A forensic clinical psychologist will be allowed to testify in the trial of the widow of the Pulse nightclub shooter.

Noor Salman is the widow of Pulse nightclub shooter Omar Mateen.  Mateen killed 49 people and injured more than 50 others at the Orlando nightclub before police shot and killed him on June 12, 2016.  Mateen called 911 from the club and pledged his allegiance to the Islamic State.

Salman was arrested seven months after the shooting.  She faces charges of aiding a foreign terrorist organization and obstruction of justice.  If convicted, she could face life in prison.  Salman, who is represented by attorney Charles Swift, pleaded not guilty to all charges.

Salman’s Statements

On the date of the shooting, FBI Special Agent Ricardo Enriquez, a polygraph examiner, interviewed Salman.  The interview was not recorded, but Enriquez wrote down Salman’s statements and had her write a paragraph stating that no one forced her to be there.

During the interview, Salman told Enriquez that Mateen tood a black bag “full of ammunition with him” and that “I will be home after prayer.”  She recounted that Mateen once asked her, “What would make people more upset, an attack on Downtown Disney or a club?”  Salman also said that she and Mateen had driven around the Pulse nightclub with the windows down for about 20 minutes and that she had seen Mateen looking at the club’s photo online.

Salman shared that Mateen had been obsessed with ISIS recruitment videos and the Middle East for two years prior to the shooting.  Salman also said that Mateen spent thousands of dollars in the weeks before the shooting, including on the purchase of a rifle.

Salman wrote in a signed statement, “I knew on Saturday, when Omar left the house about 5 p.m. that this was the time that he was going to do something bad. I knew this because of the way he left and took the gun and backpack with ammunition . . . .”  Salman also wrote, “I am sorry for what happened. I wish I’d go back and tell his family and the police what he was going to do.”

Salman’s attorneys argued that statements that Salman made to investigators on June 12, 2016 were obtained unlawfully.  Prosecutors argued that the investigators were not required to read Salman her Miranda rights because she was never in official custody or detained — she was free to go at any time.

Daubert Hearing

A Daubert hearing was held in front of federal judge Paul Byron in Orlando to determine whether Dr. Bruce Frumkin, a forensic clinical psychologist, would be allowed to testify at trial on Salman’s behalf.  Frumkin holds a Ph.D. in Clinical Psychology from Washington University in St. Louis and is known for his work in capacity to waive Miranda rights, false confessions, and interrogative suggestibility.

Judge Byron ruled that Frumkin will be allowed to testify about Salman’s state of mind when she was being questioned by police.

Salman is scheduled to stand trial in March.

A federal judge has thrown out two cases against GM over defective ignition switches that have been linked to at least 124 deaths.

The Defect

GM failed to disclose that the ignition switches in some of its cars were defective and that they could rotate to the off position, causing cars to stall and airbags to fail to deploy.

The ignition switch defect was the cause of at least 124 deaths and 275 injuries. This defect prompted GM to recall over 2.7 million vehicles in 2014, including the Chevrolet Cobalt and Saturn Ion.

GM has already paid an estimated $2.5 billion in penalties and settlements, including $900 million to the U.S. Department of Justice.

The Claims

The $2.9 billion paid out by GM thus far did not resolve the current litigation.

Here, the plaintiffs claimed that their GM ignition switches may have rotated from “run” to “accessory” or “off,” which caused accidents or made them worse. The plaintiffs argued that the switches then rotated back to the run position before the impact, which would explain why the airbags deployed.

The plaintiffs submitted expert testimony that contended that the switches may have turned back to “run” before the airbags deployed. Manhattan District Court Judge Jesse Furman excluded this expert testimony, ruling that it was unreliable because it relied more on unproven statements and “speculation than it does on actual scientific or technical expertise.”

GM argued that the crashes at issue had other causes, including an icy road and one of the drivers being 89 years old and suffering from benign positional vertigo.

