated that glyphosate does not pose a public health risk. In April, EPA scientists concluded that there is “no risk to human health from current uses of glyphosate” and “no evidence that glyphosate causes cancer.”

Environmental experts complain that the EPA disregarded mounting evidence associating glyphosate with cancer risk. In addition, the scientific journal, Environmental Sciences Europe, found that the conclusions reached by EPA and the International Agency for Research on Cancer differed because the EPA relied mainly on studies conducted in-house by Monsanto or contracted by EPA with an outside lab.

Oil drilling

Insufficient Expert Report Results in Summary Judgment in Legal Malpractice Lawsuit

Dale Phillips, an attorney in Kentucky, provided title opinions to EQT Production Company concerning its oil interests in certain land. EQT sold its oil and gas rights in 14 Kentucky oil fields to Journey Acquisition II. The rights were conveyed by leasing the properties to Journey using Oil and Gas Leases and by assigning other leases to Journey.

At some point after granting the leases, EQT began to drill for oil and gas on some of the properties. Journey sued EQT and won a judgment for $14 million, as well as an order to convey the properties to Journey.

EQT blamed Phillips for the judgment, claiming that he provided faulty title opinions. Phillips moved for summary judgment and challenged the admissibility of opinions offered by Journey’s expert witness. The trial court declined to consider the expert’s opinion and, since legal malpractice cannot be proved without expert evidence, granted summary judgment to Phillips. EQT appealed.

Legal Dispute

According to EQT, Phillips conducted title examinations before it drilled wells on the properties and mistakenly concluded that EQT held a full interest in the areas where the wells were drilled. Phillips stated that he was never given leases or other conveyance documents and was only asked to determine whether EQT had good title when it first acquired the properties. Phillips said he offered no opinion as to the quality of title after EQT acquired it. EQT disagreed, claiming that Phillips represented that he had searched public records through the date of the title opinions, which he rendered shortly before EQT commenced drilling.

EQT sued Phillips for legal malpractice. The trial court followed the general rule that a legal malpractice claim requires proof that a lawyer failed to provide the professional standard of legal services that a lawyer of ordinary competence would provide. Unless the malpractice is obvious, the standard of care must be proved by expert evidence. Since there is nothing obvious about the law surrounding title opinions or mineral rights, the trial court decided that expert testimony was required.

Necessity for Expert Opinion

On appeal, EQT argued that no expert was needed. The Court of Appeals for the Sixth Circuit decided that whether an expert was needed depended on how the issue was framed.

If, as EQT suggested, the issue was whether an attorney breaches the standard of care by representing that he did something he failed to do, the answer might be so obvious that no expert opinion is needed. A more complicated question, however, is whether an attorney who is asked to provide an oil and gas title opinion breaches the standard of care by failing to examine conveyance documents that were executed after the land was acquired.

The dispositive question was whether Phillips did what a lawyer of ordinary competence would have done. Lay people on a jury would not know whether a lawyer providing an oil and gas title opinion should look beyond the documents by which a client acquired title to determine if the client’s interest in the property had subsequently changed. Since that is a question most jurors lack the ability to answer, the Court of Appeals decided that expert testimony was required.

Sufficiency of Expert Opinion

EQT relied on the expert opinion of James Kaiser, a lawyer who had performed title examinations for EQT in the past. Kaiser based his opinion on his legal education and thirty years of experience preparing oil and gas title opinions. Kaiser’s qualifications were undisputed.

Kaiser’s expert report, however, failed to address the standard that an ordinary oil and gas lawyer would have followed. Instead, Kaiser’s report explained that whenever EQT asked him to provide a title opinion, he always determined whether EQT had the right to drill at the time the opinion was provided. Kaiser then noted that Phillips failed to perform the same examination of conveyance documents that Kaiser would have performed.

The Court of Appeals agreed with the District Court that Phillips failed to address the standard of care that should be followed when drafting an oil and gas title opinion. The report did not offer even a conclusory opinion that the appropriate standard was breached. Rather, it merely stated what Kaiser did when he drafted title opinions for EQT.

Adequacy of Expert Report

Rule 26 of the Federal Rules of Civil Procedure requires disclosure of an expert report that includes a “complete statement of all opinions the witness will express and the basis and reasons for them.” The court therefore disagreed with EQT that Kaiser should be allowed to testify at trial to supplement the reasoning he provided in his report.

