An air-conditioning engineer has testified that the portable air conditioning units in a Florida nursing home where twelve elderly patients died of overheating made the conditions worse.

The Deaths

The Rehabilitation Center at Hollywood Hills is a 150-patient facility that lost its main air conditioning system during Hurricane Irma. The system was knocked out on September 10; by September 13, patients began dying and the facility was evacuated. Twelve patients died as the result of overheating. The deaths were ruled homicides. Authorities say that the temperature in the home reached dangerous levels, despite the nine portable air conditioners that were deployed after the main system was knocked out. Florida law requires nursing homes to maintain a temperature of 81 degrees or less.

The Lawsuit

Following the deaths, Governor Rick Scott ordered the state Agency for Health Care Administration (AHCA) to prevent the home from taking on new residents. AHCA also stopped Medicaid patients and eventually pulled the Rehabilitation Center’s license, alleging that the Rehabilitation Center presented a threat to public health, safety, or welfare and that “deficient practices exist presently and will more likely than not continue to exist if the agency does not act promptly.” The Rehabilitation Center closed its facility and laid off 245 employees.

The nursing home filed a lawsuit against the state, seeking injunctions against AHCA’s orders. The Rehabilitation Center claimed, “With the stroke of a pen, AHCA (the Agency for Health Care Administration) has effectively shut down Hollywood Hills as a nursing home provider in Broward County. . . . These illegal and improper administrative orders took effect immediately and without any opportunity for the facility to defend itself against unfounded allegations.”

The state hired William Crawford, an air-conditioning engineer, as an expert witness. Crawford offered testimony in the form of a deposition before the Rehabilitation Center’s attorney, Geoff Smith. Crawford testified that the portable air conditioners used by the home were insufficient and that they only produced about 10 percent of the cooling capacity of the home’s central air conditioner that was knocked out by the storm.

Crawford testified that the air conditioners were not properly vented. Air conditioners function by taking hot air from an enclosed space and moving it outside. The Rehabilitation Center’s first floor portable air conditioners vented the hot air to the ceiling, which meant that the first floor’s hot air went to the second floor and back to the first floor. Crawford testified that the air temperature between the first-floor ceiling and second floor floor ranged somewhere between 95 degrees and 110 degrees.

Crawford said that the improper ventilation of the air conditioners caused the temperatures within the building to increase. He said, “I can say with certainty it was above 81” in most of the facility. He conceded that it was possible that it was cooler within the 9 feet of the five portable units that were on the first floor; however, he asserted that “There was no way they maintained 81 degrees on the second floor.”

A federal judge has ruled that two expert witnesses for the plaintiff will be allowed to testify in a negligence lawsuit against Carnival Cruise Lines and its partners.

The Incident

In 2015, David Carideo was on an electronic music themed “Groove Cruise” run by Carnival Cruise Lines and Whet Travel Inc. During this cruise, alcohol was sold both on the ship and  during shore excursions. Carideo alleges that he was attacked by two of his fellow passengers. Carideo claims that his attackers threw him to the ground and beat him, resulting in a fractured skull and permanent injury to his head. A Carnival security officer who was patrolling the deck above heard the altercation and responded to the scene, but by the time he arrived, Carideo had already been beaten.

Expert Witnesses

Carideo filed a negligence suit against Carnival and its partners in the U.S. District Court in the Southern District of Florida. Carideo claims that the attack was fueled by alcohol. He alleges that Carnival and Whet Travel benefited financially from selling alcohol in profuse quantities and that security measures were insufficient to ensure passenger safety. Carideo claims that the Groove Cruise was “three days of partying, billed as an electronic music dance party” where passengers “became intoxicated to the point of vomiting around the ship and reaching points of inebriation, such that they became physically ill.”

Carideo retained Dr. Ross Klein and Howard Wood to testify as expert witnesses. Dr. Klein is sociologist who the plaintiff retained to testify as an expert on the cruise industry and plans to offer testimony on the foreseeability of crime on a cruise ship. Wood is a security and counterterrorism expert who will testify about Carnival’s security measures and its ability to prevent crime onboard its ships.

Carnival filed a Daubert motion, challenging the testimony of both proposed experts. In the motion, Carnival argued that Dr. Klein and Mr. Wood’s opinions were not supported by a reliable methodology and that they were based on lack of applicable expertise. Carnival noted that Dr. Klein did not have any academic training in law enforcement, criminology, security, criminal investigations, or tourism. Carnival challenged Mr. Wood’s opinions because his report did not explain how or why his experience led to an acceptable and reliable methodology and because his report was full of advocacy.