Judge Furman’s ruling stated that the one expert witness that the plaintiffs used testified that he only knew of two crashes where the ignition switches rotated twice — the two accidents at issue in these two cases. The judge noted that his role was “to ensure the reliability and relevancy of expert testimony and to make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” and stated that the plaintiffs failed to provide evidence that the specific defect alleged was more than a “theoretical possibility.”

Here, Furman dismissed claims by Vivian Garza, who was 19 when her Chevrolet Cobalt crashed on an icy road in February 2011, and by the son of Ruby Greenroad, whose Cobalt crashed in January 2013.

This decision is likely to affect the hundreds of other pending suits against GM making similar claims. As of November 30, there were 1,723 unresolved personal injury and wrongful death claims in the multi-district litigation, including 213 cases where the airbags deployed. Judge Furman oversees the multi-district litigation. Plaintiffs’ attorney Bill Hilliard stated that, “The ruling today reflects what we have always known about this category of cases: they are damn tough to prove in court. . . . But GM’s defect still may very well be the truth of the cause of the accidents.”

Many young males have sued Janssen Pharmaceuticals, claiming that their use of Risperdal caused them to develop gynecomastia, a condition involving excessive breast development. The plaintiffs were under the age of 18 when the drug was prescribed. Their cases have been consolidated in the Philadelphia Court of Common Pleas.

The claim of a plaintiff with the initials W.C. went to trial in 2015. The jury returned a verdict in favor of Janssen. On appeal, W.C. argued that the trial judge erred by admitting certain testimony of expert witness. The Superior Court of Pennsylvania agreed with part of W.C.’s argument. The court reversed the judgment and ordered a new trial.

Facts of the Case

Janssen Pharmaceuticals developed risperdone as an antipsychotic medication. The FDA approved its use to treat schizophrenia in adults, and Janssen marketed the drug as Risperdal. The drug was later approved to treat schizophrenia in adolescents, and to treat certain symptoms of autism and bipolar disorder in both adults and children.

When Janssen was testing risperdone for use in an adolescent population, it discovered a potential link between the drug and gynecomastia. When Risperdal was first approved for a juvenile population, Janssen added a warning to its product label concerning that link.

Long before the warning was added, and before Risperdal was approved for use by children, W.C.’s doctor prescribed the drug to W.C. to treat his attention deficit disorder and related conditions. At the time, W.C. was six years old. Doctors have authority to prescribe drugs for “off label” uses, but drug companies may not market drugs for any use that has not been approved by the FDA.

W.C. began using Risperdal in 2002 and discontinued its use in 2007. At some point between 2006 and 2008, W.C.’s mother noticed his abnormal breast development.

W.C. sued Janssen. The trial court dismissed some of his claims but allowed the case to proceed to trial on his negligence claim. W.C. contended that Janssen was aware of the risk that Risperdal could cause gynecomastia in per-pubescent male patients but negligently failed to notify doctors or the FDA of that risk.

The jury found that Janssen was negligent for failing to warn prescribing physicians that gynecomastia is associated with Risperdal use. However, the jury found that Janssen’s negligence did not cause gynecomastia in W.C. The trial court therefore entered judgment for Janssen.

Medical Testimony

Janssen argued that W.C. developed breasts because he was obese. Janssen attributed W.C.’s breast development to his rapid weight gain after 2013.

To prove that his breast development was caused by Risperdal, W.C. offered the expert testimony of Dr. Mark Solomon. Dr. Solomon demonstrated his physical examination of W.C. to the jury and explained why the amount of breast tissue he discovered was associated with Risperdal use. He characterized W.C.’s breast tissue as being the size of tennis balls. He opined that Risperdal caused the breast growth well before 2013.

W.C. visited an emergency room for chest pain in 2013. Medical records of that visit made no mention of gynecomastia. Dr. Solomon testified that a chest pain examination would not necessarily have discovered that W.C.’s breast tissue had grown to the size of tennis balls.

