Category Archives: Expert Opinions

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment time is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators must receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should be released from confinement.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5% of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49% of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state claimed an inability to verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.

 

Expert Witness

Recommendation That Expert Should Not Be Disqualified From Testifying Against Former Employer

A U.S. district court judge has received a recommendation that he should allow a former employee of the Consumer Financial Protection Bureau to testify as an expert witness against it, in the agency’s suit against loan financier Navient.

The Underlying Suit

In 2017, the Consumer Financial Protection Bureau (CFPB) and the State of Pennsylvania sued Navient, claiming that the nation’s largest student loan servicer failed to properly service its borrowers’ accounts and improperly directed them towards forbearance, instead of encouraging them to move toward income-based repayment plans. Forbearance is the act of refraining from paying any debts.

The complaint alleges that Navient violated the Consumer Financial Protection Act, the Fair Debt Collection Practices Act and Regulation V of the Fair Credit Reporting Act.

Navient has vigorously defended against these claims and called the suit an “unauthorized copycat” of a complaint that CFPB previously filed against it.

The case is before U.S. District Judge Robert D. Mariani in the Middle District of Pennsylvania.

Proposed Expert Testimony

Navient proposed to have Xiaoling Ang, Ph.D, testify as one of its expert witnesses at trial. Dr. Ang is an expert in consumer financial services, antitrust, and labor economics. She has experience in class certification and damages analysis, policy evaluation, cost-benefit analysis, and fair lending in a range of industries, including mortgage, student loan, subprime lending, deposit products, and fixed income.

Dr. Ang was the author of an article that was published in Law360

entitled, “Student Loan Repayment Options in Light of CFPB v. Navient.” Navient’s counsel approached Dr. Ang about testifying on Navient’s behalf based on her writing this article. Her expert report, which Navient proposed to rebut one of CFPB’s experts, reflects the information contained within her article.

Claim of Conflict of Interest

The CFPB objected to Dr. Ang testifying as an expert for Navient, claiming a conflict of interest. Dr. Ang has a Ph.D. in economics from Princeton University and currently serves as an Associate Director at NERA Economic Consulting. Dr. Ang previously served as an Economist at the CFPB from July 2011 to November 2015. At the CFPB, she served as the Lead Economist on Bureau initiatives and rulemakings, including interagency appraisal rulemakings, larger participant rulemakings in student loan servicing and international money transfers, randomized control trials, disclosure testing, and on a Congressional report on private student loans.

The CFPB argued that Dr. Ang should be disqualified from testifying as an expert because she worked for CFPB during its investigation of Navient.

Special Master’s Report

The court asked Special Master Thomas I. Vanaskie to investigate whether Dr. Ang should be disqualified from testifying as an expert at trial. Vanaskie recommended that Dr. Ang should not be disqualified.

Addressing the claimed conflict of interest, Vanaskie wrote, “I have also concluded that Dr. Ang’s sporadic and brief interactions with the Bureau’s Office of Enforcement attorneys over a period of two years did not expose her to confidential information substantially related to the opinions she has offered in her report in this matter such that the Bureau will be prejudiced if she remains an expert witness in this particular case.”

 

How Do Jurors Evaluate Expert Opinions?

A study co-authored by professors of psychology and law at the University of New South Wales examined the factors that jurors are likely to consider when they decide whether an expert’s opinion is persuasive. The goal was to determine how jurors “differentiate witnesses who offer genuinely expert opinions from those who do not.”

The study was motivated in part by the consistent use of questionable forensic expert evidence to prove guilt in criminal cases. In Australia as in the United States, innocent defendants are convicted when prosecutors bolster weak cases with expert opinions that are founded on unreliable science — or no science at all.

Understanding how juries might evaluate expert evidence should help lawyers as they select experts and prepare them to testify. An understanding of jury psychology may also help lawyers cross-examine experts to expose testimonial weaknesses that are most likely to matter to jurors. Experts can also benefit from the study by shaping their reports and testimony in ways that are the most persuasive to jurors.

Methodology

After examining existing scholarship in the areas of persuasion generally and jury decision-making specifically, the authors proposed “eight broad attributes that are logically relevant to the merit-based assessment of an expert opinion.” They termed those attributes the “Expert Persuasion Expectancy (ExPEx) Framework.”

The ExPEx Framework suggests that jurors consider these factors when they evaluate expert evidence:

  • Foundation for opinions — whether the field of study upon which the expert relies is sufficiently valid to support the expert’s conclusions
  • Field expertise — whether the expert has sufficient training and experience in the field of study to merit trust in the expert’s opinions
  • Specialty of expert — whether the expert’s training and experience in the field addresses the specific specialty that forms the basis for the expert’s opinions
  • Ability of expert — whether the expert states opinions accurately and reliably
  • Opinion expression — whether the expert’s opinions are stated clearly and with necessary qualifications
  • Support — whether the expert supports opinions with evidence
  • Consistency — whether the expert is consistent with other experts in the field
  • Trustworthiness — whether the expert is personally reliable as a source

The study did not examine actual jurors who consider the testimony of actual witnesses in actual trials. Rather, the authors provided different study participants with different versions of an expert report: a control version plus versions that weakened or strengthened one of the attributes identified above.