The report failed to explain the standard of care that a lawyer should follow and failed to articulate the basis and reasons for defining that standard of care. Accordingly, the report did not meet the requirements of Rule 26. As a consequence, the District Court appropriately disregarded the report when it considered Phillips’ summary judgment motion. In the absence of expert testimony, the District Court was entitled to grant summary judgment against EQT.

The case stands as a reminder that experts who are retained in a malpractice case cannot simply describe what they would have done differently. The case also sends the message that all experts who are hired in federal litigation, regardless of the issue, should comply with Rule 26 by writing a report that provides a complete statement of the factsupon which the expert has relied and the reasoning that supports each opinion the expert will express at trial.

Wooden mallet

Oxygen TV Investigation Finds Evidence of Sexual Assault

An investigation conducted in preparation for an Oxygen TV special revealed that there was evidence of sexual assault in a death that had been previously ruled a suicide.

The Death

On July 13, 2011, authorities found the body of 32-year-old Rebecca Zahau naked and tied with rope at the Spreckels Mansion, where she lived with her boyfriend, multi-millionaire pharmaceutical CEO Jonah Shacknai. Her hands and feet were tied with red polypropylene rope, which was tied to a bed frame in her bedroom.

Her boyfriend’s brother, Adam, claimed to have found Zahau hanging from the second-story balcony. He told authorities that he had cut her down and gave her CPR.

According to the sheriff’s report, Adam Shacknai was the only other person on the property when Zahau died. Authorities concluded that Zahau had committed suicide. They believed that she was upset after her boyfriend’s 6-year-old son fell to his death while in her care.

Civil Wrongful Death Suit

Zahau’s family never accepted that she committed suicide.  In 2013, they hired attorney Keith Greer to look into Zahau’s death further.

Zahau’s family sued Adam Shacknai for her wrongful death. A civil jury found that Shacknai was responsible for Zahau’s death. Shacknai’s insurer settled the case for $600,000. Shacknai maintains that the settlement happened without his knowledge or involvement.

The Civil Investigation

A team that worked on a TV special for the Oxygen Network, Death At The Mansion: Rebecca Zahau, looked over the evidence that Greer collected. This team included old case investigator Paul Holes, former prosecutor Loni Coombs, and crime journalist Billy Jensen.

Holes told the producers of the show that the lack of severe damage to Zahau’s neck was a “red flag.” He said, “For me, the biggest thing in my mind that I really want to dig into further is the amount of damage to her neck. …  If this was this true long-drop execution hanging, I would expect a lot more trauma, if not near-decapitation — broken neck, internal decapitation or full decapitation, after this victim had dropped nine to 10 feet.”

Holes told the show’s team that he believed that Zahau was killed and that her killer lowered her body from the balcony.  He said, “Just know that she did not take full force of a nine-foot fall … nine-foot drop, as hanging goes, is considered a long drop — devastating injury to the neck. But, she has minor damage to cartilage in the neck; no injury to the vertebrae anywhere on her neck.”

Holes also noted that Zahau’s hyoid bone and larynx, or voice box, were fractured. Holes said that a hyoid fracture is often “used as a diagnostic for manual strangulation.” 

Forensic pathologist Dr. Rebecca Hsu agreed. She explained that the hyoid is high up in the neck, protected behind the glandular structure and neck muscles.  “It’s not an easy thing to break with ligature. … It’s much easier to break if you have a manual strangulation, where fingers are going in and up.”  She continued, “I can tell you — I have seen quite a few hangings, and I don’t see fractures.”

Additionally, investigators believe that Zahau had been sexually assaulted. Forensic specialist Lisa DeMeo testified at the civil trial that Zahau’s menstrual blood was found on all four sides of a knife handle that was found at the scene of the crime. Greer argued that the only way that the blood could have gotten on the knife handle was if she was sexually assaulted. DiMeo also opined that the mark of blood on Rebecca’s inner thigh was a transfer stain from a sexual assault with a knife handle.

Law enforcement agencies reviewed the case following the civil trial. At a news conference following the review, Rich Williams of the San Diego sheriff’s department homicide unit announced that no evidence of sexual assault was found in either autopsy.

Court

Illinois Allows Party to Shield Expert from Discovery After Changing Designation from Testifying Expert to Consulting Expert

In most states, a witness who is retained to offer expert opinions at trial must prepare a report. The party who retained the expert must disclose the report to the opposing party before trial.

A different rule typically applies to retained experts who will not testify. For example, a lawyer might hire an expert to explain weaknesses in a client’s case. The lawyer will not want to call the expert to present harmful testimony and will not want to disclose the expert’s opinions to an opposing party.