Janssen offered a number of defenses, including a denial that Risperdal is associated with gynecomastia despite placing a warning to that effect on its product label. Relevant to this appeal, however, was Janssen’s evidence that W.C. did not suffer from gynecomastia.

Janssen presented the testimony of Michele Baker, a physician’s assistant who treated W.C. between 2005 and 2013. She opined that W.C.’s breast development was caused by his rapid weight gain.

Janssen also presented the expert testimony of Dr. Adelaide Robb and Dr. Mark Moltich. Both doctors testified that breast tissue the size of tennis balls should have been noticed during the 2013 emergency room examination for chest pain, yet medical records did not make note of “tennis ball size breasts” during that examination. Dr. Moltich also testified that Risperdal could not have caused gynecomastia in W.C.

Admissibility of Doctors’ Expert Testimony

On appeal, W.C. challenged the testimony of Dr. Robb and Dr. Moltich that Risperdal could not have caused his breast development because he did not have “tennis ball size breasts” in 2013 when he was examined for chest pain. W.C. argued that there was no factual basis for that testimony and that the testimony went beyond the contents of the witness’ expert reports.

The appellate court noted that experts must base their opinions on facts. Dr. Robb testified that breasts the size of tennis balls “would have been impossible to miss” during an examination for chest pain, given the four areas on the chest where a doctor would listen to the heart. Dr. Moltich agreed that if a patient had tennis ball size breast tissue, an examiner would have noticed it and recorded it.

The appellate court noted that neither Dr. Robb nor Dr. Moltich testified that W.C. did not have breasts the size of tennis balls during his 2013 examination. Instead, they responded to hypothetical questions about whether an emergency room doctor would have noticed breast tissue of that size during an examination for chest pain. The hypothetical had a factual basis because Dr. Solomon had testified that an emergency room examination for chest pain would not necessarily discover breast tissue the size of tennis balls.

W.C. also complained that neither doctor mentioned in their expert report that breast tissue the size of tennis balls would have been discovered during the emergency room examination. The appellate court rejected that argument since the defense experts gave that testimony in response to Dr. Solomon’s testimony. Pennsylvania law does not require an expert’s opinion offered in response to another expert’s opinion to be disclosed in an expert report.

Admissibility of Physician’s Assistant’s Testimony

W.C. also argued that the trial court improperly admitted Baker’s opinion that Risperdal did not cause W.C.’s breasts to grow. She attributed the breast growth to rapid weight gain and testified that Risperdal could not have caused it because he stopped taking it in 2007 and any prolactin in his body should have returned to normal by 2013. Prolactin is a protein that enables breasts to make milk.

W.C. objected that Baker, a physician’s assistant, was not qualified to give expert testimony about whether Risperdal caused W.C.’s breast growth. W.C. also objected that Baker was not designated as an expert and should not have been allowed to give expert testimony.

The trial court ruled that Baker was providing a lay opinion, not an expert opinion. The appellate court disagreed. In Pennsylvania, a fact witness (as opposed to an expert witness) is permitted to testify about opinions based on the witness’ perception, provided that they do not require specialized knowledge. The relationship between Risperdal and breast growth, and whether prolactin would “return to normal” after a patient stops taking Risperdal, are opinions based on specialized knowledge. Lay witnesses will rarely understand protein levels in a body or how Risperdal might increase those levels.

The appellate court also rejected the argument that even if Baker rendered an expert opinion, she was qualified as a physician’s assistant to give that opinion. Baker was not designated as an expert and the trial court made no finding that she was qualified to testify as an expert. The trial court therefore erred by admitting her opinion testimony as to the cause of W.C.’s breast growth.