In one experiment, the control report was strong as to every attribute. Each of the remaining eight reports weakened a single attribute but made no change to the rest of the report. In a second experiment, the control report was weak while each of the other reports strengthened a single attribute.

In each experiment, roughly fifty participants reviewed the control report, another fifty reviewed a report with a weakened or strengthened attribute, another fifty reviewed a report with a different weakened or strengthened attribute, and so on. About 450 people participated in each experiment.

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in the weak report was a hand surgeon. Other attributes were manipulated in similar ways.

Test subjects were asked questions to measure the persuasiveness of the various reports. The questions asked participants to rate “the credibility of the witness, the value of their evidence, and the weight they would give to the opinion” on sliding scales of 1 to 100.

The three ratings were closely correlated to each other. The authors thus combined them into a single “persuasiveness” rating.

Study Results

In the first experiment, the participants regarded the control report as highly persuasive. Weakening the Support attribute made no difference in perception of the report’s strength. Weakening the other attributes had some impact on perceptions of persuasiveness, but perceptions of persuasiveness were significantly affected only by four attributes: Ability, Trustworthiness, Consistency, and Opinion.

In the second experiment, the participants regarded the control report as unconvincing. Strengthening the attributes for Ability or Consistency significantly improved perceptions of persuasiveness. Strengthening one of the other attributes of the weak report had no significant impact on how participants viewed the report.

Perhaps unsurprisingly, the study suggests that jurors are most likely to be persuaded when an expert in the relevant field who is trained and unbiased provides an empirically supported, confident opinion derived from methods that have been endorsed by other experts in the field.

Conversely, jurors are less likely to be persuaded when they consider an empirically unsupported, doubtful, contentious opinion from a novice “hired gun” who is testifying outside his or her field of expertise.

According to the authors, a “strong expert opinion was significantly undermined by a high likelihood of error, disagreement among experts, and questionable integrity. Conversely, a weak expert opinion was significantly improved by a low likelihood of error and agreement among the experts.”

Analysis

Perhaps the most surprising finding is that participants were not particularly concerned with whether an expert supported an opinion with evidence. Instead, “Ability, Consistency and Trustworthiness may be particularly influential attributes.”

Judges in a Daubert regime, of course, focus largely upon the Support attribute. Admissibility depends upon whether the evidence upon which the expert relies is supported by sufficient facts and a reliable methodology.

The study suggests that trial outcomes will be best when the evidence assures jurors that an expert is honest (Trustworthiness), that the expert is stating opinions accurately (Ability), and that the expert’s opinions are consistent with those of other experts in the field (Consistency). Witness preparation that focuses on those attributes might persuade a jury to believe an expert’s opinions.

The authors also acknowledge that decision-making is a subtle art, and that the interplay of the defined attributes might not always be obvious. For example, Confidence and Trustworthiness are both important, but other studies suggest that an expert can enhance Trustworthiness by acknowledging reasons to doubt the expert’s opinion. Since Trustworthiness is a more important attribute than Confidence, acknowledging weaknesses in an opinion might actually strengthen its persuasive value.

 

stock market

Experts Testify at Congressional Hearing About Blockchain Technology

A panel of experts have offered testimony at a United States Congress hearing over the benefits of blockchain technology for small businesses.

Congressional Hearing

The hearing, entitled, “Building Blocks of Change: The Benefits of Blockchain Technology for Small Businesses,” was held before The Committee on Small Business on March 4, 2020. The purpose of the hearing was to give the committee insight into “how innovators and entrepreneurs are using blockchain technology to help small businesses boost productivity, increase security, open new markets, and change the way business is done.”

Blockchain technology utilizes a distributed, decentralized, digital ledger or database that allows multiple parties to engage in secure transactions with each other without the use of an intermediary. Blockchain technology is most commonly associated with cryptocurrency such as bitcoin. However, it has many potential uses, including: monitoring goods in global supply chain, use in retail reward loyalty programs, serving as digital identification, digital voting, and transfers of items like real estate or motor vehicle titles.

Expert Witnesses

The experts who were called to testify before the Committee included: Shane McRann Bigelow, Dawn Dickson, Marvin Ammori, and Jim Harper.

Shane McRann Bigelow is the CEO of Ownum, LLC, a blockchain tech company focused on unlocking business growth and making government more efficient. Bigelow offered testimony on behalf of the Chamber of Digital Commerce. Bigelow testified that his company hoped to use blockchain technology to “Help the poorest in our country, who are also disproportionately minorities, to gain better access to their vital records in a secure way by encouraging federal and state governments to allow for the digitization of not only their vital records, but the process to acquire them.” He emphasized, “Additionally, we will help improve public safety through more accurate data, particularly in the vehicle title arena.”

Dawn Dickson is the CEO of PopCom, a company that uses blockchain technology in “high-IQ automated retail technology” or smart vending machines. Dickson testified, “Blockchain is not a silver bullet. But it can solve problems that small businesses face.” She gave the example that her company believes that the most “secure way to check and confirm a customer’s identity, while ensuring that their personal data remains secure, is to have the customer verify their information securely on their mobile device and store that data on blockchain.”

Marvin Ammori is the General Counsel of Protocol Labs, a research, development, and deployment institution for improving Internet technology. Ammori testified on behalf of the Blockchain Association, a trade association for organizations who are interested in responsibly building and investing in the next generation of digital services. Ammori testified that blockchain technology benefit businesses in many industries, including health care, supply chain, law, and enabling investment and competition in internet infrastructure services such as cloud storage.

