Category Archives: Expert Opinions

Statue of justice

Conviction Reversed Because Expert Witness Vouched for Credibility of Accuser

Appellate courts continue to reverse convictions when prosecutors use expert witnesses to vouch for the credibility of alleged victims. Credibility is for the jury to decide and no reasonable methodology allows an expert to determine whether another witness is telling the truth.

Richard Hopkins was charged in Michigan with multiple counts of having sexual contact with two minors. Hopkins rented property to the alleged victims’ mother, who agreed that Hopkins should babysit her daughters while she was working.

In addition to describing incidents of sexual touching, the alleged victims testified that they watched a pornographic movie at Hopkins’ residence and saw pictures of intimate body parts while scrolling through photos that were stored on his computer. One of the girls said she told their mother about the sexual contact, but the mother testified that she first heard about it from social services.

The testimony of the children, if believed, would have been sufficient to support the prosecution’s case. The prosecution nevertheless tried to bolster its case by using two expert witnesses for the improper purpose of vouching for the child witnesses. The Michigan Court of Appeals reversed Hopkins’ convictions because the prosecution’s strategy deprived him of a fair trial.

Vouching Testimony Regarding Credibility of Alleged Victims

Cynthia Bridgman testified for the prosecution as “an expert in the field of child abuse and therapy.” Bridgman is a therapist who provided therapy to the two alleged victims.

Bridgman claimed that “children’s statements are often labeled as inconsistent or not credible when, actually, they’re very credible.” She then testified that “research on credibility shows that kids rarely make up abuse allegations.”

Hopkins’ lawyer objected that Bridgman was vouching for the credibility of the accusers. The trial court permitted the testimony because it was based on studies regarding the truthfulness of children generally and not the truthfulness of the alleged victims.

The appellate court concluded that the trial court erred. The prosecution’s evidence essentially told the jury that children rarely lie about sexual abuse and that the jury should therefore believe the stories told by the alleged victims.

Research shows that adults have about a 50-50 chance of determining whether a child is lying. Studies that purport to measure how often children fabricate stories of sexual assault are inherently suspect because researchers have no way of knowing whether the stories are fabricated. The court, however, did not address the expert’s reliance on what might be “junk science” in forming her opinions, since the opinions amounted to inadmissible vouching for the credibility of the alleged victims.

Vouching Testimony Regarding Interview Techniques

Brooke Rospierski testified as an expert in forensic interviewing and disclosure of sexual abuse in children. Psychologists are sometimes called as defense experts to explain how improper interviewing techniques can induce children to say what they think the interviewer wants to hear, whether or not it is true.

In this case, however, the expert was called by the prosecution. Rospierski did not confine herself to testifying about interviewing techniques but testified that she saw no “red flags” that would cause her to believe that “either child was coached or pressured to fabricate any allegations.”

In some states, that kind of testimony would be admissible to rebut a defense expert’s testimony that the statements made by children could have been produced by improper interview techniques. In this case, since the prosecution called Rospierski before the defense presented its case, her testimony had no purpose other than to bolster the credibility of the accusers.

The court concluded that Michigan law precludes an expert from testifying that a child has not been coached by interviewers if that testimony communicates a belief that the child was telling the truth. The line between commenting on interview techniques and vouching for the veracity of a child’s statement is a fine one, but the Court of Appeals decided that the expert’s testimony crossed that line.

Montana

Expert Testimony About the Value of a Statistical Life Rejected by Federal Court in Montana

The United States District Court for the District of Montana recently confronted an ongoing controversy in the measurement of wrongful death compensation. While different jurisdictions apply different standards for the compensation of wrongful death plaintiffs, a recurring question is whether damages should include the value of a statistical life. The district court decided that expert testimony regarding the damages was inadmissible.

Facts of the Case

Johnny Gibson was experiencing chest pain, heartburn, pressure between his shoulder blades, and fatigue. He was evaluated by Kimberlee Decker, a nurse practitioner at the federally funded Central Montana Community Health Center (“CMCHC”).

Decker referred Gibson for an ultrasound of his gall bladder. She did not order a heart workup, an EKG, or a stress test. Nor do the medical records suggest that she considered a heart problem as the cause of Gibson’s symptoms.

About a week later, Gibson had a heart attack. He died in surgery. The federal government, which employed Gibson, conceded her negligent deviation from the appropriate standard of care for a patient presenting with Gibson’s symptoms.

Gibson’s wife, children, and estate brought a wrongful death claim under federal law based on medical malpractice. Liability was not contested. The issues at trial involved the damages that the government should pay.

Damages Experts

Gibson’s wife testified that Gibson earned between $10,000 and $25,000 per year as a ranch worker and painter. He was often paid in cash or in-kind services (such as free lodging and hunting privileges) that was not reflected on tax returns.

The plaintiffs called Dr. Ann Adair, an Associate Professor of Economics, as an expert witness regarding damages. Gibson was about 63 years old when he died. Adair testified that Gibson would have worked another 4 years. Based on average earnings of Montana farm workers, she calculated his lost earning capacity to be about $150,000.