Carnival essentially asked the court to rule whether a person can testify as an expert witness if he or she has no formal academic training or actual work experience in the field, but instead obtained knowledge through research and review.

U.S. Magistrate Judge Jonathan Goodman ruled that Dr. Klein and Mr. Wood will be allowed to testify and stated that any doubts that the defendants have about the expert’s credibility are best addressed during cross-examination. In his order, Judge Goodman stressed that “a less-than-perfect expert opinion may still be admitted, even if it contains gaps” and noted that the court “must be careful not to conflate questions of admissibility of expert testimony with the weight appropriately to be accorded such testimony by the fact finder.”

A ballistics expert has offered testimony in the federal lawsuit over the fatal shooting of 17-year-old Justus Howell that happened in 2015.

The Shooting

In April 2015, Zion police officer Eric Hill responded to reports of a fight between two men and gunshots. According to authorities, Justus Howell had been trying to steal a semi-automatic pistol from a man from whom he had originally arranged to purchase it. A surveillance video shows the two men fighting, Howell pointing the gun at the other man, the man pushing the gun away, and the gun discharging.

Officer Eric Hill arrived on the scene. Hill claims that after a short chase and telling Howell to stop, he saw a flash of silver in Howell’s hand that he determined to be a gun. Hill says that he feared for his life and the lives of the other officers, so he shot Justus Howell two times.

In May 2015, Lake County State’s Attorney Michael Nerheim found that Officer Hill’s use of force was justified.

Trial Testimony

Howell’s grandmother sued Hill and the city of Zion for damages, claiming that Officer Hill acted recklessly and with excessive force when he shot her grandson. The attorney for the plaintiff argued that Hill covered up his actions after the shooting and that he “doctored” the scene. The plaintiffs argue that the gun found on Howell was in his pocket and later placed on the grass.

Attorneys for the plaintiff retained Ronald Scott as an expert witness. Scott is a forensic ballistics expert who has served 25 years with the Massachusetts State Police. Scott reviewed all of the documents related to the shooting, the surveillance video footage, and Hill’s personnel files. Scott testified that he “consider[ed] [Hill] to be an above-average trained police officer.”

Scott testified that the forensic evidence and the surveillance video show that Howell was nearly doubled over when he was shot by Hill. This would be inconsistent with Hill’s statement that he fired at Howell after he had turned a gun on him.

Scott also testified that he was able to determine Hill’s approximate position during the shooting by analyzing the shell casings that were found at the scene and Howell’s autopsy. Scott testified that Hill shot Howell and the bullets entered his body diagonally from the left to the right.

Scott also noted that the surveillance video did not show a reflection of a gun or light-colored object in Howell’s hand. The gun that was found at the scene had a silver finish.

Defense attorney Thomas DiCianni questioned Scott’s credibility and testimony. DiCianni cited to a deposition whether lawyers hired him to “bust a hole” in Hill’s testimony. Scott replied that his responsibility is to the evidence. DiCianni cited a forensics handbook on police shootings that said that shell casings were unreliable evidence. DiCianni also pointed out the the gun found at the scene had a matte finish, so would not have flashed in the video footage.

Verdict

The jury evidently rejected the expert testimony. It returned a verdict in favor of the defense, finding that the evidence failed to establish that Hill used excessive force.

The federal judge presiding over the high-profile Monsanto Roundup lawsuit has determined that the experts testifying against it have “shaky” opinions.

The Lawsuit

Monsanto is being sued by multiple parties who claim that the active ingredient in its herbicide Roundup, glyphosate, has caused non-Hodgkins lymphoma. The lawsuits were consolidated into a multidistrict case in San Francisco presided over by U.S. District Judge Vince Chhabria. This case includes over 700 farmers, landscapers, and gardeners who claim that their non-Hodgkin lymphoma was caused by exposure to glyphosate.

Glyphosate/Roundup is the most widely used agrichemical. It was introduced by Monsanto in 1974 and its use exploded in 1996 when Monsanto introduced “Roundup-ready” seeds that were engineered to resist glyphosate.