Ammori also testified that, “The tax treatment is very complicated” and “doing your taxes for crypto is the worst nightmare.” He explained that doing taxes involving crypto is currently a nightmare and that the system should be reformed before mass adoption. He gave the example, “If you wanted to spend Bitcoin on a coffee this morning, you’d have to keep track of what you paid for the Bitcoin and how much it was worth the moment you spent it, and pay the capital gain or loss on every single transaction.” Ammori also argued for clearer crypto guidelines from both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CTFC).

Jim Harper is a visiting fellow at the American Enterprise Institute, a public policy think tank dedicated to defending human dignity, expanding human potential, and building a freer and safer world. Harper identified, “three advantages of blockchain I can identify for small business: First, simple efficiencies may produce lower costs for small businesses. Second, blockchains may allow for diversified and open market structures that support more niches and specialties. Finally, blockchains may reduce the competitive advantage that large businesses have in the world of data.”

 

A judge

Colorado Supreme Court to Weigh in on Experts in Domestic Violence Cases

The Colorado Supreme Court has decided to hear a case to determine whether to permit expert witness testimony in domestic violence trials by experts who are not familiar with the details of the case.

The Domestic Dispute

In the summer of 2013, Kerry Lee Cooper and his partner, L.K., got into an argument over where to place an electric fan. L.K. testified that Cooper shoved her face into the fan’s blades, cutting her, and she retaliated by hitting him. L.K. claims that Cooper then punched her, grabbed her by the jaw, and beat her with a tire iron.

Cooper claimed that L.K. had been the aggressor. According to Cooper, L.K. asked him to reposition the fan. When she was unhappy with the way he had placed it, he threw the fat on the end of the bed. He claims that L.K. hit him with the flashlight and bit his hand when he tried to take the flashlight away from her. Cooper only admitted to pushing L.K. in the forehead.

Cooper’s daughter, who lived nearby, heard screaming and called the police.

The Domestic Violence Expert

At Cooper’s trial, the prosecutors brought in an expert witness to testify about the “characteristics of domestic violence relationships” and the “power and control wheel,” a tool that was developed with the intent to “explain the ways that an abusive partner can use power and control to manipulate a relationship.”

Cooper’s attorneys objected to the testimony, but the court allowed its admission. A jury convicted Cooper of third degree assault and harassment, but acquitted Cooper of related menacing and cruelty to animal charges—Cooper’s dog had entered the room during the incident.

Colorado Court of Appeals

Cooper appealed his conviction. On appeal, the Colorado Court of Appeals considered whether the district court erred by admitting a subject matter expert witness who had no familiarity with the facts of the case.

The Colorado Court of Appeals ruled that the trial court had erred by admitting the expert witness. Writing for the court, Judge Michael H. Berger stated that “No evidence presented to the jury proved or even suggested that prior to the charged incident Cooper had assaulted, or physically or nonphysically abused, L.K.” Berger also noted that there was no indication of a cycle of violence or control over L.K.; however, “the expert was permitted to give extensive testimony about how domestic abusers exercise such control”.

Berger wrote that the expert’s testimony “may well have caused the jury to infer that there was a prior history of domestic violence.” The court reversed Cooper’s conviction and ordered a new trial.

Colorado Supreme Court

The People of the State of Colorado petitioned the Colorado Supreme Court for a Writ of Certiorari.

The Colorado Supreme Court granted the petition, agreeing only to determine the issues of (1) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence was inadmissible because the charged act was the first act of domestic violence in the relationship; (2) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence must be limited to those facets of a subject that are specifically tied to the particular facts of the case; (3) Whether the court of appeals erred in finding that the admission of the expert testimony was not harmless.

 

Disabled man, wheelchair

Life Care Planner Does Not Need Medical Credentials to Testify About Future Healthcare Needs

A jury awarded more than $2.2 million against a negligent rehabilitation facility in Boise, Idaho. The jury found that nursing negligence resulted in the amputation of an elderly woman’s leg. A physician and a life care planner were among the expert witnesses who testified for the plaintiff. The Idaho Supreme Court rejected challenges to the admission of their expert testimony and affirmed the judgment in the plaintiff’s favor.

Facts of the Case

Leila Brauner was 76 years old when she decided to have a total knee arthroplasty. The procedure replaces damaged bone and cartilage with an artificial knee joint. Brauner hoped that the knee replacement would enable her to continue living an independent life.

The procedure was performed in Boise by Dr. Richard Moore, an orthopedic surgeon. Brauner was then transferred to Aspen Transitional Rehab.

About two weeks after the surgery, Dr. Moore noted that Brauner’s knee was swollen. Brauner complained of numbness in her foot. Dr. Moore had an x-ray taken of Brauner’s right leg. He failed to diagnose a fracture in her femur. Dr. Brauner recommended placing ice on the knee and sent her back to the rehab facility.

Blauner’s pain increased. About two weeks after the x-ray, Brauner began to experience confusion during the middle of the night. A nurse noted that her right foot had curled inward and that her pulse rate had increased significantly. Bruising was visible on her leg. Brauner complained that she was in extreme pain and asked the nurses to shoot her.

