A state judge will not allow a cancer-risk expert to testify about the amount of exposure to glyphosate that California has determined causes cancer in the trial over whether Monsanto’s weed killer is carcinogenic.

The Lawsuit

In 2016, DeWayne Johnson sued Monsanto after he developed non-Hodgkin lymphoma. Johnson, 46, is the father of three and a former school groundskeeper. Johnson began developing lesions and rashes on his skin after he was regularly exposed to Monsanto’s weed killer Roundup. Johnson claims that Monsanto has known for decades that Roundup causes cancer, but that it has hidden this from the public.

Johnson’s suit is one of thousands of plaintiffs who have filed suit against Monsanto, alleging that exposure to Roundup caused them or their loved ones to develop non-Hodgkin lymphoma. These suits challenge Monsanto’s claim that its herbicides are safe. The lawsuits argue that Monsanto has known about the dangers of their products, but have hidden them from the public. Johnson’s case will be the first to go to trial and is considered the bellwether for other cancer cases that have been filed against Monsanto.

Expert Testimony

Johnson’s attorney Brent Wisner hired Christopher Portier, a highly regarded expert in cancer-risk assessment to testify at trial. Judge Suzanne Ramos Bolanos ruled that Portier will be restricted from testifying about the amount of exposure to the active ingredient in Roundup that California has determined causes cancer. Judge Bolanos agreed with Monsanto’s lawyers who argued that Johnson’s attorneys were trying to sneak the topic into evidence, despite a pretrial ruling that barred testimony about California’s Proposition 65.

Proposition 65 requires manufacturers to put warning labels on products that contain chemicals that the state believes cause cancer. California added glyphosate to its Proposition 65 list last year based on the World Health Organization’s International Agency for Research on Cancer finding that glyphosate is a probable carcinogen.

Judge Bolanos said that “Monsanto was never put on notice for that…To introduce this now is highly prejudicial, because they didn’t have the opportunity to cross-examine him [the expert] and they didn’t have the opportunity to call their own expert to discuss the significance or the lack of significance of the NSRL listing, which can be misleading to the jury unless it is completely explained to them.”

The NSRL (or No Significant Risk Level) is the daily intake level that California regulators have determined will result in no more than one excess case of cancer in a population of 100,000 exposed people. The NSRL for glyphosate is 1,100 micrograms per day.

Portier was permitted to testify about 13 rodent studies that led him to conclude that glyphosate causes non-Hodgkin lymphoma in humans. Portier described one study where mice developed kidney adenomas, carcinomas, malignant lymphomas, and malignant tumors. Portier noted that some studies found tumors in tissue in which they didn’t belong. Portier said that the occurrence of this is so rare that “the causation argument — ‘did this chemical cause this tumor’ — is very high.”

Update

Jury awards $289M to former school groundskeeper who blames weed killer Roundup for cancer

The Texas Attorney General’s Office has spent over $500,000 on experts to defend the state’s abortion restrictions.

Texas Abortion Restrictions

In 2013, the state of Texas began enacting a series of abortion laws and restrictions. Texas banned abortions after 20 weeks, limited the use of an abortion drug, required doctors who perform abortions to have admitting privileges at a nearby hospital, and required abortion clinics to meet the standards of ambulatory surgical centers. The 2013 laws caused about half of the state’s 41 abortion clinics to close. In 2017, Texas enacted additional restrictions, mandating that health care facilities bury or cremate fetal remains from abortions.

Planned Parenthood and Whole Woman’s Health, the largest abortion providers in Texas, have sued the state five times challenging these restrictions. In four cases, the laws were temporarily blocked and the rulings are on appeal. The fifth case ended up in the United States Supreme Court, where the Court struck down the laws as unconstitutional.

Writing for the majority, Justice Stephen Breyer wrote that the regulations which required abortion providers to obtain hospital admitting privileges and comply with the standards of surgical centers, were medically unnecessary and placed an unnecessary burden on the right to obtain an abortion. Justice Breyer wrote:

We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes…. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.

Attorney General’s Experts

The Houston Chronicle reported that the Texas Attorney General’s Office has paid 21 expert witnesses to testify in these abortion cases since 2013. According to the court records, six of these experts were disregarded by the judges who were presiding over the cases. The judges dismissed some of the state’s experts for lack of medical or scientific credentials, unfamiliarity with the laws at issue, or for expressing personal opinions rather than expert opinions.