The distinction between testifying and nontestifying experts caused some confusion in an Illinois trial court, where a judge held a lawyer in contempt for refusing to disclose results of an EMG study conducted by an expert. The lawyer had originally designated the expert as a witness who would testify. When the lawyer decided that the expert would serve in a consulting role but not as a witness, the court required the lawyer to disclose the study results anyway. The confusion was resolved on appeal.

Facts of the Case

Alexis Dameron sued a hospital and a number of other parties for medical malpractice. Her complaint alleged that she was injured during surgery due to medical negligence.

In her interrogatory answers, Dameron disclosed David Preston, M.D. as an expert witness who would testify at trial. Dr. Preston performed EMG tests on Dameron but had not prepared a report at the time interrogatory answers were submitted.

Two months later, Dameron filed a motion to change her designation of Dr. Preston from a testifying expert to a nontestifying consultant. The motion requested that Dr. Preston be shielded from discovery pursuant to Illinois’ rules of civil procedure.

The motion explained that Dr. Preston was not a treating physician, that Dameron had not been referred to Dr. Preston by a treating physician, and that Dr. Preston did not treat Dameron’s condition. Rather, he was retained for the purpose of evaluating Dameron’s injuries. The motion alleged that Dr. Preston’s designation as a testifying expert was “inadvertent.”

The trial court denied Dameron’s motion and ordered her to produce Dr. Preston’s test results. Dameron refused, was held in contempt, and was fined $1. The court referred to the order as a “friendly contempt” that would allow Dameron to challenge the correctness of the court’s order in an interlocutory appeal.

Work Product and Expert Reports

Privileges are an exception to the general rule that parties are entitled to obtain evidence in discovery. Broad discovery rules promote the truth-seeking process, while privileges protect the confidentiality of certain information for reasons of public policy.

Illinois’ work-product privilege shields information from discovery when it was prepared in preparation for trial and contains the theories, mental impressions, or litigation plans of the party’s attorney. Illinois extends the work-product privilege to trial consultants who are employed in preparation for litigation or trial, provided that the consultant will not be called as a witness at trial.

The privilege allows a party to refuse disclosure of a consultant’s identity, opinions, and work product. The opposing party can only obtain that information by demonstrating the existence of exceptional circumstances that make it impractical to obtain the same information by other means.

Parties in Illinois are allowed to withdraw witnesses if they give sufficient notice to avoid prejudice to the opposing party. Whether a party can withdraw an expert witness and then redesignate the expert as a consultant to avoid disclosing the expert’s opinions is a question that no earlier Illinois case had decided.

Federal cases generally allow parties to withdraw an expert witness and to designate the expert as nontestimonial, but only if the expert’s report has not already been served on the opposing party. When has been no disclosure of the expert’s opinions and no indication that the party will use those opinions at trial, federal courts allow discovery from the redesignated expert only under exceptional circumstances.

Appellate Decision

The Illinois court decided to follow the federal rule. The court rejected the argument that Dr. Preston’s medical tests made him a treating physician. Dr. Preston did not treat Dameron, but tested her solely for the purpose of consulting.

The court also rejected the argument that disclosing Dr. Preston as a “controlled expert witness” in Dameron’s interrogatory answers constituted a binding judicial admission. The court noted that the disclosure was inadvertent and that the answers were amended to withdraw that designation. In any event, parties are entitled to withdraw witnesses even after disclosing them. At best, the admission would be that Dr. Preston was hired as a controlling expert witness, but that admission would not prevent Dameron from changing her mind about calling Dr. Preston as a witness.

The court disagreed with the argument that designating Dr. Preston as an expert witness waived the right to shield his report from discovery. The discovery rules only require expert reports of testifying witnesses to be disclosed, and Dameron amended her interrogatory answers to make clear that Dr. Preston would not testify.

The court distinguished precedent that required the disclosure of video evidence from which the sound had been extracted to shield a consulting expert’s mental impressions. The court concluded that an EMG study, unlike a video, might expose an expert’s thought process. It is therefore the kind of work product that is protected from discovery.

Finally, the court disagreed that it was fundamentally unfair not to disclose the test results. The fundamental fairness exception in Illinois only applies when a party invokes “the mental-health therapist-patient privilege to exploit or subvert the legal process.” Dr. Preston is not a mental health therapist and there was no evidence that changing his designation from a testifying expert to a consulting expert would exploit or subvert the legal process.