Finally, the appellate court rejected Janssen’s argument that Baker’s testimony had no impact on the verdict, in light of the expert testimony. Juries give special attention to opinions rendered by treating professionals. While retained experts might be viewed as “hired guns,” a treating professional is more likely to be seen as unbiased. Baker was the only treating professional to offer an opinion that Risperdal did not cause W.C.’s breast development. Since her inadmissible opinion may have influenced the verdict, W.C. was entitled to a new trial.

A Salem, Oregon man has been sentenced to life in prison for the murder of his ex-girlfriend.  Cristian Acosta’s sentencing hearing included testimony from an expert in brain development to support his defense that the decision-making part of his brain was not fully developed.

The Shooting

In September 19, 2016, 20-year-old Lucia Pamatz called 911 to report that her ex-boyfriend, Cristian Acosta, was trying to break into her her home. Pamatz already had a restraining order against Acosta.

The dispatcher told Pamatz to hide in the bathroom. Pamatz barricaded herself in the bathroom and stayed on the phone with the dispatcher. The dispatcher heard Acosta shoot at the bathroom door and Pamatz beg for her life. Acosta shot Pamatz two times, once in the side of the head and once in the chest.

Acosta fled the scene and was arrested while trying to cross the Canadian border. He pleaded guilty to aggravated murder, stating, “I broke into Lucia Pamatz’s apartment after she got home. . . . I knew she did not want me to go in, but I broke in anyway. . . . While in the apartment, I shot and killed (her) with a firearm.”

Acosta’s History

This was not Acosta’s first encounter with the law.  Acosta had previously been convicted of fourth-degree assault of Pamatz in May 2016. Pamatz obtained a restraining order against Acosta after his arrest, stating that he had access to firearms and that she felt he was capable of hurting her and others.

When he was in the sixth grade, Acosta was expelled for bringing a knife to school. When he was 17, Acosta pleaded guilty to first-degree sexual abuse and was sentenced to probation. Acosta also admitted to sexually abusing five young boys and inappropriately touching female family members while they slept.

The Hearing

At Acosta’s sentencing hearing, his attorneys argued for a life sentence with a possibility of parole after 30 years. The crime that Acosta pleaded to, aggravated murder, carries a life sentence without possibility of parole unless there are mitigating circumstances present like age, emotional distress, or mental incapacity.

Defense attorney Spencer Todd argued that, although the crime was heinous, 30 years may have a positive impact on Acosta. Additionally, Todd argued that although Acosta was an adult at the time of the murder, his brain was not fully developed, making him susceptible to irrational and impulsive decision-making.

Dr. Kristen Mackiewicz Seghete testified as an expert witness on brain development. Mackiewicz Seghete is a licensed psychologist and assistant professor at Oregon Health and Science University.  Mackiewicz Seghete testified that different parts of the brain develop at different rates and that the portion of the brain that is responsible for making decisions may not be developed until someone is in their mid-20s.

The prosecutor cross-examined Mackiewicz Seghete and asked whether behaviors such as stalking, sexual assault and abusive relationships were specific to brain development. Mackiewicz Seghete responded that they were not.

Marion County Judge Courtland Geyer sentenced Cristian Acosta to life without the possibility of parole.

A forensic neuropsychiatrist provided testimony to make a case for a sudden passion defense in the murder trial of Pete Garcia.

The Crime

Pete Garcia was on trial for the February 2016 murder of Orestes “West” Garza.  Garza, 51, was leaving church with his girlfriend, Judy Garcia, when Pete Garcia walked up to him and shot him three times in the back and once in the genitals.  Garza was taken to the hospital where he later died.

Judy and Pete Garcia had been married for 32 years prior to their divorce in October 2015.  Judy told police that Pete had been threatening her and Garza since her divorce and that Pete had assaulted Garza on a prior occasion.  Investigators discovered that Garcia had learned that Garza and his wife had been having an affair behind his back for 25 years.

Pete Garcia confessed the murder to his friend and his son, who then notified the police.  Garcia turned himself in to the Levelland police.