In the case regarding the state’s attempt to require the burial of fetal remains, the attorney general’s office hired Jeffrey Bishop, a philosophy professor at Saint Louis University, to testify in its support.  Bishop testified that, “The state has the responsibility to uphold the dignity of human beings… It seems to me that grinding and washing tissue down the drain that was at one time part of human life is not a dignified way of disposing of those materials.”  Bishop said that he had not read the rule because it was “very complicated to read.” U.S. District Judge Sam Sparks disregarded Bishop’s opinion, saying “He has no credibility with me whatsoever. He didn’t have any substantive knowledge at all about this case…. He’s just giving an opinion.” And an uninformed opinion, at that.

A spokesperson for Attorney General Ken Paxton defended the office’s choice of experts. Paxton said that the office chooses “an array of highly qualified and esteemed experts — some with pro-choice views — with multiple Ivy League degrees, numerous published articles, and years of hands-on practice in clinical and academic settings.”

A federal district court in California has denied a plaintiff’s motion for reimbursement of expert witness fees in a trial over excessive fees in a company’s 401(k) plan.

Lawsuit for Breach in Fiduciary Duties

In 2007, beneficiaries of the Edison 401(k) Savings Plan sued Edison International and the plan’s fiduciaries, claiming that the losses suffered by the plan were from breaches in their fiduciary duties. The plaintiffs took issue with specific mutual funds that were added to the plan that were priced higher then materially identical institutional-class mutual funds that were available at the time.

The district court dismissed the claims regarding funds added to the plan in 1999 as untimely because ERISA requires that breach of fiduciary duty claims be brought no more than six years after “the date of the last action which constitutes a part of the breach or violation” or “in the case of an omission the latest date on which the fiduciary could have cured the breach or violation,” 29 U.S.C. §1113. The Ninth Circuit affirmed, but the Supreme Court vacated and remanded, holding that a fiduciary duty is a continuing duty and plaintiffs could allege that a fiduciary breached that duty by failing to properly monitor investments and remove imprudent ones. On remand, the Ninth Circuit dismissed those claims, ruling that the beneficiaries had failed to raise the argument in lower courts.

On the remaining claims, the district court ruled that Edison was liable under ERISA, because it was imprudent to include 17 mutual funds in its 401(k) plan that could have been obtained at a lower cost. The parties agreed that the damages between 2001 and 2011 were about $7.5 million and Edison was ordered to pay over $7.5 million in compensation. The parties later agreed that Edison would pay $5.6 million in additional damages and $5.8 million for attorneys’ fees and costs.

Denial of Motion for Expert Witness Fees

Attorneys for the plaintiffs, Schlichter, Bogard & Denton LLP, filed a motion seeking $964,212 in reimbursement for experts that it utilized during the ten years that it litigated the case. The law requires that a losing party must pay attorneys’ fees but does not require them to pay the expert witness’ fees unless they can show that the expert was “crucial or indispensable in establishing the prevailing party’s case or defense.” Judge Stephen V. Wilson of the United States District Court for the Central District of California denied the plaintiffs’ motion, ruling that the plaintiffs hadn’t met the requirement to show which of the experts’ work was “crucial or indispensable” to their successful claim.

Wilson wrote that “Plaintiffs’ partial victory last year represented only a fraction of Plaintiffs’ damages claims.” He noted that “Plaintiffs’ motion concedes that much of the expert work was unrelated to the sole claim.” Wilson also noted that the court did not rely on any particular expert in reaching its decision.

A former councilman from Fletcher, North Carolina has been convicted of obstruction of justice after falsely representing himself as a medical doctor with additional doctoral degrees in order to provide expert testimony in court.

Expert Witness Appearance

Milton LeRoy Byrd, 66, appeared as an expert witness on behalf of Monroe Gordon Piland, a doctor and medical marijuana activist who was convicted of several drug crimes, including trafficking opium or heroin. Byrd testified on Piland’s behalf in a Buncombe County Civil District Court matter in 2016 and in a bond hearing in April 2017.

Byrd had claimed to be a medical doctor with three additional degrees. Byrd’s curriculum vitae, which was submitted by Piland’s counsel during discovery, showed that Byrd obtained degrees from the University of Chicago Pritzker School of Medicine in respiratory therapy along with degrees in religion and two bachelor degrees.