Brauner’s nursing expert testified that the nurses should have recognized that Brauner’s symptoms demanded immediate medical attention. The nurses at Aspen failed to call a doctor.

About two hours later, Brauner’s leg was cold to the touch, her skin was pale, and no pulse could be detected in her foot or ankle bone. Brauner demanded that she receive emergency care. She was transferred to a hospital, where doctors determined that her fractured femur had severed the femoral artery. A surgeon amputated the leg at the thigh.

Expert Witness Disclosure

Brauner sued Dr. Moore and Aspen for medical malpractice. The trial judge set deadlines for expert witness disclosure.

Brauner settled her claim against Dr. Moore. She disclosed Dr. Moore as one of her expert witnesses. Three days later, she amended the disclosure to specify that he would testify about the steps he would have taken if he had been informed of Brauner’s condition when nurses first noticed her inward-curling foot and other symptoms.

Brauner also disclosed her intent to call Michelle Nielson Cook to testify about future damages. Cook is a certified life care planner.

Cook prepared a life care plan detailing the future expenses that Brauner would need to incur to cope with her amputated leg. She revised that plan after reviewing it with Brauner’s treating physician. The revised version was disclosed as her expert report.

After her report was disclosed, Cook shared it with the surgeon who performed Brauner’s amputation. He confirmed Cook’s findings.

During her deposition, Cook acknowledged that she made notes on the first draft of the report when she spoke to Brauner’s treating physician and used those notes to help her prepare the revised report. Brauner refused to produce the draft report with the notes because earlier drafts of an expert report are not discoverable in Idaho. During the deposition, Cook testified extensively about the information she received from the treating physician.

Shortly before trial, Cook prepared an amended report. The primary revisions included a reduction in medical damages to conform to a court ruling, a mention of her discussion with the surgeon who performed the amputation, and an itemization of the medical information that she relied upon in preparing the report. The medical information was all contained in medical records that had previously been disclosed.

The amended report was provided to Aspen the day before trial began. Aspen moved to exclude it on the ground that it was untimely and for lack of foundation. The court admitted the report over objection.

Challenges to Life Care Planner’s Prediction of Future Medical Needs

On appeal, Aspen argued that Cook was not qualified to testify about the medical necessity for future health care expenses that resulted from the amputation. The appellate court noted that decisions in some states have required medical necessity to be proved by a medical expert, while other courts have permitted life care experts to base their testimony on their own expertise in reviewing medical records, coupled with confirmation of medical necessity by a physician.

The Idaho Supreme Court followed the latter rule. The court noted that experts can generally rely upon facts to form an opinion if facts of a similar nature are reasonably relied upon by experts in the same field. That rule suggests that life care planning experts can rely on medical records and the opinions of physicians to form an opinion, since that is information that life care planners reasonably rely upon to form opinions.

Since Cook followed a reasonable methodology and considered reliable facts in reaching her opinion, the opinion was admissible under Idaho law.

Challenge to Scheduling Order Violation

Aspen objected to Cook’s amendment of her report on the eve of trial. The trial court noted that experts have a duty under Idaho law to supplement their reports if their opinions change.

The amendment was necessary because the trial judge ruled that medical expenses should be based on the amount that would actually be paid, not on the amount that would be billed. The appellate court noted that the judge’s ruling was wrong, but given that ruling, Cook had a duty to amend her report to reflect the calculation that the court required.

While the supreme court expressed concern that Cook waited so long to amend the report, it concluded that the trial court did not abuse its discretion when it decided not to strike the amended report. Since the report revised downward the estimate of future healthcare costs, the amendment did not prejudice Aspen. In fact, the appellate court was puzzled that Aspen was challenging an amendment that worked to its benefit.

Failure to Disclose Expert’s Notes

When Cook spoke to Brauner’s physicians about the initial draft of her expert report, she made notes in the margins of that report. Brauner’s refusal to produce the notes triggered a dispute as to whether the notes were part of the draft and thus not discoverable under Idaho law, or whether they were discoverable regardless of the document on which they were written.

Brauner assured the court that Cook’s testimony about the notes during her deposition was complete, even though she did not read the notes into the record. The supreme court concluded that the trial judge should not have accepted that representation, but should have reviewed the notes to determine whether they were a discoverable compilation of information for possible use in the case, or notes which were created with the expectation that they would be used in the final report. Facts in the former category are discoverable while facts in the latter category are not.

The district court’s failure to engage in the required analysis was nevertheless harmless. The only notation that could arguably have changed Aspen’s cross-examination was an “oblique reference” to the possibility of living at home. However, uncontradicted evidence established that Brauner’s attempt to live independently after her amputation was unsuccessful. Since production of the notes would not have affected the trial, the court’s error did not require the judgment to be reversed.

Dr. Moore’s Expert Testimony

Dr. Moore was designated as an expert, but not as a retained expert. Accordingly, Idaho law did not require him to prepare an expert report. Brauner satisfied Idaho law by providing a statement about the subject matter of Dr. Moore’s anticipated testimony.

Brauner made a timely disclose of Dr. Moore on the last day permitted by the scheduling order, as modified by agreement of the parties. On the next business day, Brauner amended the disclosure to add that Dr. Moore would testify about measures he would have taken if Aspen had immediately informed him of Brauner’s symptoms.