Bamboo stick massage

Medical Expert Opinion Ruled Admissible Despite Failure to Examine Patient

Dawn Dawsey sued Carnival and the company that provided spa services for a cruise she took, alleging that her hip was fractured when excessive force was used during a bamboo massage. Each party brought Daubert motions to exclude the expert testimony offered by the opposing party. The judge sensibly decided to admit all the expert testimony and let the jury sort it out.

Treating Physicians’ Testimony

The defendants asked the court to exclude the expert testimony of Dawsey’s treating physicians on the ground that they did not prepare expert reports. The court denied the motion as to all experts who were not providing testimony as to the cause of the fracture, because treating physicians are not generally required to provide reports concerning their diagnosis and treatment.

Plaintiff’s Expert’s Causation Testimony

Dr. Christopher Troiano, an orthopedic surgeon, reviewed Dawsey’s post-cruise medical records and concluded that the massage caused her hip injury. The defendants challenged his methodology, claiming that he had none.

In particular, the defendants complained that Dr. Troiano did not examine Dawsey, did not interview her or read her deposition testimony, relied on “anecdotal” statements that she made to treating physicians who recorded them in her medical records, reviewed only the medical records provided by her attorney, and did not consider other possible causes of the injury.

In effect, Dr. Troiano concluded that, given the absence of evidence of any other traumatic event, the massage must have caused the hip fracture. That opinion is supported by logic, as an expert should not be required to speculate about alternative causes of an injury in the absence of evidence that anything else happened to Dawsey that could have fractured her hip.

The court recognized that Dr. Troiano’s methodology was not ideal and appeared to be on the fence as to whether the doctor’s opinion was admissible. As the judge noted: “Reviewing only medical records selected by the plaintiff’s attorney is problematic, to say the least, especially when the expert does not also review the plaintiff’s medical records from before the cruise or review her deposition testimony.”

The court nevertheless took note of cases holding that a medical expert does not necessarily need to examine a patient before forming an opinion about the cause of an injury. The court concluded that it is the jury’s function to weigh evidence. After cross-examination at trial, a jury might give the expert’s opinion no weight at all. That call, however, is one that should be made by a jury, not a judge.

The court noted, however, that “Dr. Troiano’s opinion testimony on causation is far from strong and barely squeaked by the pre-trial motion to exclude it.” The court decided only that the opinion was admissible. Whether the opinion would be sufficient to support a verdict in Dawson’s favor was an issue the court could not decide until all evidence was presented at the trial.

Defense Experts’ Causation Testimony

The defense experts opined that a bamboo massage cannot result in a broken hip. Dawsey moved to exclude that testimony because none of the experts offered an opinion as to the actual cause of the hip fracture.

The court concluded that the experts were not required to explain how Dawsey’s hip was fractured. They were permitted to criticize the causation testimony of Dawsey’s expert and to opine about inconsistencies in Dawsey’s testimony that made the massage an implausible cause her injury.

Defense Radiologist’s Testimony

Dawsey also challenged the admissibility of Dr. Whiteman’s expert testimony. Dr. Whiteman is a diagnostic radiologist. Dawsey argued that Dr. Whiteman is unqualified because he is not a surgeon and does not treat hip fractures. The court concluded that the radiologist could offer an opinion about causation while noting that Dawsey was free to cross-examine him vigorously about any limitations in his medical training that could affect his credibility.

Dr. Whiteman’s report stated: “I do not know the cause of Ms. Dawsey’s left hip fracture, but it definitely was not caused by the massage.” Dawsey argued that Dr. Whiteman rendered that opinion without considering the amount of force that was exerted as the masseuse “placed a hand under the bamboo stick and against the hip and extended the stick outward to stretch the outer side muscles and hip joints.”

Repeating its ruling that defense experts do not need to pinpoint an alternative cause of an injury, the court noted that the defense has no burden to disprove causation. Rather, a defense expert’s testimony is admissible if it casts doubt on the plaintiff’s theory about the cause of an injury. Since Dr. Whiteman did so, it was up to the jury to determine whether his testimony would undermine Dawson’s theory of causation.

Motel

Conviction Reversed Because Police Officer Gave Inadmissible Expert Opinion in Prostitution Trial

The Mount Laurel, New Jersey Police Department arrested John Salyerds as the result of a sting operation. The police ran an internet ad that allegedly offered prostitution services. Salyerds was arrested in a motel room after he responded to the ad.

The police contended that the ad offered a “$50 short stay special.” Prior to the trial, Salyerds asked the prosecution to produce the ad to which he responded. Salyerds contended on appeal that the prosecution gave evasive responses to his request and never produced it.

