Category Archives: Expert Opinions

New Hampshire Court Dismisses Lead Paint Expert Testimony in Somali Refugee Lawsuit

The New Hampshire Supreme Court has dismissed testimony from a lead paint expert witness in a lawsuit against landlords accused of providing unsafe housing. The suit, which has been ongoing for nearly 10 years, may be nearing a conclusion as the plaintiffs are left without a key piece of testimony after the court’s decision.

Somali Refugees file Lead Paint Lawsuit

From 2005 through 2006 a group of Somali Bantu refugees lived in apartments owned by Wen Lin, a landlord in Manchester, New Hampshire. After several members of the community got sick, 20 of the refugees filed a lawsuit alleging that the apartments were contaminated by lead paint, which is a known hazard. The plaintiffs claimed that the defendants had provided an unsafe living environment which caused injury to the community members who lived there.

As with any injury lawsuit, the plaintiffs were required to prove that they suffered a legally actionable harm as a result of the defendant’s behavior or negligence, and in this case that meant the Somali refugees had to show they suffered an illness or injury as a result of exposure to lead paint. In order to satisfy their burden of proof, the plaintiffs hired a lead paint expert to evaluate their injuries and testify in court that the defendant’s apartment was the likely cause of harm suffered.

Lead Paint Expert Witness Submits Report to Trial Court

The Somali Bantu refugees attempted to demonstrate that their injuries were caused by their living conditions by having lead paint expert witness Dr. Peter Isquith, a trained clinical neuropsychologist, to conduct tests on 17 children of the plaintiffs. Dr. Isquith used two scientific measures in order to determine that the children suffered from a neurological condition which was “more likely than not” caused by lead paint in their living quarters.

In order to make this determination, Dr. Isquith used two common neurological tests which are designed to measure verbal and non-verbal intelligence and general intelligence. The tests are separated into a series of questionnaires which examine cognitive function, attention, language, memory, and learning, and social perception. According to Isquith the plaintiff’s children standardized scores fell in a lower percentile when compared to standardized scores of other children who were not exposed to the same levels of lead paint.

Dr. Isquith used his results to argue that the alleged harm suffered by the plaintiffs not only was real, but was caused by the apartments provided by the defendant. During trial, the defendants motioned to exclude Isquith’s testimony, and after a lengthy evidentiary hearing the trial judge excluded the plaintiff’s expert for failing to account for specific conditions of the plaintiffs.

New Hampshire Supreme Court Strikes Lead Paint Expert Witness

On appeal, the New Hampshire Supreme Court closely reviewed the methodology Isquith employed and agreed with the trial court that he had not met the scientific standards required of expert witnesses in the state. The Court affirmed the trial court’s position by writing that the tests Isquith had used failed to consider the differences between Somali children and his comparison group, or consider how “normal, healthy” Somali children would perform.

Without a baseline for comparison, the Court determined that the plaintiff’s expert witness had not provided sufficient scientific justification for his conclusions regarding the lead paint injuries. Further, Isquith’s work had not been reviewed by peers, and was fraught with uncertainty which made it akin to “guesswork [which] would not assist the jury in arriving at a fair and just verdict.” Accordingly, the Court found that Isquith had not met the threshold for expert witness reliability in New Hampshire.

The case serves as a reminder that well qualified and educated expert witnesses can provide seemingly meaningful analysis which cannot pass legal standards. Courts, particularly courts which operate under standards adopted in Daubert ant its state-level progeny, are required to look beyond expert qualifications and closely examine whether or not expert analysis reliably connects the facts of the case to scientific conclusions.

“Forgotten Baby Syndrome” Expert Offers Testimony In Trial for Negligent Homicide

Judge Wade Naramore is on trial for the negligent homicide of his son, Thomas, who was found dead after his father left him in a hot car in July 2015. Naramore is a circuit judge in Garland County, Arkansas.

At the time of his arrest, Naramore told investigators that he forgot to drop off his son at daycare and left him in the backseat for about five hours. He said that he didn’t realize his son was still in the back seat until he heard a noise in the rear of his car when he was driving to pick his son up from daycare later that day.

Following a six-month investigation by special Prosecutor Scott Ellington, Naramore was arrested and charged with negligent homicide, a Class A misdemeanor. He turned himself in and pleaded not guilty. Naramore faces up to one year in jail and a fine of $2,500 if convicted. The Arkansas Supreme Court has temporarily suspended Naramore, pending the outcome of his case.

Naramore’s Defense

Naramore’s defense team called David Diamond, Ph.D, to testify as an expert on memory loss. Dr. Diamond is a neuroscientist and professor at the University of South Florida. He is also the Director of the USF Center for Preclinical and Clinical Research on Post-Traumatic Stress Disorder. Dr. Diamond has studied the “Forgotten Baby Syndrome” and has testified in numerous cases as a scientific consultant on cases involving memory-related child death.

Dr. Diamond’s fee is $10,000 to investigate cases such as Naramore’s. Dr. Diamond says that he will only testify in cases that he determines to be accidents.

