The subset of federal judges who aggressively use summary judgment to prevent plaintiffs from bringing their cases to trial has created a rule that prevents witnesses from contradicting their prior deposition testimony with an affidavit in order to avoid summary judgment. The fairness of the “sham affidavit” rule can be questioned, given that defendants are free to contradict themselves and do not automatically lose the case by doing so. Critics of the rule also argue that contradictions in testimony should be resolved by juries, not by judges.

Whatever perspective one might have on the rule’s fairness, it has typically been applied to plaintiffs who are seen as “changing their story” in order to avoid summary judgment. A recent decision from the Court of Appeals for the Eighth Circuit expanded the sham affidavit rule by applying it to an expert witness.

Hip Replacement Failure

Judith Redd had a total hip replacement. The artificial hip was manufactured by DePuy Orthopaedics, Inc. The implant failed about four years later when a component known as a hip stem fractured.

When the fractured hip stem was removed, doctors observed that it had not properly grown into the bone at the top of Redd’s hip. Redd’s doctors were aware that Redd was at risk of that complication, given her obesity and her history of taking immunosuppressant drugs.

The broken hip stem was replaced. Two years later, the new hip stem also fractured.

Expert Testimony

Redd sued DePuy for marketing a defective product and for failing to warn patients about the risk of failure. Her expert witness was Shankar Sastry, a metallurgist. Sastry had done research into metal failure caused by fatigue, but his research did not specifically address the failure of metals implanted into the human body.

Prior to his deposition, Sastry did not review any records relating to the manufacturing process. Nor did he consider the failure of the hip stem to grow into the hip bone as a potential cause of failure.

Sastry provided a technical explanation for the failure that considered the coarse grain size of the metal alloy from which the stem was manufactured, as well as the kind of lattice (hexagonal close-packed rather than face-centered cubic) used to achieve that density. He testified in his deposition that environmental factors could have contributed to the failure, but that they were probably secondary to the stem’s structure, which he regarded as the primary cause of its failure.

Summary Judgment

According to the district court, Sastry provided a sham affidavit in response to a summary judgment motion that “directly contradicted things he said in his deposition.” The court therefore struck the affidavit. It then granted summary judgment to DuPrey because, in the absence of the affidavit, evidence of causation was inadequate to support the claim.

Sham Affidavit Ruling

On appeal, Redd argued that Sastry merely clarified or supplemented his deposition testimony. The court of appeals concluded that the affidavit “arguably crossed the line between clarifying prior testimony and changing prior testimony.” The court decided that “arguably” crossing the line was a sufficient basis for affirming the district court’s discretionary decision to strike the affidavit.

Sastry had not reviewed DePuy’s manufacturing standards at the time of his deposition. In his affidavit, however, he said that the standards called for a face-centered cubic lattice and that the stems therefore violated DePuy’s standard. On its face, that seems like an opinion based on new information rather than a contradiction. Affidavits based on new information are not typically regarded as sham affidavits.

In addition, Sastry’s affidavit stated that the materials used to make the hip stem were defective and that any environmental stresses on the stem were secondary causes of its failure. In his earlier deposition, Sastry testified that environmental factors would have been secondary causes if they created small biomechanical forces, and said that he was unfamiliar with the biomechanical forces that were actually generated. That may be closer to a contradiction, although depriving a party of a jury trial on the basis of a minor difference in testimony that, at worst, impeaches the expert’s credibility is arguably an abridgement of the federal constitutional right to have a jury resolve factual disputes in civil lawsuits.

In the end, the court of appeals upheld the summary judgment dismissing the case. The court’s decision is unpublished, perhaps with good reason, since the conclusion that the expert executed a sham affidavit is based on a cursory analysis and supported by questionable reasoning.

Lessons Learned

The lesson for expert witnesses to learn from the Redd decision is that it is very difficult to revise an opinion after a deposition. Since a clarifying affidavit may be viewed as a sham affidavit, it is important for experts to prepare for depositions diligently, and to state their opinions in language that they will not later need to change.

Most medical malpractice cases depend on expert testimony to establish three elements: the appropriate standard of care, the breach of that standard, and the injury caused by that breach. In Shackleford v. Lewis, the Kentucky Supreme Court considered whether expert testimony was needed to prove that a brain injury was caused by delayed treatment of a stroke when an expert testified that the standard of care was breached by a failure to diagnose the stroke shortly after it occurred.

Medical Treatment

David Shackelford sued a hospital and Dr. Paul Wesley Lewis, an interventional radiologist, for medical malpractice in Boyd County, Kentucky. Shackelford saw Dr. Lewis after being referred by another physician to confirm a provisional diagnosis of systemic vasculitis.

Dr. Lewis performed a cerebral angiogram after informing Shackelford that strokes are a known risk of the procedure. While he was in recovery, Shackelford noticed white spots in his field of vision. After 30 minutes, the white spots disappeared and Shackelford developed a headache.

