Category Archives: Expert Opinions

New York US State Law Legal System Concept

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

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

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

Life Care Plans

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

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

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

Expert’s Methodology

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

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

Expert’s Reliance on Hearsay

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

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

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

Reliability of Expert’s Testimony

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

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

UFC, fighting ring

Judge Orders Expert Witness Questioning in UFC Lawsuit

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

The Lawsuit

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

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

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

Pre-trial Motions

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

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

The Hearing

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

Motion to Seal Records

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

Class Certification Issue

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

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

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


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

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

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

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

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

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

Texas Law

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

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

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

Appellate Court’s Analysis

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

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

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

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

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

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

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

Detention Center

ICE Claims Ex-Official Not Authorized To Testify as Expert

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

The Testimony

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

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

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

Alleged Violation of the Touhy Regulations

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

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

Ethical Concerns

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

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

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

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

Prosecutor Proposes to Allow Expert Testimony to Address Misconceptions About Sexual Assault Victims

An Iowa prosecutor has proposed new legislation that would allow expert testimony in sexual assault cases to address some common misconceptions about victims and help jurors better understand how victims respond to trauma.

First Assistant Linn County Attorney Nick Maybanks proposed the legislation after the widely-publicized United States Supreme Court confirmation hearings of Brett Kavanaugh.  Maybanks said that the dialogue following Christine Blasey Ford’s testimony before the Senate Judiciary Committee after she accused Kavanaugh of sexual assault was concerning. Many misconceptions about how victims should act following an assault were raised and he realized that a change in the law was needed.

Maybanks said, “There is so much victim bias — about how they are supposed to act or behave and blaming the victim for not reporting it.”

Maybanks has been a prosecutor for sexual assault cases for 20 years. He says that he has an understanding of the basic behaviors of victims and abusers through his work with victim advocates, forensic interviewers, medical experts and law enforcement.

Proposed Legislation

The statute that Maybanks is proposing would clarify what is allowed into testimony. The exact language of the statute is still being revised.

Maybanks hopes that the new statute will give judges clarity on the type of the testimony that should be allowed into court. Currently, some judges in Iowa do not allow experts testify about common misconceptions about victims in sexual assault trials because they see the testimony as “vouching” for the credibility of the victim.

There is, in fact, a fine line between testimony about how a sexual assault victim might behave and testimony that implies a witness is telling the truth because she behaved in a particular way. Writing legislation that balances the need for expert testimony to educate jurors against the protection of a defendant’s right to a fair trial will be a difficult challenge.

Addressing Sexual Abuse Myths

Maybanks highlighted some of the myths about sexual assault victims that stood out to him from the Kavanaugh hearings. In particular, he noted the myth that sexual abuse is immediately disclosed in full to law enforcement after it occurs. He also discussed his perception that a suspect’s denial should not turn a sexual assault case into a “he-said, she-said” battle with no resolution.

Maybanks explained that in the majority of the adult sexual abuse and assault cases that he deals with, disclosure is almost always delayed. When the victim finally tells someone, it is usually a close friend or family member or therapist and not law enforcement. It is also common for victims to reveal more details about the abuse over time.

Maybanks hopes that allowing expert witnesses to testify in these cases on this issue would help to explain about how many victims will not report an incident out of embarrassment, shame, humiliation, fear, or because they do not think they will be believed. He also said that a victim’s statement is often more heavily scrutinized than a suspect’s statement because a suspect is expected to deny the accusation. The latter concern, however, does not lend itself to legislation, as juries have a duty to scrutinize every criminal criminal accusation to determine whether it constitutes or is supported by proof beyond a reasonable doubt.

Maybanks explained that his office only prosecutes a portion of the total sexual assault cases that are referred because of issues with credibility, proof, lack of corroboration, or victims who are unwilling to testify. Maybanks stressed, “But it doesn’t mean the sexual assault didn’t happen…. It’s just that we don’t have enough evidence to prosecute.”


New Hampshire Supreme Court Affirms Admission of Expert Testimony Regarding Cause of Salmonella Infection

Brandon Stachulski sued the owner of an Applebee’s restaurant in New Hampshire, alleging that he contracted salmonella when he ate an Applebee’s hamburger. The Applebee’s owner argued that Stachulski could not prove that its hamburger was the source of the salmonella. The owner argued that Stachulski could have been infected by his pet lizard or other sources of salmonella bacteria.

The jury found in favor of Stachulski and awarded him $750,000 in damages. On appeal, the Applebee’s owner challenged the trial judge’s decision to admit Stachulski’s expert evidence. The New Hampshire Supreme Court ruled in favor of Stachulski and affirmed the judgment.