Expert Testimony

Judge Chhabria held a causation hearing and heard testimony from numerous experts including toxicologists, statisticians and an oncologist. Judge Chhabria was particularly interested in testimony from the epidemiologists, who study how human contract diseases. Judge Chhabria said, “I do have a difficult time understanding how an epidemiologist in the face of all the evidence that we saw and heard last week” can conclude that glyphosate “is in fact causing” non-Hodgkin lymphoma in humans. “The evidence that glyphosate is currently causing NHL in human beings” at current exposure levels is “pretty sparse.”

All but one of the plaintiffs’ experts relied upon a 2015 study conducted by the World Health Organization’s International Agency for Research on Cancer (IARC). The IARC study concluded that glyphosate is a probable carcinogen. Judge Chhabria said that the IARC study alone was not enough to argue that the glyphosate is more likely than not to be the cause of plaintiffs’ cancer. Other studies, including a 2017 review by the U.S. Environmental Protection Agency, have concluded that glyphosate is not a carcinogen. The attorney for the plaintiffs, Brent Wisner, argued that the judge should not reject experts because they relied on the IARC report and that he should dissect and consider the “subset of opinions” contained within their reports.

One of the plaintiffs’ experts conducted her own independent analysis. UCLA epidemiologist Dr. Beate Ritz testified that she reviewed over a dozen cases and was able to conclude “to a reasonable degree of scientific certainty” that glyphosate causes cancer in humans. Judge Chhabria called Dr. Ritz’s conclusion “dubious,” but questioned  whether it was “outside the range of a reasonable scientific conclusion that epidemiologists can draw?”

Attorney for Monsanto, Eric Lasker, argued that Dr. Ritz’s testimony should be rejected because her findings were based on “unadjusted odds ratios” and “confounded data.” Attorney for the plaintiffs, Aimee Wagstaff, said that their experts took confounding into consideration and that each expert considered both unadjusted and adjusted odds ratios.

Judge Chhabria concluded that epidemiology is “loosey-goosey” and a “highly subjective field.” However; Judge Chhabria did indicate that Dr. Ritz may be allowed to testify in front of a jury. He said, “Maybe Dr. Ritz, despite some of the problems with her testimony, is operating within the mainstream of the field. . . , Maybe it’s up to the jury to buy her presentation.”

A DNA expert has offered critical testimony in the exoneration hearing of Freddie Joe Lawrence and Paul Kenneth Jenkins.

The Crime

Freddie Joe Lawrence and Paul Kenneth Jenkins are serving life sentences after being convicted of killing Donna Meagher in 1994. Meagher was killed when she was closing up a family-owned bar and casino in Montana City.

New Evidence

The Montana Innocence Project got involved with the case post-conviction and some of the evidence from the crime scene was sent away for DNA testing. The DNA tests linked another man, David Wayne Nelson, to the crime. Nelson is currently serving a life sentence after pleading guilty to killing two people in Deer Lodge in October 2015. DNA tests on the rope found close to where Meagher was killed showed both Meagher’s blood and Nelson’s DNA.

Separately, the state reopened its investigation into Meagher’s murder after David Nelson’s former sister-in-law and nephew told authorities that Nelson had confessed to Meagher’s murder in 1998. Nelson denies these claims and having anything to do with Meagher’s death.

Exoneration Hearing

To overturn their convictions, Jenkins and Nelson will have to show that there is a reasonable probability that the outcome of the trial could have been different if a new piece of evidence was introduced.

Dr. Greg Hampikian, Ph.D. of Boise State University testified as an expert for the defense. Dr. Hampikian testified that there is no DNA evidence linking Jenkins or Lawrence to the crime and that a key piece of evidence matched another male. Hampikian used a technique called probabilistic genotyping to determine that there is a one-in-700 billion chance that the DNA testing excluding Lawrence’s from the site is wrong. In Jenkins’ case, the chance is one in hundreds of thousands. Hampikian explained that anything more than a thousand is very strong evidence that the DNA does not match. Hampikian testified that Nelson’s DNA was almost a direct match, “It’s about as strong of a match as I have ever seen.” He said that the probability of the DNA not being Nelson’s is 1-in 10 septillion.

Nelson was subpoenaed to testify at the hearing, but exercised his right to remain silent.

Montana state court Judge Kathy Seeley presided over the hearing and did not make her ruling from the bench. She stated that she would take the parties’ arguments under advisement.