The Trial

Prosecutors argued that Garcia killed Garza in an act of premeditated murder.  Garcia’s defense was that the murder was a crime of sudden passion.  If a jury found that the crime was one of sudden passion, it would reduce the punishment range from five years to life in prison to 20 years in prison.

Prosecutors called Nicholas Weaver, the general manager of the Cabela’s where Garcia purchased a handgun about two weeks prior to the shooting.  Weaver testified that Garcia applied for a gun on January 15, 2016 and returned five days later to pick up a Browning .380 semi-automatic pistol.  Garcia passed a FBI background check, which cleared him to purchase the weapon.

Defense presented Dr. John Fabian, a forensic neuropsychiatrist, to make the case for sudden passion.  Dr. Fabian described Garcia as a low-functioning person with below-average intelligence.  He testified that Garcia showed extreme impairment with abstract reasoning and making problem-solving strategies.

Dr. Fabian diagnosed Garcia with obsessive compulsive behavior, anxiety, and depression.  He testified that Garcia displayed dependent personality disorder and Garcia’s Catholic religious beliefs prevented his acceptance of the end of his marriage.

Dr. Fabian testified that “She was, at least in his perception, the center of his life…His whole life seemed to center around Judy.”  Dr. Fabian said that Garcia’s mental impairment combined with the stress of his divorce and learning about his wife’s affair with Garza led to his loss of control on the day of the shooting.  “This was building to a snap … a crescendo of a blowup. … So I think there was a train wreck going to happen, potentially suicide or homicide.”

Garcia testified that he did not go to the church with the intent of killing Garza.  Garcia said that he just wanted to see his ex-wife, but when he saw her with Garza, “It was just like something came over me and I just lost it.”

The Verdict

A Lubbock County jury found Garcia guilty of Garza’s murder and did not find a sudden passion defense.  Garcia was sentenced to 35 years in prison and will have to serve at least half of that sentence before he becomes eligible for parole.

Police experts have reviewed bodycam footage from an August 8 incident and have opined that the taser use was “horrible judgment” and a possible department policy violation.

The Incident

On August 8, Angela Brown called police to her apartment and requested help getting her sons to leave her apartment.  Officers Johnson and Sullivan responded to the call.  Body camera and cell phone footage document the incident.

Brown let the officers into her home and showed them into her living room where her sons were sitting.  She said, “Here they at — disrespecting me and everything.”  When the officers asked what was going on, Richard Coleman, 24, said “We just chillin,’” and got up saying he wanted to explain the situation and calm down his half-brother, James Crawley, 25.

The officers told Coleman to sit down and he refused, while Brown yelled that the police should arrest her two sons.  Crawley got up and moved aggressively toward his mother and Coleman got between the two of them.  The police officers warned the men that they were about to get tased.

Officer Sullivan told Crawley to come to him, but he refused.  Sullivan shot Crawley with his taser.  Coleman pulled the barbs and wires out of his brother and videoed the scene on his cell phone.  Johnson tased Coleman.

Johnson and Sullivan physically subdued Coleman and Crawley jumped into the scuffle.  A third officer arrived and Coleman and Crawley are eventually handcuffed.

Coleman pleaded guilty to resisting arrest.  Crawley pleaded guilty to fourth degree felony assault.  Following the incident, one of the brothers filed a complaint with the Citizen Complaint Authority.

Expert Analysis

A professor who is a retired police officer and an expert witness consultant who is also a retired police officer reviewed the video footage for the Cincinnati Enquirer.  Both experts said that the officers clearly did not follow the city police department’s de-escalation policy when confronting the two men.  The police experts opined that proper procedure would have been stating that the men were under arrest.  Cincinnati Police Department policy states that tasers are only to be deployed against those who “are actively resisting arrest.”