Shackelford advised nurses about his symptoms and was told that they are common aftereffects of an angiogram. The nurses gave Shackelford pain medication. After monitoring his condition for eight hours, the hospital discharged him.

As he was leaving the hospital with his wife, Shackelford became disoriented. He returned to the hospital the next morning. An MRI revealed evidence of a stroke. Expert testimony suggested that Shackelford’s brain had “aged” about 40 years after his discharge.

Plaintiff’s Expert Testimony

Shackelford retained Dr. Michael Khoury, a vascular surgeon, as an expert witness. In his deposition, Dr. Khoury testified that he found no fault with the decision to perform an angiogram or with the technique used to perform it.

Dr. Khoury’s criticism focused on the lack of response to Shackelford’s complaint of white “floaters” in his field of vision and of a headache, both of which he regarded as symptoms of a stroke. He testified that Dr. Lewis and the hospital should have performed an immediate MRI and, after discovering evidence of a stroke, should have commenced oxygenation and blood pressure management to contain its effects.

When asked if the results would have been different if Shackelford had been treated immediately rather than discharged, Dr. Khoury testified that it was impossible to know.

Defendants’ Expert Testimony

The hospital and Dr. Lewis relied on the expert testimony of two neuroradiologists, Dr. Peter Pema and Dr. Gregory Postal. They both testified in depositions that the delay in treating Shackelford was not a substantial factor in causing his injury.

On cross-examination, Dr. Pema agreed that the brain ages 3.6 years per hour after a stroke, that “time lost is brain lost,” that the most effective treatments need to start quickly, that patients who are treated within the first 90 minutes of having a stroke show the most improvement, that a 12-hour delay before treatment is provided is a relatively long delay, and that if failure to recognize the symptoms of a stroke causes a delay in treatment, the delay will likely be detrimental to the patient.

Summary Judgment

The trial court ruled that Shackelford had no proof that his injury was caused by the negligence of Dr. Lewis or the hospital. Dr. Khoury’s testimony was sufficient evidence that the failure to diagnose Shackelford’s stroke soon after the angiogram constituted a breach of the appropriate standard of care. The court was not satisfied, however, that the expert evidence would have allowed a jury to conclude that the breach caused Shackelford’s injury.

Shackelford pointed to the testimony of Dr. Pema to satisfy the element of causation. Shackelford argued that it is reasonable to infer from Dr. Pema’s testimony about the need for prompt treatment that the delayed diagnosis caused Shackelford’s brain to age more than it would have aged if the diagnosis had been made promptly.

The trial court, however, concluded that no expert testified that the delay caused an injury to a reasonable degree of medical probability. Since that is the Kentucky standard for expert medical opinions, the court granted summary judgment in favor of the defendants and dismissed Shackelford’s case.

Appellate Decision

The Kentucky Supreme Court reversed the summary judgment. It noted that Kentucky law does not treat the phrase “reasonable medical probability” as “magic words” that must be uttered before a jury is allowed to consider an expert’s opinion.

In any event, the court resolved the appeal by concluding that, given the expert testimony establishing a standard of care and a breach of that standard, no expert opinion was necessary to establish that the breach caused Shackelford’s brain injury. While expert testimony of causation is necessary in most medical malpractice cases, it is common knowledge that after a stroke, “time lost is brain lost.” A jury would not need the guidance of an expert to understand that delayed treatment of a stroke harms the stroke victim.

In a footnote, the court noted that “time lost is brain lost” has been used in public service advertising by the American Heart Association and the American Stroke Association. This may be a unique case in that medical advertising supplanted the need for expert medical testimony.

Moreover, the court concluded that even if expert testimony was necessary to establish causation, Dr. Pema’s testimony did so. Since Dr. Pema reaffirmed the common understanding that delayed treatment of a stroke is harmful, the court regarded that testimony as corroborative of causation.

The Kentucky Supreme Court reversed the summary judgment and remanded the case for trial. If the case does not settle, Shackelford will have the opportunity to let a jury decide whether his stroke diagnosis was negligently delayed and, if so, whether that delay caused or worsened an injury to his brain.

A judge has limited the proposed testimony of an expert witness called by Taylor Swift in her sexual assault legal action against a former radio DJ. Swift called a professor of gender studies to testify about the profile of men who commit sexual assault, however, the federal trial judge ruled that this type of expert testimony would not be permitted in the litigation.

Taylor Swift Proposes Gender Studies Expert

David Mueller, a former radio host in Denver, was accused by Taylor Swift of inappropriately reaching his hand underneath her skirt and groping her during a backstage meet-and-greet at a June, 2013 concert event. Mueller, who was fired by his radio station two days after the alleged groping incident, has maintained that he did not grab the pop-star during a photo opportunity, and filed a lawsuit against her for slander and making false claims which cost him his job and prevented him from working in his profession. Swift claims that it was Mueller who touched her inappropriately during the event, and countersued for claims of sexual assault and battery.