Reaction

Meagher’s family has stated that reliving the trauma from the crime is painful. Meagher’s daughter Michelle has said that she felt that the state had substantial evidence against both men. She noted that, “Independently, 24 people decided they were guilty. . . . Our family is re-living the trauma from the crime and this is unexplainable to someone who has not gone through something of this magnitude.” Larry Mansch, legal director for the Montana Innocence Project, has said that the family’s pain is understandable and that, “this is a terrible thing that happened to Donna. . . . We are trying to figure out who the perpetrator was.”

Experts contest the validity of retrograde extrapolation in the DUI trial of Cody Austin Shirah.

The Crash

In September 2016, a group of Ohio softball players were in Bay County, Florida for the World Sports League World Softball Championships. As they were on their way back to their hotel from their tournament, Cody Austin Shirah ran a stop sign and crashed into their minivan. Two of the men died at the scene; two other died as a result of their injuries from the crash.

Shirah was charged with four counts of negligent manslaughter involving a motor vehicle, or DUI manslaughter, and driving without a license.

The Blood Tests

Carol Seagle, a toxicology analyst with the Florida Department of Law Enforcement, testified that a sample of Shirah’s blood was taken about 3 hours and 45 minutes after the crash.  Shirah’s blood had a blood alcohol content of 0.078 percent. The legal limit is 0.08. Seagle testified that Shirah’s blood alcohol content was likely between 0.09 percent and 0.14 percent at the time of the crash.

Barry Funk, a forensic toxicologist for the defense contested the methods that Seagle used to reach her conclusion. Funk explained that the process of retrograde extrapolation involves too many factors to be trusted, including medical history, injuries, and medicines that have been taken. Funk said, “All things have to be taken into consideration with retrograde extrapolation. . . . You can’t count them out as factors. It makes a difference to conclude what alcohol content would’ve been at the time of the incident.”

Despite Funk’s attempt to question the validity of the use of retrograde extrapolation, the prosecutor was able to elicit Funk’s admission that the blood drawn at the hospital one hour after the crash amounted to 0.125 percent alcohol content. Additionally, Shirah’s girlfriend, who had been a passenger in his truck had a blood alcohol content of 0.145 percent. Since the girlfriend was not driving, however, the relevance of that evidence is unclear. There were also beer cans found around the area where Shirah’s truck had overturned.

Retrograde Extrapolation Explained

The use of retrograde extrapolation to determine blood alcohol content is based on the assumption that people eliminate alcohol at a fixed rate of between 0.01 grams and 0.02 grams per deciliter of blood per hour. For a retrograde extrapolation calculation to be accurate, a person must metabolize alcohol at the normal rate and the person must be in the postabsorption phase, which typically occurs 15 to 90 minutes after a person’s last drink.

However, each person’s absorption rate varies. Many factors, including the type and amount of food eaten, the type of alcohol consumed, and the length of time over which the drinking occurred will affect the rate of absorption. Because retrograde extrapolation is uncertain, blood alcohol test results are only presumed to be valid if the blood sample is drawn within three hours after the test subject was driving. The longer the delay in obtaining a test sample, the more speculative those conclusions are likely to be. As a general rule, expert evidence is required to establish a blood alcohol content when more than three hours have lapsed since driving ended.

False confessions expert Alan Hirsch offered testimony for the defense in the murder trial of Bobby Griffin Jr.

The Crime

On October 14, 2013, Nathaniel Bradley was fatally shot as he stood outside his car in New Haven, Connecticut. Bobby Griffin Jr. was charged with felony murder, murder, attempted first-degree robbery, and conspiracy to commit first-degree robbery in connection with Bradley’s death.

While Griffin initially admitted to murdering Bradley, he later claimed that he was coerced into confessing by the police who interrogated him. Griffin now claims that he was present for the crime but another man was the shooter.

The Trial

Griffin’s attorneys argued that the jury should hear about false confessions because the police detectives coerced Griffin into falsely confessing that he shot Nathaniel Bradley.

Griffin’s attorney presented Williams College professor Alan Hirsch to testify as a false confessions expert. Prosecutors Sean McGuinness and John P. Doyle Jr. objected to Hirsch’s testimony. McGuinness claimed that Hirsch was unqualified because he is an academic and does not have experience participating in interrogations. McGuinness also argued that the testimony would be prejudicial.