Red Flags

The case against Byrd began when Assistant District Attorney Alex Bass, who was prosecuting Piland, was researching defense witnesses. Bass became suspicious when he saw Byrd’s resume. He noticed that Byrd had misspelled the name of the medical school that he had supposedly attended and that he had listed a few things that a doctor wouldn’t normally put on their CV. Bass said, “I had no idea who Byrd was until discovery, but immediately there were some red flags…. He always misspelled the name of the medical school he supposedly attended…. There were a couple other things you wouldn’t think a doctor would put in a CV, too, like ‘being a shaman’…. It was just weird.”

Bass contacted the University of Chicago – Pritzker School of Medicine to inquire about Byrd. Representatives from the university told Bass that they had no record of Byrd graduating from the school and that they did not offer degrees in respiratory medicine. The office of the district attorney turned the information over the the Buncombe County Sheriff’s Office, which investigated Byrd and charged him with felony common law obstruction of justice.

Obstruction of Justice Conviction

The district attorney turned the case over to the North Carolina Attorney General. Assistant Attorney General Nick Benjamin tried the case, which resulted in Byrd’s conviction. Byrd was sentenced to three years supervised probation, a fine of $5,000, and to pay the cost of his court-appointed attorney, $3,440. Superior Court Judge Gary Gavenus also ordered that Byrd cannot include on his CV “or any other medium whatsoever” any reference to his false medical doctorate or falsified degrees in philosophy, divinity, and metaphysics.

Byrd’s court-appointed attorney, Kathy Lamotte, said that she believed that her client lacked the intent required for a felonious obstruction of justice conviction. Byrd’s case is headed to the North Carolina Court of Appeals. Lamotte said, “I think, sitting in the chair I sat, there are some grounds for appeal, but it will be entirely up to the office of the appellate defender to review the case and make their own decisions about what was there.”

An expert on police-involved shootings on officers has been cleared to testify in the murder trial of Chicago police Officer Jason Van Dyke.

The Shooting

On October 20, 2014, Chicago police officers responded to reports of someone breaking into vehicles. The responding officers found 17-year-old Laquan McDonald behaving erratically and holding a knife. McDonald did not respond to police commands to drop the knife.

Officer Jason Van Dyke arrived on the scene and opened fire on McDonald. Dashcam video footage showed that Van Dyke began shooting at McDonald within seconds of exiting his vehicle while McDonald was walking away from the officers. McDonald was shot 16 times. He died enroute to the hospital.

The video of the shooting caused a public outcry resulting in the firing of then-police Superintendent Garry McCarthy.

Expert Testimony

Van Dyke was charged with first-degree murder in connection with McDonald’s death. Van Dyke is the first Chicago police officer in decades to face a first-degree murder charge in connection with an on-duty fatality. Van Dyke maintains that he shot McDonald in self-defense, fearing that McDonald was a threat to his life.

Dr. Laurence Miller, a clinical and forensic psychologist, was retained by the defense to testify on Van Dyke’s behalf. Miller specializes in psychotherapy, neuropsychology, forensic psychology, and business psychology. Miller’s Psychology Today profile lists him as having “special expertise in working with law enforcement and emergency service personnel (police, firefighters, medics) and with crime victims and their families.” Miller is the police psychologist for the West Palm Beach Police Department, a mental health consultant for the Florida Highway Patrol, a forensic psychological examiner for the Palm Beach County Court, and a consulting psychologist with several regional and national law enforcement agencies.

Dr. Miller conducted a psychological evaluation of Van Dyke on April 1, 2016. Van Dyke’s defense team wants Miller to testify about the effect of police-involved shootings on officers, including “alterations in perceptions, thinking, behavior and memory.”

The special prosecutor, Joseph McMahon, sought to bar Dr. Miller from testifying at trial. The prosecution argued that the defense was trying to bring out issues through Dr. Miller that should only be addressed by Van Dyke if he chooses to take the stand in his own defense. McMahon argued that Van Dyke can take the witness stand to address his state of mind at the time of the shooting. He wrote, “The jury does not need the assistance of an expert in determining the actions that took place on October 20, 2014. . . The jury will have an opportunity to view the video of the shooting.”  He stated, “the jury does not need (him) to tell them what thoughts were going through the defendant’s mind before and during the shooting, because only the defendant can know that information. . . . Any testimony related by (Miller) in that regard is inadmissible, self-serving hearsay.”