As we covered here, Taylor proposed to call as an expert witness Dr. Lorraine Bayard de Volo, who is a Women and Gender Studies professor at the University of Colorado-Boulder. During the pre-trial process, Dr. Bayard de Volo produced for Swift an expert witness report which, among other things, outlined how Mueller fit the profile of men who commit acts of sexual assault against women. According to the report, Mueller had reason to perceive threats to his job status due to tension with his boss, his status as a radio personality due to lack of respect from Swift and her team, and his masculine status due to Swift being excited to meet his girlfriend but not him.

Dr. Bayard de Volo summarized that Mueller’s perceived threats to things he felt were important map onto the profile of sexual assault perpetrators, who sometimes commit violations in order to restore loss of status. Mueller’s defense team objected to the use of Dr. Bayard de Volo during trial, and last week the trial judge limited what Swift’s expert could testify about.

Taylor Swift’s Gender Studies Expert Limited during Trial

After reviewing the proposed expert testimony and Dr. Bayard de Volo’s qualifications, federal district court Judge William Martinez limited what could be said at trial. In his ruling, Judge Martinez focused on two primary issues when restricting what Bayard de Volo could speak about during trial. First, the judge pointed out that the proposed expert testimony would do very little to help the jurors determine which party is telling the truth. Dr. Bayard de Volo was not present at the time, has not spoken to Mueller, and could not offer a significant piece of evidence which would assist the jurors to resolve the dispute at hand.

Second, and more importantly, Judge Martinez found that any probative value of Bayard de Volo’s expert testimony would be substantially outweighed by its prejudicial impact on jurors. Judge Martinez wrote, “Dr. Bayard de Volo’s opinion — in effect that she believes Plaintiff felt threatened and that committing an act of assault because of that perception would be consistent with broader patterns of assault — creates a very substantial risk of prejudice against Plaintiff and of confusing the issues at trial.” Further, the judge stated that Bayard de Volo’s opinion on Mueller’s pattern of behavior would “lead the trial astray from its central purpose,” by exposing jurors to character issues which, while not necessarily helpful to the task of determining what happened, may lead some members of the jury to rule against Mueller simply because they think he is a bad guy.

Finding Dr. Bayard de Volo’s proposed expert testimony which matched Mueller to a profile of a sexual assault perpetrator to be inadmissible, Judge Martinez limited what the expert could say during trial. Bayard de Volo will be allowed to testify about how alleged victims of sexual assault delay reporting the incident, but she will not be able to talk about Mueller’s personal character or his perceived threats.

Ruling on Expert Speaks to Problems with Profile Evidence

Judge Martinez’s decision to limit Taylor Swifts’ proposed expert testimony reflects a broader reluctance to include any type of profile presented by an expert witness. The problem with profile evidence proffered by an expert witness is that it dilutes the factual issues which are supposed to determine the trial, and instead puts jurors into a position to make assumptions of guilt or innocence based on patterns of behavior. Further, these patterns of behavior are not themselves inherently criminal. For example, many men can experience threats to masculinity and job status, but most of them do not commit sexual assault.

When asking jurors to make decisions based on whether or not an accused party fits a profile, courts are exposing the trial process to conjecture and expert witness opinion – neither of which are the basis for juror evaluations. While some courts have allowed expert witnesses to testify that a particular defendant could engage in unlawful activity, the general rule is to limit or exclude profile evidence, even if it may have some relevance. Typically any relevant probative value of profile character evidence is substantially outweighed by its prejudicial impact on jurors.

Photo Credit: Taylor Swift, Eva Rinaldi, Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).

A medical expert has testified for the plaintiffs in a lawsuit filed by news organizations which seeks more information about the administration of the death penalty in the state of Arizona. The doctor took the stand early in the proceedings to testify that without full disclosure about the lethal injection process, medical professionals are unable to evaluate so-called botched executions to determine if the condemned suffered. The lawsuit challenges Arizona law which limits access to information about the death penalty procedure.

News Organizations File Lawsuit against Arizona about Death Penalty Disclosure

The Associated Press leads a lawsuit filed by several news organizations against Arizona which alleges the state’s current practice of limiting information about the administration of the death penalty unlawfully denies the public an opportunity to evaluate fairly whether or not the procedure is carried out by qualified professionals using a drug cocktail which does not cause extreme pain. Current Arizona law strictly prohibits the dissemination of information which would identify persons serving on an execution team, and state officials have applied this confidentially protection to suppliers of the drug. The plaintiff news organizations argue that this level of confidentiality allows Arizona to carry out the death penalty without accountability for its use of potentially painful drug cocktails or the qualifications of the execution team.

The lawsuit was filed after the 2014 execution of Joseph Rudolph Wood, which gained national attention as a potentially botched execution due to irregularities during the procedure. Wood, who was given 15 doses of the two-drug cocktail Arizona employs during executions, did not die until two hours into the process, prompting many to express concern about whether or not the penalty is humane. The lawsuit against Arizona claims that without additional information about the execution team or the supplier of the drugs, the public will not be able to evaluate the procedure properly. Arizona’s attorneys have responded that confidentiality is necessary for the lethal injection team to carry out the key duties of their jobs.