Superior Court Judge Elpedio N. Vitale held a hearing to determine whether Hirsch should be allowed to testify. Hirsch cited statistics from the Innocence Project, an organization that works to exonerate the wrongly convicted. Hirsch testified that “They found that hundreds of people had been wrongly convicted and about one-quarter of them had confessed.”

Hirsch described the Reid technique, which is a commonly used police interrogation tactic. Hirsch explained that the nine-step process uses confrontation and minimalization to break suspects down. Utilizing this technique, “The suspect is told confession is the only way out and it’s not a particularly bad way out.” Hirsch said that the problem with the Reid technique is that it breaks down the innocent as well as the guilty.

Griffin’s attorneys argued that during Griffin’s 3-4 hour interrogation, the detectives lied to him about the evidence against him and told him he needed to confess. Detective David Zaweski acknowledged that he and Detective Nicole Natale lied about the evidence they had.

Griffin acknowledged that he read and signed a Miranda form advising him that he had the right to remain silent and to have an attorney present. He also admitted that the detectives told him that he could stop the questioning at any time. However, Griffin also said that he felt pressure from the detectives. “I thought I had no choice. They kept telling me I did it. I kept saying I had nothing to do with the crime.”

Judge Vitale decided that Hirsch would be allowed to testify, but only generally. Hirsch would be allowed to testify about the techniques of confrontation and minimalization, but would not be allowed to specifically discuss the interrogation of Griffin and his confession.

During his testimony in front of the jury, Hirsch explained that aggressive police questioning sometimes causes a suspect to confess to a crime they did not commit.

Verdict

Jurors found Griffin guilty of murder. He will be sentenced in May.

ABM Industries provides janitorial services to businesses across the United States. Thousands of ABM employees work at hundreds of job sites in California. Some of those employees filed a class action lawsuit against ABM in a California court, alleging that the company violated California wage laws by failing to:

• keep required records of the time worked by employees,
• follow laws regarding compensation for meal breaks,
• pay split-shift premiums required by California law, and
• reimburse employees for expenses incurred when traveling between job sites.

ABM’s contracts with clients generally provide for a fixed fee in exchanged for services provided, regardless of ABM’s cost of providing those services. Accordingly, if ABM employees earn extra wages, ABM must absorb that cost. The employees alleged that ABM deliberately underpaid its employees in order to enhance its profitability.

The employees requested certification of their lawsuit as a class action. The class consisted of about 35,000 employees, divided into several subclasses according to the specific wage violations that each employee suffered.

The certification request relied in part on expert testimony that the trial court refused to consider. The employees appealed, arguing that their expert testimony was admissible.

Class Certification

Class actions consolidate individual claims into a single lawsuit. Plaintiffs benefit from class actions when they can obtain a remedy for a legal violation that they would be unable to pursue in an individual lawsuit (usually because the cost of litigation would exceed the amount of compensation the individual could expect to receive). A class action is also a more efficient way to resolve claims than multiple lawsuits raising the same issues against the same defendant.

Courts must certify a lawsuit before it can proceed as a class action. A certification decision is based on evidence that legal and factual questions common to all the class members predominate over individual differences in the claims. Class actions are often used to address wage law violations when a large employer has generally applied the same unlawful policy or practice to wage payments for employees who hold the same or similar jobs.

The ABM employees supplied the court with evidence that ABM applied a uniform policy that paid employees based on their anticipated schedules of work, not on their actual hours worked — a practice that would violate California and federal law. They alleged, for example, that ABM’s payroll system automatically deducted a 30-minute meal break each day from the hours each employee worked, without determining whether employees actually took a lunch break and despite the fact that many employees skipped lunch to finish their work within the time they were given to complete it.

Expert Evidence

The employees based their class certification motion in part on expert evidence from Aaron Woolfson, “a provider of database services who analyzed certain timekeeping and payroll data maintained by ABM with respect to its employees.” Woolfson analyzed more than a million shifts that employees worked for more than five hours (when a meal break must be provided). ABM’s records concerning those shifts failed to show evidence of the time an employee “clocked in” and “clocked out.”

In 94{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the shifts Woolfson examined, a meal break was automatically deducted from hours worked, and there was no evidence that ABM ever gave employees the required premium pay they were owed for working through lunch. His analysis also showed that few employees were reimbursed for their cost of traveling from one job site to another during a workday.