Judge Vincent Gaughan ruled that Dr. Miller will be allowed to testify about “the ultimate issue,” which is Van Dyke’s state of mind during the shooting.

The defense team for a U.S. Air Force veteran who has been accused of leaking classified information to the media has announced that it intends to call the U.S. government’s former “classification czar” to testify as an expert at trial.

The Leaked Document

Reality Winner, 25, is accused of leaking a document to the media that included specifics on attempts by Russian operatives to hack state election systems in the days leading up to the 2016 presidential election. The document was published in redacted form by The Intercept. The document described two cyberattacks by Russian military intelligence against a company that sells voter registration software and against 122 local election officials. According to The Intercept, the document contained intelligence acquired by the National Security Agency and provided “a rare window into the NSA’s understanding of the mechanics of Russian hacking.”

The Intercept said that the May 5 intelligence report had been submitted anonymously. However, soon after the article was published, the Justice Department announced that the FBI had arrested Winner in connection with the leak. The NSA had performed an audit that showed that six people had printed out the report at issue. Out of the six, Winner was the only one who had been in contact with the media outlet. The Justice Department also said that Winner had confessed to printing out an intelligence file and mailing it to an online news outlet.

Following Winner’s arrest, Deputy Attorney General Rod J. Rosenstein stated, “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. . . . People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

Winner, who had been working for a National Security Agency contractor at the time of her arrest, was charged under the Espionage Act. The Espionage Act is meant to prevent military secrets from being stolen from the United States and a conviction carries a sentence of up to 10 years in prison. Winner has already spent one year in jail awaiting trial. The government has argued that Winner is a national security risk and she has been denied bail repeatedly. Winner’s prosecution is the first criminal prosecution for a leak case under the Trump administration.

The Classification Czar

Winner’s defense team has announced that it intends to call J. William Leonard, the U.S. government’s former “classification czar,” as an expert witness at trial. Leonard formerly served as the director of the U.S Information Security Oversight Office. Leonard spent 35 years in government, with many of them assigned to the Defense Department. Leonard was responsible for declassifying information that was wrongly classified during the George W. Bush administration.

Leonard is expected to offer testimony as to whether the document that Winner is accused of leaking was actually classified and whether the leak caused any harm. Leonard’s testimony will also include a review of information from other public sources.

For Winner to be convicted under the Espionage Act, the prosecution must show that the document’s disclosure potentially damaged national defense or could be useful to a foreign enemy. The government must also show that the document was “closely held” and not available to the general public.

A Boston gang expert will be called to testify in the trial of Mathew Borges, a teen who is accused of beheading his high school classmate, Lee Manuel Viloria-Paulino.

The Crime

On November 18, 2016, sixteen-year-old Lee Manuel Viloria-Paulino went missing.  His family reported him missing the following day. His body wasn’t found until December 1, 2016, when a woman who was walking her dog spotted it near the Merrimack River. Viloria-Paulino’s body was found decapitated, with his head discovered a short distance away.

The Arrest

Police arrested Viloria-Paulino’s classmate, Matthew Borges, for the murder. When Viloria-Paulino’s body was found, the police questioned Borges. Borges,15, told police that he had walked to the river with Viloria-Paulino to smoke marijuana on the last night the he was seen. A witness also told investigators that Borges had confided in him, “Mathew told him he did something bad. . . . Mathew then told him that he stabbed a kid and cut off his head killing him. When Mathew said this he was motioning with his hands as if he was stabbing someone and cutting someone’s head off.”

Police also seized Borges’ cell phone and phone records. The phone contains a deleted message from October 2016 where Borges allegedly wrote, “You and I need to discuss demons we will face when the task is done.” Borges’ defense attorney, Edward Hayden, filed a motion to suppress the evidence that was retrieved from the cell phone.  Judge James Lang denied the motion.

Borges is facing a first-degree murder charge and will be tried as an adult.  Borges pleaded not guilty to the charges.

Expert Witness

Borges’ defense attorney hired Emmett Folgert, a gang expert and executive director of the Dorchester Youth Collaborative, to testify at trial. Folgert is a program developer, gang peace negotiator, and public policy advocate whose experience includes creating workforce training programs for youth with criminal records as well as direct service to street gangs, runaway homeless youth and substance abusers. Folgert was one of the architects of the Boston Miracle, a highly effective community and police partnership that reduced violence in Boston.