Dr. Diamond opined that there were several factors that may have affected Naramore on the day that he left Thomas in the hot car. Diamond noted that the numerous changes in Naramore’s routine, possible sleep deprivation, and stress or distractions all could have played a role in the incident.

On most mornings, Naramore ate breakfast at home, but that day he stopped for breakfast at McDonald’s. Dr. Diamond theorized that stopping for breakfast triggered a “restart” of Naramore’s habitual behavior of driving to work after stopping at daycare. His brain treated the stop at McDonald’s as if it were a stop at daycare. Naramore then stopped thinking of having a baby in the backseat, just as he would have done if he had dropped the baby at daycare.

The state attempted to undermine Dr. Diamond’s testimony by questioning the statements that Naramore made to him to help develop Diamond’s forgotten child theory.

In 2014, Dr. Diamond previously testified that 200 children have died worldwide over the past 15 years after being left in cars. A website called Kids and Cars has been created to raise awareness of this issue. According to the site, over 2,200 children are injured or killed in nontraffic events every week. Kids and Cars has also compiled data on convictions in cases of children dying from heat stroke in cars. It found that 28 percent of accidental cases result in convictions and 60 percent when someone knowingly left a child in a car.

Naramore’s Support

Naramore’s family has supported him throughout the ordeal. His mother-in-law, Jan Wright, testified that she learned of Thomas’ death when she received a phone call from a distraught Naramore that consisted of him screaming and wailing and asking her to call 911. Wright testified that Naramore was inconsolable over the next few days, requiring medication to sleep. She testified that she did not place blame on Naramore, saying, “Those things can happen to anybody.”

Jury Acquits Naramore

The jury found Naramore not guilty. Expert testimony likely helped the jury understand that the tragedy of Thomas’ death could have happened to any parent. In addition, the jury may have been influenced by the emotional testimony of Naramore and his family members.

The jury deliberated for three hours. Jurors had difficulty reaching a unanimous verdict. At one point, the vote was 10-2 (presumably in favor of acquittal). The jury later told the judge that the vote was 11-1. The judge told the jury to continue its deliberations, which resulted in the unanimous verdict of not guilty.

Arkansas Judge on Trial for Hot Car Death Calls Forgotten Baby Expert Witness

An Arkansas judge accused of negligent homicide for the hot car death of his infant son has called a neuroscience expert witness to testify about “forgotten baby syndrome.” The expert witness accompanied emotional testimony from several of the judge’s family members in an effort to convince jurors that he was not negligent of his child, but instead suffered from a momentary loss of memory explained by a neurological syndrome.

Arkansas Judge Charged with Negligent Homicide

Judge Wade Naramore of Garland County, Arkansas is on trial for negligent homicide for the death of his 18-month-old son, Thomas, who died after being left in a hot car in July 2015. Naramore left Thomas in the car for several hours after failing to take him to day care, and the infant died with an internal body temperature of 107 degrees. After investigating the incident, prosecutors arrested Naramore and charged him with negligent homicide, arguing that the defendant “should have been aware” of the risk of leaving his son in the car, and his failure to recognize that risk was a criminal deviation from the care that a reasonable person would have taken.

Defense attorneys for Naramore have focused their argument on an additional element of negligence that prosecutors have not included: blameworthiness. According to Naramore’s defense team, negligence is more than just a failure to perceive a risk, but also requires evidence that the defendant was at fault for consciously creating the risk. The defense has argued that prosecutors must prove a deliberate act or conduct contributed to Thomas’s death, and have focused their case on showing jurors that Judge Naramore suffered from a neurological memory lapse which made him unaware that his infant son was left in the hot car.

Calling the incident a “tragic accident” which does not meet the threshold of criminal negligence, Naramore’s attorneys called a nationally renowned neuroscientist to explain the concept of “forgotten baby syndrome” to jurors.

Expert Witness Explains Forgotten Baby Syndrome

Attorneys for Wade Naramore called David Diamond, Ph.D to take the stand and explain a theory he uses to explain the loss of awareness of children in cars. Dr. Diamond, a neuroscience expert at the University of South Florida, calls his theory Forgotten Baby Syndrome, and argues there are several factors which cause an otherwise normal and loving parent to temporarily forget that they have a child in the car with them. Dr. Diamond’s expert testimony distinguishes Forgotten Baby Syndrome from standard child abuse or negligence by categorizing it as a neurological condition creating holes in human memory – which can be faulty and frail.

According to Dr. Diamond, when parents depart from their standard routine, and suffer from sleep deprivation and high stress situations. During his testimony, Dr. Diamond told jurors that Naramore’s case was consistent with the causes of Forgotten Baby Syndrome. On the day of Thomas’s death, the defendant dressed and readied the baby — usually something his wife did — and had an unusual breakfast at McDonald’s instead of his regular banana. Additionally, Naramore was having trouble sleeping at the time, going so far as to take pills to help the process. Dr. Diamond’s day-long testimony explained that the defendant may not have been negligent, but was instead suffering from the temporary neurological condition which caused him to forget about his infant son.