Gary A. Rini, a former police officer and commander who now works as a police consultant and expert witness, said, “Anyone with any common sense can see the officers never give the kids a chance … and they immediately turned to a weapon that is one step below using lethal force…The brothers were not looking to fight. And after that first question, at no point did the officers try and calm things down or even try to find out what was going on.”

David Thomas, a 20-year police veteran who is now an associate forensics professor at Florida Gulf Coast University, said, “This is a domestic dispute, no different than if a husband and wife were going at it…At a certain point, they could have just put them in handcuffs and walked them into separate rooms…The magic words should have been ‘you are under arrest’ and at no point do either of the officers say that.”

Dr. Forest Tennant, physician, former mayor, and expert witness, has been served with a search warrant by the DEA in conjunction with an ongoing investigation.

DEA Investigation

The DEA served Tennant with a warrant that also named United Pharmacy of Los Angeles and its pharmacist owner. The DEA alleges that United and physicians who fill prescriptions at United constitute a drug trafficking organization (DTO).

Court documents say that, “The crimes perpetrated by the DTO include the sale of powerful prescription narcotics such as oxycodone and fentanyl, along with other dangerous and addictive controlled drugs often sought in combination with narcotics, based on invalid prescriptions issued by practitioners including Tennant. . . . United has been submitting millions of dollars in fraudulent Medicare prescription drug claims, namely, claims for the cost of filling invalid narcotic prescriptions, including those issued by Tennant.”

Court documents show that the DEA investigators flagged United Pharmacy because it was filling more opioid painkillers than any other class of drug, often in maximum dosages and potencies.  Investigators filed an affidavit stating, “Specifically, investigators believe that United, Tennant and various medical practitioners are profiting from the illicit diversion of controlled substances, including the powerful narcotic fentanyl, which are prescribed and dispensed other than for a legitimate medical purpose.”

Investigators also allege that Tennant took over $100,000 in kickbacks from Insys Therapeutics, maker of a fentanyl-based nasal spray. Court documents claim that Tennant was the top prescriber of Subsys. There were 96 claims totaling more than $1.9 million for five patients between August 2014 and July 2016.

The warrant sought to seize drugs, documents, and records related to the distribution of painkillers and financial records of payments sent or received by doctors.

Tennant’s Reaction

Tennant told the San Gabriel Valley Tribune that he has done nothing wrong and that the alleged kickbacks were appropriate compensation for speaking engagements. Tennant, who is an outspoken supporter of using opioid medication to ease pain, said that he spoke for Insys numerous times between 2013 and 2015 and that the payments covered the cost of travel, lodging, and meals.

Timing of Investigation

The search warrant was served just one day after Dr. Tennant testified as an expert witness in the opioid trial of Dr. Chris Christensen. Dr. Christiansen of Florence, Montana is on trial for negligent homicide, criminal endangerment, and illegally prescribing pain medications.

At Christensen’s trial, Tennant testified that long-lasting, slow-releasing opioid medications were created in pill forms in 1996. At that time, the federal government said that it was acceptable to prescribe them because they were less likely to cause addiction. Tennant said, “That was a big mistake. . . . After that time, doctors started prescribing opioid drugs as a first line of treatment. I was against this, but I was a distinct minority.”

Tennant testified that prescribing opioids was a medical standard and that the Physician’s Desk Reference, which is the medical professions’ bible, did not give any warning or ceiling as to the dosages.  Tennant said, “That was between the physician and patient to determine. . . . There was no single government reference, no single document, no single article until 2016 to tell doctors how far they could go.”

Amy Campanelli was in a car accident at a New Jersey intersection. She sued the other driver, Kusum Patel, for negligence. The case went to trial.

There was little dispute that Patel caused the accident. The key issue was whether Campanelli suffered from a permanent injury. Her expert witnesses said she did; the defense expert said she did not.

During closing arguments, Campanelli’s attorney made some disparaging remarks about the defense expert’s credibility because the expert testified almost exclusively for defendants. Patel argued on appeal that those remarks deprived him of a fair trial. The issue before the Appellate Division of the New Jersey Superior Court was how far an attorney can go in attacking an expert witness during a closing argument.