Sean Black, a CPA, testified as an expert for the government. He calculated lost earning capacity of about $17,000 based on Gibson’s reported earnings prior to his death.

The court accepted the testimony that Gibson’s earnings included unreported income, making Black’s calculation inaccurate. After finding Adair’s methodology to be reliable, the court accepted Adair’s estimate as the most reasonable approximation of lost earning capacity. The court also accepted Adair’s undisputed estimate that the lost value of household services that Gibson provided to his family was about $144,000.

Based on the testimony of Gibson’s cardiac surgeon and family members, the court found that Gibson experienced pain and suffering before his surgery. The court concluded that Gibson would have needed similar surgery and would have experienced similar symptoms even in the absence of medical malpractice. The court awarded only $10,000 for pain and suffering attributable to the failure to diagnose Gibson’s heart condition.

Value of a Statistical Life

The primary disagreement among the experts was whether the plaintiffs were entitled to compensation for the value of a statistical life, in addition to lost earning capacity. The value of a statistical life is not the value of a life, which is incalculable, but the value of reducing risks to life.

Adair testified that the value of a statistical life can be measured under either the revealed preference or stated preference theory. The revealed preference theory measures the extra compensation that workers require to take substantially more dangerous jobs or the amount people are willing to pay for insurance, safety gear, and safer products. The stated preference theory imputes a value from studies that ask individuals what they would do to avoid certain risks.

Adair calculated the value of a statistical life according to guidance provided by the United States Department of Transportation and by the Environmental Protection Agency. The Transportation Department methodology resulted in a value of $9.6 million while the EPA methodology resulted in a value of $7.4 million without adjusting for inflation.

The district court noted that many federal courts “have expressed skepticism” about basing wrongful death damages on the value of a statistical life. Government agencies value a statistical life for the purpose of making cost-benefit decisions about safety measures (such as pollution reduction technology) that reduce the risk of death. The court concluded that the government’s decision-making tools do not provide a reasonable or reliable measurement of damages for a wrongful death. Making a Daubert ruling, the court accordingly disregarded Dr. Adair’s testimony regarding the value of a statistical life.

The court did not explain why Dr. Adair’s methodology was unreliable. It seemed to decide as a policy matter that the value of a statistical life cannot be awarded as damages in a wrongful death case. Curiously, it did so without considering whether controlling law — in this case, Montana state law — would permit an award of damages for the value of a statistical life. Other federal courts might reach a different decision about the reasonableness of an expert’s opinion concerning the value of a statistical life, depending on state court precedent regarding wrongful death damages.

 

Ohio wooden Mallet

Expert Opinions in Ohio Prosecutions Should Be Excluded If Not Disclosed in Report

Ronald Boasten was convicted of murdering his ex-wife, Brandi. They married after Brandi became pregnant and soon divorced after she had an affair. The couple reconciled and had another child together but did not remarry.

Several years after they reconciled, Ronald suspected that Brandi was having another affair. After Ronald placed spyware on Brandi’s mobile phone, Brandi moved out of their home. She returned every day, however, to spend time with their children.

Ronald continued to monitor Brandi’s texts with the spyware he installed on her phone. After reading a series of suggestive texts, Ronald borrowed a gun from a friend. Ronald said he wanted to take care of a problem but did not mention Brandi.

The day after Ronald borrowed the gun, a hunter found Brandi’s SUV parked in a field with its engine running. The police discovered Brandi’s body in the SUV’s cargo area. A forensic pathologist determined that she had been strangled.

None of Ronald’s DNA was found on the body or in the SUV. A hair from Brandi’s head was found on a buckle on one of Ronald’s gloves. However, since Ronald and Brandi had been together for years, the hair was far from conclusive evidence of Ronald’s guilt.

Autopsy Report

A forensic pathologist autopsied Brandi’s body. She determined a time of death based on stomach contents. While the pathologist prepared a report that described the autopsy and offered an opinion as to the cause of death, the autopsy report included no opinion regarding the time of death.

The pathologist placed the buckle on Ronald’s glove against an abrasion on Brandi’s face and determined that the abrasion was “consistent with” the buckle and Velcro on Ronald’s glove. The autopsy report said nothing about the purported “consistency” between the glove buckle and the mark on Brandi’s face.

The pathologist mentioned her opinion about the glove buckle during a meeting with Brandi’s lawyer 19 days before trial. During the meeting, she also offered an opinion about the time of death. Brandi’s lawyer told the prosecutor that the autopsy report should be supplemented with this undisclosed information. The prosecutor declined to do so.

Failure to Disclose Expert Opinion Prior to Trial

Rule 16(K) of the Ohio Rules of Criminal Procedure requires an expert witness for either side in a criminal prosecution to “prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion.” The report must be disclosed no later than 21 days before trial. Failure to make the required disclosure “shall preclude the expert’s testimony at trial.”