The trial court excused the belated amendment because it did not prejudice Aspen. The Idaho Supreme Court sensibly decided that being one day late in a disclosure that comes months before trial could not have affected Aspen’s ability to defend the case. While some courts take a more rigid view of deadlines, the Idaho approach recognizes that justice is served when parties are allowed to present important evidence and that strict adherence to deadlines should not stand in the way of doing justice.

 

Fake

Testing Instruments Used by Forensic Psychologists Criticized as Junk Science

Psychologists and other mental health professionals give helpful testimony in a variety of contexts. In civil cases, they may testify about the emotional trauma experienced by an accident victim. In family law cases, psychologists determine the fitness of parents seeking child custody. In workers’ compensation cases, they provide opinions about the degree of disability caused by job-related emotional injuries.

In criminal cases, mental health experts often provide evidence that will help a sentencing court decide upon an appropriate punishment. In death penalty cases, their testimony might help a jury understand whether a defendant is likely to commit another violent crime.

While mental health experts play a vital role in the legal system, their testimony is often criticized as inexact. Proper testing of DNA can establish identity to a near certainty, but mental health experts have no comparable tools. Physicians rely on objective evidence to make a diagnosis, including CT scans and MRI results, while mental health experts are more likely to rely on subjective impressions when they identify a mental health condition.

Assessment Instruments and Subjectivity

To reduce subjectivity in forensic psychological assessments, experts have developed instruments that help them make a diagnosis. Those tools allow psychologists and other expert witnesses to base opinions on objective research findings rather than subjective impressions.

Subjective conclusions may reflect unconscious bias. They may also reflect an opinion that would not be held by a different professional conducting the same evaluation. To the extent that an assessment instrument is both valid and reliable, the instrument may help forensic experts achieve more consistent results.

Despite the advantages of using assessment tools to inform an expert opinion, a 2014 study found that a quarter of all forensic evaluations are conducted without using an assessment instrument. Experts who regularly eschew tools typically trust their professional judgment more than evidence-based assessment methods.

While using an assessment instrument may contribute to the reliability of an expert opinion, not all instruments are created equal. The criteria chosen for measurement may be based on a consensus of subjective opinion rather than an objective analysis. In addition, instruments often call for the assessor to answer subjective questions. Different psychologists administering the same test might therefore reach markedly different results.

For example, the Hare Psychopathy Checklist, a screening tool to determine whether a patient should be classified as a sociopath, asks whether the subject has “excessive glibness” or superficial charm. Two different assessors might disagree about the amount of glibness that is “excessive.” What seems to be genuine charm to one might seem superficial to another. It isn’t surprising that the tool has been harshly criticized, despite its widespread acceptance in the mental health community, as relying on criteria that are “subjective, vague, judgmental and practically unmeasurable.”

Validity of Forensic Psychology Instruments

Tess Neal, an assistant professor of psychology at Arizona State University, led a study of testing instruments commonly used to provide an objective foundation for expert opinions rendered in court. Legal scholars teamed with mental health experts to examine assessment tools commonly used by expert witnesses. The study’s findings will likely fuel Daubert challenges while providing ammunition for challenging opinions on cross-examination.

The study examined 30 assessment tools “to determine their popularity among experts and their scientific credibility.” Neal and her colleagues assessed a variety of instruments, including “aptitude tests (e.g., general cognitive and ability tests), achievement tests (e.g., tests of knowledge or skills), and personality tests.”

The study found that only about two-thirds of popular assessment tools are generally accepted as reliable in the field of psychology. It also determined that there is only a “weak link” between general acceptance of a tool’s reliability and its actual reliability.

Actual reliability was determined by whether the instruments received “favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook.” Only about 40% of popular assessment instruments have been favorably reviewed.

Some tests, such as the Static-99 (a sex offender risk assessment tool) are generally accepted as reliable despite the absence of any professional reviews. Others, such as the Structured Inventory of Malingered Symptomology (SIMS), are generally accepted despite having largely unfavorable reviews. The assumption that an instrument is reliable seems to be detached from evidence-based research.

The authors report that psychological testing is a large and profitable business. Yet it is not always true that “psychological tests published, marketed, and sold by reputable publishers are psychometrically strong tests.”

According to the study, “some psychological assessment tools are published commercially without participating in or surviving the scientific peer-review process and/or without ever having been subjected to scientifically sound testing—core criteria the law uses for determining whether evidence is admissible.” The mental health experts who use an instrument may be unaware that it has never been peer-reviewed or validated with testing.

Failure to Challenge Assessment Instruments

The study also noted that lawyers have done a poor job of challenging the reliability of assessment evidence. Judges and lawyers tend to accept the evidence without question.

The study’s key finding is startling: “Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.”

The study found that lawyers challenged the admissibility of only 5% of expert opinions that were based on the surveyed assessment instruments. The majority of those challenges addressed how the expert used the tool (i.e., whether the expert followed the instructions correctly) or whether the expert interpreted the results correctly.

A more fundamental challenge would address the validity of the instrument itself. Daubert requires expert opinions to be based on adequate facts and a reasonable methodology. If an assessment tool has not been determined by peer-reviewed studies to produce reliable results, opinions that are driven by the tool may be ripe for a Daubert challenge.

When validity challenges are made, they often fail. Judges base decisions on the evidence and arguments presented at a Daubert hearing, so it may be unfair to criticize judges for failing to recognize the weaknesses of assessment instruments that have not been validated.