Folgert said that he does not have specific knowledge about this case and that he does not plan to interview Borges. He stated, “I have been called by the defense to talk about the organization of gangs in general and the Latin Kings.” Folgert explained gang leaders will order minors to “do murders to cover for older gang members.” These minors are known as “crash dummies” or “crashes” and are used to give the gang leaders deniability.

Lawrence police Chief Roy Vasque said that that the city used to have a serious problem with the Latin Kings gang, but that it had been “pretty much dismantled.” Vasque noted that the city is currently combating the Trinitarios gang, which has ties to New York and New Jersey. Vasque said that he can not comment specifically on the Borges case because of a gag order by the Essex District Attorney’s Office.

A senior deputy state fire marshal has testified in the trial of Robert Schech Sr. Evidence showed that the fire was intentionally set.

Donna Schech’s Death

Robert Schech Sr. is on trial for first-degree murder, first-degree arson, felony murder and malicious burning in connection with the death of his wife, Donna Schech. Donna Schech died on November 13, 2016 of heat and smoke-related injuries in a fire. Robert Schech is accused of setting the fires that caused Donna’s death.

Robert Schech’s Trial

The state called Senior Deputy State Fire Marshal Michael Selvage to testify as an expert in fire investigation and to determine the origin and cause of the fire. Selvage testified that fire investigations involve systematic approaches and the use of the scientific method. He said, “We don’t just run in and start doing things. It’s very specific.”

Selvage showed the court images from the scene of the fire taken by investigators and by drone video. Selvage showed that the right side of the home was almost completely consumed by the fire; the left side of the home, near the master bedroom where Donna Schech’s body was found, was more intact. Selvage pointed out that objects on the floor of the bedroom were consumed by fire and the patterns around the ceiling and walls were consistent with a fire progressing into a room. Selvage testified that the official Fire Marshal’s report listed the two origins of the fire as the dining room of the first floor and the bottom landing and steps of the basement. Selvage said that the fire’s cause was listed as incendiary, which meant that it had been deliberately set.

Defense attorney Joseph Murtha cross-examined Selvage. Murtha asked Selvage if Schech’s statements to investigators were taken into consideration when determining the origin and cause of the fire. Murtha asked what the standard was for believing Schech’s statements.

Under questioning, Selvage said that investigators returned to the scene of the fire more than one year later to gather additional data and perform due diligence. During this visit, control samples of the carpet in the living room were collected from under an entertainment system. The sample was used to compare to the carpet that was between the living room and dining room that was confirmed to contain gasoline. Tests on the control sample showed that the sample did not contain petroleum. Investigators also found a gas can under debris by the front of the carport that they believed was present on the night of the fire.

Murtha questioned how investigators could be sure that degradation and spoliation had not occurred in the 15 months since the fire. Murtha asked if there was any way to know how much accelerant was present in the areas it was located. Selvage responded that there was no way to determine the amount of accelerant.

Murtha asked Selvage whether the gasoline or gas cans could have been moved to different locations by firefighters. Selvage said that it was unlikely that this could have happened. Selvage said that the helmet camera footage showed that the gas cans would have been under at least a foot of debris before any firefighting began.

A defense expert, Craig Beyler, challenged the investigator’s findings and concluded that the fire was accidental.

Verdict

The case was tried to a judge, not a jury. Judge Thomas Stansfield concluded that a reasonable doubt existed as to guilt, and found Schech not guilty of all charges. Schech was released from custody after spending 539 days in jail.

An infectious disease expert has testified that a Flint-area man who died in 2015 did not die from Legionnaires’ disease.

Flint Legionnaires’ Crisis

In 2014 and 2015, a Legionnaires’ outbreak in the Flint area killed 12 people and caused at least 79 others to become ill. The State of Michigan charged its state chief medical officer Eden Wells with involuntary manslaughter in connection with the deaths. Wells is also facing charges of lying to a special police agent, misconduct in office, and obstruction of justice. The manslaughter charge carries a prison term for up to 15 years and a $7,500 fine. The obstruction charges carries a sentence of up to two years. Governor Rick Snyder kept Wells in her post despite the criminal charges against her.

Expert Testimony

At trial, Wells’ defense team called Dr. Jeffrey Band to testify as an expert witness. Dr. Band is an epidemiologist who works at Beaumont Hospital in Royal Oak, Michigan. Dr. Band reviewed the patients’ records to prepare his testimony.