Expert Testimony

Dr. Seth Rosenbaum, an expert in infectious diseases, testified for Stachulski. Dr. Rosenbaum reviewed Stachulski’s medical records and noted that he was diagnosed with a non-typhodial salmonella infection. That form of salmonella is typically food-borne.

After eating the Applebee’s hamburger, Stachulski became ill within the time frame during which symptoms of a salmonella infection would typically appear. Stachulski’s brother-in-law dined with Stachulski and also ate a well-done hamburger. Stachulski and his brother-in-law became violently ill at the same time, a fact that pointed to the hamburger as a source of the illness.

Dr. Rosenbaum thought it was unlikely that Stachulski contracted salmonella from his lizard because other family members had contact with the lizard but did not become ill. Other family members also eat the same food at home that Stachulski’s wife prepares. The fact that they did not become infected tended to rule out a home-based source of infection.

Stachulski’s wife has a health condition that, in Dr. Rosenbaum’s opinion, would make her susceptible to a salmonella infection. The fact that she did not become ill strengthened the inference that Stachulski’s home could be ruled out as the source of Stachulski’s salmonella infection.

Admissibility of Expert Opinions in New Hampshire

New Hampshire follows a version of the federal Daubert test for determining the admissibility of expert evidence. To be admissible, the evidence must meet a threshold of reliability. Reliable expert opinions are based on sufficient facts or data, are the product of reliable principles and methods, and result from the reliable application of those principles and methods to the facts of the case.

The state supreme court emphasized that the New Hampshire rule is interpreted liberally in favor of the admission of expert testimony. The proponent’s burden of proving that expert testimony is admissible is “not particularly onerous.” If an expert’s testimony is well grounded, it should be tested by the adversary system of justice, just like the testimony of fact witnesses. It is improper in New Hampshire to exclude expert testimony out of fear that juries are incapable of weighing its inadequacies.

Appellate Court’s Analysis

The supreme court determined that the facts recited above were sufficient to provide a basis for Dr. Rosenbaum’s expert opinion. The court also decided that Dr. Rosenbaum reliably identified and eliminated other potential causes of the salmonella infection, leaving the meal at Applebee’s as the most likely cause. The court noted that a “differential etiology” analysis is widely accepted as a reasonable means of determining the likely cause of a disease.

The defense argued that only the methods used by public health authorities to trace a disease outbreak to a particular source should be deemed reliable, because those are the only methods that have been tested and peer-reviewed, and are the only methods known to have low error rates. The fact that other or arguably superior methodologies exist, however, did not render Dr. Rosenbaum’s methodology unreliable.

The defense failed to establish that Dr. Rosenbaum’s methodology was likely to lead to an inaccurate result. The appellate court therefore deferred to the trial court’s conclusion that the methodology met the threshold standard for reliability. It was up to the jury to decide whether the defense attacks upon the methodology undermined the conclusions that Dr. Rosenbaum drew.

Finally, the defense complained that Dr. Rosenbaum had no basis for believing that the health condition of Stachulski’s wife made her more susceptible to a salmonella infection. Dr. Rosenbaum candidly admitted that he had no way of quantifying how much more susceptible to infection Stachulski’s wife might have been because of her condition. Even if that aspect of Dr. Rosenbaum’s methodology was questionable, Dr. Rosenbaum’s admission concerning the limits of his analysis minimized any prejudicial impact the testimony could have had.

Placing Trust in Juries

In the end, the court decided that Dr. Rosenbaum’s testimony had a reliable basis. The testimony may not have been perfect, but the law does not require perfection. To the extent that Dr. Rosenbaum’s testimony had weaknesses, the purpose of cross-examination is to expose those weaknesses.

After expert testimony is tested by cross-examination, the jury’s job is to weigh its strengths and weaknesses. Juries are the ultimate judges of the facts in our civil justice system and there is little reason to believe that they are less capable than judges of evaluating expert testimony. Because Dr. Rosenbaum’s testimony satisfied a threshold of reliability, it was up to the jury to decide whether his testimony proved that Stachulski’s disease was caused by eating an Applebee’s hamburger.


Patent law

Federal Court Grants a Daubert Motion and Denies Another in a Trademark Infringement Lawsuit

Through two Florida business entities, Superior Consulting Services, Inc. markets a blood-testing service to consumers that includes the creation of a “Healthprint” profile. Superior trademarked the term “Healthprint” to identify a profile that is “customized to a client’s unique biochemistry.” Superior markets the profile as assisting in the early detection of disease. Superior also provides nutritional advice to consumers who purchase a profile.