Forgotten Baby Syndrome in Hot Car Trials

This is not the first time that Dr. Diamond has testified about Forgotten Baby Syndrome during a negligent homicide trial of a parent who forgot a baby inside of a hot car. Last year, Diamond testified in the trial of El Paso teacher Wakesha Ives, whose daughter died after being left in a hot car during the school day. Although Ives was found guilty in that trial, she received a suspended prison sentence and probation.

Forgotten Baby Syndrome, like many syndromes, may be met with skepticism by jurors who are unable to believe that any parent could simply, and without control, forget a child inside of a car. With the occurrence of the condition uncommon, defense attorneys who call Dr. Diamond as a forgotten baby expert witness likely have an uphill battle to climb regardless of the empirical soundness of the expert’s research and theoretical conclusions. Wade Naramore’s trial will likely conclude next week with a verdict expected shortly.

North Carolina Death Penalty Defendant Offers Trial Strategy Expert Witness

Defense attorneys for a North Carolina man have asked a death penalty expert witness to submit a report to the trial judge which questions prosecutorial strategy in a murder trial. The case is an example of defense attorneys using an expert witness to cast doubt on prosecution witnesses who are offered deals in exchange for testimony against a lead defendant.

North Carolina Prosecutors Seek Accomplice Testimony in Murder Trial

Anthony Vinh Nguyen, 24, is on trial facing charges of first-degree murder, first-degree kidnapping, first-degree burglary and armed robbery in an incident which resulted in the death of Shelia Pace Gooden, 43, in October of 2013. Nguyen has been accused of shooting Gooden during a botched robbery attempt after he and two other men broke into her home and held her hostage in order to steal her $200 flat screen television. According to two accomplices, Nguyen fatally shot Gooden in the head during the robbery, but the defendant has maintained that he was not even with the two men that night and as such he did not take part in the robbery homicide.

Assistant District Attorneys Jennifer Martin and Ben White are the lead prosecutors in the case, and are asking for Nguyen to receive the death penalty if he is convicted. Nguyen’s two accomplices – Daniel Aaron Benson, 25, and Steve George Assimos, 24 – are also charged with first-degree murder, kidnapping, and burglary charges, however neither of them face the death penalty as both are likely to agree to testify against Nguyen in the upcoming trial.

Accomplices are frequently offered plea agreements in exchange for testimony against a co-defendant, but Nguyen’s defense attorneys – David Botchin and John Bryson – have called an expert witness to argue that the two men who claim Nguyen shot the victim are only saying what the DA is telling them to.

Expert Witness Report Questions Prosecutorial Strategy

Attorneys Botchin and Bryson have submitted papers indicating their intention to call Ernest L. Conner Jr., a criminal defense attorney, as an expert defense witness in death penalty cases and prosecutorial strategy. Connor submitted an affidavit to the court which explains that the focus of his expert testimony would be on the favorable treatment that the DA’s plan on giving Benson and Assimos, and how that treatment could unfairly influence their testimony against Nguyen. Although the prosecutors have not formally offered either man a plea deal in exchange for testimony, Connor has argued that the arrangement is likely.

Connor explained in his affidavit that the alleged accomplice testimony can still be influenced even if prosecutors have not offered plea agreements at this point in the proceedings. Connor, who has been involved with capital punishment litigation since 1992, dismissed the need for a specific deal for testimony by writing, “Since prosecutors must inform defense counsel of any formal plea offer, prosecutors often take advantage of an accomplice’s mere hope or expectation of leniency to be the motivating factor for the accomplice’s testimony.”

Further, according to Connor’s expert opinion, the fact that the DA’s have not sought capital charges against Benson and Assimos in the three years since the shooting “is an unspoken concession that implies lenient treatment is to come.” The prosecution has not formally objected to Connor’s proposed death penalty expert testimony, but will likely attempt to prevent him from testifying at trial.

Death Penalty Litigation Expert Testimony Faces Stiff Opposition

The proposed testimony by litigation expert Ernest Connor faces two primary hurdles during the pre-trial motion phase: first, prosecutors have not made any plea offer to either of Nguyen’s alleged accomplices, and second, the unusual expert testimony may not be permitted during trial. DA’s Martin and White have not talked about Connor’s proposed expert testimony directly, but have maintained that both Benson and Assimos have been cooperative from the start of the investigation and have not received plea agreements. Although Connor said that a lack of a deal was not important, the circumstances of the accomplice testimony may diminish his expert report.

The stiffer challenge which Nguyen’s defense team faces is whether Connor will be allowed to testify as a trial strategy expert witness at all. Expert witnesses walk a fine line between offering a permissible interpretation of facts and an impermissible opinion which could influence jurors, and Connor’s proposed testimony regarding the credibility of accomplice witnesses based on prosecutorial plea agreement strategy is squarely in a grey area. The case will proceed this week where prosecutors are likely to object to the defense’s proposed death penalty expert.

Oklahoma Man Turns to Psychiatry Expert Witness for Insanity Defense

A psychiatry expert witness provided a report that an Oklahoma man charged with murdering his father is mentally unfit to stand trial, setting the stage for a critical ruling on mental competency from the presiding trial judge. The case has gained attention in Oklahoma because the victim was a former state official, and the defendant has displayed signs of significant mental disorder.

