Category Archives: Expert Opinions

Pennsylvania Justice

Use of Treatise to Cross-Examine Medical Witnesses Leads to Reversal of Malpractice Verdict

A Pennsylvania jury that weighed competing expert testimony awarded more than $40 million to a disabled child after deciding that the disability was caused by medical negligence. The Superior Court of Pennsylvania reversed the judgment and ordered a new trial because a learned treatise was used improperly to cross-examine defense witnesses.

Facts of the Case

Kira Charlton was pregnant with twins. Prenatal testing revealed an abnormally rapid heartbeat (tachycardia) in one twin. That twin was significantly smaller than the other. Charlton’s OB-GYN decided to induce labor.

About 20 hours after labor was induced, Dr. Steven Troy decided that Charlton was ready to give birth. He delivered the first twin without complication. Although an ultrasound taken eight hours earlier showed both babies in the head-down position, Dr. Troy discovered that the second twin was in the feet-down position.

As the second baby’s head and shoulders were being delivered, everyone in the delivery room heard a “popping” sound. The primary labor and delivery nurse testified that she was concerned Charlton may have suffered a hip or back injury, but she saw nothing abnormal about Charlton. Nor did she see Dr. Troy maneuvering the baby in any way at the time she heard the sound.

After he delivered the second twin, Dr. Troy noted that she had poor tone in her head, neck, and limbs. The baby was taken to neonatal intensive care because of concern that the baby had suffered a spinal cord injury. The baby was then transferred to Children’s Hospital for an MRI. The MRI revealed “no definite abnormality,” but the interpretation was qualified by the remark that the baby’s positioning was not optimal.

An MRI taken eight months later confirmed the existence of a nerve root avulsion injury. The injury caused permanent damage to the spinal cord.

Charlton and her husband sued Dr. Troy and related parties. They alleged that Dr. Troy’s negligence during the delivery caused the baby’s disability. Dr. Troy contended that the injury was caused by placental insufficiency while the baby was still in the womb. Placental insufficiency is a condition that describes the inability of the placenta to deliver an adequate supply of nutrients and oxygen to the fetus.

Plaintiffs’ Expert Testimony

The Charltons called Dr. Benjamin Hamar, an expert in maternal-fetal medicine, to establish the standard of care that Dr. Troy should have followed. Dr. Troy testified that when a fetus is in the feet-down position, the physician should perform an ultrasound to determine whether the head is in a flexed position. The chin of a fetus in the flexed position will be tucked into the chest.

Dr. Hamar testified that the standard of care permits the vaginal delivery of a baby whose head is in the flexed position, but requires constant use of an ultrasound to assure that the head remains in that position. If the head is extended backward (deflexed) or is straight (hyperextended), the standard of care calls for delivery by caesarean section.

Dr. Hamar regarded Dr. Troy’s failure to conduct an initial ultrasound and to monitor the delivery using an ultrasound to be a breach of the standard of care. Dr. Hamar rejected the theory that the baby was harmed by placental insufficiency because the second baby’s birth weight was not 25% less than the first baby’s, because amniotic fluid was not low, and because a Doppler assessment of the umbilical cord did not indicate a growth restriction.

The Charltons also offered the testimony of Dr. Robert Clancy, a pediatric neurologist, who testified that the location of the spinal cord injury was a classic sign of hyperextension during delivery. A pediatric neurologist, Dr. Paul Caruso, testified that the spinal cord injury was caused by a pulling motion that tore the nerve roots. Dr. Caruso also testified that the injury was not congenital and that no medical literature supported the claim that the condition could occur prior to delivery.

A placental pathologist, Dr. Theresa Boyd, testified that the twins’ placental compartments were normal and that the umbilical cord showed no sign of abnormality. The baby’s treating surgeon testified that the spinal cord injury was caused by trauma and is an irreparable, permanent injury.

Defense Expert Testimony

Dr. Robert Debbs, an expert in maternal-fetal medicine and the use of ultrasound in obstetrics, testified that an ultrasound may be helpful if the baby’s position is unknown, but it was known that the second baby was in the feet-down position. In Dr. Debbs’ opinion, the standard of care did not require a physician to determine whether the baby’s head was deflexed or hyperextended.

Dr. Debbs also disagreed that a cesarean section would have been safer than a vaginal delivery. In Dr. Debbs’ view, a vaginal delivery of a twin in the feet-down position is safe if the first delivery was not difficult and if the second baby is not 25% larger than the first.

The smooth delivery of the second twin was, in Dr. Debbs’ view, evidence that Dr. Troy kept the head in the flexed position. He also concluded that the popping sound did not come from the baby, an opinion that is difficult to credit since Dr. Debbs was not present at the delivery, did not hear the sound, and was not in a position to identify another source of the sound.

Michelle Grimm, an expert in biomechanical engineering, testified that “maternal forces” during pregnancy could cause root avulsions. Dr. Jerome Barakos, a pediatric neurologist, testified that the MRI taken after the baby’s birth showed scarring and cysts on the baby’s spinal cord that would have taken weeks to form. Dr. David Schwarz, a placental pathology expert, testified that volume of the placenta supporting the second twin was very small and that the baby suffered from an intrauterine growth restriction due to insufficient supplies of blood and oxygen.

Sufficiency of Evidence

The jury found that Dr. Troy breached the standard of care and that the breach harmed the twin. The jury awarded more than $40 million to provide a lifetime of care for the disabled child.

The question on appeal was whether the evidence was sufficient to support the verdict. Since it is the jury’s function to evaluate expert evidence, most appellate challenges to the sufficiency of evidence fail if there is any evidence that could support the verdict.

The appellate court decided that the verdict was based on one of two mutually exclusive theories of liability. First, that Dr. Troy was negligent in not performing an ultrasound during the birth. Second, that Dr. Troy pulled the baby with too much force, causing the nerve root injury.

The court concluded that a jury could reasonably find from the expert evidence that the standard of care required Dr. Troy to use an ultrasound while delivering the second twin. The court expressed concern, however, that “back door” evidence suggested that Dr. Troy may have caused the baby’s injury by using too much traction during delivery.

No expert testimony was presented regarding the standard of care governing the use of traction in delivering a second twin who is in the foot-down position. The Superior Court decided that the trial court erred by allowing the jury to consider the excessive traction theory as a cause of the baby’s injury.

Precedent prevented the court from reversing the verdict based on the erroneous submission of the excessive traction theory to the jury. Dr. Troy did not ask for a verdict form that would have allowed the jury to make separate decisions about the two theories of liability. In the absence of that request, a verdict that is permitted by one theory must be affirmed even if the verdict could not be sustained on the alternative theory.

Admission of Learned Treatise

Perhaps to save Dr. Troy from a verdict that might have been based on a theory it regarded as unsupported by expert testimony, the Superior Court concluded that the Charltons’ reliance on a learned treatise required a new trial. A “learned treatise” is publication that experts in the field generally regard as authoritative.

In Pennsylvania, admitting a learned treatise as substantive evidence would violate the rule against hearsay. Experts may nevertheless testify that a learned treatise informed their opinions. Under certain circumstances, a learned treatise may also be used to impeach an expert’s opinion.

The Charltons cross-examined Dr. Troy and defense experts with Dr. Volpe’s textbook, Neurology of the Newborn. The text associates a “snapping” or “popping” sound during delivery with a tearing of the dura, a membrane covering the brain and spinal cord.