Shaklee Corporation applied for a trademark for “Healthprint” to identify a free, online survey that results in a recommendation for Shaklee’s nutrition supplements and related products. The recommendation purports to be tailored to a customer’s health goals, needs, and budget.

Superior sued Shaklee in federal court for trademark infringement and for violating a Florida law that prohibits deceptive trade practices. Both parties wanted to use expert witnesses at trial, and each party filed a Daubert motion to exclude the other’s expert.

Survey Evidence

Both experts offered opinions as to whether consumers are likely to confuse Shaklee’s use of “Healthprint” with Superior’s use of “Healthprint.” Both experts relied on survey evidence. The court’s Daubert analysis therefore focused on the methodologies the experts used to arrive at their diametrically different results.

Shaklee’s expert, Hal Poret, showed survey participants the Shaklee website displaying its “Healthprint” mark and the Superior website displaying its “Healthprint” mark. The survey then asked questions that were designed to determine whether the consumers were confused about whether the marks related to the same or different companies. Poret also used a control group that was shown the term “Healthstamp” instead of “Healthprint” as a safeguard against false positives.

Superior’s expert, Kirk Martenson, showed the word “Healthprint” to consumers in a plain font and described the services offered by Superior. He then asked questions designed to determine whether participants perceived the Healthprint name or services as relating to one or two companies. Martenson used no control group.

Both surveys purported to be versions of the Squirt test, which courts generally accept as a means of proving that similar trademarks are or are not confusing to consumers. The Squirt test typically places marks as they appear on products side by side and asks questions to determine whether their similar marks cause consumers to become confused about the source of each product.

Martenson’s survey found that the two uses of “Healthprint” were very likely to cause consumer confusion. Poret’s survey found little likelihood of confusion.

Martenson’s Flawed Methodology

The court faulted Martenson for designing a survey that failed to display the competing “Healthprint” terms to consumers in the context in which they were used. The court concluded that Martenson’s methodology was unreliable because it did not meet the basic standards of a Squirt survey: displaying two marks as they are actually used in the marketplace side by side to test whether they confuse consumers.

By asking questions about the term “Healthprint” without providing the context in which Superior and Shaklee used the term, the survey divorced the test from the real world. For example, customers were asked whether they thought the term “Healthprint” came from one company, two companies, or no company at all. The relevant question is not whether consumers are able to guess at the origin of a mark but whether they are confused, when they see two marks, about whether both marks are associated with the same product or service.

In addition, while Martenson found that consumers were confused as to the origin of the generic term “Healthprint,” the absence of a control group made it impossible to determine the cause of their confusion. Martenson contended that he was testing for the presence, not the cause, of confusion, but it is the cause of confusion that is relevant to a trademark infringement claim. If consumers are confused for reasons that have nothing to do with an allegedly infringing mark, their confusion is immaterial.

Finally, when Martenson’s survey described the service with which “Healthprint” is associated, it described only Superior’s service. It did not describe Shaklee’s. The court noted that a survey respondent “can only compare and contrast two services if they are given two services to compare and contrast.” If participants concluded that the term was associated with one service rather than two (which Martenson interpreted as a confusing association of the mark with a single service rather than two distinct services), the court deemed that conclusion to be compelled by survey questions that described only one service.

The court decided that Martenson’s methodology was “fatally flawed.” It therefore granted the Daubert motion and excluded Martenson’s testimony at trial.

Poret’s Reasonable Methodology

Superior complained that Poret only surveyed consumers who would consider using blood-test services to analyze nutritional needs. The court rejected the argument that Poret should also have surveyed consumers who might want a nutritional analysis without taking a blood test. While Superior occasionally offers nutritional advice without a blood test, it does not actively market those services using the “Healthprint” mark, so it was reasonable for Poret to exclude those consumers from his survey.

Superior also complained that Poret surveyed consumers who are at least 21 years old, while most of Superior’s customers are over the age of 50. Since Superior markets its services to all adults, however, Poret’s methodology was reasonable.

Superior complained that Poret showed survey participants a brochure that reproduced its website pages rather than showing them the actual website. That methodology was reasonable because it provided participants with the website content while assuring that each participant saw the same materials.