Oklahoma Man Accused of Murdering his Father

Christian Costello, 27, is on trial for the fatal stabbing of his father, Mark, at a fast-food restaurant in August, 2015. According to witnesses, Christian attacked his father with a knife while in the restaurant and then continued the fatal assault outside in the parking lot after Mark attempted to flee. Mark Costello is the former labor commissioner of Oklahoma, and his death brought statewide attention on the question of whether or not Christian is mentally competent to stand trial.

Throughout the investigation into the crime, Christian Costello has been housed at a state run mental hospital where he has undergone a series of examinations in preparation for trial. Costello’s attorneys have argued that their client is legally insane, and the defendant gave a convincing show of his deficient mental state during this week’s competency hearing by admitting to killing his father because he was a hit man who was ordered to commit the crime as part of a “military operation.”

Despite the defendant’s odd behavior, proof of legal insanity requires more substantial evidence, which attorneys for Costello attempted to provide by calling a psychiatrist expert witness to provide an expert report supporting the insanity defense.

Psychiatry Expert Witness Testifies to Legal Insanity

Dr. Jason Beaman, the chair of the Department of Psychiatry and Behavioral Science at Oklahoma State University, was hired as a psychology expert witness by Costello’s defense team and asked to write a report on the defendant’s competency to stand trial. Dr. Beamon returned a 39-page report which detailed Christian Costello’s long history of mental health issues including schizoaffective disorder, which is a mental illness causing hallucinations, delusions, depression, and mania.

In regards to the effect of Costello’s mental health issues on his competency to stand trial, Dr. Beaman wrote, “It is my opinion … that the defendant has the ability to appreciate the nature of the charges filed against him but he does not have the ability to consult with his attorney and rationally assist in the preparation of his defense.” Dr. Beaman went on to write that Costello could meet the legal requirement of mental competency if he underwent psychiatric therapy or training to help him understand the legal processes.

Costello Faces Uphill Battle for Insanity Defense

Dr. Beaman’s psychiatry expert witness report is interesting because it may not provide a strong enough pillar for an insanity defense to stand on – particularly if the trial judge is willing to delay proceedings while Costello undergoes further evaluation or therapy. Further, Costello’s attorney told reporters that he believes his client was legally insane at the time the attack occurred, telling the press, “I think that’s just the way he is, and I don’t think he knew what he was doing when he killed his father.” Dr. Beaman’s report, however, did not say Costello didn’t understand the consequences of his actions, but instead focused on his ability to contribute to his own defense – a distinctly different proposition.

With a middling endorsement of the insanity defense from the defense expert witness which does not quite support Costello’s attorney’s position, the defense team may have a difficult time convincing the court to accept an insanity plea. The insanity defense remains a difficult prospect for any defendant as attorneys must use a psychiatry expert witness to not only show a mental defect, but also demonstrate that the defendant did not know their actions were wrong, could not understand the consequences of their behavior, and are unable to contribute to their own defense.

Depending on Oklahoma’s insanity plea laws, Costello’s proposed defense faces a stiff challenge. The proceedings are on hold while the court awaits the results of an evaluation by a court appointed psychiatrist before moving forward.

Former Alabama House Speaker Challenges Corruption Conviction Citing Expert Testimony

The former Alabama House Speaker who was convicted of corruption charges in June has appealed his case by citing improper expert testimony. According to the appeal, the trial court erred by allowing a state ethics expert witness to take the stand, and further erred by allowing him to provide an inaccurate picture of Alabama ethics rules.

Expert Testimony Aids in Alabama Speaker’s Conviction

Earlier this year, the former Alabama House Speaker Mike Hubbard (R) was convicted of 12 ethics violations for using his political position to secure favorable contracts for companies he owned. Prosecutors demonstrated that Hubbard’s companies had been awarded up to $2.3 million in government contracts in violation of the state’s ethics law. The state bolstered its case with testimony from the former director of the Alabama Ethics Commission Jim Sumner, who took the stand as an ethics expert witness.

Sumner explained Alabama ethics law, which prohibits state government officials from using political office to benefit themselves or a business in which they hold interest. Sumner also testified that Hubbard was well aware of the relevant ethics laws, but the former Speaker did not make an effort to consult the ethics board when engaging in questionable behavior. With the aid of Sumner’s expert testimony, Hubbard was convicted and sentenced to serve four years in prison, eight years probation, and pay a fine of $210,000.

This week, Hubbard file a motion to the court appealing his conviction by arguing Sumner’s testimony should have been disallowed as an impermissible, and incorrect, opinion of Alabama ethic’s law.