Dr. Band testified extensively about the 2015 death of John Snyder. Band opined that Snyder’s death was not Legionnaires’ disease. Band said that he “absolutely” considered that Legionella could have been the cause of death, but he was ultimately able to determine that it was not the cause. Band stated that Snyder suffered from rheumatoid arthritis, which can cause a person to exhibit “false positives” for Legionella.

Dr. Band stated that Snyder’s records showed that he declined his doctor’s request to replace his pacemaker with a defibrillator, which meant that Snyder was “at risk for sudden death.” Band noted that Snyder did not have a fever, which is a symptom of Legionnaires’. He said, “He was not found to have an elevated white count. With Legionnaires’ disease, one of the features is a very high fever and it’s unremitting. It stays up there. And Mr. Snyder did not have any fever.”  Band testified that Snyder’s heart was “down to, at most, 30 percent functioning” and that he also suffered from “bilateral density in the lungs,” which caused additional problems.

On cross-examination, Special Prosecutor Todd Flood asked Band when the public should be notified about a deadly disease. Band testified that the 2014-2015 Legionnaires’ diagnoses constituted a “smoldering outbreak” with a small number of cases over a period of time. Band opined that the public did not need to be notified because it would cause a panic as the disease cannot be treated by a vaccine like other diseases. Flood noted that Band’s opinion was counter to the doctors from Wayne State University who testified that the public should have been notified of the outbreak.

Band revealed that he was compensated $400 per hour for his time, for a total of approximately $19,000. Band stated that he resented Flood’s assertion that he was being “paid” for his opinion. Flood stated that, “I’ve never implied that the Legionella situation in Genesee County was not significant.”

A judge has ruled that the defense attorneys for Nouman Raja will be allowed to re-depose the state’s expert on police procedures.

Corey Jones’ Shooting

Nouman Raja, a former Palm Beach Gardens police officer, is on trial for manslaughter and attempted murder in connection with the 2015 shooting death of 31-year-old Corey Jones.

On October 18, 2015, Jones was stranded on the side of the road and on the phone with roadside assistance. Officer Nouman Raja approached Jones in plainclothes. Raja was wearing jeans, a T-shirt, a ball cap and driving an unmarked cargo van.

Jones died after Raja shot him three times. Raja claims that he clearly identified himself as a police officer and that he only shot Jones after he charged at him with a gun. However, an audio recording of Jones’ call with the roadside assistance operator contradicts Raja’s version of the events. Additionally, a 911 call that Raja made raised questions because Raja is heard yelling at someone to drop a gun, but medical examiner’s reports revealed that Jones was likely dead at the time that Raja made the 911 call.

Expert Witnesses

The state presented W.D. Libby as an expert on police procedures. Libby has spent 38 years in law enforcement; 16 of those years were spent as a police chief. Libby has a law degree and is experienced in overseeing police standards.

In Libby’s report, he opined that Raja acted incorrectly when he approached Jones’ broken-down SUV while he was working plainclothes on burglary surveillance. Libby stated that, by parking in front of Jones, Raja left his vehicle “in such a position that it did not protect him or Corey Jones.” Libby opined that Raja should have parked behind Jones and called for backup.

Libby also opined that Raja failed to follow proper procedures by approaching Jones. Libby cited the International Association of Chiefs of Police recommendation that plainclothes officers “present proper identification. If requested, let the driver examine your credentials so that they are satisfied that you are a law enforcement officer.”

Libby stated that Raja acted in violation of supervisor’s orders by failing to wear a tactical vest, which would have identified him as a police officer. Libby said that Raja “did not verbally announce who he was, why he was there, or indicate police authority, violating accepted police practice.”

Raja’s attorney, Scott Richardson, challenged the consistency of Libby’s opinion. He said, “We felt there was an inconsistency, a discrepancy between what the state’s expert witness had testified to and what was said later in another deposition.” Richardson also questioned whether the state had been withholding information about Libby’s opinion on whether use of force was justified in this case.

Judge Samantha Schosberg Feuer decided that defense attorneys will be allowed to re-depose Libby. Richardson will be allowed to ask Libby about his opinion on whether use of force was justified in this case, when he formed that opinion, and when he disclosed that opinion to the state. Libby previously opined that, “I do not believe the forensic evidence supports [Raja’s] version of events.”

Raja’s attorneys plan to file a separate motion to have Libby’s testimony excluded entirely.