Finally, Superior complained that Poret showed participants the nutrition-related questions that Shaklee’s website asks but did not show them the questions that Superior’s website asks. Superior’s questions, unlike Shaklee’s, are included in the company’s order form. Showing the order form to participants would have underscored the fact that Superior’s services are much costlier than Shaklee’s and would have decreased the likelihood of finding consumer confusion. The decision not to show Superior’s order form to participants did not prejudice Superior and did not undermine the reliability of Poret’s methodology.

Having rejected all Superior’s challenges, the court denied its Daubert motion. The decision highlights the importance of using reliable survey methods when basing a patent infringement lawsuit on an expert’s opinion about the likelihood of consumer confusion.


$14.5 Million Award After Expert Admits License Suspended for Fraud

A six-person jury has awarded a Bronx man $14.5 million in a verdict against New York’s Metropolitan Transit Authority after the MTA’s expert witness admitted that his medical license had been recently been suspended over fraudulent exam reports.

The Accident

In 2013, an MTA bus crossed two lanes of traffic and hit a Honda Odyssey minivan driven by Miguel de los Santos. De los Santos was driving his wife to her birthday party on Pelham Parkway near the Bronx Zoo in New York when the crash occurred.

The accident left de los Santos with serious back injuries that required spinal reconstructive surgery.  His attorney, Eric Subin, said that the 66-year-old retired building superintendent now “shuffles around with a cane.”

His spouse, a NYPD police officer, was a passenger in the vehicle. She escaped with minor injuries.

The Lawsuit

De los Santos sued the MTA in Bronx Supreme Court. The MTA retained Dr. Roger Antoine, a surgeon at Wyckoff Hospital in Brooklyn as its medical expert. Dr. Antoine testified on November 15 that a February 2015 exam showed that de los Santos had normal muscle strength and range of motion in his back.

At trial, de los Santos’ attorney Eric Subin cross-examined Dr. Antoine on the stand and got the doctor to admit that he had “no memory” of examining de los Santos.

Subin asked Dr. Antoine, “Do you remember performing that exam?” Dr. Antoine replied, “I do not remember.” Subin asked again, “No memory of it at all?” Dr. Antoine replied, “No.”

Dr. Antoine also acknowledged that he was temporarily barred from treating injured workers and performing independent medical exams. The Workman’s Compensation Board conducted a two-year investigation of Dr. Antoine’s activities and determined that he had signed off on phony reports, including a report where the doctor incorrectly stated that a victim was faking his injuries.

According to Subin, the medical report was fabricated by a “chaperone” paid for by the MTA who sat in on the exam, took notes on the exam, then used the doctor’s electronic signature on the document. Dr. Antoine admitted that he is supposed to review and sign all exam reports.

Dr. Antoine resigned his authorizations to treat injured workers and perform independent medical examinations in the New York State workers’ compensation system on March 16, 2018. Due to this resignation, Dr. Antoine is prohibited from rendering treatment and care to injured workers. Reports submitted by Dr. Antoine for services rendered prior to March 16, 2018 are authorized. Any report submitted by Dr. Antoine for services rendered after March 16, 2018 are not authorized.

The Verdict

Following a month-long trial, a four-woman, two-man jury returned a $14.5 million verdict for de los Santos.

De los Santos was pleased with the award.  He said, “I’m happy. . . . The MTA lied a lot. All the way from the [bus] driver to the doctor. But the jurors made their decision and they felt for me.”

Photo Credit: An M15 SBS bus passes Madison and James Streets, bound for South Ferry, Fan Railer (talk). Own work (Original text: I (Fan Railer (talk)) created this work entirely by myself). Fan Railer [Public domain], from Wikimedia Commons

Justice Scales

Prominent Child Abuse Expert Dies at 100

Prominent California child abuse expert and pediatrician, Dr. Jess Diamond, has died at 100 years old.

Early Career

Dr. Jess Diamond was born in the Bronx, New York on September 18, 1918 to a restaurateur and apartment manager. Diamond grew up in New York and became interested in medicine because of his uncle, who worked as a doctor with a family practice. Diamond became an Army captain assigned to the Medical Corps during World War II. Dr. Diamond worked as a pediatrician at hospitals in New York and Illinois. In 1980, he moved to Bakersfield, California where he became the chair of Kern Medical Center’s Department of Pediatrics.

Prominent Child Abuse Expert

Dr. Diamond became well-known in the community as a child abuse expert and served as a witness for the Kern County District Attorney’s Office on hundreds of cases. His colleagues knew him for his tireless work ethic.