Still, the study found that courts sometimes view test results as only one fact among many that informs the expert’s opinion. If that fact is unreliable, however, Daubert would prevent an expert from using the test result as support for an opinion. Since reliance on a testing instrument bolsters a psychologist’s subjective opinion with data that is supposedly objective, a jury might be swayed by unreliable test results, even if the jury might not be persuaded by the expert’s testimony in the absence of those results.

The study’s “bottom-line conclusion is that evidentiary challenges to psychological tools are rare and challenges to the most scientifically suspect tools are even rarer or are nonexistent.” Effective representation of a client may require lawyers to raise Daubert challenges to opinions based on psychological assessment instruments, even if the instruments are widely used.

Using Experts to Challenge Experts

When one party calls a mental health expert to testify, it is nearly always imperative for the opposing party to use its own expert to challenge that testimony. Professor Tess’ study provides a means for experts to challenge opinions that are based on the findings of popular assessment instruments.

Michael Saks, a professor of law with ASU’s Sandra Day O’Connor College of Law, stresses the importance of challenging the credibility of psychological evidence. Challenging biases that are inherent in assessment instruments is an important means of assuring that juries do not place undue weight on opinions that are only loosely grounded in science.

Professor Saks hopes that the study will encourage expert witnesses to be skeptical of their own testing instruments. Professor Neal agrees that psychologists need to be more introspective by challenging their own assumptions about the validity of their tools. At the very least, experts should be prepared to acknowledge the limitations of their findings and to admit that psychological opinion evidence can never be entirely free of subjectivity.

 

Court

Conviction Reversed Because Bloodstain Expert Failed to Follow the Methodology He Defined as Reliable

In a case that achieved notoriety after CBS featured it on 48 Hours, the wife and father of a murder victim have been granted a new trial. The North Carolina Court of Appeals recognized that bloodstain evidence upon which the prosecution relied was insufficient to meet the state’s Daubert standard of admissibility.

The appellate court’s analysis is laudably thorough. Courts tend to be more careful about protecting the right to a fair trial in cases that have attracted the media’s attention. The decision makes clear that prosecution experts cannot ignore professional standards for rendering an opinion.

Facts of the Case

While living in Ireland, Jason Corbett hired Molly Martens to work as an au pair for his two children after his wife died. They began a romantic relationship and moved to North Carolina, where they married.

In 2015, Molly’s parents, Tom and Shannon, traveled from Tennessee to visit Jason and Molly. Tom is a retired FBI agent. On the first night of their visit, Tom woke up when he heard a scream. He grabbed a baseball bat and ran to Jason and Molly’s room, where he saw Jason choking Molly. When Jason saw Tom, Jason removed his hands from Molly’s neck and used his arm to place her in a chokehold.

Tom repeatedly told Jason to “let her go.” Jason replied, “I’m going to kill her.” Tom hit Jason with the bat repeatedly as Jason dragged Molly into a bathroom, back into the bedroom, and into the hallway. After Molly broke free, Jason and Tom struggled. Jason obtained possession of the bat after throwing Tom to the floor. As they renewed their struggle, Molly hit Jason with a brick paver.

Tom regained control of the bat. Fearing that Jason would attack again, Tom hit Jason with the bat until he was on the floor. He then called 911. Molly and Tom administered CPR to Jason until paramedics arrived. The paramedics determined that Jason had a hole in the back of his skull. Jason died from blunt force head trauma.

Jason and Molly’s two children told social workers that Jason had a history of abusing Molly. Because the children moved to Ireland before trial, the jury never heard their statements about Jason’s history of domestic violence.

Expert Evidence

Stuart James testified for the prosecution as an expert in bloodstain pattern analysis. In particular, he discussed stains on the bottom of Tom’s boxer shorts and the bottom of Molly’s pajama pants. James claimed the ability to discern that those stains were “impact spatters” of blood that came from Jason’s head when it was near the floor.

Proving that Jason’s head was near the floor was critical to the criminal charge. If Jason was struck while he was standing, the strikes were consistent with mutual combat and self-defense, not with a claim that Tom and Molly kept hitting Jason while he was down.

Prior to James’ testimony, a forensic scientist employed by the state crime lab testified about blood tests that the crime lab conducted on various items of evidence. He acknowledged that the stains about which James testified were never given a “presumptive” test to confirm the presence of blood. Not only did the crime lab fail to identify the stains as Corbett’s blood, it failed to identify the stains as blood at all.

James conceded on cross-examination that he didn’t really know whether the “blood spatter” he analyzed was actually blood. He also admitted that he did not know how Tom was wearing the boxer shorts. In particular, he did not know “whether the cuff was flipped up or down” or how the shorts laid on his body.

The defense challenged the reliability of James’ testimony. The defense pointed to a book that James had authored concerning blood spatter analysis, in which he stated that the presence of blood should be established to a scientific certainty as a predicate to rendering an admissible opinion.

The trial judge disposed of the Daubert challenge by asking James whether his testimony was based on reliable scientific principles. James said yes and that was good enough for the judge.

Jury Verdict

The jury convicted Molly and Tom of second-degree murder. North Carolina defines that crime as the unlawful killing of a human being with malice but without premeditation. Killing in self-defense is not unlawful, but the jury rejected the defense argument that Tom and Molly acted in self-defense.