Expert Testimony

Two expert witnesses supported Campanelli’s claim that she suffered from permanent neck and back injuries. A radiologist, Dr. Natalio Damien, testified that MRIs showed bulging discs in Campanelli’s neck and lower back. An orthopedic physician, Dr. Patrick Collalto, testified that the bulging discs were caused by the accident and that they constituted a permanent injury. His opinion was based in part on EMG results.

The defense called Dr. Robert Bercik, an orthopedic surgeon, as its expert witness. Dr. Bercik testified that the MRIs showed disc desiccation, not bulges, and attributed the condition to a degenerative disease. Dr. Bercik testified that he spent about 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his time preparing examination reports for litigation, virtually always for the defense.

Closing Arguments

Jury trials end with closing arguments, as each lawyer tries to persuade the jury to accept a view of the evidence that is favorable to their side of the case. Both lawyers in Campanelli’s trial devoted a portion of their closing arguments to a discussion of the expert testimony.

Patel’s lawyer acknowledged that Dr. Bercik generally testifies for the defense, but told the jury that it had a chance to assess Dr. Bercik’s credibility based on the testimony he gave. He suggested that Dr. Bercik was not “up here lying to you in order to keep that work.”

Campanelli’s lawyer was less charitable. He asked the jury to conclude that a witness who relies on the “defense industry” for 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his income is going to “bend over backwards” to support defendants. He also told the jury that Dr. Bercik is:

• “smooth as silk”
• “a professional testifier”
• “a smoothie”
• “a defense doctor”
• “too smooth”
• “too smart”

Campanelli’s lawyer said Dr. Bercik played “a shell game” and a “show game” and that he was testifying “for the sole purpose of protecting his industry.” The lawyer asked the jury not to “fall into the trap.”

Patel’s lawyer objected. The judge then gave a curative instruction, telling the jury that lawyers are entitled to comment on the evidence and upon the credibility of witnesses, but that Campanelli’s lawyer had “gone far beyond what is acceptable.” The judge instructed the jury to disregard the inappropriate assertion that Dr. Bercik testified to protect the defense industry.

The jury returned a verdict for Campanelli for $336,000. The trial court denied a motion for a new trial, concluding that the lawyer’s remarks probably had no impact on the verdict. Patel appealed to the Appellate Division of the New Jersey Superior Court.

Disparaging Remarks About Expert Witness

Echoing the law as it exists in most jurisdictions, the New Jersey appellate court noted that lawyers are given “broad latitude” in making closing arguments, and may ask the jury to draw conclusions that might be considered illogical or even absurd. Lawyers may not, however, use “disparaging language tending to discredit” a witness. Unless a lawyer’s remarks are outrageous, that rule is honored in its breach more often than it is enforced.

In particular, the court noted that lawyers should not accuse the opposing lawyer of “trying to deceive the jury, or of deliberately distorting the evidence.” But Campanelli directed his comments at the expert witness, not at the defense attorney, and it is not unusual for lawyers to suggest that witnesses are not being truthful. When defense witnesses provide an alibi for a defendant in a criminal case, for example, prosecutors routinely brand them as liars during closing arguments.

The appellate court decided that the fundamental question was whether Patel received a fair trial. The court noted that the trial court instructed the jury to disregard the suggestion that Dr. Bercik was “protecting the defense industry.” It makes life easier for appellate courts to presume that juries follow instructions, despite studies suggesting that they probably don’t. However, it does seem fair to believe that the jurors would have discounted Dr. Bercik’s opinion based on the evidence that he always testifies for the defense, regardless of what Campanelli’s lawyer said about him during closing arguments.

Insurance Coverage

Patel also complained that the comments implied that he had insurance coverage. Patel did have insurance coverage, but a New Jersey law prohibits introducing evidence of insurance coverage in a personal injury trial.