Kern County District Attorney Lisa Green used Dr. Diamond as an expert witness in many child sexual abuse cases in the 1980s and 1990s. She said, “In Kern County, there really weren’t any other people who had the qualifications he had… He was a great man, and a great witness, and he really had a passion for kids.” Green also complimented Dr. Diamond on his accessibility. She said, “Doctors can be a little difficult to get in touch with… Dr. Diamond just made himself so accessible.”

False Evidence Testimony

Dr. Diamond also showed that he was willing to reevaluate past decisions that he made. Dr. Diamond testified for the prosecution in the trial of Vicente Figueroa Benavides, who was sentenced to death in 1991 for allegedly sexually assaulting and killing 21-month-old Consuelo Verdugo.

After receiving the girl’s medical records, Dr. Diamond changed his mind and recanted his testimony. In 2012, Diamond wrote in a habeas corpus petition, “I do not believe Mr. Benavides received a fair trial and I provide this declaration in the hope that the current legal proceedings will correct this injustice.”  Dr. Diamond said, “After reviewing the medical records and photographs that I should have been provided in 1993, I am convinced that this case presents a tremendous failing of the criminal justice system.” Due in part to Dr. Diamond’s testimony, the California Supreme Court overturned the charges against Benavides, who was freed after serving 26 years on death row.

Robert Carbone, the district attorney who originally prosecuted the case, said that he didn’t understand why Dr. Diamond changed his mind, but that he respected the doctor’s opinion. “Most of what I learned about prosecuting child molestation or other sexual assault cases came from Dr. Diamond. … He was our source.”

Experts now say that the little girl was likely never assaulted and was probably run over by a car.  Dr. Astrid Heger, one of the top child abuse experts in the country, said that the original autopsy finding, that the child died of sex abuse “… is so unlikely to the point of being absurd.”

Dr. Diamond retired in June 1999, at age 81, but continued to work as a volunteer.  He is survived by his wife Ann, three children, six grandchildren, and two great-grandchildren.


Judge Orders Mental Health Treatment Recommended by Defense Expert Witness

A Pennsylvania judge has taken the advice of an expert witness and ordered a specific regimen of mental health treatment for a defendant who has been sentenced to state prison time.

The Crime

On June 17, 2016, 31-year-old Calvin McDonald from Allegheny County, Pennsylvania got into an argument with his girlfriend at their residence. McDonald duct-taped and tied up his girlfriend with rope, choked her, and threw her into the back of their minivan. McDonald drove around for hours, going as far as Wheeling, West Virginia. The couple’s two children were also in the vehicle.

When McDonald later returned to his residence, his girlfriend was able to communicate with a neighbor through an upstairs window to call the police.

The Trial

During his trial, forensic psychologist Shannon Edwards testified that McDonald suffered from  post-traumatic stress disorder. Edwards also testified that McDonald was in a dissociative state during the incident.

A jury found McDonald guilty but mentally ill on five counts, including aggravated assault, kidnapping, and false imprisonment. The jury acquitted McDonald of sexual assault, endangering the welfare of children and criminal attempt of homicide.

The Sentencing

Judge Alexander P. Bicket of the Allegheny County Court of Common Pleas sentenced Calvin McDonald to 5 to 10 years in state prison. Judge Bicket also ordered the state to provide McDonald with the specific mental health regimen recommended by defense expert witness Shannon Edwards.

Edwards recommended that McDonald receive the psychotropic drugs already prescribed to him, individual and group counseling, and other kinds of therapy. Edwards also requested that Judge Bicket reevaluate McDonald’s mental health after one year. Edwards said that McDonald will regress if he does not continue to follow his current treatment regimen.

Mental Health Courts

Allegheny County is one of the many counties that has mental health courts that deal with nonviolent offenders whose psychiatric problems are the underlying factors in their criminal cases. In Allegheny County, the mental health court is designed to divert individuals with non-violent criminal charges who have a documented diagnosis of a mental illness to community based services; maintain treatment, housing, benefits, supervision and community support services for the individual; maintain effective communication between the criminal justice system and mental health system; and support public safety.

Benefits of mental health courts include giving an offender the opportunity to be released from jail and placed in mental health services/treatment in lieu of incarceration. An offender who is placed on probation by a mental health court is supervised  by a special services probation officer and receives support from an Office of Behavioral Health Mental Health Court probation liaison.

However, mental health court is only available to defendants with a documented diagnosis of a mental disorder, mental disability or dual-diagnosis with a mental disorder and substance abuse who is charged with committing a misdemeanor and/or non-violent felony in Allegheny County and is awaiting trial and/or sentencing.

Judge Bicket’s ruling is an example of how mental health court principles might be applied to prisoners with mental health issues who have committed violent felonies.