The prosecutor made the unlikely claim that the police officers who posted the ad to the internet “did not have access to a printer” and therefore did not print a hard copy. The prosecutor also asserted that the police tried to find the ad before the trial so they could print it, but it had mysteriously vanished from the internet. The trial judge barred any reference to the content of the ad since the ad was not produced in discovery.

Salyerds called the number in the ad and asked for the “$50 special.” He was given a motel room number. Salyerds went to that room and asked for the “short stay special.” An undercover detective told him to put the money on the table. As Salyerds was doing so, the detective went into the bathroom. Armed officers then burst into the room and arrested Salyerds for engaging in prostitution as a patron (purchaser of services).

There was no prostitute in the room. The undercover detective did not intend to provide sex. No touching occurred. The judge nevertheless found Salyerds guilty because he provided money in exchange for sex. Whether the prosecution proved Salyerds’ intent was the key issue at trial.

Officer’s Testimony

During Salyerds’ municipal court trial, the prosecutor asked one of the detectives who was involved in the arrest to explain the meaning of “short stay special.” Salyerds objected that the question called for expert testimony and that the detective had not been designated as an expert.

The municipal judge overruled the objection and said that the detective could explain what the term meant to him. The real question, however, was what “short stay special” meant to Salyerds, not what it meant to a police detective.

The detective testified that a “short stay special” is “an agreement between two people to engage in an act of prostitution under circumstances where they agree to the act and the amount itself.” The detective agreed that “short stay special” is not a common term and testified that his understanding of the term was based on his training and experience as a police officer.

The municipal judge found Salyerds guilty on the strength of that testimony. On appeal from a New Jersey municipal judge’s decision, a defendant is entitled to a new trial before a Law Division Judge. The detective gave the same testimony before the Law Division Judge, who overruled an objection that the testimony constituted an expert opinion.

The Law Division Judge decided that the detective was giving an admissible lay opinion and found Salyerds guilty. Salyerds took another appeal, this time to the New Jersey Superior Court Appellate Division. That court reversed his conviction.

Appellate Ruling

Pretrial discovery obligations in a New Jersey criminal prosecution require identification of expert witnesses and production of either a copy of an expert report or a summary of the expert’s testimony. The prosecution did not comply with that rule. The question on appeal was whether the detective’s opinion was a permissible lay opinion or inadmissible expert testimony.

The term “short stay special” is not self-defining. The term may have different meanings, depending on context. A resort might use “short stay special” to refer to a discounted room price for a weekend getaway. Prostitutes might use the term to mean something very different.

While municipal judges typically allow police officers to give any testimony the prosecution wants to elicit, the Appellate Division paid close attention to the law governing expert evidence. The prosecution offered the detective’s opinion precisely because the detective had more knowledge than the judge about what “short stay special” might mean when that term is used by prostitutes.

Lay opinions might help a judge understand evidence, but New Jersey law confines lay opinions to knowledge acquired through a witness’ perceptions. A witness who simply interprets what the witness saw or heard, without relying on other information, is giving a lay opinion. “It looked to me like he was aiming the gun” is an example of a lay opinion.

Expert opinions, on the other hand, depend on specialized knowledge that is beyond the ken of an ordinary person. The detective testified that his understanding of the term “short stay special” was informed by his training and experience as a police officer. Since the detective relied on specialized knowledge to help the court understand a term of art allegedly used by prostitutes, the detective was testifying as an expert.

Slang Experts

Police officers often testify about their understand of drug jargon in drug prosecutions to explain how a defendant might have understood common words like “rock” (crack cocaine) or “bump” (one gram). They identify numbers jotted on a piece of paper as a “drug ledger.” All of those opinions are based on a claim of specialized knowledge and can only be provided if the prosecution complies with rules governing the admissibility of expert testimony.

The Appellate Division concluded that the trial judge failed to apply the proper legal standard when it ruled that the detective could give a lay opinion about the meaning of a slang term. Since the detective was testifying as an expert, the prosecution’s failure to identify him as an expert witness barred his testimony.

Finally, the court noted that Salyerds engaged in no sexual behavior and did not discuss sex with the undercover officer, except to refer to a “short stay special.” The only evidence of Salyerds’ criminal intent was therefore his use of that phrase. Since Salyerds’ conviction hinged on the detective’s inadmissible opinion that the phrase referred to an act of prostitution, Salyerds’ conviction had to be reversed.