The prosecution clearly violated discovery rules by failing to disclose two important expert opinions in a written report 21 days before the trial: time of death and alleged consistency between an abrasion and the buckle on Ronald’s glove. Ronald’s lawyer moved to exclude those opinions because that is the remedy for nondisclosure that Rule 16(K) requires.

The trial judge nevertheless admitted the opinions because defense counsel had the autopsy report that omitted those opinions a year before the trial and “chose” to meet with the pathologist 19 days before trial. Neither of those facts speak to the prosecution’s failure to follow the rule.

The court of appeals affirmed that ruling because courts are given “broad discretion” to make evidentiary rulings. However, courts have no discretion to make legally incorrect rulings. The Ohio Supreme Court therefore accepted review to determine whether a failure to disclose expert opinions 21 days before trial should result in exclusion of those opinions.

Appellate Analysis

Rule 16(K) allows the court to modify the 21-day deadline for good cause if the modification is not prejudicial. If the prosecution had asked the trial court in advance of trial to permit the late filing of a supplemental report, it might have cured the problem. Instead, prosecutors arrogantly refused to produce a supplemental report and did not ask for the deadline to be modified. Why prosecutors should be rewarded for flouting discovery rules is unclear.

The state supreme court noted a split in lower court decisions about whether Rule 16(K) means what it says. The text of the rule is written in absolute terms. The rule gives courts discretion to amend the disclosure deadline for good cause, but it grants no discretion to admit exert opinions that have never been disclosed in a written report. The supreme court concluded that “if a court rule is unambiguous, it is to be applied as written.”

Lessons Learned

The trial court erred by admitting the expert opinions that were not included in the written autopsy report. Having made the correct decision, the supreme court then upheld the conviction, ruling that the error was harmless because the defense lawyer knew about the expert’s opinions before trial and was able to cross-examine the expert about them.

The holding essentially nullifies Rule 16(K). The harmless error analysis does not depend on whether the defense cross-examined the expert, but on whether the trial outcome might have been different if the improperly admitted evidence had been excluded. Given the circumstantial nature of the evidence linking Ronald to the crime, it is difficult to conclude that evidence purporting to match Ronald’s glove to the wound on Brandi’s face did not influence the verdict.

Perhaps the defense should have anticipated that the trial judge would ignore Rule 16(K) and should have hired an expert to explain why the mark on Brandi’s face could have been caused by any number of objects. For the same reason that bite mark evidence is unreliable, an eyeballed opinion that Ronald’s glove buckle was consistent with the abrasion is not based on sound science. The lesson to learn is that defense lawyers should always be prepared to call an expert to challenge a prosecution expert, particularly when the prosecution is relying on doubtful expert opinions.

 

DNA

Infectious Disease Experts Will Be Critical to Lawsuits Alleging Negligent Spread of COVID 19 Infections

As the COVID-19 virus has swept the nation, lawyers are being asked whether individuals or businesses can be held liable for failing to prevent infections. Some businesses have denied employees an opportunity to work from home while asking them to sign a “voluntary” waiver of liability for infections they contract by coming to work. Since employees who fail to sign are laid off, conditioning a paycheck on the risk of acquiring an infection might be seen as coercive rather than voluntary.

Whether employers will be deemed negligent for denying work-at-home opportunities, and whether they can protect themselves from liability by conditioning future employment on a liability release, are open questions. Party-divided senators are debating whether federal legislation should protect employers from liability or whether states should be entitled to decide what has historically been a question of state law.

A clearer case of liability is posed by businesses that fail to protect patrons from infections. When outbreaks can be traced to infected servers at a restaurant, for example, the restaurant may be liable for allowing servers to handle food or interact with customers without wearing masks or gloves. How to assure the safety of patrons is a question that will grow in importance when the economy begins to reopen.

The most obvious cases of infectious disease negligence involve nursing homes and other care facilities that fail to protect patients from the spread of COVID-19. A nursing home in Hayward, California has been threatened with legal action after 25 staff members and 41 residents tested positive for a novel coronavirus infection. Nine residents died from the virus. Attorneys are investigating allegations that staff members were compelled to work despite having symptoms of a COVID-19 infection.

Nursing Home Negligence and COVID-19

There’s no doubt that nursing homes and similar healthcare facilities are in a tough position. USA TODAY reports that a minimum of “2,300 long-term care facilities in 37 states have reported positive cases of COVID-19” and that 3,000 residents have died. The actual numbers are likely higher, as some states (including Florida) did not answer USA TODAY’s request for data.

At least 127 of 163 elderly residents at a nursing home near Richmond, Virginia have fallen ill with COVID-19. At least 35 of its staff members have tested positive for the virus, leading to a staff shortage that may further endanger residents. The facility’s medical director says the nursing home was taken by surprise, although the risk of a global outbreak was widely reported by February.