The trial court declined to consider Woolfson’s evidence. The court concluded that Woolfson was not shown to be “an expert on anything material to the class certification motion.” Because Woolfson was not an expert, he could not give opinions based on hearsay. Finally, the court decided that his opinions were inadmissible because they didn’t “prove anything” relevant to the certification issue.

The trial court rejected Woolfson as an expert because he had no “formal training or degrees that would qualify him as an expert to review the timekeeping and payroll data at issue.” The court also rejected Woolfson’s assertion that he had “provided payroll and timekeeping database analysis for attorneys in numerous wage-hour cases” because Woolfson did not provide “specific facts of the type that is usually relied upon to qualify an expert” (such as, presumably, identification of the cases in which he rendered opinions and the lawyers who hired him).

The court concluded that Woolfson’s assertion that he had “extensive experience in creating, managing, and analyzing large databases” was too general because the court did not know what Woolfson meant by “extensive” (despite Woolfson’s list of databases he had created, managed, and analyzed), and because Woolfson did not specify “how many years, how many assignments, what the nature of the assignments were, what the nature of his tasks were or anything of the like.”

The employees asked the court to reconsider, offering additional evidence of Woolfson’s expertise, including evidence that he had been accepted as an expert by other courts. The court denied the motion, ruling that Woolfson’s opinions were not relevant to the certification issue even if he was qualified to give them.

Appellate Opinion

As an initial matter, the California Court of Appeals noted that the gatekeeping role played by trial courts when they determine the admissibility of expert evidence is not a grant of unlimited discretion. Trial courts must be “cautious in excluding expert testimony” as their narrow goal is simply to exclude “clearly invalid and unreliable” expert opinions.

The trial court ruled that Woolfson’s testimony was inadmissible because he was not qualified as an expert and because his opinions, even if he was qualified to render them, were not relevant. The court of appeals disagreed with both rulings.

Woolfson’s Expertise

The appellate court noted that expertise depends on the subject of the proposed testimony. An expert’s qualifications are therefore “not subject to rigid classification according to formal education or certification.” Knowledge of, and familiarity with, the subject matter of testimony can be acquired by sufficient experience. “Once this threshold has been met, questions regarding the degree of an expert’s knowledge go more to the weight of the evidence presented than to its admissibility.”

Woolfson founded a company that develops database systems so that telecommunications companies can manage their billing. He also manages a company that provides billing and database mechanisms that allow banks to keep track of paperwork concerning mortgage loans. He has provided “extensive database management services to both government and private industries” and has extensive experience in creating, managing, and analyzing large timekeeping databases.

The court noted that “additional information regarding the specifics of Woolfson’s expertise in matters relevant to this case would clearly have been preferable,” including details about his clients, the number of years he had worked with databases, and his professional certifications — information that he later provided in the supplemental declaration that the trial court rejected. The court of appeals nevertheless concluded that the information in his initial declaration was sufficient to qualify him as an expert in database analysis.

The trial court also erred by focusing on Woolfson’s lack of a formal degree, given Woolfson’s “clear familiarity with numerous, highly complex transactions in that subject matter.” A formal education may be a prerequisite for expertise in some fields, but database analysis is not one of them.

“More is better” is the lesson to be learned by lawyers who seek to qualify a witness as an expert. Although the employees’ lawyers may have been lulled into complacency by ABM’s failure to make more than a cursory challenge to Woolfson’s expertise, this decision serves as a reminder that detailed facts establishing an expert’s qualifications should always be provided to the trial court in response to a motion asking the court to reject the admission of the expert’s opinions.

Relevance of Woolfson’s Opinion

The appellate court also rejected the trial court’s conclusion that Woolfson’s opinions were not relevant. Without parsing each separate opinion, the appellate court noted that at least some of Woolfson’s opinions, “based on his manipulation of ABM’s database,” were “clearly admissible as matters beyond the common knowledge or experience of an ordinary witness.” The court also noted that “as evidence of ABM’s common wage and timekeeping practices, Woolfson’s results would unquestionably aid a jury in its search for the truth regarding any alleged classwide wage or hour violations in this case.”

The appellate court was “mystified” by the trial court’s “wholesale rejection” of Woolfson’s opinions. The court expressed concern that “the trial court’s conclusions regarding the admissibility of the Woolfson materials were impermissibly tainted by its strong views with respect to the underlying merits of plaintiffs’ class certification motion,” a determination that was based “on the mistaken notion that database analysis of timekeeping and payroll records cannot be used as a means to show common practices for purposes of class certification.”