Mike Hubbard Cites Error in Expert Testimony in New Trial Motion

In a 39-page motion detailing the problems with the prosecution’s interpretation of Alabama ethics law and requesting either a dismissal of all charges or a new trial, Hubbard provided an in depth argument against Sumner’s expert testimony. According to Hubbard, Sumner’s testimony was faulty for two reasons: 1) he offered opinion testimony, which is impermissible; and 2) he was wrong in his opinion of Alabama ethics law. Alabama’s laws of evidence allow expert witnesses to explain facts or laws in a way that jurors are able to understand, but does not allow experts to provide their opinion on how facts or laws should be interpreted. According to Hubbard’s appeal, Sumner’s ethics expert analysis violated this rule because he told jurors what the language of Alabama ethics law meant. Hubbard claims that Sumner provided his own interpretation of Alabama ethics law, which should have been disallowed by the trial court.

Hubbard also argued that the problem with allowing Sumner to provide his opinion of Alabama’s ethics law was compounded because the expert was incorrect in his interpretation. Hubbard’s motion for a new trial alleges that Sumner’s expert testimony encouraged an overly broad interpretation of the state’s ethics code which encouraged criminalization of behavior which was not intended when the rules were passed. Sumner allegedly misinterpreted Hubbard’s contracts with the state of Alabama as illegal activity, and failed to properly explain certain exceptions to the ethics code which Hubbard claims applied to his case.

Hubbard’s motion for a new trial concludes by arguing that prosecutors improperly called an ethics expert witness whose opinion of the relevant law aligned closely with their own, and the trial court erred by allowing the jury to consider Sumner’s testimony.

Alabama Criminal Court to Consider Hubbard’s Motion for a New Trial

Prosecutors have yet to respond to Hubbard’s motion for a new trial, but have asked the Court to reconsider the defendant’s sentence. According to prosecutors, Hubbard should also have been ordered to pay $1.1 million in restitution for his corruption conduct based on previous sentences for similar actions by officials. Prosecutors requested the additional restitution during sentencing, but were unable to provide legal precedent until a post-conviction motion. Given Hubbard’s recent appeal, the state’s attorneys will be forced to shift focus to a motion defending their use of an expert.

Hubbard remains out of jail on bond while the Judge considers post-conviction appeals and motions, and with the importance of the upcoming ruling on his motion to dismiss charges and overturn the conviction, the case will likely take several more weeks or months to resolve. Should Hubbard be granted a new trial, prosecutors will need to reassess how they use their ethics expert witness to avoid overstepping the boundaries placed on expert testimony.

Defective Product Lawsuit Against Bayer Fails Without Medical Expert Testimony

A defective medical products claim with 1,300 joint female plaintiffs has been dismissed four months after a New York federal judge prohibited medical expert witnesses from testifying. The case has limped along since the plaintiffs suffered a devastating ruling against their expert testimony this year before finally being put to rest last week for lack of evidence against the device manufacturer.

High Profile Defective Device Lawsuit Dismissed in New York Federal Court

US District Judge Cathy Seibel in New York dismissed a complaint filed by 1,300 women against medical device manufacturer Bayer for lack of evidence the company caused the plaintiffs’ injuries. The claim originated from complaints about Bayer’s Mirena intra-uterine contraceptive device (IUD) which allegedly perforates women’s uteruses after it has been surgically inserted. According to the plaintiffs, the Bayer Mirena IUD caused internal injuries after surgery, and the company failed to provide warning about that possibility when it marketed the product to surgeons and patients.

Bayer has not denied the fact that the 1,300 plaintiffs suffered internal injuries, but responded to the complaint by arguing that the damage occurred during surgical insertion and is therefore the responsibility of the doctors and hospitals rather than the company. The company also warns about the possibility of uterus perforation during insertion, and argues the plaintiffs understood the risks associated with the product. Bayer has maintained the position that the Mirena IUD is not defective throughout the lawsuit, and successfully argued for a dismissal last week by showing that the plaintiffs failed to provide evidence that injuries occurred after surgical insertion due to a defect in the device.

Bayer’s argument for dismissal was made easier in March when Judge Seibel dismissed expert witnesses hired by the plaintiffs to argue that the Mirena IUD can cause internal damage.

Plaintiffs in Bayer IUD Case Lose Expert Witness Testimony

At the outset of the case, the 1,300 plaintiffs hired medical expert witnesses to conduct an analysis of the types of injuries they suffered and Bayer’s Mirena IUD product to see if a defect contributed to their harm. The plaintiffs’ expert witnesses included two ob-gyn professionals and a uterine physiologist who were prepared to testify that the uterus perforation occurred after the IUD’s were inserted due to a defect in the design and manufacture. After reviewing the content of the proposed expert testimony, Judge Seibel banned four of the experts from testifying at all and severely limited two others to the point where they would have been of very little help to the plaintiffs’ case.

According to Judge Seibel, several of the Bayer IUD plaintiffs’ experts were unqualified to speak on the issue, and those who were offered opinions and hypotheses rather than proven fact. The judge determined that the expert testimony was not based on sound scientific findings, but instead on anecdotal theories prepared specifically for the litigation by a collection of medical professionals. Under the Daubert standard of expert witness testimony used in federal courts, the plaintiffs’ experts could not be allowed to testify without providing scientifically accepted research.