Campanelli’s lawyer referred to Dr. Bercik’s efforts to protect “the defense industry,” not the insurance industry. While the appellate court suggested that the jury might consider “the defense industry” to be a reference to the insurance industry, the court decided that the curative instruction was sufficient to protect Dr. Bercik’s rights.

In the real world, the jury might have disregarded the curative instruction, but in the real world, juries know that drivers have insurance. Trying to keep jurors from knowing that a defendant is insured is futile and even a little silly. In some states, plaintiffs can sue the defendant’s insurance company directly, and nobody outside of the insurance industry believes that adding an insurance company as a defendant affects an insured driver’s ability to receive a fair trial.

The bottom line is that juries usually base verdicts on the evidence, not on what lawyers say during closing arguments. The jury heard that Dr. Bercik routinely testifies for the defense and the jury therefore had reason to discount his testimony. The lesson to be learned is that insurance companies should be cautious about hiring expert witnesses who always testify for insurance companies if they don’t want plaintiffs’ lawyers to challenge their expert witnesses in closing arguments.

The Arizona Supreme Court has affirmed a trial court’s decision about whether an expert witness can be excluded from observing trial testimony or reviewing the testimony of other witnesses.

In Emma Spring v. Timothy R. Bradford D.C., a patient sued her chiropractor, alleging medical malpractice. Emma Spring claimed that Timothy Bradford negligently performed a chiropractic adjustment that damaged her spine. Spring and Bradford each hired two expert witnesses to testify at trial. Spring presented expert witnesses Dr. Alan Bragman and Dr. Daniel Lieberman to testify about whether Bradford’s chiropractic adjustment complied with the applicable standard of care and whether the treatment caused Spring’s injury. Bradford presented Dr. Allan Hamilton and Dr. Robert Iverson as his standard-of-care and causation experts.

Court Invokes Rule 615

Before any witnesses testified, the trial court invoked Rule 615 of the Arizona Rules of Evidence, which provides that a trial court, at a party’s request, “must order witnesses excluded so that they cannot hear other witnesses’ testimony.”

At trial, both Dr. Bragmand and Dr. Lieberman testified as Spring’s expert witnesses.  When Bradford presented his defense, Dr. Hamilton testified. When Spring’s counsel cross-examined Dr. Hamilton, they learned that Bradford’s counsel had provided Dr. Hamilton with a transcript of Dr. Lieberman’s trial testimony.

The trial court found that Bradford’s counsel and experts had violated the court’s exclusion order, but that they had not acted in bad faith. The court put the burden on Spring to show prejudice and when she could not show prejudice, it denied her requests to strike Dr. Hamilton’s testimony and preclude Dr. Iverson from testifying. The court also provided the jury with two curative instructions relating to Bradford’s violation of the rule.

Spring moved for a new trial, based in part on Bradford’s violation of Rule 615. The trial court denied the motion, finding that the curative instructions and the opportunity for cross-examination prevented any prejudice to Spring. The court of appeals affirmed.

Rule 615 Violation Not Presumptively Prejudicial

The Arizona Supreme Court also affirmed. It found that a violation of Rule 615 is not presumptively prejudicial in a civil action, but that a trial court must take some corrective action. The court also found that expert witnesses are not automatically exempt from Rule 615, but that a trial court must allow a witness to hear or review a prior witness’ testimony if a party shows that an exception is essential to their claim or defense.

After the decision, Bradford’s attorney, Mandi J. Karvis, stated, “I think what attorneys need to take away from the ruling is that you need to be prepared to establish why your expert is essential to your claim or defense and not just presume that they will be essential even in a medical malpractice case or other case that requires expert testimony. . . . I think the practice pointer is to have a well-thought out argument regarding the special and unique nature of your expert’s role in your case and how they are truly ‘essential’.”