Since infections spread rapidly and infected individuals are not always symptomatic, nursing homes that exercise reasonable care to protect their residents might still experience a coronavirus outbreak. Yet USA TODAY found that even before the pandemic, 75% of nursing homes had been “cited for failing to properly monitor and control infections in the past three years.”

Questions Experts Will Need to Answer

Elderly patients and individuals with compromised immune systems are particularly vulnerable to life-threatening conditions caused by the COVID-19 virus. Whether a nursing home is responsible for the spread of COVID-19 in a vulnerable population may require experts to answer difficult questions, including:

  • What are the costs and benefits of isolating vulnerable patients during a pandemic?
  • Would prudent management require staff members to wear masks and gloves during all interactions with patients?
  • Should nursing homes stop admitting new residents to reduce population density and further the goal of social distancing?
  • What precautions should management take to assure that nurses and other staff members are not infected?
  • Should management have recognized the symptoms of a potential infection and sent potentially infected staff members home until they received a negative test result?
  • Did the facility take all necessary steps to disinfect rooms and common areas where the virus might linger?

Similar questions arise with regard to other confined settings, including jails, cruise ships, and hospitals. While preventing the spread of an infectious disease can be extraordinarily difficult, expert witnesses can determine whether certain elementary precautions — such as preventing a person with a cough from working until the employee tests negative for COVID-19 — should have been taken.

Infectious Disease Experts Making a Difference

Expert witnesses are likely to testify about COVID-19 in a variety of contexts. Lawsuits in Wisconsin, for example, allege that the failure to move the April 11 election disenfranchised voters who did not visit a crowded polling place for fear that they would acquire the virus and expose vulnerable family members to it. Infectious disease specialists and public health experts will likely be called upon to testify that those fears were legitimate.

Expert witnesses also assisted the ACLU in bringing a lawsuit seeking the release of four migrants detained by ICE in a crowded facility. Expert evidence established that the migrants had “medical conditions that make them highly vulnerable to serious illness and death if infected with COVID-19.”

The lawsuit contended that twelve detainees and one staff member had been infected with COVID-19 and that staff did not regularly wear gloves or masks to prevent the transmission of the virus. The lawsuit prompted ICE to release the detainees.

Infectious disease experts will continue play a vital role in informing the public as the pandemic continues to threaten lives. In the foreseeable future, they are likely to play critical roles as expert witnesses in litigation that holds negligent parties responsible for the preventable spread of this deadly disease.

dollar bills

Experts Debate Pay Disparities for Female Soccer Players

Sports Illustrated reports that expert witnesses will play crucial roles in a gender equity challenge that the U.S. Women’s National Team (USWNT) has made against the U.S. Soccer Federation, the governing body of the sport of soccer in the United States. Daubert challenges may shape the expert testimony that the jury hears. The magazine notes that “arguing over expert witnesses illustrates how much experts could potentially sway juror opinion” in a complex case that offers competing views of how two different pay systems should be compared.

The members of the USWNT collectively sued U.S. Soccer for gender discrimination. The lawsuit contends that U.S. Soccer gives contracts to female players that are less favorable than the contracts it gives to male players. The USWNT members argue that the disparity cannot be explained by job duties or job performance. A May trial date was recently postponed to June because of the coronavirus epidemic.

In a public relations blunder, U.S. Soccer tried to win summary judgment by claiming, in part, that female players “did not perform work of equal skill, effort and responsibility” as male players. The organization made that argument notwithstanding that the USWNT has won two consecutive World Cup titles, while the Men’s National Team has never placed higher than third, a feat it last accomplished in 1930.

The suggestion that women don’t play as hard or as well as men caused a backlash that resulted in the resignation of U.S. Soccer’s president, the firing of its lawyers, and the withdrawal of that assertion. The lawsuit, however, continues.

Disparate Pay

U.S. Soccer now focuses on the argument that compensation statistics do not support the claims made by the USWNT players. In 2019, the president of U.S. Soccer released data that, in his view, proves that female players were paid more in salary and game bonuses than male players from 2010 to 2018. The USWNT players dispute that data, as do members of the Men’s National Team, who issued a statement accusing U.S. Soccer of resisting “any concept of equal pay or basic economic fairness for the USWNT players.”

Analysis of compensation data is complex. The men’s team and the women’s team are represented by separate unions that have negotiated contracts with different structures. Players on the men’s team are only paid if they are called up for a game or training camp. They also participate in bonuses for playing in certain games and earn higher bonuses if the team wins certain games or qualifies for the World Cup.

The 17 players who are signed to contracts on the women’s team are paid whether or not they are called up. The remaining “non-contract” players, like players on the men’s team, are paid an appearance fee if they are called up and can earn bonuses based on the team’s performance.

Although the contract structure is arguably better for the women’s team, the pay is arguably better for players who are called up to play on the men’s team. According to ESPN, “making a World Cup team will net a men’s player $68,750. A women’s player will make $37,500 for making the World Cup squad.” Other bonus payments are also higher for men than for women.