Judge Seibel further weakened the plaintiffs’ position by allowing several of Bayer’s expert witnesses to testify because they had documented medical research regarding the performance of the company’s Mirena IUD.

Bayer Mirena IUD Lawsuit Fails after Lawyers Forego Expert Testimony

Rather than abandon the case or seeking other qualified experts after Judge Seibel’s decision against the plaintiffs’ expert witnesses in March, attorneys representing the women decided to pursue the case without medical expert support. According to the attorneys, Bayer’s admission that the women’s harm was caused by the Mirena IUD was sufficient to prove liability, despite the fact that Bayer argued the injuries occurred during insertion – something the company warned about and was not liable for.

Ultimately the strategy to move forward without viable and qualified medical expert witnesses failed, and the dismissal of the complaints against Bayer last week confirms an outcome that many have suspected was forgone. The failed lawsuit against Bayer’s Mirena IUD provides a cautionary tale to plaintiffs and their attorneys that defective product lawsuits are unlikely to succeed without qualified medical expert testimony. Medical experts must be ready to provide testimony which is supported by scientific research, not prepared specifically for the trial, and backed by the expert’s qualifications in the field.

False Confession Expert Testifies in Brooklyn Murder Trial

A New York man charged in the kidnapping and murder of a Brooklyn real estate magnate has called on a psychology expert witness to testify that he falsely confessed to the crime. The high profile case provides another example of how behavioral science expert testimony is being worked into the legal system, and the outcome could influence the use of false confession research by courts in the future.

Brooklyn Murder Suspect Confesses to Role in Kidnapping

Brooklyn native Kendel Felix was arrested for his alleged involvement in the January 2^nd, 2014 kidnapping and murder of real estate mogul Menachem Stark. Stark was taken from the front of his office during a snowstorm, and his partially burned body was later recovered in a dumpster on Long Island. Three months after the murder, police arrested Felix and three other co-defendants in connection with the crime, but only Kendel has been charged with murder. Felix has been singled out in part because of a taped confession he provided to police officers in which he admitted to taking part in the crime by driving and helping to buy gasoline used to burn Stark’s body.

Felix claimed that he did not plan the crime, but his confession has nonetheless become the center piece of the trial against him. If convicted, Kendel faces 50 years to life in prison, and his attorneys have attempted to attack the confession evidence with a pre-trial hearing featuring false confession expert testimony. Attorneys for Felix reached out to a psychology expert witness with experience in false confession research to testify that the defendant was vulnerable to police persuasion which may elicit admission to a crime he did not commit.

False Confession Expert Testifies in New York Murder Trial

According to expert testimony from Dr. Marc Janoson during a pre-trial hearing in front of Brooklyn Supreme Court Justice Neil Firetog, Kendel Felix may have falsely confessed to the kidnapping and murder. Dr. Janoson has a PhD in psychology, and is an experienced false confession expert witness with years of research on the subject. Dr. Janoson has been called to testify in several criminal trials, and told Judge Firetog that Felix has “vulnerabilities that the literature has associated with false confessions.”

Dr. Janoson conducted several one on one interviews with Felix after the defendant’s arrest, and testified that in his expert opinion Kendel suffered from a low IQ of 87 and memory loss which made him more likely to falsely confess. Dr. Janoson also talked about the police investigation, during which officers told Felix that his parents could be deported if he didn’t confess and that he would never see his three children again. The police also dissuaded the defendant from talking to a lawyer. When talking about the methods the police used while questioning Felix, Dr. Janoson told the court “I would also add that if the reports he gave me on his interrogation were correct, there was a great deal of coercion.”

Dr. Janoson cited research on false confessions which demonstrates that low intellect individuals subject to heightened police pressure are at an increased risk to admit to a crime that they did not commit. During his expert testimony, Janoson explained the existing research on false confessions and highlighted the attributes of Felix’s case which align with false confession literature. Prosecutors responded by calling a counter-expert to dispute Janoson’s claims.

Prosecution Calls Psychology Expert Witness to Dispute False Confession Testimony

In response to Dr. Janoson’s false confession expert testimony, prosecutors called psychologist Kathy Yates to dispute the defense’s claim that Felix was vulnerable to police coercion. According to Yates, the defendant had the intellectual capacity to understand his rights to speak with a lawyer, and faked his memory loss in an effort to avoid a long prison conviction. During her testimony, Yates looked to Felix and directly contradicted Janoson’s testimony by saying, “I apologize for my colleague yesterday for saying you were brain damaged and below intellect.”

The success of Felix’s false confession expert witness remains to be determined, but the case represents an interesting use of experts in criminal trials. False confession expert witnesses have grown in popularity as research into the phenomenon expands, but even renowned experts have experienced difficulty convincing judges and juries that a suspect can admit to a crime he did not commit. Despite the uphill battle false confession experts face, psychologists in the field may be called upon by defense attorneys who seek to challenge evidence which is historically a strength for prosecutors.

