Category Archives: Expert Opinions

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Expert’s Testimony About Behaviors that Are Common to Chat Room Participants Who Engage in “Age Play” Deemed Inadmissible

The Colorado Court of Appeals relied on a New Yorker cartoon to illustrate the issue it confronted in People v. Battigalli-Ansell. The cartoon features a dog at a keyboard telling another dog, “on the internet, no one knows you’re a dog.”

The internet site Omegle is essentially a chat room. The site connects users randomly and encourages them to engage in anonymous conversation. Users probably won’t chat with a dog, but they might be connected to someone who has created a false persona. The site encourages users to “have fun” and does not require them to disclose their true identity.

David Battigalli-Ansell began chatting with a user who identified herself as “Brooke.” Brooke claimed to be a fourteen-year-old girl. Omegle does not require users to be adults, so it was possible that the user was telling the truth. Battigalli-Ansell is an adult.

Battigalli-Asell and Brooke exchanged sexually suggestive messages. Brooke then sent Battigalli-Asell her telephone number. To confirm that the person to whom he was chatting was actually a female and not a male engaged in role playing, Battigalli-Ansell texted the number and asked Brooke to send him a picture. In response, he received a picture of an 18-year-old woman. Battigalli-Ansell then sent Brooke a picture of his penis.

A Colorado statute makes it illegal to invite, by means of a computer network, “a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to . . . observe the actor’s intimate parts.” Battigalli-Asell was charged with violating that law.

At trial, Battigalli-Ansell testified that he assumed Brooke was a role-playing adult. If he actually made that assumption, he was correct. “Brooke” was a part played by an adult male law enforcement officer. The picture that “Brooke” sent Battigalli-Ansell was a picture of an adult intern. At no time did Battigalli-Ansell communicate with a 14-year-old.

The statute, however, makes it unlawful to send an intimate picture by text or internet message if the sender “believes” the recipient to be under the age of 15. The prosecution contended, and the jury agreed, that Battigalli-Ansell believed Brooke was a 14-year-old girl based on the law enforcement officer’s false representations about his true identity.

Exclusion of Expert Testimony

The question of what Battigalli-Ansell believed is difficult to answer. Nobody can read minds. The jury knew that Battigalli-Ansell was told that Brooke was 14, but it also knew that Battigalli-Ansell received a photo of an 18-year-old that purported to be a photo of Brooke. It is not beyond the realm of possibility that Battigalli-Ansell believed he was talking to an adult female who was playing the role of a 14-year-old girl.

To bolster his defense, Battigalli-Ansell retained an expert witness. Marty Klein, a licensed marriage and family therapist and certified sex therapist, proposed to testify that:

  • scientific studies establish that fantasy role playing is a normal part of human sexual interaction;
  • millions of adults play erotic games centered around age play;
  • fantasy age play does not necessarily indicate a desire to have sex with actual minors or to repeat role-playing behaviors outside the realm of fantasy;
  • transcripts of the chats in which Battigalli-Ansell engaged with “Brooke” are consistent with fantasy age play by an individual who has no desire to move the fantasy behaviors to reality; and
  • “the normalcy of sexual fantasies is not well understood in the general population and . . . often intimate partners fail to recognize and accept, without therapeutic help, the benign nature and normalcy of such fantasies in their partners.”

The trial court agreed that Klein could explain the nature of fantasy role playing in the context of a chat room. The court also allowed Klein to give “brief testimony that sexual fantasies about adult and adolescent sex partners are common and are not abnormal,” but did not permit more extensive testimony on the ground that it would be “a needless waste of time, might create confusion and would not be helpful to the jury.”

In particular, the judge excluded the testimony summarized in the bullet points above. However, when the prosecutor asked Klein on cross-examination whether people “fantasize about having sex with children,” the question opened the door to additional testimony. The court allowed Klein to testify on redirect that people fantasize about sex with “teenagers” and that “fantasies about having sex with minors [do] not predict . . . sexual behavior with minors.”

Battigalli-Ansell was convicted. He based his appeal, in part, on the exclusion of Klein’s full opinions.

Appellate Opinion

Battigalli-Ansell argued on appeal that Klein offered additional opinions in his expert report that were improperly excluded. However, the trial judge expressly asked whether Klein would be offering opinions other than those summarized in the bullet points above. Battigalli-Ansell’s counsel said that he would not. That statement waived the right to challenge the exclusion of other opinions.

The appellate court agreed that the opinions described in the bullet points were inadmissible. The question before the jury was whether Battigalli-Ansell believed he was sending an intimate photo to a person who was 14 years old. According to the court, whether fantasy role playing is a normal part of sexual interaction, whether millions of Americans engage in age play, and whether age play is a predictor of pedophilia are not opinions that shed light on Battigalli-Ansell’s beliefs.