Challenges to Labor Law Expert

Given the difference in contract structure, expert testimony is essential to determining whether a pay disparity exists. Each side is relying on experts to make its case.

The USWNT recently made Daubert challenges to the proposed testimony that three experts plan to give on behalf of U.S. Soccer. The first challenge involves Philip Miscimarra, a labor lawyer who was chairman of the National Labor Relations Board (NLRB) under President Trump. He proposes to testify that U.S. Soccer has complied with civil rights laws and has not discriminated against female players.

The players object that the judge is the only expert in the law and that Miscimarra’s attempt to explain U.S. Soccer’s alleged compliance with the law to the jury could result in confusion. The players contend that his “misleading” testimony might make the jurors believe he knows more about civil rights law than the judge.

Miscimarra also contends that the players’ union agreed to the terms of their compensation and that finding their compensation to be unlawful would undermine federal labor law. Whether applying civil rights laws to collective bargaining agreements is good or bad seems like a policy argument for a court to decide rather than the kind of factual determination that juries make.

The players also note that the Equal Pay Act expressly states that “collective bargaining agreements are not a defense” and that “any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the Equal Pay Act are null and void and of no effect.” Appellate courts have held that collective bargaining agreements cannot perpetuate unlawful discrimination. If the judge decides that those statutory pronouncements and precedents apply to this case, they would seem to foreclose Miscimarra’s opinion.

Challenges to Forensic Accountant

Carlyn Irwin, a forensic accountant, opined that the total pay received by male players should be compared to the total pay of female players. The players argue that the rate of pay, not the total pay, is the better comparison. Given the recent success of female players, their total pay reflects bonuses for winning World Cups that male players did not earn. However, given their different rates of pay, male players would have earned more money than female players if their team had achieved comparable World Cup success.

The judge has signaled, but not decided, that rate of pay is a better comparator than total pay because it is less likely to be influenced by variables (like team success) that change from year to year. In any event, the proper basis for comparison seems like a legal question for the judge to decide, not a factual question that should be left to the jury. If the judge regards it as a legal question, Irwin’s testimony will likely be excluded as irrelevant.

Challenges to Labor Economist

Justin McCrary, a labor economist who is a professor at Columbia Law School, would opine that neither pay system “is systematically better or worse” and that “there is no single rate of pay for either” group. He also points out that members of the USWNT earn more than members of the men’s team when they play “friendlies” (international matches occur outside of tournament competition). Consequently, he reasons, the pay system for the women’s team is not inferior to the pay system for the men’s team.

The USWNT challenges McCrary’s analysis on the ground that it is based on hypothetical assumptions rather than actual data. The USWNT contends that McCrary assumed that the woman’s team would pay “an unrealistically small number of games” as opposed to the number of games that the team actually plays each year. Using the actual data rather than the assumed data, according to the WNT, undermines McCrary’s conclusions.

McCrary also argues that some members of the women’s team earn more than some members of the men’s team. Some female players, for example, earn pay when they are injured and cannot be called up, while injured male players earn no pay because men are only paid if they are called up. Women also receive maternity pay that men do not receive. The WNT argues that individual comparisons are misleading because women as a whole earn substantially less than men when the teams play a similar number of games and achieve comparable success.

Ruling to Come

The court had scheduled a hearing on the motion (as well as the USWNT’s summary judgment motion) for March 30, 2020. The court removed that hearing from the calendar due to coronavirus concerns. It stated its intent to decide the motions based on the parties’ submissions. The rulings may come within the next several weeks.

Expert Witness Report Alleges Negligence in Prison Death

Expert Opinions Offered in Support of Challenges to Death Penalty Protocols

Public opinion about the death penalty has been shifting since the mid-1990s, as DNA testing and other evidence has revealed the frequency with which innocent defendants are sent to death row. Opinions have also been swayed by the realization that the death penalty is administered arbitrarily, with race often proving to be a critical factor as courts decide who should live and who should die.

Colorado recently became the latest of 22 states to reject the death penalty. The governors of three other states have imposed a moratorium on executions. States that maintain a death penalty have turned to experts in an effort to determine whether executions can be carried out in a way that does not torture the condemned prisoner.

Expert Testimony in Death Penalty Challenge

Experts continue to inform the ongoing death penalty debate. Last year, expert testimony in Ohio persuaded a federal court that Ohio’s method of executing prisoners was likely to cause extreme pain. The court relied on the testimony of several expert witnesses to support its conclusion.

Ohio’s lethal injection protocol begins with an injection of midazolam, a sedative that, in the administered dose, can make it extraordinarily difficult for an inmate to breathe. Inmates next receive a paralytic drug to prevent them from moving, followed by potassium chloride, which stops the heart.

Warren Henness, among other inmates, challenged the three-drug protocol. He argued that the paralytic makes it impossible to alert the authorities to the extreme pain caused by the drugs. He contended that midazolam causes extraordinary pain and does not shield inmates from feeling that pain before they die.