Dr. Clancy testified that Dr. Volpe’s textbook is a “classic textbook of child neurology” that collects “child neurology wisdom about newborns.” Dr. Clancy agreed with the text that a popping sound is the sound of something tearing.

On cross-examination, Dr. Troy testified that he was unaware of any obstetrical literature identifying a popping as the sound of a dura tearing. The Superior Court held that it was improper to impeach Dr. Troy with the Volpe text because it is “neurological literature,” not “obstetrical literature.”

The trial court concluded that a book about delivering babies is “obstetrical literature” even if it is written by a neurologist. The court thought the distinction that Dr. Troy drew was disingenuous, since obstetricians cannot ignore the risk of neurological harms when they deliver babies. The Superior Court thought otherwise.

The Superior Court also concluded that Dr. Troy testified as a fact witness, not an expert witness, and that his opinions were therefore not properly impeached with a learned treatise. The Superior Court rejected the trial court’s conclusion that Dr. Troy “was introduced, groomed, and treated as a causation expert.”

Since the trial court supported its evidentiary decision by sound reasoning, a good argument can be made that the trial court did not abuse its discretion in permitting reference to the learned treatise. A cynic might wonder whether the Superior Court found a “back door” way to give Dr. Troy a new trial based on its conclusion that the “excessive traction” theory of liability should not have been submitted to the jury.


A judge

Court’s Choice Between Competing Expert Opinions on Standard of Nursing Care Is Affirmed on Appeal

Rachel Howard, the widow of C.R. Howard, brought a claim against the government for medical malpractice committed in a Veteran’s Administration hospital. She alleged that nurses failed to prevent her husband from falling while using a commode. It was undisputed that the fall caused a cervical fracture.

Since the case arose in Arkansas, the Arkansas Medical Malpractice Act governed the substantive proof of malpractice. The district court, deciding the case without a jury, evaluated the competing testimony given by expert witnesses concerning the standard of care that the nurses should have followed. The court ultimately found that the evidence did not establish malpractice. The Court of Appeals for the Eighth Circuit affirmed that decision.

Patient’s Hospital Care

Four years before his death, C.R. Howard was diagnosed with blood cancer. By 2015, his treating hematologist concluded that Howard had exhausted his treatment options.

In February 2015, Howard was admitted to the John L. McClellan Memorial Veterans Hospital in Little Rock to treat neutropenic fever. Following hospital protocols, medical staff assessed Howard as having a high risk of falling. The protocols required high risk patients to receive assistance while using the bathroom.

Howard walked to the bathroom at least twice without assistance. He fell at least once. Medical staff noted that Howard suffered from episodes of dizziness or confusion. Staff entered an order requiring him to use a bedside commode.

Five days after his admission, Howard attempted to use the bedside commode. He sat up in the bed and a nurse asked him if he was ready to stand. The nurse assisted him as he moved to the commode. While Howard was sitting on the commode, he “folded over” and fell to the floor, striking his head.

Because Howard did not appear to be breathing, one nurse administered CPR while another called for a code team. The code team used a defibrillator to restart Howard’s heart and placed him on a ventilator. He was transferred to intensive care.

The next day, Howard was removed from the ventilator. An MRI found a spinal fracture in his neck. He had surgery to repair the fracture four days after he fell. The surgery improved his ability to move, but his underlying medical condition precluded physical rehabilitation.

Howard was discharged from the hospital about three weeks after his admission. He entered home hospice care and died about two weeks later.

Expert Witness Testimony

The two nurses who assisted Howard testified that he did not appear to be dizzy before he was transferred to the commode. Rachel Howard, who was present at the time, testified that he was displaying signs of dizziness.

The parties also offered conflicting evidence about the appropriate standard of care. Howard’s nursing expert, Janet Scott, testified that the standard of care required nurses to keep Howard in bed if he was dizzy. She also testified that the standard of care required his nurses to stand in front of Howard and to place a hand on him while he was using the commode.

Howard’s physician expert, Dr. Thomas Huffman, testified about his experience managing nurses. He opined that placing a hand on the patient is the best way to maintain control over a patient who is using a commode. Dr. Huffman concluded that the nurses were not close enough to catch Howard before he fell. Dr. Huffman was also one of the plaintiff’s experts on causation.

The government relied on the expert testimony of Holly Langster to establish the nursing standard of care. Langster emphasized the need to respect the patient’s dignity by providing as much privacy as possible. She testified that a nurse should have hands on a patient like Howard until he was seated and then stand in front and within arm’s length of the patient.

District Court Decision

The district court noted that expert testimony is needed to determine a nursing standard of care because it is not a matter of common knowledge. The court decided that Scott and Langster were both qualified to express an opinion about the standard of care.

The court gave more weight to the expert opinion of the two nursing experts than to the opinion of Dr. Huffman. While Dr. Huffman has managed nurses during his career, he “did not demonstrate that he was familiar with the degree of skill and learning ordinarily possessed and used by nurses and hospital staff in good standing, engaged in the same type of practice or specialty in Little Rock, Arkansas, or in a similar locality, as is required under the Arkansas Medical Malpractice Act.”

The court was satisfied that Howard sustained a “medical injury,” as that term is used in Arkansas law, when he fell while using a commode under the supervision of nurses in a hospital. The court was not satisfied, however, that the nurses committed malpractice.

The court concluded that the appropriate standard of care depended on whether Howard was dizzy. Scott’s opinion was based on Rachel Howard’s testimony that, as soon as the nurse entered, Howard tried to sit up, then fell back down and complained that he felt like an ocean was going by. The nurse testified that Howard did not fall back on the bed and never complained of dizziness.

The court credited the testimony of the nurse rather than Rachel Howard’s testimony. The court concluded that the standard of care for a dizzy patient, as Scott described it, was therefore inapplicable. Since Howard was not dizzy, the standard of care described by Langster was appropriate. Since the nurses followed that standard of care, they did not commit malpractice.

Appellate Opinion

Medical malpractice claims against a VA Hospital are brought under the Federal Tort Claims Act. That law requires the trial to be held before a judge, not a jury.

Unless an appellate court dislikes a district court’s result and needs an excuse to overturn it, a district court judge’s assessment of the facts is virtually unassailable. The court of appeals found no reason to overturn the trial court’s finding that Howard was not dizzy when he tried to sit up.

It was also up to the trial judge to determine the appropriate standard of care. Since the judge decided that Howard was not dizzy, the judge did not err in discounting Scott’s testimony, which was premised on the opinion that a careful nurse will keep a hand on a dizzy patient who uses a commode.

A jury might have seen the facts differently. Allowing a patient to fall to the floor does not seem consistent with appropriate care, particularly when the patient has fallen in the past. However, the judge believed the nurses when they testified that Howard was not dizzy and he believed the defense experts when they testified that the nurses followed an appropriate standard of care. Deciding which witnesses to believe is the trial judge’s job when there is no jury.

The court of appeals suggested that even in the absence of a dispute about Howard’s dizziness, the district court could have accepted Langster’s expert opinion that standing within an arm’s length of a patient on a commode is an acceptable standard of care. It hardly benefits a patient to stand in front of the patient while allowing the patient to fall, but again, when there is no jury to decide the facts, a judge gets to make that call. Since the district court was entitled to choose between competing expert opinions, the court did not err in deciding the case in favor of the VA Hospital.