It is true that pedophilia was not an issue in the case. Pedophilia is, by definition, a condition that describes an attraction to prepubescent children, not to 14-year-olds.

In any event, it is unlawful in Colorado to send an intimate picture to a 14-year-old, whether or not the sender is a pedophile. Whether Battigalli-Ansell actually wanted to have sex with the recipient of the photo was not relevant. Sending the photo to someone whom the sender believes to be a minor (even if the belief is mistaken) is unlawful regardless of the sender’s desire to have contact with the recipient.

On the other hand, the normalcy of age play does tend to make Battigalli-Ansell’s position easier to understand. A jury that does not know that age play is widespread might conclude that “nobody would do that.” Evidence that millions of people do, in fact, play fantasy games is relevant because it would tend to make the jury understand that Battigalli-Ansell might be part of that very large group.

Improper Comment Upon Credibility

Klein’s key opinion was that transcripts of the chat were “consistent” with fantasy age-play. The appellate court noted that prosecution experts in child sexual assault cases often testify that an allegedly abused child’s behavior (such as failing to report abuse) is consistent with the behavior of child abuse victims. Klein’s opinion that the chat was consistent with behavior observed by fantasy role players was arguably admissible on the theory that experts are generally allowed to educate jurors about common behaviors of individuals that are outside the ordinary experience of most jurors.

The court nevertheless observed that prosecution experts cannot give opinions about perceived behaviors of child abuse victims that tend to bolster the alleged victim’s credibility. Courts generally prohibit testimony when an expert’s testimony would suggest that the expert believes a child is telling the truth. The veracity of a witness is not a proper subject of expert testimony. The court saw no reason not to apply the same rule outside the context of sexual assault cases.

The issue that the court confronted is tricky. Testimony that a person’s behavior was consistent with behavior that is common to a particular group does not invariably suggest that the expert believes a witness is telling the truth. Police officers routinely testify that a driver’s behavior was consistent with the behavior of drunk drivers. Courts routinely admit that testimony on the theory that it assists the jury, even if it might suggest that the officer disbelieved the driver’s claim to be sober. There is no obvious reason to disallow expert testimony that signals a belief that a witness is telling the truth while allowing testimony that signals a belief that a witness is not telling the truth.

The court acknowledged that the “line between opinion testimony that improperly bolsters a witness’s credibility and admissible testimony that may only collaterally enhance the witness’s credibility is sometimes a difficult one to draw.” Experts who testify about the prevalence of delayed reporting by child sexual assault victims might be seen as bolstering the credibility of a child who delays reporting an alleged assault, but that testimony is routinely permitted. Doctors often diagnose health conditions by determining that a patient’s symptoms and behaviors are consistent with those of other patients who suffer from a particular condition. When doctors testify about a diagnosis that is based on symptoms disclosed by the patient and on consistency with other patients who have the same condition, the doctor signals a belief that the witness is telling the truth about her symptoms.

The court nevertheless concluded that Klein was bolstering Battigalli-Ansel’s testimony by stating that Battigalli-Ansel acted in conformity with the behavior of people who engage in age play. According to the court, Klein was signaling his belief that Battigalli-Ansel was telling the truth, at least in part because “Klein was not acting as a ‘cold’ expert —one who ‘knows little or nothing about the facts of the particular case, often has not even met the victim, and has not performed any forensic or psychological examination of the victim,’ and who educates the jury regarding certain general characteristics.” Klein’s testimony was accordingly inadmissible.

Lessons Learned

Courts are notoriously inconsistent in deciding whether an expert can opine that a person’s behavior was consistent with behaviors seen in members of particular groups. Battigalli-Ansel might have been better served by an expert opinion that simply avoided using the words “consistent with.” It isn’t clear whether Klein ever met Battigalli-Ansel, but establishing that he was a “cold” expert might have improved the chance of making his opinions admissible.

The court suggested that the outcome might have been different if Klein had confined his testimony to explaining “what characteristics of a dialogue generally inform his determination that the dialogue is ‘consistent with’ role-playing, as opposed to opining on the nature of the specific communications between Battigalli-Ansell and ‘Brooke’.” Unfortunately, the opinion does not make clear whether the trial judge gave Battigalli-Ansell the option to introduce more limited testimony. Had the trial judge parsed the testimony as carefully as the appellate court, Klein might have been able to give the limited testimony that the appellate court thought would be proper.

It is always perilous for experts to testify that the behavior of one person is “consistent with” the behavior of a group of persons. Unless precedent clearly establishes that such testimony is not an inadmissible comment upon credibility, experts might want to couch their opinions in terms that avoid making such comparisons.