Henness supported his challenge with testimony from five expert witnesses, including a neuropathologist, a pulmonologist, a pharmacologist, a professor of anesthesiology who is also certified as a clinical pharmacologist, and an anesthesiologist who is certified in pain management. Each expert had impressive credentials.

The magistrate judge who heard Henness’ challenge excluded a government expert witness who, in this and other cases, had failed to produce an expert report containing the information required by federal law. The court rejected a Daubert challenge to another witness for the state, while expressing doubt that the expert’s opinion was entitled to significant weight.

Another government witness was excluded prior to trial because he had published little relevant research and was largely repeating the opinions of other experts. In addition, the minimal research that he had performed contradicted the opinions that the state wanted him to offer in court.

Court’s Analysis of Expert Evidence

Based on the expert testimony, the magistrate judge found that the second and third drugs cause excruciating pain, a finding the state did not contest. The magistrate judge also found that midazolam does not block the pain caused by the injection of the second and third drugs. An inmate who is sedated by midazolam is not unconscious and, as multiple lay witnesses at executions have observed, is capable of experiencing severe pain.

Midazolam, in the dosage given by the state, is also likely to cause pulmonary edema, an extremely painful condition that causes airways in the lungs to fill with fluids, creating the sensation of drowning. In other words, Ohio’s execution protocol is akin to waterboarding, a form of torture. In fact, the experts explained, it is worse than waterboarding because the sensation of drowning is accompanied by excruciating pain as chemicals cause the inmate to feel like fire is flowing through the inmate’s veins.

In light of Supreme Court precedent, the magistrate judge declined to halt Henness’ execution because he was unable to demonstrate that Ohio had the ability to kill him more humanely. On appeal, in a remarkably cursory opinion that essentially ignored expert evidence that the magistrate judge carefully parsed, the Sixth Circuit determined that a pulmonary edema is not sufficiently painful to create the “needless suffering” that violates the constitutional safeguard against cruel and unusual punishment. One wonders whether a judge who actually experienced a pulmonary edema might express such a callous opinion.

The Sixth Circuit’s opinion has been justly criticized for elevating “junk science” above expert evidence that was accepted by the trier of fact. By underplaying the extent of the suffering caused by the execution protocol, the Sixth Circuit is permitting what well qualified experts regard as death by torture — exactly the kind of cruel and unusual punishment that the Eighth Amendment forbids.

Expert Opinions Sway the Governor

Based on the expert testimony, Ohio Gov. Mike DeWine granted a temporary stay of Henness’ execution. The governor ordered a review of the state’s execution protocol, with a view to replacing midazolam with a drug that would not cause pain and that would prevent the inmate from feeling the pain caused by the remaining drugs.

When Gov. DeWine was told that no such drug could be identified, he asked the Ohio Department of Rehabilitation and Correction whether other methods of execution would be less painful. That review is apparently still underway. Henness’ execution has been rescheduled three times and is currently set to occur May 14, 2020. The governor postponed other executions and has not yet decided when and whether Ohio executions will resume.

Some other states have abandoned execution protocols that use midazolam. Fearing an agonizing death, Tennessee inmates have chosen electrocution over the administration of midazolam. Most states, however, do not give condemned prisoners a choice of execution methods. Whether Tennessee, Ohio, and other states that still use midazolam in executions will eventually hear the voices of expert witnesses remain to be seen.

 

North Carolina

False Confessions Expert Casts Doubt on Convictions of Four North Carolina Defendants

Relying on expert evidence, the North Carolina Innocence Inquiry Commission decided that four men from Winston-Salem have produced substantial evidence of their probable innocence. Rayshawn Banner, Christopher Bryant, Jermal Tolliver, and Nathaniel Cauthen had been convicted of causing the 2002 death of Nathaniel Jones, the grandfather of NBA player Chris Paul.

Three of the four men were 15 when the crime was committed; the other was 14. Two of the men finished their sentences in 2017, while two are serving a sentence of life without parole. A fifth man convicted of the crime died after his release from prison.

Jones owned a gas station. After returning home from work one evening, he was beaten and robbed. He suffered a fatal heart arrhythmia that doctors attributed to the beating.

Substantial DNA was recovered from the crime scene, but no DNA samples matched any of the defendants. The police also “matched” a partial shoeprint to a common sneaker that was found in one defendant’s home, but the sneaker did not belong to the defendant, who had a smaller shoe size.

Trial Evidence

Jessicah Black, who was 16 at the time, testified at trial that she drove the defendants to the scene of the crime. Black later recanted. She explained to a reporter that she had been pressured by police detectives to tell the story they wanted to hear. She feared that she would be sent to jail if she did not give the testimony that the police detective insisted was the truth.

Courts have generally adopted the rule that recantation testimony does not warrant a new trial. The rule is premised on the notion that all recantations are unworthy of belief because a witness who tells inconsistent stories is not credible. Of course, if the witness is not credible, then the recanted testimony is just as unworthy of belief as the recantation. In a nation that values juries as factfinders, one might expect to see recantation evidence evaluated by a jury at a new trial rather than being rejected wholesale by judges for the sake of preserving doubtful convictions.