Plaintiffs Call Medical Expert in Arizona Death Penalty Information Lawsuit

Attorneys representing the news organizations challenging Arizona’s death penalty confidentiality rules began their case with a medical expert witness called to testify about the inadequacy of information regarding administration of the state’s executions. Dr. David Waisal, an expert in anesthesia working at the Harvard Medical School, testified regarding the two-drug cocktail that Arizona uses in its lethal injection procedures. According to Dr. Waisal, members of the public — including the news reporting on the executions – are not provided with access to the information that is necessary to determine if the executions are being carried out properly.

Dr. Waisal, who is familiar with the chemical composition of anesthetics, told the court that Arizona’s confidentiality law prevents objective review of the death penalty cocktail. Further, Waisal testified that information that the state does provide — which is the type of drug — is not sufficient to analyze the chemical composition. According to Dr. Waisal, this detailed level of analysis is required in order to determine whether or not the drug cocktail is performing as expected and not causing pain and suffering during the execution process. The plaintiffs offered Waisal’s expert testimony to support their argument that the public has a right to understand the details of Arizona’s execution procedures in order to make a decision about continued support, but under the current legal structure the available information to make such a decision is not sufficient.

Arizona Defends Confidentiality of Death Penalty Information

Attorneys for Arizona have argued that confidentiality of drug suppliers and death penalty officials are necessary in order to the process to function as intended. Arizona prison officials have maintained that should the identity of the execution team be revealed, public backlash against them for taking part in a controversial practice could compromise their ability to perform key duties during an execution. It is not hard to imagine that drug suppliers could face similar public backlash should their identity be revealed, which could in turn result in companies refusing to sell the necessary drugs to Arizona’s prisons.

While the motives for the lawsuit compelling Arizona to reveal information about the drug supplier and the execution team are not directly anti-death penalty, the possible consequence that the state’s use of capital punishment could suffer is likely intended. Opponents of the use of the death penalty have rallied around several questionable executions over the last few years. Dr. Waisal testified about concerns over drug cocktails for parties attempting to halt Arkansas’s recent controversial attempt to execute eight inmates in two weeks. Opponents argue that litigation compelling open reporting of death penalty proceedings would increase scrutiny on capital punishment. Late last year, the news outlets earned an early victory in the case when a judge ordered a witness present for the entirety of executions in Arizona, and as the litigation continues the plaintiffs will push hard for complete transparency.

A Florida trial court recently dismissed a medical malpractice lawsuit filed in 2009 after finding that the plaintiff did not obtain an opinion from a qualified medical expert that the claim had merit before filing suit, as Florida law requires. The plaintiff relied on Dr. Richard Dellerson to provide that opinion, but the trial court decided that Dr. Dellerson was not qualified to render it, despite his decades of experience in the field of emergency medicine.

Now age 78, Dr. Dellerson was once regarded as one of South Florida’s foremost experts in emergency medicine. He served as chief of emergency medicine at a regional hospital and helped establish Broward County’s trauma network in the 1990s. Dr. Dellerson was often called upon to provide expert testimony in that field.

The Miami Herald reported that Dr. Dellerson’s story “highlights flaws in Florida’s regulation of expert witnesses for medical malpractice cases.”

Disciplinary Proceedings

Dr. Dellerson was board certified in Emergency Medicine until 2009, when his certification expired. In 2010, Dr. Dellerson authored two expert reports in which he stated that he was board certified.

The Florida Department of Health filed a complaint with the Board of Medicine seeking the revocation of Dr. Dellerson’s license based on his allegedly “misleading, deceptive, or fraudulent” statements related to the practice of medicine. The complaint was eventually settled. The settlement agreement provided that Dr. Dellerson would receive a reprimand and would not act as an expert witness as long as he holds a license to practice medicine in Florida.

Malpractice Lawsuit

On June 3 2009, the husband of a deceased patient sued Dr. Scott Plantz, an emergency room physician, based on the claim that Dr. Plantz misread an x-ray. Dr. Plantz denied that he was negligent.

Florida law requires a medical malpractice victim to obtain a medical expert’s written and sworn opinion that the defendant in the lawsuit breached a duty of care and that the breach injured the patient. The written opinion must then be served as part of a pretrial notice of the plaintiff’s intent to file suit.

To comply with Florida law, the expert opinion must be prepared by a healthcare provider who has practiced in the same specialty or field as the provider who is accused of malpractice. The law sets different requirements for suits against different kinds of healthcare providers. In the case of doctors who are accused of malpractice when providing emergency medical services in a hospital emergency room, the expert must be a licensed physician with “substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.”