Plaintiff Earns New Medical Malpractice Trial Due to Expert Witness Testimony

A Pittsburgh woman who lost a malpractice lawsuit has been granted a new trial because a lower court erred by restricting medical expert testimony that would have bolstered her case. According to a Pennsylvania Superior Court, the plaintiff had a right to present the full testimony of a medical diagnosis expert witness who was called to help her explain why a Pittsburgh area hospital was negligent in responding to her symptoms.

Pittsburgh Woman Files Medical Malpractice Suit for Failure to Diagnose Breast Cancer

In 2009, Maria Heddleston gave birth to a child at the University of Pittsburgh Medical Center, and, as part of her care, received a breast-feeding consultation which included instructions about how to operate a breast pump machine. During the consultation and training, Heddleston complained of severe breast pain when she pumped, but this was not investigated by the attending nurses or physicians at the facility. Maria was diagnosed with breast cancer in 2010, and she sued the Obstetrical and Gynecological Associates of Pittsburgh Inc. and other individual defendants for failing to run diagnostic tests which would have given her an earlier cancer diagnosis.

During trial, Heddleston claimed that by delaying the diagnosis almost a full year, her risk of death increased. After a civil trial in Pittsburgh, a jury returned a verdict 10 – 2 in favor of the defendants, finding that the Heddlestons had failed to prove medical malpractice. On appeal, the plaintiffs argued that the trail court made an error when the judge disallowed expert witness testimony which would have affirmed the Heddleston’s argument that a diagnostic test run in 2009 would’ve caught the breast cancer early.

Judge Grants New Trial with Instructions to Include Expert Witness

During the initial trial, the plaintiffs called Dr. Barry Singer as a medical expert witness, and as part of his testimony was asked if diagnostic testing in 2009 would have caught Maria Heddleston’s cancerous tumor. Before Dr. Singer could answer, defense counsel objected, arguing that the expert testimony should have been restricted to facts about the standard of care expected by gynecologists and not the doctor’s opinion about the results of a hypothetical diagnostic test. The trial judge agreed, and the defense successfully argued during closing arguments that the plaintiffs could not prove a 2009 diagnostic test would’ve caught the cancer.

On appeal, Judge Mary Jane Bowes disagreed with the trial court, and held that Dr. Singer’s expert testimony regarding the outcome of a 2009 diagnostic test would speak to gynecological standard of care. According to Judge Bowes, Dr. Singer’s testimony that a 2009 diagnostic test on Maria Heddleston would’ve identified early stages of breast cancer suggest a failed duty to live up to the standard of care required by treating gynecologists who offer breast feeding consultations. Dr. Singer did not state during his testimony that such tests are required or even standard, but his information regarding the result of a test would, according to Bowes, give jurors the opportunity to better evaluate the level of medical care Heddleston should have received.

Pittsburgh Woman gets Second Chance at a Medical Malpractice Trial with Expert

Judge Bowes concluded that the Heddlestons deserved a new trial because of the trial judge’s failure to allow the plaintiff’s medical expert witness to theorize on the results of a 2009 cancer diagnostic test which was not conducted. This ruling demonstrates the fine line that medical malpractice experts walk between a permissible explanation about standard of care practices which medical professionals are expected to follow and impermissible testimony which opines about whether or not that standard has been met.

Medical expert witnesses like Dr. Singer in this case are typically allowed to discuss the standard of care, and then give their expert opinion on the medical care a plaintiff actually received. It is up to the jury to compare the expected standard of care with the actual care a patient received in order to issue a verdict. In this case, the appellate judge determined that a medical expert’s opinion the result of an diagnostic test which was not run did not translate to his opinion on the quality of the care the plaintiff received, and was therefore permissible expert testimony.

Court Excludes Testimony of Medical Expert Who Declined to Consider Conflicting Studies

Do expert witnesses who rely on scientific studies have an obligation to explain why they did not rely on studies that produced different results? A divided panel of the U.S. Court of Appeals for the First Circuit ruled that they do. While the holding may be questionable, the decision provides guidance to medical and other science-based experts who may be asked about studies that do not support their conclusions.

Facts of the Milward decision

Brian Milward sued the Rust-Oleum corporation (and other paint manufacturers) after he was diagnosed with Acute Promyelocytic Leukemia (APL). Milward spent his adult life working as a pipefitter and refrigerator technician. He contended that exposure to benzene in paint products caused his cancer.

To succeed in his toxic tort case, Milward needed to prove that benzene is capable of causing APL (general causation) and that benzene exposure actually caused his APL (specific causation). Expert testimony is required to make each of those showings.

The court eventually determined that Milward’s expert in general causation would be permitted to testify. Milward retained occupational medicine physician Dr. Sheila Butler to testify regarding specific causation. Rust-Oleum challenged that testimony.

Dr. Butler based her opinion on three theories. First, she testified that there is no safe level of benzene exposure. She did not base that conclusion on epidemiological studies, but on her examination of the impact benzene has on the human organism and the disease process. Dr. Butler concluded that benzene likely caused Milward’s APL because he was exposed to benzene and all benzene exposures are unsafe.

Second, Dr. Butler testified that certain epidemiological studies have established that the exposure to specified quantities of benzene increases an individual’s “relative risk” of developing APL. Since Milward’s exposure was higher than the amounts found to be hazardous, Dr. Butler concluded that benzene exposure was likely the cause of his APL.