Since recantations rarely serve as grounds for a new trial, police officers have little to fear if they pressure witnesses into giving false testimony. The recantation rule shields the police from concern that an eventual recantation of pressure-induced testimony will affect a conviction.

In addition to Black’s testimony, prosecutors relied on confessions given by the young defendants. All four told the Innocence Commission that they were pressured into giving false confessions. Cauthen, for example, testified that the investigating detective told him that he would receive a lethal injection if he did not confess. The confessions all but assured that the boys would be convicted.

Many jurisdictions have adopted laws that require the police to record custodial interrogations to assure that confessions are not coerced. North Carolina adopted a recording law with regard to homicide interrogations in 2007. It was not in effect when the four young men were interrogated.

False Confessions

Research demonstrates that police pressure causes false confessions. Psychologists have found that police detectives presume the guilt of the people they interrogate. Even detectives who play by the rules (and coercing a confession is clearly against the rules) “ask questions and interpret the responses in such a way as to confirm guilt. Even denial is seen as evidence of guilt.” Young people are more likely than adults to make a false confession in response to police pressure.

Psychologists have found that “under the intense isolation and stress of a long interrogation, investigators willingly or unwillingly can place intense psychological pressure on suspects.” Young suspects tend to be deferential to authority figures. They say what they are expected to say, and sometimes come to believe that the statements they are prompted to give must be true.

Expert Testimony

Hayley Cleary, a psychologist with expertise in false confessions, compared the case of the four young men “to the Central Park 5 case, in which five black and brown teenagers were convicted in the brutal beating of a white jogger in 1989, based on false confessions and without forensic evidence.”

Cleary testified that the interrogator used “maximization techniques” to take advantage of the young defendant. Those techniques “heighten suspects’ anxiety, and make them feel like confession is inevitable.” Accusing the suspect of lying and shutting down protests of innocence are techniques designed to make a suspect agree with the interrogator, even if the suspect must lie to do so.

Two police detectives admitted that they told the minors that they could receive the death penalty. Those threats were untrue, as North Carolina law did not permit executions for crimes committed by minors. Threatening a dire punishment is a “maximization technique.”

Cleary explained that the brains of children have not developed sufficiently to allow them to appreciate the consequences of making a false statement. When (as happened here) a detective tells a suspect they will be allowed to go home if they confess, giving a confession might seem like a good idea. In addition, children are less likely than adults to realize that American courts (unlike courts in much of the world) allow the police to lie to a suspect in order to induce a confession.

Cleary testified:

The idea of being relieved from a stressful interrogation or getting away from an uncomfortable or psychologically painful environment can be overwhelming to youth. And we’ve seen it in cases of documented false confessions, and I see indicators of this in the current case as well. For example, three of the defendants — Nathaniel Cauthen, Jermal Tolliver and Christopher Bryant — testified in their suppression hearings that they just wanted to go home. And they were specifically responding to interrogators’ questions by saying, “I want to go home.”

In addition, none of the four have an IQ above 80, suggesting severe cognitive defects that an adult authority figure can easily exploit to induce a false confession.

Hearing Outcome

The Innocence Commission voted 5-3 to find that there was ““sufficient evidence of factual innocence to merit judicial review.” The prosecution refused to admit that it prosecuted innocent defendants and vowed to fight to preserve the convictions.

As a result of that finding, the case will move forward to a three-judge panel convened by the superior court. Both sides will present evidence to the panel, which will then decide whether the defendants are innocent. If panel members unanimously agree that the defendants proved their innocence by clear and convincing evidence, the four men will be exonerated.

 

Lab Analysts May Be Required to Testify in Person in Criminal Trials

Expert Admonished by Medical School for Allegedly Exposing Junk Science

The media often portray expert testimony as grounded in “junk science.” In some instances, particularly when discredited theories are dressed up as forensic science and offered as evidence against criminal defendants, “junk science” is an apt description.

Yet most expert testimony is based on sound principles of science. The insurance industry and corporate lobbyists have nevertheless engaged in a public relations campaign to convince the public (and potential jurors) that any expert evidence offered against defendants in civil cases is based on “junk science” and thus unworthy of belief.

Johnson & Johnson has faced tens of thousands of lawsuits alleging the marketing of cancer-inducing products, dangerous drugs, and defective hip, knee, and mesh implants. It isn’t surprising that J&J has been a leading proponent of the “junk science” meme, notwithstanding a Reuters investigation that accused J&J of promoting its own junk science while concealing and slanting evidence about the safety of its products.

A prominent expert who testifies in litigation against J&J co-authored a paper that criticized a study conducted by DePuy Synthes, a J&J subsidiary. The paper essentially accused DePuy of using the techniques of junk science to attain results that favored a DePuy product. A Grievance Committee has questioned whether pressure from J&J may have persuaded Brown University to take action against the expert witness.