The judge in the lawsuit against Dr. Plantz was asked to decide whether the “preceding 5 years” referred to 5 years before the date of the expert’s opinion or 5 years before the date of the alleged malpractice. The statute is ambiguous in that regard, since a part of the statute referring to testimony given by healthcare providers in other fields requires those providers to have relevant experience within a specified number of years prior to the occurrence giving rise to the lawsuit.

The language governing opinions of experts in the field of emergency medicine is a recent addition to Florida law. The same language governs experts who testify in court. The judge decided that the legislature wanted experts in emergency medicine to have specialized experience within 5 years of the date their expert opinion is provided.

Since experts testify about the standard of care that existed at the time of the alleged malpractice, it isn’t clear why knowledge or experience acquired after that date should have any bearing on the expert’s opinion. The court’s decision is also problematic because a retired expert might be qualified to render the required presuit opinion, but might no longer be qualified to render the same opinion at trial if the trial occurs more than 5 years after the expert last practiced. The judge’s interpretation of the law gives defendants an incentive to drag out the proceedings in order to cause plaintiffs to lose their experts.

Dr. Dellerson had substantial Emergency Room experience within 5 years prior to the time the malpractice occurred, but not within the 5 years prior to the date of his written opinion. Accordingly, the judge decided Dr. Dellerson was not qualified to render his presuit opinion and dismissed the case for failure to comply with that requirement.

Flaws in the System

As the Miami Herald reports, many doctors have complained “about  fellow physicians who give false testimony against their peers.” Those complaints are self-serving to the extent that they are made by doctors who want to be shielded from accountability if they commit acts of malpractice. Yet it is those complaints, echoed by insurance companies, that drove the expert witness legislation in Florida and many other states.

The doctors and insurance companies that urge expert witness “reform” rarely acknowledge the landmark Harvard Medical Practice Study, which concluded that a “disturbing” number of adverse patient events are caused by medical negligence. Based on a random sample of hospital records in New York, the study found that more than 27,000 hospitalized patients in New York were injured by medical negligence in 1984, “including 6895 deaths and 877 cases of permanent and total disability.” The actual number of injury victims was probably higher, however, since physicians do not always document their negligent acts in medical records.

Statistics suggest that 25,000 to 120,000 hospital patients die every year due to medical negligence. Only about 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of malpractice victims ever file claims. Only about 0.10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of malpractice victims receive a verdict in their favor at trial. Yet instead of focusing on ways to combat the problem of medical negligence and uncompensated victims, the legislative focus has been on making it more difficult for the 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} who pursue claims to recover compensation.

There is little reason to believe, as the physicians quoted by the Miami Herald assert, that expert witnesses for plaintiffs in medical malpractice cases routinely commit perjury. Risking a medical license and a prison sentence by lying under oath isn’t something that most private expert witnesses would consider. It isn’t surprising that doctors who are accused of malpractice disagree with their accusers, but disagreement is not a basis for accusing experts of giving false opinions.

As the Miami Herald points out, Dr. Dellerson practiced emergency medicine for more than 40 years. He was eminently qualified to offer an expert opinion about the standard of care that should govern emergency medicine practitioners, yet Florida law (as interpreted by the trial judge) required the exclusion of his testimony. Rules of expert opinion admissibility that exclude qualified experts make it more difficult for injury victims to receive the compensation they deserve. Those rules might serve the interests of doctors and insurance companies, but they do not serve the interests of justice.

In 1992, Daniel and Frances Keller were convicted of sexually abusing a 3-year-old child in Travis County, Texas. The prosecution’s wild claims that the Kellers were Satanists, coming in an era when “Satanic Panic” had gripped the nation, were fueled by expert testimony.

The Kellers were granted a new trial in 2013 after spending 21 years in prison. In June 2017, the prosecution finally admitted that its case against the Kellers was too weak to pursue. Without directly acknowledging that the Kellers were innocent, the district attorney noted that “the current state of law on actual innocence and the evidence remaining in this case” made dismissal of the charges a just outcome.

Satanic Panic

During the 1980s and 1990s, it was widely believed that Satanists were “running clandestine, national child sex abuse rings.” The national hysteria that has since become known as Satanic Panic led to false criminal charges against hundreds of people, many of whom were daycare and childcare providers.

The most notorious cases were the McMartin preschool trial and the Margaret Kelly Michaels trial. In the McMartin case, the operators of a daycare center were charged with sexually molesting dozens of children based on fanciful stories that teachers “sacrificed a baby in a church and made the children drink the blood” and engaged in other acts of ritual abuse. Even though children claimed that teachers “dressed up as witches and flew in the air,” prosecutors chose to believe their claims of having been abused and assured jurors that the children were reliable witnesses.

The McMartin accusations did not lead to any convictions, but Margaret Kelly Michaels spent six years in prison after being convicted of child abuse at Wee Care Day Nursery. Michaels was prosecuted and convicted despite the absence of any physical evidence suggesting that any child had ever been abused. Her conviction was overturned after “a three-judge appellate division panel ruled that her trial was full of egregious prosecutorial abuses, including questioning of the children that planted suggestions, tainting their testimony.”