The trial court should instead have accepted Woolfson’s opinions as evidence of ABM’s payroll practices that were common to all similarly situated employees, and then weighed those opinions against evidence of the need for individualized determinations that might preclude class certification. The trial court therefore erred in failure to consider Woolfson’s expert opinions.

Forensic experts offered key testimony in the murder trial of David Eisenhauer.  Eisenhauer, 20, of Columbia, Maryland was charged with first-degree murder, abduction, and concealing a body in connection with the homicide of 13-year-old Nicole Madison Lovell. His co-defendant, Natalie Marie Keepers, who is accused of helping to plan the murder and conceal the body, is being tried at a later date.

Eisenhauer and Keepers were freshmen at Virginia Tech at the time of Lovell’s murder. After Lovell’s disappearance, her father found her usernames and passwords written on her wall. FBI computer forensic experts traced Lovell’s account information and found that she had been communicating with David Eisenhauer over the anonymous chat app, Kik. When Eisenhauer was questioned in connection with Lovell’s disappearance, he admitted to meeting Lovell online and exchanging messages with her. He told investigators that he thought that she was 16 or 17 and when they met in person on January 27 he saw “someone who is maybe 11 years old climb out of a window” and thought “uh-uh, not for me” and that he left without her. Three days after Lovell’s disappearance, her body was found in nearby Surry County, North Carolina.

Expert Witnesses

At trial, prosecutors presented numerous expert witnesses to strengthen their case against Eisenhauer.

Deena Jones of the Blacksburg Police Department testified on behalf of the prosecution. Jones served as an intelligence analyst at the time of the homicide. Jones was charged with extracting the GPS data from the Garmin device that was in Eisenhauer’s possession to show his route over January 26, 2016 and January 27, 2016. Jones testified that Eisenhauer’s GPS showed that he traveled from the Virginia Tech campus to Target and Walmart, to Blacksburg, to Craig Creek Road, and then back to campus.

Nicole Harold, forensic science supervisor for the Virginia Forensic Department, testified that she compared DNA from possible pieces of evidence to compare them with DNA from Eisenhauer, Keepers and Lovell. Harold testified that it was overwhelmingly likely that Lovell’s blood was found in a clearing in the wood and that there was high probability that it was Lovell’s blood in Eisenhauer’s car and on the blanket, stick, underpants, boot, and shovel that were taken from Keepers. Harold also testified that evidence showed that cleaning fluid had likely been used on some of the items, which would explain why some DNA evidence was not able to be conducted. Harold testified that the DNA that was found on Lovell’s fingernail clippings taken during her autopsy belonged to Eisenhauer.

Cory Barote, a forensic scientist specializing in latent prints at the Virginia Department of Forensics Science, testified that he analyzed fingerprint and palm cards in conjunction with latent prints taken from the evidence. Barote testified that a container of disinfecting wipes found in Eisenhauer’s trunk contained Eisenhauer’s prints and that a shovel and wipes found in Eisenhauer’s backseat and a plastic Walmart bag found in a Virginia Tech dumpster had prints belonging to Keepers.

On the day following expert testimony, Eisenhauer switched his pleas to no contest and was convicted of Lovell’s murder. Eisenhauer faces a maximum sentence of life plus 15 years in prison.

Many factors can contribute to a wrongful conviction, including mistaken eyewitness identifications, false confessions, and flawed forensic science. Expert testimony often helps innocent defendants uncover those errors. Unfortunately, mistaken expert testimony can also contribute to wrongful convictions.

A number of those factors may have combined to cause the wrongful convictions of Shawn Henning and Ralph Birch for the 1985 murder of Everett Carr in New Milford, Connecticut. Their latest lawyers pin much of the blame for the conviction on erroneous testimony by a criminalist who achieved fame during the O.J. Simpson trial.

Crime Scene Evidence

Carr was severely beaten and repeatedly stabbed. His daughter claims that he was already dead when she found his body in a hallway of their home at 4:00 a.m.

Police theorized that the killing was part of a burglary gone bad, although why burglars would commit such a gruesome act of violence is a question that the theory did not resolve. The daughter’s statement during a 911 call that “he’s got a knife in his hand” and her delay in calling the police are difficult to reconcile with the theory that the police settled upon.