David Egilman’s Expert Testimony

A 2019 profile in Science described David Egilman, a professor of family medicine at Brown University, as a “bloodhound” who sniffs out corporate misconduct by scouring “corporate records uncovered during litigation, invariably finding memos and studies showing that companies knew about industrial hazards long before warning employees or the public.”

His detractors complain that Dr. Egilman is an advocate for plaintiffs rather than a neutral witness. The same criticism could be made of the expert witnesses who primarily testify on behalf of corporate defendants.

The ultimate question is whether an expert is an advocate for the truth. The Science profile quotes a number of experts who acknowledge that Dr. Egilman is passionate about the positions he takes while praising his rigorous application of science to the facts he uncovers.

Dr. Egilman has testified in multiple lawsuits that allege harms caused by chemical exposures, unsafe drugs, and defective products. He has earned the wrath of Johnson & Johnson by giving testimony that juries have found to be credible in cases that involve hip replacements and carcinogenic talc products.

J&J Seeks Retraction

In 2017, Dr. Egilman published “a peer-reviewed paper that accused a Johnson & Johnson company of publishing a poorly designed study.” The paper concluded that DePuy’s study was “a covert ‘seeding trial,’ which aimed to generate data for marketing their Pinnacle hip replacement system rather than study empirical results of the product’s use.”

The Brown Daily Herald reports that J&J asked the journal in which Dr. Egilman’s paper was published to retract it. J&J argued that Dr. Egilman was biased because he acted as an expert witness in a class action lawsuit against DePuy. Of course, it is exactly his expertise in the field that qualified him both to evaluate DePuy’s study and to serve as an expert witness.

Neither Dr. Egilman nor the other authors were paid to write the paper. No plaintiffs’ lawyers had input into the paper. Dr. Egilman made appropriate disclosures, permitting readers to come to their own conclusions about potential bias. The journal that published the article concluded that no grounds existed to retract it.

Brown University Takes Action Against Dr. Egilman

In an apparent response to J&J’s pressure, Brown University sent Dr. Egilman a cease-and-desist letter. The Brown Daily Herald reports that “the letter requested that Egilman remove his Brown affiliation from his publication” and demanded that Dr. Egilman “disclose when his research was not a product of his work at Brown on future papers.”

The University also cancelled a class that Dr. Egilman had taught repeatedly since 1987. According to the course description, the bioethics class, “Science and Power: The Corruption of Public Health,” focuses on “corporate influence and corruption in medicine and other topics that relate to medical and public health decision making.”

Suspicions of Corporate Influence

Dr. Egilman filed a grievance, asserting that “undue corporate influence on his research and teaching activities” had persuaded the University to interfere with his academic freedom. The University Grievance Committee conducted an investigation.

The Grievance Committee found that the University acted arbitrarily when it instructed Dr. Egilman to remove his University affiliation from his publications. The Committee also found that the instruction was “in express violation of University policy that states that faculty involved in outside activities may reference their Brown appointments in publications.”

The Grievance Committee concluded that Dr. Egilman’s class was cancelled because several deans of the School of Public Health thought his employment would be terminated because of his peer-reviewed journal article. Why deans who failed to investigate the facts would believe a tenured professor could be fired because of a corporate complaint is unclear.

The Grievance Committee did not find direct evidence of corporate influence on the University’s decisions, a charge the University denies, but it concluded that the decisions were “inherently suspicious and (they open) the door to the perception of corporate influence.” The Grievance Committee recommended that the University withdraw its cease-and-desist letter and that it reinstate Dr. Egilman’s class.

The University has made no public comment about the Grievance Committee’s recommendations. Since Brown University has suspended classes in light of the COVID-19 crisis, the University might not be in a position to take action in the near future.

Expert Silenced for Giving Truthful Testimony

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

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

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

Release from Confinement

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should not continue to be confined.

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

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

Sexual Predator Laws

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

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

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

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

Expert’s Study Undermines Premise of Sexual Predator Laws

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

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

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

Padilla’s Expert Testimony

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

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

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

Expert Silenced for Telling the Truth

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

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

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state responded with a shocking claim that it could not verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

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

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

 

Expert Witness

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

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

The Underlying Suit

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

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

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

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

Proposed Expert Testimony

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

Dr. Ang was the author of an article that was published in Law360 entitled, “Student Loan Repayment Options in Light of CFPB v. Navient.” Navient’s counsel approached Dr. Ang about testifying on Navient’s behalf based on writing this article. Her expert report, which Navient proposed to rebut one of CFPB’s experts, reflects the information contained within her article.

Claim of Conflict of Interest

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

The CFPB objected to Dr. Ang testifying as an expert for Navient, claiming a conflict of interest. The CFPB argued that Dr. Ang should be disqualified from testifying as an expert because she worked for CFPB during its investigation of Navient.

Special Master’s Report

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

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