Appeals Court Rules Firefighter and Electrician Qualifies as Expert

The Third Circuit Court of Appeals has ruled that a veteran firefighter, licensed master electrician, and forensic expert were qualified to give expert testimony about a Pennsylvania shopping center fire.

The Fire

On December 17, 2012, a fire broke out at Natrona Heights Shopping Plaza in Harrison, Pennsylvania. The fire began at around 9:40 pm and destroyed or damaged twelve businesses. It took almost 300 volunteer firefighters from thirty companies to contain the damage.

James Tanda, the agent in charge of the Pittsburgh office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, estimated that the fire caused “in excess of $10 million” in damages.

The Natrona Heights Shopping Plaza was insured by Seneca Insurance Company, and Seneca paid for the losses resulting from the fire. An investigation revealed that Mark Beal and his company, Mark’s Maintenance and Repair, may have caused the fire when removing a neon sign from the facade of the building. Seneca sued Beal for damages.

The Trial

At trial, Seneca retained three experts to testify on its behalf. The experts were Dennis Brew, an expert in installing and removing neon signs; Gerald Kufta, a private investigator specializing in fires; and Samuel Sero, a forensic engineer. Beal retained Ralph Dolence, a firefighter, fire officer, licensed master electrician, and forensic expert.

Seneca Insurance requested that the Beal’s expert, Ralph Dolence, be disqualified, arguing that his testimony was “speculative and lacked foundation.” The district court denied the motion.

A jury found Beal negligent in removing the sign, but that his acts or omissions did not cause the fire. Seneca filed a motion for a judgment notwithstanding the verdict or a motion for a new trial. The district court denied the motion. Seneca appealed.

The Appeal

On appeal, Seneca argued that the district court erred by allowing Ralph Dolence to testify as an expert. The Third Circuit reviewed the district court’s decision for an abuse of discretion.

In the Third Circuit, an expert’s testimony is admissible if their “methodology and reasoning are sufficiently reliable to allow the fact finder to consider the expert’s opinion.” The Third Circuit determined that Dolence was qualified as an expert witness “because of his knowledge from years of professional experience, which included over 30 years as a fire investigator and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified forensic expert in 30 states, had served on arson task forces, investigated over 12,000 fires, and taught hundreds of classes on fire causes and origin investigations.”

The court additionally noted that Dolence’s testimony was “based on, among other things, his personal observations and review of materials from the fire investigation. The foundation of his opinion was an examination of several hundred photographs, videos, and other documentation provided by the township, fire marshal, and individuals who were at the scene of the fire. He also analyzed depositions, documents, and reports provided by appellant’s experts and attended a joint evidence examination with Gerald Kufta and several other experts.”

The court determined that Dolence “ultimately testified that the cause of the fire was ‘undetermined’ because the fire investigation was improper and other causes were not ruled out.” The Third Circuit affirmed the district court’s verdict.


Demonstrative Evidence: A Picture or Chart is Worth a Thousand Words

We’ve all heard the saying, “a picture is worth a thousand worlds.” And most of us are familiar with the idea that there are multiple different modes of learning — that is, that people process information in different ways, and that while there are certainly verbal learners, or people who learn best by reading the written or hearing the spoken word, there are people who learn best in other ways, such as visual learners, who learn best through images or pictures.

These concepts are why demonstrative evidence is your friend in court — it’s a way to empower your expert and leverage the investment your client made in hiring them.

Black’s Law Dictionary online defines demonstrative evidence as “real evidence that doesn’t depend on a testimony as it can be seen by the jury and the court.” Other legal dictionaries and treatises definite it similarly. The key part of this definition is “can be seen by the jury and the court” — that is, it is visual evidence, whether in the form of a photograph, a schematic, a chart or graph, a model, or some other graphic representation. It can be tremendously powerful and can make or break your expert’s testimony.

Here’s the thing about demonstrative evidence: as the very term implies, it “demonstrates” something. It’s NOT fact evidence — you need that separately — but it is a way to illustrate, highlight, or call out what is important. It’s the judicial equivalent of a Powerpoint presentation: a way to emphasize what should be emphasized. That means that while it ultimately needs to tie back to — and be supported by — authenticated documentary or other fact-based evidence, or reliable witness testimony, it can and should take liberties with presentation, so that the point you want to get across is driven home with all the subtlety of a presidential campaign ad.

Judges and Jurors Love Show-and-Tell

Before getting to the practical reasons why demonstrative evidence is valuable, start with a basic concept: judges are human. They are humans who spend six, seven, or eight hours per day listening to people talk, and talk, and talk. They get — to be blunt — bored. Don’t believe it? Think about how long you can listen to strangers jabber on about situations or occurrences you have no personal knowledge of or stake in. For example, think back to the last time you were at a party and were cornered by someone who described their vacation to you practically minute by minute, or by someone who obviously thought their job in risk-assessment or logistics was as fascinating to you as it is to them (or, to be fair, think about the deer-in-headlights look in the eyes of a non-lawyer you cornered at a party and subjected to a blow-by-blow description of your last trial). Bringing out photographs or other graphic evidence will get judges to sit up and take notice in a way that another thousand words of “expert-ese” will not.

And what goes for judges goes doubly for jurors, since they (unlike judges) often have no background, experience, or context to help them understand your expert’s testimony — but they can look out and understand a photograph or simple chart. Bringing out demonstrative evidence can help prevent jurors’ eyes from glazing over, which is critical, because if they tune your expert out, why even bother having the evidence in the first place.

Your expert simply can’t get his or her point across if no one is listening to him or her. Since  by the time you get to your expert, the court has typically been subjected to opening statements and a parade of fact witnesses to set the context, the judge and jurors have already used up most up of their attention span. Have mercy on them and make it easy for your expert: have the expert create and use demonstrative evidence.

Photographs: Show, Don’t Tell, What Something Looks Like

Many cases involve something’s appearance. It could be the condition of a car after an accident. It could be the contusions on the victim of domestic violence. It could be the damage to a building after a fire, or the shape a rental property is in after the tenant has moved out, or the condition of a poorly maintained staircase or walkway, etc. This is the easy and obvious case for the use of demonstrative evidence: instead of having your expert just narrate the situation (e.g. “the fire caused extensive charring to the fall behind and ceiling above the stove”), show it. The visual representation will be much more powerful and easier to grasp than any verbal narrative could possibly be.

Related cases involve comparisons between two places or objects. Say that you are defending a former commercial tenant being sued by the landlord for unpaid rent, and you want to show that the landlord failed in its duty to mitigate by asking an unreasonably high price to re-let the space. Your real estate expert could just orally describe the features of the premises in question and why they are less desirable than those of other spaces on the market at the same price — or (s)he could show and narrate photographs of the premises, showing its cramped, dark, awkward layout and contrasting it with photographs of other available restaurant space which is lighter and airier. Which approach do you think will be more effective?

A good rule of thumb is: if you can take photographs of what the expert is describing, take them and have the expert use them. And when we say “photographs,” we also mean X-rays, MRIs, ultrasounds, and so on. Essentially, if you can show what something looks like instead of just verbally describing it, it has far greater influence on the viewer. For example, if you have a personal injury case, what do you think will impact the jury more: your medical expert saying “the plaintiff had a compound fracture, which is a fracture where the skin is pierced by a broken bone,” or showing the jury a photograph of a bloody bone sticking out of the plaintiff’s leg?