Florida Supreme Court

Florida Supreme Court Adopts Daubert After Rejecting It

What a difference a judge makes. Or, in the case of the Florida Supreme Court, three newly appointed justices.

On October 15, 2018, the Florida Supreme Court rejected the state legislature’s adoption of the Daubert standard for expert witness testimony. The majority opinion concluded that the standard infringes the jury’s role to determine whether expert testimony is reliable.

Just seven months later, the court ruled that the “grave constitutional concerns” about Daubert’s now “appear unfounded.” What changed in the seven months since the court rejected Daubert? Did the weight of precedent compiled over a mere seven months persuade the court that it had made an incorrect decision? It usually takes years, and often decades of accumulated rulings, before a court disturbs its own precedent.

The only thing that changed is the composition of the court. The 2018 decision was authored by Justice Peggy Quince. Her opinion was joined by Justices Barbara Pariente, R. Fred Lewis, and Jorge Labarga.

Since then, Justices Quince, Pariente, and Lewis have all reached Florida’s mandatory retirement age. They have all been replaced by Gov. Ron DeSantis, creating what the Sun-Sentinel describes as “the most conservative Florida Supreme Court in decades.”

Ironically, Gov. DeSantis championed his appointments as masters of “judicial restraint” who oppose “judicial activism.” Overruling a recent precedent simply because a court wants to move Florida law in a more conservative direction is the very definition of judicial activism.

The Court’s Opinion

The court decided in 2017 that it would not adopt Daubert as part of Florida’s evidence code, notwithstanding the legislature’s desire to do so. The 2018 decision reversed a trial court ruling that applied Daubert.

The court’s newest decision claims not to “readdress” the correctness of its 2018 decision. Rather, the court’s decision reconsidered its 2017 decision not to adopt the Daubert standard.

The court decided to “revisit the outcome of the recommendation on the Daubert amendments.” The court decided that “the ‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.”

To support that conclusion, the court quoted extensively from a dissenting opinion in the 2017 decision. As Justice Labarga noted in dissenting from the new opinion, the court acted “without further input from the Committee or the public.” The court held no new hearings and considered no new evidence. The only intervening change suggesting that the “grave constitutional concerns” identified in 2017 had suddenly become “unfounded” was the addition of three new justices who agreed with the 2017 dissent and saw an opportunity to impose their will on Florida law.

Ramifications of Adopting the Daubert Standard

Whether the Florida court’s judicial activism is wise depends on the reader’s perspective. Florida’s Frye standard has its faults, chief among them its failure to recognize that expert opinions might be well founded even if they are based on new or novel techniques that are not yet generally accepted by the scientific community. Those faults persuaded the U.S. Supreme Court to reject the Frye standard in Daubert.

The Daubert standard also has its faults, including its tendency to force judges who are unschooled in science to evaluate the reliability of scientific methodologies. There is little evidence that judges are more capable of evaluating expert testimony than jurors who might collectively have a stronger background in science than the judge. The decision has been justly criticized for diminishing the importance of juries in civil trials by substituting a judge’s opinion of expert evidence for the community’s opinion as represented by jurors whose duty is to evaluate evidence.

Business lobbyists and the insurance defense industry are the strongest proponents of Daubert because they view it as a shield against “junk science.” They tend to view any science offered by plaintiffs in toxic tort and products liability cases as “junk” if it might cause corporate defendants to lose trials.

Another view of Daubert, however, sees the decision as liberalizing the standard for admitting expert evidence by permitting expert testimony to be heard even if it is based on new or novel methods, provided those methods are reliable. Whichever interpretation of Daubert a court might adopt, it is clear that Daubert has increased the cost of litigation by encouraging Daubert motions that are advanced for strategic reasons, regardless of their merit.

The disparity in those competing views of Daubert explains why different courts have sharply divergent ideas about how Daubert should be applied. Empirical studies suggest that judges are excluding significantly more expert evidence after Daubert than before Daubert, despite the Supreme Court’s stated intent to liberalize the standard for admitting expert opinions.

To the extent that junk science was ever a serious problem in civil cases, studies suggest that judges in civil cases have become less likely to admit expert evidence that is scientifically groundless, whether or not they apply the Daubert standard. In criminal cases, however, junk forensic science remains a problem of crisis proportions. If the adoption of Daubert encourages Florida judges to be skeptical of prosecutors who use unreliable evidence in an effort to prove guilt beyond a reasonable doubt, the Florida Supreme Court’s abrupt “about face” might improve the quality of justice.