Expert Testimony After Satanic Panic

The McMartin and Michaels trials, among others, motivated psychologists to study the phenomenon of false accusations of child sexual abuse. Their studies revealed that young children are extremely susceptible to suggestion. Leading or suggestive questions posed by parents, police officers, or social workers cause young children to give answers they believe adult authority figures want to hear.

Even worse, such questioning, however well-intentioned it might be, can implant false memories in children, who come to believe that they were abused even when no abuse occurred. In fact, many experts now agree that improper questioning of children is itself a form of child abuse since it causes children to live with memories of trauma that they did not actually experience.

The research led to the development of standards and training in methods of questioning children that guard against influencing their answers. Many professionals record their questioning so that judges and juries can determine whether the questions tainted the answers.

When child abuse prosecutions are based on stories told by young children, particularly when the abuse is not supported by clear physical evidence, it is now common for defense attorneys to retain an expert witness who will review reports, transcripts, and videos to determine whether the questioning may have influenced the child’s accusations. Experts can also explain how a parent’s unrecorded interaction with a child may have caused a child to form false memories even before the child was questioned by a trained professional.

Experts in the Keller Case

Unfortunately, when the Satanic abuse accusations against the Kellers were taken to trial, most people did not understand that the testimony of children is easily influenced. Rather, police officers, social workers, judges, and juries all tended to hold the false belief that children don’t lie about being sexually abused.

The accusations against the Kellers originated with a troubled girl named Christy, who was seeing a therapist as the result of behavioral problems that began during her parents’ acrimonious divorce. Unfortunately for the Kellers, Christy’s therapist was a firm believer that ritual abuse actually existed. James Wood, a psychology professor at the University of Texas at El Paso who specializes in child forensic interviews, believes “that the way Christy was questioned by a Travis County social worker led her to accuse the Kellers of abuse.”

Now that Satanic Panic is known to have been based on hysteria rather than fact, it is easy to dismiss some of the wild accusations made against the Kellers, including the claim that children were told to cut up other children with chain saws. At the time, however, prosecutors unabashedly asked jurors to believe those stories, and relied on expert witnesses to demonize the Kellers.

The prosecution based much of its case on the expert testimony of Randy Noblitt, “a psychologist from California who acknowledged under oath he had never interviewed Christy himself, but nonetheless was certain she had been subjected to Satanic ritual abuse.” Using modern standards of expert witness admissibility, a court might well hold that a psychologist who diagnoses a subject without interviewing her has not based his expert opinions on a reliable methodology.

Dr. Noblitt, portraying himself as an expert in cults, also told the jury about the widespread “existence of cults using ritual abuse and of organized satanic networks engaged in wide-ranging criminal enterprises including child abuse.” He claimed that “cults typically engage in torture and murder of both adults and children.” One would hope that a judge today would rule that expert testimony is inadmissible when it is grounded on the expert’s alleged knowledge of “facts” that have no basis in reality.

Finally, the Kellers’ convictions were based on the expert testimony of Michael Mouw, a physician who testified that he observed physical evidence of sexual abuse. By the time the Kellers were released, Dr. Mouw had recanted, admitting that his testimony was mistaken. It was that belated recantation that caused an appellate court to reverse the Kellers’ convictions, and that contributed to the current district attorney’s decision to dismiss the charges.

Lessons Learned

Expert witnesses should always be neutral advocates for the truth. When experts become advocates for an agenda, they too often base their testimony on unsupportable theories, such as “children never lie about sexual abuse” or “Satanic cults are causing widespread harm to children.”

Standards for admitting or excluding expert testimony are often a source of controversy. At least in a criminal case, where the freedom of the accused is at stake and the Constitution guarantees a fair trial, no evidentiary standard should allow a judge to admit an expert’s agenda-driven testimony that isn’t grounded in objective, real-world facts. When judges fail to apply that standard, innocent people like the Kellers are sent to prison.

Ledura Watkins has finally gained his freedom after serving 41 years for a murder he didn’t commit. The only physical evidence linking Watkins to the 1975 shooting death of Yvette Ingram was a single hair. Watkins, who was 20 years old at the time, spent most of his imprisonment studying law in the hope of proving his innocence.

Watkins’ case highlights the importance of using expert witnesses to challenge forensic evidence presented by state crime lab witnesses. It also underscores the need for judges to assure the reliability of expert evidence offered as proof of guilt in criminal cases.

Evidence Against Watkins

Ingram was murdered during a robbery of her Detroit home. The case against Watkins was based largely on the testimony of Travis Herndon, who claimed to have participated in the robbery with Watkins. Since Herndon was granted immunity in exchange for his testimony, he had a strong incentive to pin the blame on some other person. Witnesses who testify under a grant of immunity are notoriously unreliable, but prosecutors often offer immunized testimony as proof of guilt regardless of its dubious nature.