The use of photographs crosses or blurs the line between actual fact and demonstrative evidence, so they will have to be authenticated by someone with personal knowledge — that is, the person who took them. And that means you need to lay the groundwork.

Lather, Rinse, Repeat & Repeat Again: Using Your Expert to Review Powerful Fact Evidence

You’ll generally have shown your photographs during your fact witness testimony. But there’s a limit to how many times you have your fact witnesses flash the same photos before opposing counsel objects or the judge him/herself tells you to move on. But if the photos are compelling, you’ll want to show them again and again — you’ll want to burn their images into the jurors’ eyes.

Have your experts show them again. There’s no real cognizable objection to the photos being shown again as your expert uses them to make some oh-so-expert-y point. You can use your expert not just for his or her expertise, but as an excuse to run your best and most affecting evidence under the fact finders’ noses again.

Graphics Which Show Spatial Relationships: Help the Fact Finder Envision What Was Where

Which is easier to understand: a map or drawing showing the location of buildings, cars, and/or people, or someone droning on and one about how “The first vehicle was in the outer northbound lane. The second vehicle was in the outer southbound lane. The second vehicle came around a 60-degree curve from the east and would have come into view of the first vehicle roughly 275 meters away . . .” etc.?

There is NO better way to show locations and spatial relations than graphically, so prepare the appropriate maps, drawings, or models (models are particularly valuable when there are three, not just two, dimensions in play — e.g. when height or elevation matters, too) for your expert and let him or her use them to show, simply, quickly, and unambiguously where the various players and pieces were. Obviously, you may need to prepare several demonstrative exhibits, to show locations at the start of an event, while it is occurring, and at the end, etc. But the goal is to be clear about what happened, so there’s no such thing as “overkill.” Either the situation is clear to the fact finder or it isn’t. If it is clear, then the effort and cost put into preparing the exhibits is well worth it. If it is not clear, then you didn’t prepare enough (or good enough) exhibits.

Blow-ups: Make the Small Big

Your expert may be testifying about fine or small points; for example, if you have a handwriting expert, he or she may be testifying about how a particular loop or curlicue differs from one hypothetical signature to another. It can be awfully hard to the fact finders to see something in the equivalent of 12-, 14-, 16-, 18 -, or even 24-point type, which is about how large most of us sign papers. On the other hand, if you blow the relevant signature elements up to 4”, 5” or taller, then everyone can see and follow your expert’s discussion of the key similarities or differences.

The same principal applies whenever any key elements are themselves small. For example, say you have a product liability case, and the part of the device/product that failed is ½” or 1” long — have a photographic reproduction of it at 10x normal scale, so that the judge on his/her bench, or the jurors in their box, can actually see it.

“Look here!”—Highlight the Critical Elements

Another advantage of demonstrative evidence is the ability to add highlighting, emphasis, even arrows pointing to the important elements or details. Not only can you blow up any small details, but you can pick them out in color or bold type, circle them, and have an arrow pointing straight at what you really want the fact finders to notice. There is no need or reason to be subtle: think about being as obvious as the OxyClean or ShamWow guys hawking their wares. You want whatever is important to “POP!” like the tagline on a late-night infomercial.

Hire Professionals—Amateur Hour Does Your Client No Favors, and Saving a Few Hundred Dollars is a False Economy

The author spent 18 years in the publishing industry. He’s personally conversant enough with several graphic and layout programs as to be able to, with a straight face, claim he can do book layout, create catalogs, or even illustrate the average math book or business text. But he’s also smart enough to know that does not, in any way, shape, or form, make him a graphic artist. The difference between your author’s best efforts and those of a professional is the same as the difference between a bright pro se litigant’s efforts and your own abilities, as an educated, trained, and experienced attorney, at litigation … which is to say there is no comparison.

Don’t think that you and your expert (unless he or she is part of a larger organization with its own internal graphics department or unit) are an adequate substitute for a professional graphic artist. Assuming there’s serious money at stake — and if there wasn’t, you wouldn’t be hiring an expert in the first place, would you? — it’s worth the investment to hire a professional to create your demonstrative evidence. Layout, presentation, emphasis … the pro will know how to make these and other elements work for your case in a way that you, or a subject matter expert, simply won’t. Think about the difference between a slick pharma, perfume, or major insurance company ad, and the ads aired on local cable TV by your nearby used-car dealer — that’s the sort of qualitative difference we’re talking about.

Summary—Demonstrative Evidence is Often What Separates the Amateurs from The Professionals

Anyone can talk to another person — e.g.. take direct testimony of an expert — and get the basic point across. But can you sell that point (and let’s be honest: litigation is selling your client’s point of view)? Pros can sell; amateurs don’t.


Late Disclosure of Expert Witnesses in Divorce Trial Leads to Order Barring Their Testimony

Jeffrey and Julie Nelson were involved in a divorce proceeding that lasted longer than their four-year marriage. After five earlier appeals from provisional orders pending the final hearing, an appeal of the final outcome was seemingly inevitable.

One of the sticking points involved the value of Jeffrey’s interest in oil leases. Julie testified about Jeffrey’s ownership of those interests and presented expert testimony about their value. Jeffrey did not testify but offered expert testimony of his own. The trial court decided that Jeffrey’s expert was not qualified and therefore declined to consider his opinion.

The day before the final day of trial, Jeffrey disclosed two new experts. One would have testified that Julie’s expert overvalued the oil leases. The other would have testified about the amount and sources of Jeffrey’s income.

Julie had served an interrogatory upon Jeffrey that asked for the disclosure of experts. Julie contended that Jeffrey should have supplemented his interrogatory answers to disclose the two new experts. The court agreed with Julie that the disclosure of those experts on the day prior to the last day of trial came too late. The court excluded the experts from testifying as a discovery sanction. Jeffrey appealed and the Indiana Court of Appeals affirmed the judgment.

Late Disclosure of Experts

On appeal, Jeffrey apparently did not take issue with the trial court’s decision that his original expert was not qualified to render an expert opinion. Rather, he contended that the court should not have excluded the experts he proffered during the trial.

The hearing took place on six days between November 2018 and July 2019. Julie’s expert testified on June 25, 2019. Jeffrey complained that he did not have enough time between June 25 and July 12 (the last day of trial) to retain new experts. Jeffrey argued that he did not recognize the need for expert testimony until Julie’s expert gave valuation testimony that Jeffrey realized was clearly wrong.

The appellate court characterized Jeffrey’s argument that he did not anticipate the need for expert testimony as “baffling.” Jeffrey knew that Julie contended the oil leases were marital property that was subject to division. He knew the court needed to place a value on property that it divided. He apparently knew that he would not be relying on his own testimony to establish their value, given his decision not to testify.

It is difficult to understand why Jeffrey did not know in advance of trial the opinions that Julie’s expert would offer. If Jeffrey did not engage in discovery, that choice would not excuse his failure to anticipate the need to call his own expert witnesses.

The appellate court was unsympathetic with the claim that Jeffrey had too little time to find an expert. He should not have waited until Julie’s expert testified to begin his search. Under the circumstances, the trial judge did not abuse his discretion in excluding Jeffrey’s experts due to Jeffrey’s belated disclosure of their identities.

Lessons Learned

The trial court was plainly influenced by its belief that Jeffrey’s late disclosure was an obstructive litigation tactic. The court characterized Jeffrey as having “repeatedly interrupted, obstructed, embarrassed, and prevented the due administration of justice in these dissolution proceedings.”