Malice, under North Carolina law, refers to an intent to kill or to reckless conduct that is inherently dangerous and that exhibits an utter lack of regard for human life.

Appellate Analysis

North Carolina requires the trial judge to decide whether an expert is qualified to render an opinion and whether the opinion is both relevant and reliable. In 2016, the North Carolina Supreme Court concluded that the state’s rules of evidence require the reliability determination to be made in a manner that is consistent with the Daubert decision. Under that standard, expert opinions are reliable when they are based on sufficient facts, when they are the product of reliable principles and methods, and when those methods have been applied to the facts in a reliable way.

The defense did not challenge the reliability of blood spatter analysis in general, although such a challenge would have been well supported. A Pro Publica investigation found that courts have blindly accepted the testimony of self-proclaimed experts in blood spatter evidence despite the absence of any clear proof that the testimony is grounded in a reliable application of scientific principles.

The defense focused its challenge more narrowly on James’ assumption that the stains he analyzed were in fact Jason’s blood. James’ treatise on bloodstain analysis purports to define the standard governing the methodology for analyzing bloodstains. The treatise states that a visual identification of a substance as blood is inadequate. An analysis of a bloodstain should begin by confirming that the stain was caused by blood.

James did not follow the “proper scientific approach” that he identified in his own book. Failing to follow the methodology that James deemed essential to producing a reliable result undercut the reliability of his expert opinion.

James also testified that the “best practice” is to view a photograph of the person wearing the bloodstained clothing. A bloodstain analysis is affected by how the clothing fits the frame of the person wearing it. James saw no photograph of Tom wearing boxer shorts. He was therefore unable to determine the position of Tom’s body relative to Jason’s at the time of the alleged blood transfer.

The only photograph he saw of Molly wearing the pajama pants did not show how the pants fit. In that photograph, the pants seemed to be dragging on the floor. If Molly’s hems were touching the floor, it is difficult to understand how the blood could have come from Jason, given James’ opinion that blows to Jason’s head caused his blood to fly upward.

In the absence of testing confirming that the stains were actually caused by blood, James’ opinions were not based on sufficient facts or data. And since James did not follow the methodology he described in his treatise, he did not base his opinions on a reliable methodology. Given those circumstances, the court of appeals determined that James’ testimony should not have been admitted.

The testimony was important to the prosecution’s case. James did not claim that other blood stains on other articles of clothing were caused while Jason’s head was near the floor. The only testimony that allegedly supported the conclusion that Tom hit Jason while he was down involved the stains that were never tested and that might not have been blood, much less Jason’s blood.

Lesson Learned

In the end, James’ opinions were supported by speculation more than science. Speculation is not relevant evidence and it does not assist the jury in understanding the facts. Since improper speculation may have influenced the jury’s verdict — a verdict that seems to have been based entirely on James’ testimony, given that all the other evidence was consistent with self-defense — the court of appeals granted Tom and Molly a new trial.

If the case is retried, it might benefit the defense to call an expert witness who can explain why opinions about blood spatter are inherently unreliable. The large number of circumstances affecting the path that blood travels make it impossible to determine that path with certainty. A defense expert might explain how blood could have fallen from a higher point and landed on Tom’s boxer shorts. Whenever the prosecution calls an expert witness, it is helpful for the defense to call its own expert.

 

North Carolina

Appellate Court in NC Malpractice Case Rejects Challenges Based on Expert Testimony

The North Carolina Court of Appeals was asked to decide whether expert testimony justified an “intervening cause” jury instruction when two procedures by different surgeons may have negligently caused a patient’s harm. The court was also asked to decide whether a defense expert gave improper standard of care testimony. The appellate court in Hampton v. Hearn rejected both challenges and affirmed a defense verdict.

Facts of the Case

Delacy Miles had an angioplasty and stent placement. The procedure unblocked a vein that was likely blocked because of catheter placements related to her dialysis. Dr. Andrew Hearn performed the surgery.

Dr. Hearn placed the stent in the innominate vein. Part of the stent protruded into the superior vena cava, the main blood vessel that enters the heart from the right side.

Three days later, Miles needed a permacath placement to create new access for her dialysis treatments. Dr. Gregory Schnier passed a catheter through the superior vena cava. He was unaware that Dr. Hearn had placed a stent at the junction of the innominate vein and the superior vena cava.

The procedure pushed the stent into the chamber of Miles’ heart known as the right ventricle. Miles began to experience a rapid heartbeat (tachycardia) during the procedure. Doctors discovered the broken stent in her right ventricle and transferred her to a different hospital, where a fractured piece of the stent was removed from her heart.

Miles was hospitalized for about a week as she recovered from the surgery. About a week after her discharge, she was hospitalized for a few more days to treat bleeding from the dialysis site. She then entered a nursing home, where she died from unrelated causes.

Miles’ estate sued Dr. Hearn and other parties for medical malpractice. Dr. Hearn was the only defendant at the time of trial.

Expert Testimony

Miles’ estate called Dr. Michael Dahn as its standard of care expert. Dr. Dahn testified that Dr. Hearn breached the standard of care by allowing the stent to protrude too far into the superior vena cava. He agreed that it is acceptable for a stent to extend into the superior vena cava, but considered it problematic for the stent to be positioned more than one or two millimeters into that blood vessel.