During cross-examination, Herndon denied selling a ring that was stolen from Ingram’s home to a witness named Michael Miller. The defense wanted to call Miller as a witness. Miller would have testified that he did, in fact, buy the stolen ring from Herndon. Miller refused to testify, however, because he did not want to incriminate himself, fearing he might be charged with receiving stolen property.

The defense asked the prosecution to request immunity for Miller as it had for Herndon, but the prosecution refused to take a step that would have given Watkins a fair trial because that step would have jeopardized Herndon’s credibility. Since only the prosecution can request immunity, the jury did not hear evidence that impeached the credibility of its key witness.

Still, Herndon’s testimony was uncorroborated, and the jury might have rejected it as self-serving if not for a hair found on the victim’s pants. An expert witness for the prosecution testified that the hair “matched” Watkins’ hair with regard to 15 points of comparison. The prosecution’s expert opined that the hair was “microscopically similar” to Watkins’ hair.

The Michigan Court of Appeals affirmed the conviction because “testimony was offered to indicate the general scientific recognition of microscopic analysis of hair.” In cursory fashion, the Court of Appeals determined that the expert’s evidence “satisfied the test for admissibility of scientific opinion testimony.”

Expert Hair Analysis

Hair analysis has come under belated scrutiny in recent years. With the advent of DNA analysis, expert witnesses can now determine with reasonable certainty whether a hair comes from a particular suspect. Forensic scientists understand, however, that obtaining DNA from a hair sample can be challenging. Unless the hair has an intact and uncontaminated root ball, reliable testing for DNA is problematic.

When no DNA is extracted from hair, however, hair analysis rests on a premise that credible scientists now reject. As ExpertPages reported, the President’s Council of Advisors on Science and Technology “sharply criticized a number of widely accepted forensic methods used in criminal trials.” Hair analysis was among the techniques that the Council relegated to the realm of junk science.

The FBI, which once relied on expert witnesses to testify against defendants on the basis of hair analysis, now concedes that “the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements.” In other words, the FBI routinely based arrests and convictions on junk science.

The FBI’s study was conducted jointly with the Innocence Project. Peter Neufeld, Co-Director of the Innocence Project, noted that the FBI’s findings “confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions’ case.”

Epic Miscarriage of Justice

Watkins’ conviction was only one of many wrongful convictions that have been based on faulty hair analysis. The government’s insistence for so many years that evidence of dubious scientific quality was “generally accepted as reliable” resulted in what Neufeld termed “an epic miscarriage of justice.”

The Innocence Project at the Western Michigan University-Cooley Law School challenged Watkins’ conviction. Marla Mitchell-Cichon, the law school’s Innocence Project director, said that hair comparison is “simply a lab analyst’s subjective opinion and has no place in our criminal justice system.”

The prosecutors who brought the murder charge against Watkins are long gone. Perhaps the lawyers currently working in the Wayne County prosecutor’s office realize that their predecessors unfairly based their case on an immunized witness while depriving Watkins of that same advantage. In any event, the office agreed that the hair evidence against Watkins “was flawed under the new FBI standard for hair comparison.” Since they did not oppose Watkins’ release, a judge finally set him free.

The misuse of skulls as substantive evidence rather than demonstrative evidence during the testimony of an expert witness persuaded the Appellate Court of Illinois to grant a new trial to the plaintiff in a medical malpractice case. Lawyers should take note of the decision as they consider how to question an expert witness who uses exhibits as demonstrative evidence.

Demonstrative Evidence

Experts often rely on demonstrative evidence to help juries understand their testimony. A chiropractor might point to vertebrae on a plastic spine, an engineer might take apart a motor to show the jury why a similar motor failed, or an accident reconstruction expert might show the jury an animated version of how an accident occurred.

Most judges routinely allow demonstrative evidence to be used, while making it clear that the evidence should only be considered for illustrative purposes. The judge or the expert must explain that the plastic spine isn’t the patient’s actual spine, the disassembled motor isn’t the actual motor that failed, and the animation is a reconstruction of how the accident might have happened, not a representation of the actual accident.

In Yanello v. Park Family Dental, an Illinois appellate court decided that an expert went too far in using skulls as substantive rather than demonstrative evidence in a dental malpractice case.

Yanello’s Dental History

Dr. Jae Roh extracted eight teeth from Nancy Yanello’s upper jaw and inserted four dental implants. The surgery was intended to allow Yanello to attach a denture to the implants.

A year or two later, Yanello complained that the implants were loose and painful. Roh determined that three of the four implants had failed. He observed significant bone loss in Yanello’s upper jaw that he had not seen during the surgery.

Roh removed the failed implants and inserted new ones. He observed that there was barely enough depth in the bone to allow the implants to be placed.

A couple of months later, Yanello returned to Roh with a complaint of pain. Roh saw nothing amiss.

Yanello then saw an oral surgeon who noted that the implants were failing and were at a poor angle. At his recommendation, the implants were removed.

Yanello continued to have pain that dental experts attributed to nerve damage caused by improper placement of one of the implants. The experts also concluded that one of the implants had perforated her sinus.