Obstructive tactics will never endear a litigant to a judge. The lesson to learn is that lawyers should make diligent efforts to learn what expert testimony an opposing party will present, to locate experts who can present more favorable testimony (if any exist), and to respond to a request to disclose experts in a timely manner.

Utilizing Handwriting Experts: They’re Only as Good as the Samples You Provide

A forensic document examiner is better known as a handwriting expert. They come into play when one person says that another person signed some document — a contract, a lease, a will, a power of attorney, a promissory note, etc. — but the second person, or his or her representative, denies that he or she did. At that point, it may be necessary to have an expert examine the purported, or claimed, signature, to see if it is — or is not — that person’s signature.

How do they do this? They compare the purported signature to known or uncontested examples of that person’s signature, to see whether, and to what extent, they match. That means that the samples, known as “exemplars,” provided to the expert are critical: as in the old computer-related acronym GIGO, or “garbage in, garbage out,” poor or inadequate samples will result in a weak, erroneous, or easily neutralized (by the other side) expert opinion.

What Do Experts Look for When Analyzing a Signature?

First, a quick primer on what forensic document examiners look for when comparing signatures. Obviously, they look at the shape of the letters — does the “A” in the purported or questioned signature match the “A” in the known exemplars of that person’s signature, for example. But that’s only the start of the analysis: they also look at (among other things) —

  • The slant of the signature: does it slant right or left, upward or downward?
  • The weight or thickness of the lines
  • Whether it rests on, above, or below the signature line, and how far below the line any extensions of letters (like the lower part of a “p” or “g”) go
  • Do the loops or curls appear to have been drawn counterclockwise or clockwise?
  • Where are the starts and stops in the signature?
  • How “fluid” is the signature, and does it appear to have been drawn in one smooth move, like a well-practiced signature would be, or does it look like there were hesitations, as if someone were trying to copy something they are unfamiliar with?
  • The handedness — was it evidently made by a righty or lefty?

There are many elements to the analysis, and two signatures can look superficially the same but yet show significant inconsistencies on deeper examination. That’s why good exemplars are critical: you need samples that will let the expert do a deep, detailed analysis of multiple elements of the signature.

People Don’t Sign Things the Same Way Every Time

Complicating the handwriting expert’s job is that people do not sign things the same way every time. To begin with, people sign differently depending on how “formal” or “informal” the document is. We take more care on “weighty” documents that affect our rights than we do on documents carrying few or no consequences, and that means that we tend to take more time signing, and have a more legible signature, on formal (important) documents than on informal (less or unimportant ones). Think about signing an apartment lease or contract to buy a home or your will. Now contrast that with scrawling your signature on the receipt for take-out pizza or even the sign-in sheet in a courtroom and you’ll understand the difference. Is your signature the same in these different contexts? Almost certainly not.

Second, we tend to sign things we sign all the time differently than we sign one-off or uncommon documents. With things we sign all the time — cover letters; checks — we run on autopilot; with less-familiar documents, we often think about them more, and that thinking introduces a hesitation into, and therefore alters, our signature.

Third, the amount of space you have to sign will alter your signature: if you normally have an expansive signature but are now cramming it into a form’s small signature box, that will change letter forms and spacing.

Fourth, signatures change over time. Just as we are not static or unchanging — we learn, we grow, we change — so, too, does our signature change over time. Look at a document you signed 10 or 20 years ago and compare it to how you sign today — it’s virtually certain that even your inexpert eyes will see differences.

Fifth, the conditions under which we sign affects how we sign: when you’re in a rush, or tired, or had too much coffee or some wine, you will sign differently than on those occasions you are unhurried, unrested, and unaffected by what you’ve been drinking.

And sixth — we’re not robots. We simply do not do things the exact same way every time, even when we do something several times in quick succession under the same or similar circumstances. Take out your pen and sign your name five times; even though the five signatures should be very similar, they are not 100% identical. That’s because we’re human, not Siri or Alexa.

What Makes for a Good Exemplar?

Because signatures change over time, you want to provide your expert with exemplars that are as contemporaneous as possible with the signature being examined. If, for example, someone claims that your client signed a document 20 years ago giving that person a life estate in a home (which was the issue in the author’s most recent experience with forensic document examiners), then you want to provide your expert with signature samples from 20 years ago, or as close to that time frame as possible.

Because we sign formal and informal documents differently, if the questioned signature is on a formal document — something like a deed, a lease, a will, etc. — you want to provide samples of similarly formal documents. And conversely, if the questioned signature is on an informal document, be sure to provide informal exemplars.

Because we tend to sign document types we sign day-in and day-out differently than we sign unusual or uncommon documents, try to provide exemplars of the same, or at least similar, type(s) of document(s). And because the amount of space for signature affects how we sign, try to provide exemplars which have similarly sized signature lines or blocks.

Quantity Has a Quality All Its Own

Remember, our signatures are never identical, even when we sign two documents in close succession: there is always some natural variation. In a sense, none of us have “a” single signature; what we think of as our signature is really the current “average” of how we sign documents. Sometimes the letters of our signature will be slightly larger, sometimes slightly smaller; sometimes closer together, sometimes wider apart; sometimes more legible, sometimes less; etc. Any one sample of your signature will almost certainly not match 100% any other single sample. Therefore, you want to provide multiple samples, so that as the expert examines exemplar after exemplar, he or she can derive the common elements and compare those fundamentals of the person’s signature to the signature in question.

But Don’t Forget Quality

The expert needs to be able to see the signature’s elements clearly. Originals are better than copies, since there is no “blurring” due to the copying process and certain aspects (like, for example, the pressure used by the signor when signing) are more easily seen in originals. If you can’t provide an adequate number of originals, provide the best-quality copies you can — for example, “first generation” copies of originals, not copies of copies, since with each successive copying, detail and crispness is lost.

Summing It Up: What You Should Provide Your Expert as Exemplars

When trying to determine if person A did or not sign a certain document, provide as many samples as possible of how A signed similar documents (similar level of formality or import; similar type of document; similar space for his or her signature) at the same or a similar point in time as the document in contention. The more, the better: 60, 70, or more exemplars are not too many, because you want your expert to be able to confidently state that he or she has identified the fundamental elements of that person’s signature, explain them to the court, and state whether those same elements are (or are not) found in the questioned document.

A failure to provide enough, or relevant enough, or sufficiently high-quality exemplars will leave your expert vulnerable on cross examination. Opposing counsel who knows what they are doing will be able undercut your expert’s conclusions by showing that the exemplars are from sufficiently different types of documents or circumstances or time periods that they are not relevant; or perhaps they will show that there were insufficient exemplars as to draw firm conclusions; or that the exemplars are of such low quality that no fair comparison can be made.

No matter their academic qualifications or experience, a forensic document examiner’s opinion is only as good as the samples they have to work with — give them what they need to help your case.

Missouri flag, gavel

Judge Recommends New Trial for Missouri Man Whose Conviction Rested on Recanted Expert Testimony

Donald Nash was convicted of capital murder in 2009 by a Missouri jury. He was sentenced to 50 years in prison without parole. Since Nash is now 78 years old, Nash was effectively sentenced to life in prison. His life might be shortened by the COVID-19 outbreak in the prison where he is incarcerated.