Armed with a shaky theory, the police searched for local burglars. The search led them to Henning and Birch, who had been accused of committing burglaries to fund drug purchases. Henning was age 17; Birch was 18.

Henning and Birch told the police a false story about their location on the night of the murder. The police viewed that lie as evidence of their guilt. Henning and Birch say they were trying to conceal their theft of a car and their participation in four daytime burglaries to which they later confessed.

In their attempt to coax confessions, the police told Henning and Birch that they had substantial forensic evidence of their participation in the murder. In fact, the police had nothing. No fingerprints, blood, hair, or fiber samples linked either man to the scene. They steadfastly maintained their innocence.

The only evidence that circumstantially linked Henning and Birch to the crime came from witnesses who reported hearing a car with a loud muffler near the victim’s residence on the night of the murder. The car that Henning and Birch had stolen had a loud muffler, as do many cars. But one witness heard the loud muffler while watching a show that wasn’t broadcast on the night of the murder, and another witness saw taillights that didn’t match the taillights of the car that Henning and Birch had stolen.

Questionable Testimony

Two years later, frustrated with their inability to find any evidence to support their theory, the police decided to manufacture evidence. They made deals with two jailhouse snitches to incriminate Henning and Birch. Informant testimony is inherently unreliable — criminals have a strong incentive to fabricate stories to reduce their own sentences — but the police nevertheless turned to dishonest snitches when they couldn’t find honest evidence.

Defense attorneys also accuse the police of coercing two other witnesses to provide incriminating testimony. Those witnesses have since recanted, but Henning and Birch were convicted on the strength of evidence that was far from compelling.

About ten years ago, the Connecticut Innocence Project ordered forensic testing of objects found at the crime scene as well as the clothing worn by Henning and Birch. None of the victims’ blood was found on their clothing. None of Henning’s or Birch’s blood was found at the crime scene, although an unidentified person’s blood was found in places that the assailant might have touched.

Expert Testimony Challenged

The case was taken over by new lawyers who filed a habeas corpus proceeding, seeking a new trial for Henning and Birch. The trial judge rejected the request, and the decision is now on appeal.

In addition to the new DNA evidence, the lawyers relied on contradictions in witness statements that the original trial lawyers never presented to the juries. They also presented new evidence to impeach the jailhouse snitches (one of whom admitted to four witnesses that he lied in exchange for early parole), as well as the recantations of the other witnesses.

The motion also challenged the expert testimony of Dr. Henry Lee, who at the time was in charge of the State Police Forensic Laboratory and who later testified in the O.J. Simpson trial. At the trial, Dr. Lee was charged with explaining how Henning and Birch could have committed such a remarkably bloody murder when there was not a drop of blood on either man. He speculated that they wiped themselves off with a towel found in the bathroom. The towel had a brown stain that Dr. Lee testified he determined through testing to be “consistent with blood.”

A new expert analysis confirmed that the stain was not, in fact, caused by blood. Other witnesses testified that the towel was never tested before the criminal trials. Yet the prosecution relied on Dr. Lee’s testimony that the towel tested positive for blood when it asked the jury to convict Henning and Birch. Dr. Lee told the media that he was talking about a “field test” at the crime scene, not a lab test. However, his testimony made no reference to a field test, and field tests are not ordinarily admissible as evidence in Connecticut.

Another expert from the O.J. Simpson trial, William Bodziak, testified that footprints left in the blood next to the dead body were made by shoes that were not larger than size 9 and possibly as small as 7 1/2. Birch’s shoe size is 10 1/2 or 11, while Henning’s is 11 1/2.

Relief Denied

The judge who decided the habeas petition ruled that Dr. Lee was probably mistaken but did not deliberately lie. How he came to that conclusion when Dr. Lee did not testify at the habeas hearing is something of a mystery. Nor does the question of whether Birch and Henning received a fair trial hinge on why Dr. Lee gave erroneous testimony. The fact remains that erroneous evidence may have played a role in causing two wrongful convictions.

The judge who presided over the habeas hearing nevertheless concluded that the new evidence wasn’t sufficiently convincing to prove that Henning and Birch were innocent or to undermine the fairness of their trial. The case is now on appeal. Whether another court will eventually view the evidence differently may not be known for years.