Yanello’s Expert Evidence

Yanello sued Roh for dental malpractice. At trial, Yanello relied on the expert testimony of her family doctor and three dental experts. The experts had all treated Yanello after her last visit to Roh.

All three dental experts testified that Roh violated the appropriate standard of care by placing the implants at an improper angle, resulting in bone loss and implant failure. They also testified that improper positioning of the implants caused one to damage a nerve and the other to perforate Yanello’s sinus. As a result of Roh’s negligence, the experts said, Yanello has no remaining bone in which implants can be placed, has pain caused by nerve damage, and cannot use her denture.

Ethics Questioned

Dr. Richard Burton, the leading expert witness who also supervised the removal of the implants, testified that Roh was not qualified to perform such complex surgery. On cross-examination, Roh’s lawyer suggested that Burton was acting unethically by testifying. The American Association of Oral and Maxillofacial Surgeons’ Code of Professional Conduct prohibits members from testifying in cases where they treated the patient.

The code seems designed to shelter members from the consequences of their malpractice rather than to encourage ethical testimony. Treating physicians usually have the best and most helpful knowledge of how earlier treatment affected the patient’s condition. Treating physicians make excellent witnesses because jurors do not typically view them as hired guns. It is hard to believe that assisting justice by giving truthful professional opinions derived from observations made while treating a patient could reasonably be deemed unethical. In any event, Dr. Burton testified that Roh does not belong to the Association and that he was therefore not violating the ethical code by testifying against him.

Defense Expert Testimony

Roh’s expert, Dr. Nicholas Panomitros, is a law professor who is trained as a dentist. He opined that Roh did not violate the appropriate standard of care because he succeeded in placing the implants in bone and all implants, by their nature, are placed at an angle. He also testified that implants are appropriately placed if they are aligned with teeth, taking into account available bone in the jaw.

Panomitros illustrated his testimony by using a model skull as well as an actual human skull. Over objection, the court ruled that Panomitros could use the skulls as demonstrative evidence, but could not suggest that the skull represented or resembled Yanello’s teeth. The judge ruled, however, that Panomitros would be allowed to say that the human skull “shows the angulation of teeth in the human skull.”

Panomitros used the skulls to support his testimony that x-rays did not prove that an implant perforated Yanello’s sinus cavity because the x-ray interpretation will depend on the angle from which the x-ray was taken. He opined that none of the x-rays conclusively established that the implants perforated the sinus cavity or caused nerve damage.

Panamitros also suggested a number of health conditions that might have caused Yanello’s problems, including rheumatoid arthritis and osteopenia. The court concluded that Panamitros was qualified to give that testify despite having a dental degree rather than a medical degree.

The jury concluded that Roh was not negligent. Yanello appealed.

Misuse of Skull as Evidence

The court drew a well-recognized distinction between exhibits used as real evidence that played a role in the incident at issue, and those used as demonstrative evidence. In essence, demonstrative evidence is a visual aid. Demonstrative evidence is favored when it helps a jury understand testimony, but courts must take care that it is not used in a way that will cause the jury to confuse real evidence with the visual aid.

The court concluded that the defense expert misused the skulls by treating them as real evidence rather than demonstrative evidence. If Panomitros had merely pointed out parts of the skull to explain the location of relevant bones, he would have used the skulls appropriately. Instead, he used the skulls to show that Roh placed implants appropriately, “consistent with the natural angulation of natural teeth as shown by the skulls” and by pointing to the thinness of the bone into which the implants were inserted.

The court decided that Panomitros’ testimony “implicitly suggested that the anatomy depicted in the skulls was identical or similar to Yanello’s anatomy.” He also misused the skulls to undermine the x-ray evidence when he compared the skulls to the x-rays, implying that all skulls are the same.

The court also concluded that Panomitros was not qualified to testify about possible medical (as opposed to dental) causes of Yanello’s problems.

In addition, the court agreed that Roh’s attorney should not have been allowed to question Burton about his alleged ethical violation in testifying, because the admissibility of testimony is determined by rules of evidence, not by codes of conduct. Notably, the court held that any qualified expert “may present expert opinion testimony that a doctor or other healthcare practitioner violated the applicable standard of care, notwithstanding any purported professional ‘ethical rule’ to the contrary.”

Since Panomitros did not use the skulls merely as demonstrative evidence, but as substantive support for his expert opinions, the trial court erred by permitting the testimony. The court therefore granted a new trial to Yanello.

Lessons Learned

The court noted that the defense failed to lay a proper foundation for use of the skulls as substantive support for Panomitros’ opinions. If Panomitros had testified that the skulls accurately represented the relevant bones in Yanello’s skull, it may have been appropriate to use the skulls as substantive evidence. Whether that foundation could be laid, of course, is a matter for the expert to determine. The Yanello case nevertheless serves as a reminder that experts who use demonstrative evidence must take care to point out the ways in which the visual aid is similar to the thing it represents.