Nash was charged with killing his former girlfriend, Judy Spencer, in 1982. The charge followed a cold case investigation that purportedly linked Nash’s DNA to the killing.

Nash lost his case on appeal. New attorneys brought a habeas corpus petition alleging that the prosecution relied on untrue expert testimony and that undiscovered DNA points to the guilt of another suspect.

Given the time that passed since Nash’s appeal was denied, Nash must prove his “actual innocence” to win his freedom. The Missouri Supreme Court appointed a retired federal judge, Richard K. Zerr, to take evidence and make a recommendation as to whether Nash satisfied that standard.

In a detailed opinion, Judge Zerr determined that Nash’s conviction was based on junk science. He recommended that the Missouri Supreme Court vacate Nash’s conviction on the ground that he is actually innocent.

Spencer’s Death

Before Spencer died, Nash and Spencer were together in a friend’s apartment. They quarreled. Spencer left, telling the friend that she planned to visit some bars in a neighboring town. Nash remained in the apartment.

Spencer’s body was found the next day at an abandoned schoolhouse far from town. The killer strangled Spencer with her own shoelace and shot her in the neck with a shotgun.

The prosecution offered no evidence that Nash owned or possessed a shotgun. On the same day Spencer’s body was found, the police questioned Nash and tested him for gunshot residue. The test was negative. Nash had no scratches on his body. Nash’s emotional reaction when he learned that Spencer was dead convinced the investigators that he was not involved.

Spencer had a blood alcohol content of 0.18, an indication of significant intoxication at the time of death. Spencer’s car was found in a ditch several miles from her body. Two sets of fingerprints were found on the car’s window. Neither belonged to Nash, but one set of prints belonged to the resident of a dwelling that was near the ditch. That resident denied having any knowledge of Spencer’s car, an obvious lie given the presence of his fingerprints.

Fresh tire tracks were found near the abandoned schoolhouse. They did not match the tires on Nash’s or Spencer’s vehicle. They were never matched to any vehicle.

It is a reasonable theory that Spencer became intoxicated and drove her car into a ditch, where one or more killers found her. It is also reasonable to surmise that the killer or killers drove Spencer, either alive or dead, from the ditch where her car was found to the schoolhouse.

None of the investigators at the time of the murder believed they had probable cause to arrest Nash. Two of those investigators told Judge Zerr that they believed Nash was innocent.

Nash’s Trial

The case languished for 26 years until the Spencer family pressured the Highway Patrol to test Spencer’s fingernails for DNA. Nash’s DNA was found underneath her fingernails. That finding is hardly surprising since Nash and Spencer lived together.

Investigators determined that after Spencer left Nash at their friend’s apartment, she returned to her apartment and washed her hair before leaving again. When they applied for an arrest warrant, the investigators claimed that the DNA beneath Spencer’s fingernails would not have survived the hair washing, proving that Nash had contact with Spencer again that evening.

Judge Zerr concluded that the investigators made that assertion without consulting with an expert. It is patently false that DNA beneath fingernails would necessarily be eliminated by washing hair. The judge essentially concluded that the investigators fabricated that statement to justify an arrest warrant.

At trial, the prosecution’s expert testified that hair washing would have a “great effect” on the amount of Nash’s DNA found beneath her fingernails. She also testified that the amount of DNA present would not have come from “low level” contact with Nash.

Nash called a DNA expert to testify that that Nash’s DNA would logically be found under Spencer’s nails since Nash and Spencer lived together. Nash’s expert discounted the effect of hair washing because, in her experience, DNA trapped beneath fingernails can survive hand washing. The expert also explained that Spencer could have reacquired the DNA by touching a surface or clothing that Nash had also touched.

During his closing argument, the prosecutor boldly asserted that Nash’s DNA would have been washed away when Spencer shampooed her hair and that its presence proved Nash’s guilt. That argument was unsupported by any evidence at trial.

The jury was apparently swayed by the prosecutor’s untrue theory that hair washing eliminates all DNA from beneath fingernails. When Nash appealed his conviction, the state again relied on the theory that hair washing removes DNA and argued that the jury therefore had sufficient proof of guilt to support a conviction. In a rather cursory opinion, the Missouri Supreme Court agreed.

Expert Testimony Reconsidered

Ruth Montgomery was the prosecution’s DNA expert. Montgomery was a Highway Patrol lab analyst. Although she did not say so during her testimony, her “expectation” that the act of hair washing would have a “great effect” on the amount of DNA beneath her fingernails was nothing more than a guess.

Judge Zerr characterized Montgomery as having “no education, training, or experience” in whether washing hair eliminate DNA concentrations beneath fingernails. Montgomery later admitted that her only research consisted of reading a handful of articles the day before she testified in a pretrial deposition.

None of the articles Montgomery reviewed supported her claim that hair washing would have a great effect on the concentration of DNA beneath fingernails. Rather, the articles indicated that DNA persists under fingernails under a variety of conditions. The only article addressing personal hygiene found that it had a statistically insignificant impact on the amount of DNA beneath fingernails.

Montgomery thus made a minimal effort to educate herself about the relevant science and chose to ignore scientific evidence that was unhelpful to the opinion that the prosecution needed her to express. In any event, her claim that hair washing has a great effect on the quantity of DNA under fingernails was not generally accepted by the scientific community in 2008 and was inadmissible under Missouri’s Frye rule. Unfortunately, Nash’s lawyer made no Frye challenge so the jury was permitted to consider the baseless expert testimony.

Montgomery now admits that her opinion was speculative and incorrect. She still maintains that hair washing would remove some DNA from beneath fingernails, but she admits that she has no way to quantify the amount of DNA that would be washed away.

New DNA Evidence

The shoelace used to strangle Spencer was taken from her left shoe. After Nash was convicted, that shoe was tested for DNA. Male DNA was found on the shoe. Nash was excluded as a possible contributor of the DNA, as was the trooper who handled the shoe. Nor was Nash’s DNA found on the shoelace.

In fact, the evidence established that after she left Nash and returned home, Spencer changed her outfit, including her shoes, before leaving again. While male DNA might have been on her shoe before she left, the murderer likely touched the shoe while removing the shoelace. The absence of Nash’s DNA and the presence of another male’s DNA is significant evidence of Nash’s innocence.

Judge’s Recommendation

The judge recognized that Nash’s lawyer was ineffective in failing to seek the exclusion of Montgomery’s testimony under Frye and in failing to cross-examine Montgomery about her lack of qualifications to express an opinion about the removal of DNA trapped beneath fingernails while washing hair. In addition, Nash’s appellate counsel was ineffective in failing to raise the issue.

The judge noted that the prosecutor compounded the problem by claiming in his closing argument that Spencer would have removed all of Nash’s DNA when she washed her hair. Not only was the statement contrary to prevailing scientific theory, it misrepresented Montgomery’s testimony. The state’s appellate lawyer continued to make that misrepresentation in its argument on appeal — a mistake that it now concedes.

Under Missouri’s “actual innocence” standard, a defendant must present reliable new evidence that would likely convince a reasonable jury to return a “not guilty” verdict. Montgomery’s admission that she erred and the discovery of a stranger’s DNA on Spencer’s shoe satisfied the reliable new evidence requirement.

Judge Zerr concluded that the prosecution’s case rested almost entirely on discredited expert testimony. The other evidence against Nash was both weak and consistent with his innocence. Arguing with a girlfriend does not make someone a killer.