Third, Dr. Butler ruled out other potential causes of APL, such as obesity and smoking. Her “differential diagnosis” resulted in the conclusion that benzene caused Milward’s APL because it was the only significant potential cause that she could not rule out.

District Court’s Ruling

Rust-Oleum brought a Daubert motion to exclude Dr. Butler’s testimony. The Daubert decision requires the district court to assure that expert testimony is based on a reliable foundation. The district court granted that motion, which resulted in the dismissal of Milward’s case on summary judgment for lack of proof that benzene caused his APL.

The district court rejected Dr. Butler’s conclusion that every exposure to benzene increases the risk of APL because “it could not be tested with any known rate of error.” Milward did not challenge that ruling on appeal.

The district court determined that Dr. Butler’s “differential diagnosis” theory was flawed because she could not rule out idiopathic causes of Milward’s APL (causes that cannot be scientifically explained), but merely “ruled in” benzene exposure as a cause. The court reached that conclusion despite Dr. Butler’s testimony that every disease has a cause. While it is impossible to rule out unknown causes, when all known causes but one can be ruled out, it is reasonable to believe that the remaining known cause is the most likely cause of the disease. Milward’s attorneys apparently made no serious challenge to the district court’s ruling on appeal and the court of appeals rejected it with little analysis.

Since the “differential diagnosis” theory and the “no safe level of exposure” theory were both rejected without significant legal analysis, the appeal turned on the district court’s exclusion of Dr. Butler’s “relative risk” theory. The district court found that Dr. Butler’s “relative risk” analysis was flawed because she relied on certain epidemiological studies while disregarding a study that reached contrary results. The court of appeals agreed.

Appellate Court’s Analysis

Dr. Butler relied on studies that defined an exposure level to benzene that elevates the risk of acquiring APL. A competing study found no correlation between benzene exposure levels and the onset of APL. Dr. Butler testified that she did not consider the competing study because she believed that there is no safe level of exposure to benzene. She said that she therefore had no need to consider conflicting studies. The court of appeals concluded that Dr. Butler did not use a reliable methodology because she failed to make a reasoned analysis of studies that supported her position and studies that did not.

Milward’s lawyers argued that Dr. Butler’s methodology was sound because she relied upon reliable studies. In their view, the fact that Dr. Butler did not consider every study did not negate the reliability of the studies that supported her opinion. The appellate court, however, considered it “self-evident that, when an expert engages in a relative risk analysis in the manner that Dr. Butler did here, the district court is on firm ground” when it requires the expert to explain why she relied upon certain studies and disregarded those with contrary results.

Whether Milward’s methodology was unreliable because she did not consider a study that conflicted with her opinion is a close question. Since her opinion was supported by studies she considered to be reliable, a different court (like the dissenting judge) might hold that her failure to consider conflicting studies goes to the weight the jury should give to her testimony, not to its admissibility. Indeed, in a similar case, the Court of Appeals for the Seventh Circuit held that “Rule 702 did not require, or even permit, the district court to choose between those two studies at the gatekeeping stage.”

The Dissenting Opinion

Judge Thompson’s forceful dissent might persuade other courts to answer the question differently. Judge Thompson noted that Dr. Butler is an experienced physician who specializes in the treatment of veterans who were exposed to toxic substances during their military service. The judge thought that Dr. Butler was well qualified by her own experience to diagnose the cause of Milward’s APL without reference to any studies at all.

The dissent notes that Dr. Butler did not claim an inability to compare the sole study that challenged her opinion to other studies, but testified instead that she had no need to do so. She regarded her own experience as sufficient to validate the studies upon which she relied. According to the dissent, it was for the jury, not the judge, to decide how much weight to give to an opinion that was grounded both in relevant experience and in scientific literature.

Judge Thompson’s dissent includes “a short primer on expert opinions” that is recommended reading for anyone who wants to have a better understanding of how district judges should exercise their limited “gatekeeping” role when they decide whether expert testimony is admissible under Daubert. The opinion notes that Daubert is meant to be a liberal standard that favors the admissibility of expert opinions. The dissent clarifies the application of Daubert to medical opinions, carefully distinguishing between admissible testimony that a jury might or might not find doubtful (since weighing competing studies is the job of the jury, not the judge) and inadmissible testimony that cannot be helpful to the jury because it lacks a sound scientific foundation.

Implications for Experts

In the case from the Seventh Circuit noted above, the court concluded that the expert should have been permitted to testify that benzene caused the plaintiff’s injuries. That expert explained why the studies that supported his opinion were more scientifically reliable than the studies that found no correlation between benzene exposure and leukemia.

The lesson to learn is that an expert who relies on studies that support her opinion should be prepared to discuss studies that reached conflicting or inconclusive results. The expert should be familiar with the universe of relevant studies and should be ready to explain why the studies upon which she relied are more reliable than those that do not support her opinions. If Dr. Butler had done that, there is little doubt that her testimony would have been admissible.

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