Dr. Dahn testified that Dr. Hearns’ stent placement breached the standard of care that applies to the procedure. Dr. Dahn also testified that the stent was sheared in half during the catheter insertion, causing the broken stent to enter Miles’ heart. In Dr. Dahn’s opinion, that harm was caused by Dr. Hearns’ breach of the standard of care.

Two standard of care witnesses, Dr. Steve Powell and Dr. Ray Workman, testified for Dr. Hearn. They both testified that Dr. Hearns followed an appropriate standard of care. The depositions of two other defense experts, one of whom testified as to causation, were also offered as evidence.

Intervening Negligence

A key issue in the case was whether Dr. Schnier was negligent and whether his intervening negligence absolved Dr. Hearn of blame. Two defense experts opined that Dr. Hearn could not have foreseen that part of the stent would sheer off if another doctor passed a catheter through the superior vena cava.

While Dr. Dahn testified that another doctor’s decision to pass a catheter through the superior vena cava was foreseeable, he also testified that Dr. Schnier breached the standard of care by failing to determine the position of the stent before passing a catheter through the vein.

Based on that expert testimony, the court instructed the jury that it should not find Dr. Hearn negligent if the harm was solely caused by a subsequent, intervening act of negligence. The appellate court found no error in giving that instruction.

Causation Expert Testimony

Miles’ estate objected to the expert testimony of Dr. Michael Rinaldi. Although Dr. Rinaldi was designated as a causation expert, he was not designated as a standard of care expert. The estate contended that he gave impermissible testimony about the standard of care when he was asked if there was “anything unusual” about the stent placement. Dr. Rinaldi responded that the stent was placed pursuant to a “normal procedure” that he had followed himself.

The appellate court did not decide whether the testimony was erroneously admitted — it clearly was, since Dr. Rinaldi gave an opinion about the method of stent placement normally used by surgeons like himself — but concluded that any error was cured by the court’s instruction. Before playing the video of Dr. Rinaldi’s testimony, the judge instructed the jury that Dr. Rinaldi was not providing an opinion about the standard of care.

Why the judge did not simply excise the objectionable testimony from the video is unclear. Perhaps the judge was not asked to do so. That would have been a more effective means of assuring a fair verdict than reliance on a presumption that juries follow the instructions provided by the court. The presumption is contrary to human experience, but appellate courts invoke it routinely.

Satisfied that the jurors dutifully disregarded the improper standard of care testimony, the court of appeals affirmed the verdict in favor of Dr. Hearn. This was ultimately a case of experts who disagreed. Given the court’s rulings, the jury was entitled to credit the defense experts.

 

gun and bullets

Forensic Pathologist Disputes Autopsy Results

A forensic pathologist conducted a new autopsy on the body of a woman who was found dead in a vehicle following a chase and police officer-involved shooting. He concluded that the woman was killed by methamphetamine toxicity — not from being shot.

The Chase and Shooting

In December 2017, Toby Mike Holmes was working as a part-time deputy for Grundy County, Tennessee. While on duty, Holmes attempted to stop a Ford Mustang, but the driver failed to stop.  A chase ensued.

A later investigation by the Tennessee Bureau of Investigation showed that the driver of the vehicle spun it around so that it was facing Deputy Holmes, at which time he fired at the vehicle. Holmes continued to fire at the vehicle as it sped past him.

The Mustang eventually crashed on the side of the road. A bystander reported the crash. When police responded to the scene, they found that the driver had fled. They also found the lifeless body of Shelby Comer, who was a passenger in the vehicle. She had been shot in the torso.

The driver of the vehicle, Jacky Wayne Bean, 32, was later apprehended. Bean was charged with attempted first-degree murder, evading arrest, and three counts of reckless endangerment. Deputy Toby Mike Holmes was charged with voluntary manslaughter. If convicted, Holmes faces up to six years in prison. Holmes was also placed on unpaid administrative leave and decommissioned by the sheriff’s office pending the outcome of his case.

The Original Autopsy

The original autopsy toxicology report found 3,400 nanograms per milliliter of methamphetamine in Comer’s body. However, it concluded that Comer died because of being shot in the torso.

The New Autopsy

Holmes’ defense team hired Forensic Pathologist Edward A. Reedy, Ph.D., M.D to review the autopsy of Shelby Comer. Dr. Reedy concluded that Comer may have already died before she was shot and disputed the original autopsy’s conclusion that said that Comer died by a gunshot wound to the torso.

Dr. Reedy opined that Comer didn’t lose enough blood for her death to have been caused by a gunshot wound. Dr. Reedy argued that gunshot wounds typically bleed “profusely” when there is enough blood pressure to sustain life. He noted that there was not enough blood found in the interior of the vehicle to indicate that Comer had adequate blood pressure when the shot was inflicted.

Dr. Reedy instead concluded that Comer’s death was caused by the amount of methamphetamine in her system, which was said was “within fatal levels.” Dr. Reedy opined that Comer was likely dead from methamphetamine toxicity before the bullet struck her.

Holmes’ defense team argued that he had not killed Comer; she had died of a methamphetamine overdose. Dr. Reedy testified to support this argument.

Despite Dr. Reedy’s testimony, the jury convicted Holmes of criminally negligent homicide. This was a lesser charge than the original reckless manslaughter charge that he faced. His sentencing hearing has been scheduled for April 3, 2020.