The prosecution failed to connect Nash to the scene of the crime or to present evidence that he ever possessed a shotgun. The prosecution also failed to explain why the fingerprints on Spencer’s car window did not point to a different suspect. Those failures contributed to the judge’s decision that no reasonable jury, presented with all of the evidence that is now available, would have voted to convict. Judge Zerr therefore recommended that the Missouri Supreme Court overturn Nash’s conviction and set him free.

No Expert Needed for Improper Morphine Injection Claim in Nevada

The Nevada Supreme Court has ruled that the “common knowledge” exception to the affidavit requirement for professional negligence claims against a health care provider can be applied to determine whether a claim constituted negligence.

The Accidental Death

Mary Curtis was a resident at Life Care Center of Las Vegas nursing home. Life Care Center was contracted to administer the professional services necessary to maintain Curtis’s physical and mental health.

While Curtis was under Life Care Center’s care, licensed nurse Ersheila Dawson mistakenly administered to Curtis 120 milligrams of morphine that had been intended for another patient. Nurse Dawson soon realized her mistake and reported it to her supervisor. Under physician’s orders, Life Care Center administered Narcan, another drug, to Curtis to counteract the morphine. Life Care Center decided not to send Curtis to the hospital at this time; instead, it monitored her vital signs.

The following day, Curtis’s daughter, Laura Latrenta, came to Life Care Center to check on her mother. Latrenta found her unresponsive. Curtis was taken to the hospital, where she passed away two days later. Curtis’s death certificate lists morphine intoxication as the cause of death.

The Negligence Suit

Latrenta sued Life Care Center as Curtis’s heir and the representative of the estate. The estate brought claims against Life Care Center: abuse and neglect of an older person, wrongful death, and tortious breach of the implied covenant of good faith and fair dealing. The estate did not assert claims for professional negligence, name Nurse Dawson as a defendant, or file an expert affidavit.

Life Care Center filed a motion for summary judgment, arguing that although the estate hadn’t specifically asserted professional negligence claims, that was the essence of the claims. Under Nevada law, any lawsuit for professional negligence must be filed along with an affidavit that supports the allegations in the action, is submitted by a medical expert who practices or practiced in that area, identifies the negligent defendant by name, and specifically sets forth the specific acts or acts of negligence. Nev. Rev. Stat. 41A.071

The district court agreed with Life Care Center’s characterization of the claims as sounding in professional negligence. Because the estate had failed to file a supporting medical expert affidavit, the district court dismissed the case. The estate appealed.

The Nevada Supreme Court

On appeal, the estate argued that it was excused from complying with NRS 41A.071 because its claims against Life Care Center were for ordinary and not professional negligence or that the common knowledge exception applied. Therefore, an expert affidavit was not required.

The Nevada Supreme Court determined that the estate’s complaint was based on two underlying allegations: (1) that Nurse Dawson administered morphine to Curtis that had been prescribed for another patient, and (2) Life Care Center failed to properly monitor and care for Curtis.

The court ruled that the second claim was based on professional negligence, but that that the first claim was a claim for ordinary negligence. The court reasoned that there was no professional judgment in administering the morphine; the nurse had simply given Curtis the wrong drug. The court ruled that the act of administering another patient’s morphine to Curtis was an ordinary negligence claim and therefore the estate was not required to submit an expert affidavit to pursue a negligence claim for this act. This could also be characterized as the “common knowledge” exception to the rule that an expert witness is required to prove professional negligence.


Choosing the Right Expert Means Asking the Right Questions

Court Requires Disclosure of Memorandum Discussing Expert’s Methodology

In most cases, a retained expert must prepare a report that states the expert’s opinions, as well as the facts and reasoning that supports those opinions. Yet expert reports do not appear out of the blue. Experts may labor over the report for weeks, treating them as works in progress that evolve over time.

The finished draft of an expert report must be disclosed, as well as certain underlying data. A continuing issue in the law is whether other documents, including prior drafts and communications with an attorney about the report, must also be disclosed. A federal magistrate recently ruled that a memorandum about methodology that an expert wrote for his own use and shared with an attorney is subject to disclosure.

The Work Product Doctrine and Expert Reports

Law students who struggle to stay awake during dry lectures about civil procedure will eventually encounter the work product doctrine. While simple on its face, the work product doctrine compounds the confusion surrounding the obligation to comply with discovery requests.

Under the federal rules, parties may not discover materials that were prepared by or for an attorney in preparation for litigation. However, the rule must be read in light of other discovery rules, including the obligation to disclose reports prepared by experts who will testify at trial. Those reports are plainly prepared for attorneys to assist in litigation, but the reports were both mandated and made discoverable by a 1993 amendment to Rule 26.

The 1993 amendment also allowed discovery of “data or other information” upon which the expert relied in forming opinions. Courts issued confusing and contradictory rulings about whether communications between an attorney and an expert were discoverable as “other information.” Many courts also required disclosure of preliminary drafts of the report in addition to the final report.

Lawyers responded by instructing experts not to produce drafts prior to the final report, for fear that the drafts would include statements that contradict statements made in the final report. Since reports typically evolve over time as experts refine their thinking or incorporate new data, experts expressed frustration that lawyers did not understand how they work.

The rules committee eventually concluded that disclosure of attorney interactions with experts inhibited “collaborative interaction” with experts because attorneys feared disclosure of “their most sensitive and confidential case analyses.” Experts also complained that limiting their communications with the attorneys who hired them impaired their ability to perform high quality work.

Rule 26 was modified in 2010 to address those concerns. The amended rule requires disclosure of “facts or data considered by the witness” in forming expert opinions and “assumptions” that the attorney who retained the expert communicated to the expert if the expert relied upon those assumptions. The changes were meant to exclude disclosure of communications with lawyers that provided theories of the case or the lawyer’s mental impressions. The new rule also provided that the work product privilege protects prior drafts of an expert report from disclosure.

Expert’s Memorandum in Hernandez Lawsuit

Angel Hernandez, a Major League umpire, sued the Commissioner of Baseball for national origin discrimination. Hernandez complained that, despite his seniority, he was not promoted to crew chief and was never selected to umpire the World Series.

Hernandez identified Gregory Baxter as an expert witness and disclosed Baxter’s expert report. The Commissioner took Baxter’s deposition.

When asked if he had reviewed any documents in preparation for the deposition, Baxter testified that he had reviewed a memorandum that he wrote to himself but did not include in the expert report. Baxter testified that the memorandum described his methodology for deciding whether comments about Hernandez were positive or negative and for determining whether statements made in Hernandez’s year-end review were supported by Umpire Evaluation Reports.

Baxter prepared the memorandum weeks after he finished the expert report. He testified that he wrote it because he expected to be deposed about his methodology. He also testified that Hernandez’ attorney did not ask him to prepare the memorandum.

Baxter based the memorandum on notes that he made to himself while preparing the report. He destroyed those notes after he finished the memorandum.

At some point, Baxter gave the Memorandum a title, referring to it as a “supplement” to the “expert report methodology.” He sent the memorandum to Hernandez’ attorney with the subject line “Proposed Supplement to Baxter’s Expert Report.”

The Commissioner moved to compel production of the memorandum. Hernandez resisted on the ground that the memorandum was work product and not discoverable.

Magistrate’s Decision

The memorandum was not an earlier draft of the expert report because it was created after the expert report was finished. Hernandez argued that it was nevertheless a draft of a new or supplemental report.

The magistrate decided that the work product privilege applies to drafts of expert reports that are “required” by Rule 26. No supplemental report was required in this case, so the privilege did not apply to the memorandum. In addition, since no part of the memorandum was actually included in the required report, the memorandum cannot be regarded as a draft of the report that was submitted.

The court also noted that the work product privilege is designed to protect an attorney’s mental impressions, conclusions, opinions, or legal theories, not those of the expert. Since Hernandez’ counsel did not ask Baxter to prepare the memorandum, it did not qualify as attorney work product.

The court rejected the argument that the memorandum was a privileged communication between expert and attorney. While Baxter’s affidavit stated that the memorandum was prepared in anticipation of discussing methodology with Hernandez’s attorney, it was not created as a communication to an attorney.

The fact that Baxter sent the memorandum to an attorney did not “change its character at inception.” To hold otherwise would result in any document becoming privileged merely because the document was sent to an attorney.

Lessons Learned

The court emphasized that an expert’s “notes to himself do not qualify for protection” as work product. Notes are not drafts of a report unless they are intended for later inclusion in the report. Nor are notes made by an expert for the expert’s own purposes protected as communications to an attorney even if they are eventually sent to an attorney.

Experts should be cautioned that if they prepare notes for their own purposes, other than as drafts of portions of an expert report, those notes are likely discoverable. Experts should therefore be careful about preparing notes that they would not want a party in the case to review.



Court Excludes Expert Report in Antitrust Case

The State of Kentucky sued Marathon Petroleum and related parties for violating antitrust laws. Kentucky claimed that Marathon’s anticompetitive practices caused consumers to be overcharged.

Marathon asked the court to exclude the testimony of Kentucky’s expert economist. The court granted that motion and, since Kentucky could not prevail without the expert’s testimony, dismissed the case.

Antitrust Arguments

Marathon owns the largest refineries in the Midwest and the only refinery in Kentucky. It is also the largest supplier of gasoline in Northern Kentucky.

Kentucky argued that Marathon monopolized the wholesale market for Summer RFG, a kind of gasoline that some Kentucky retailers are required to sell during the summer months. A necessary ingredient of RFG is a petroleum product abbreviated as RBOB. Wholesalers purchase RBOB and add ethanol and other products to create RFG. They then sell the RFG from their terminals to retailers.

Kentucky argued that Marathon controls the influx of RBOB and thus monopolizes the downstream market for RFG. Kentucky alleged that Marathon used its market share dominance to manipulate the wholesale and retail price of gasoline. That price, according to Kentucky, was higher than the prices that prevail in competitive markets. Kentucky also alleged that Marathon uses anticompetitive supply agreements (known as exchange agreements) to maintain its market dominance.

Expert Testimony in Antitrust Cases

When a plaintiff alleges that a defendant has restrained trade or engaged in monopolistic pricing within a market, the plaintiff’s first task is to define that market.

The plaintiff must define a product market and a geographic market. The product market analysis asks whether there are readily available interchangeable substitute goods that consumers could purchase to serve their needs. A substitute is interchangeable if an increase in price for one product would cause an increase in demand for the substitute product.

A geographic market is the area in which sellers compete against each other to make sales to the same consumers. In simple terms, it is the market area in which the allegedly anticompetitive seller operates.

The relevant market is a fact question that must generally be determined by a jury. A judge’s disagreement with the plaintiff about the relevant market should not lead to a dismissal of the case unless no reasonable juror could agree with the plaintiff’s definition.

Courts usually require the relevant market to be proved by an expert opinion based on sound principles of economics. While a judge cannot dismiss a case simply because the judge disagrees with the expert’s view of the facts, a judge can exclude the expert’s testimony if the judge finds that the testimony is not based on a reliable methodology.

Kentucky relied on a single expert witness, Dr. Michael Sattinger. Marathon did not challenge Sattinger’s qualifications to render an expert opinion. Rather, it challenged the methodology he used to determine the relevant market, to determine the existence of an antitrust injury, and to calculate damages.

Relevant Market

Sattinger defined the relevant geographic market as the Kentucky terminals where RBOB is blended with other products and sold to retailers as RFG. The court decided that Sattinger failed to base that definition on a reliable methodology.

Economists usually use a “hypothetical monopolist” or “small but significant and non-transitory increase in price” (SSNIP) test to determine the relevant market. That test asks whether consumers would leave a market for competing goods if a supplier were to impose a 5% price increase for at least one year. If consumers would not leave the market, the market is worth monopolizing. The smallest market from which consumers would not exit is the relevant market.

Courts have generally agreed that the SSNIP test is a reasonable methodology for defining a relevant market. Sattinger acknowledged that the SSNIP test is widely used but chose not to use it. The court noted that economists are not required to use the SSNIP test to define a relevant market, but are required to use some other reasonable methodology. The court faulted Sattinger for failing to explain why he limited the relevant market to terminals in Kentucky.

The court also concluded that defining Kentucky terminals as the relevant market did not reflect the economic realities of the wholesale RFG market. The court thought Sattinger should have asked whether there were other places wholesalers could look to buy RBOB. The court noted that Marathon’s only local competitor had RBOB transported by barge from other states, and that Marathon itself had met its need for RBOB by transporting it to Kentucky by truck.

Since Sattinger did not define a geographic market that included all reasonably available sources of RBOB, Sattinger did not base his opinion on a reasonable methodology. According, his opinion was inadmissible.

Antitrust Injury

To demonstrate that Marathon’s anticompetitive behavior caused a harm, Sattinger compared markets for RFG in Baltimore and St. Louis to the Kentucky market. He determined that market prices were lower in those cities and attributed the price differential to Marathon’s anticompetitive behavior. He calculated the price difference over the time period covered by the lawsuit and produced a damages calculation of about $173 million.

While the court recognized that Sattinger’s “yardstick method” of damages calculation can be appropriate in antitrust cases, the method must take account of other factors (such as market size, product demand, proximity to supply sources, and cost of operations) that might have an independent impact on prices. Economists generally use a regression analysis to account for those variables, but Sattinger failed to rule out other possible explanations for price differences that were unrelated to Marathon’s anticompetitive pricing.

Kentucky also considered Marathon’s use of exchange agreements to be anticompetitive. Competing refiners use exchange agreements to trade gasoline when a competitor has an insufficient supply. Sattinger did not determine whether exchange agreements are used in Baltimore or St. Louis and therefore failed to determine whether the supposedly anticompetitive agreements had an impact on price.

The court ultimately concluded that Sattinger’s methodology did not rest on sound economic principles. Accordingly, his opinions did not satisfy Daubert and were not admissible as evidence.

Lessons Learned

Different judges view Daubert in different ways, but precedent authored by some appellate judges supported the exclusion of Sattinger’s testimony. Part of case preparation should include a thorough review of Daubert precedent in the case at hand. In this case, a review of Daubert decisions in antitrust cases might have prepared Kentucky’s lawyers for Marathon’s challenges.

Experts should be urged to complete a first draft of a report for an attorney’s review well in advance of the disclosure deadline. If Kentucky’s lawyers had identified attacks that could be made on their expert’s methodology, perhaps those perceived flaws could have been corrected before a final draft was prepared.

Experts understand their field of expertise but lawyers understand precedent. Helping experts understand how a court might respond to Daubert challenges is a key role that lawyers must play after they hire expert witnesses.