Virginia court gavel

Challenge to Expert Testimony Rejected in Lawsuit Against Unite the Right Organizers

A Unite the Right rally in Charlottesville during August 2017 brought together several white nationalist groups, much to the dismay of Charlottesville residents who support the American values of diversity and equal rights for all. The groups made Charlottesville a target because city leaders planned to remove a statute of Robert E. Lee.

Hundreds of white nationalists carried torches while chanting anti-Semitic, homophobic, and racially offensive slogans. Dozens of people were injured by mob violence. One participant in the rally drove a car into a group of counter-protestors, killing a 32-year-old woman and injuring more than 30 others. He was later convicted of federal hate crimes and sentenced to life in prison.

In the aftermath of the rally, ten injury victims sued individuals and organizations who organized the rally. The lawsuit was filed in federal court in the Western District of Virginia. The suit alleges that the defendants “joined together for the purposes of inciting violence and instilling fear within the community of Charlottesville and beyond.” The lawsuit is premised on a conspiracy to violate the civil rights of the plaintiffs. The case has been set for trial in October 2021.

Expert Opinions

The plaintiffs intend to call two expert witnesses to testify about strategies used by white supremacist organizations as a shield against accountability. The experts, Kathleen Blee and Peter Simi, are sociology professors who study white supremacy. The plaintiffs want to educate the jury with expert opinions about strategies of “double-speak” or “just joking” that white supremacist organizations and their adherents use to create “plausible deniability when conveying certain racist or violent messages.” The experts also “intend to testify that certain communications between Defendants and online comments they made were consistent with those strategies.”

In the words of plaintiffs’ counsel, Blee and Simi drew upon their research and scholarship “to describe a distinct white supremacist culture that, throughout its lengthy history, has informed the (often coded) language, tactics, and symbols of those who are immersed in that culture.” As summarized by the court, the experts drew these conclusions:

  • The white supremacist movement (WSM) “has consistently utilized, supported, and glorified violence as a strategy to promote its message and secure white supremacy.”
  • The defendants “were active in and knowledgeable about the culture and networks of the WSM prior to [Unite the Right].”
  • Unite the Right “was organized to promote the agenda of the WSM.”
  • The defendants organized Unite the Right by using “the cultural symbols, rituals, slogans, language, and references to historical figures that are the hallmarks of the WSM.”
  • The defendants “shaped and made use of WSM culture and networks to recruit participants and to plan and execute [Unite the Right].”
  • The “coordinated race-based violence facilitated and committed by Defendants at [Unite the Right] is emblematic of WSM tactics.”
  • The defendants employed a coordinated strategy to obfuscate their aims through the use of “double-speak, front-stage/back-stage behavior, and a discrete and new-age communication platform.”

Some of the defendants moved to exclude the expert testimony. The district court judge denied that motion.

The court was puzzled by the defendants’ failure to articulate a clear theory for excluding the expert testimony. They did not challenge the qualifications of Blee and Simi to form the proffered opinions. They did not challenge the methodology employed by the experts or the reliability of their conclusions. Instead, they raised three challenges that, in the district court’s view, lacked merit.

Double-Speak

Blee and Simi explained that “double-speak” is a way of communicating coded meaning to members of the WSM through messages that appear to have an innocuous meaning to outsiders. They cited Pepe the Frog as an example. Pepe the Frog is an internet meme that was used on blog and internet forums to communicate surprise, anger, and other emotions. Blee and Simi explained that the WSM appropriated Pepe the Frog “to signify the ideas of racism and anti-Semitism,” though “outside of white supremacism, Pepe lacks those connotations.”

Blee and Simi also explained that certain organizations, including the American Identity Movement and Patriot Front, used rebranding strategies to conceal their true agenda, allowing them to recruit more freely on college campuses and among mainstream college campuses. They cite the replacement of swastikas with business suits as an example.

Relying on social science research, Blee and Simi explain how jokes are circulated among the WSM to communicate ideas to movement members, including the advocacy of violence, that are obscure to outsiders. The ability to say “just joking” preserves the ability to deny the advocacy of race-based violence.

The defendants argued that the expert opinions usurped the jury’s function by telling the jury how to interpret the intent underlying the defendants’ communications. The court rejected that argument. It noted that courts “routinely admit expert testimony explaining the meaning of complex, obscure, or coded language to juries.” Expert testimony about coded language is particularly common in criminal trials, where police officers who base opinions on considerably less social science research purport to explain drug jargon and gang references.

Expert testimony is also admissible to explain “the history, structure, leaders, or operations of an unfamiliar organization or subculture.” While court discussions discussing that testimony have again focused primarily on criminal gangs and terrorist organizations, the decisions are equally applicable to the obscure organizations that comprise the WSM.

The defendants also argued that the expert opinions were not relevant to any issue. The court determined that the testimony was relevant because it was directly tied to the facts of the case. Bree and Simi provided a detailed explanation of how Unite the Right organizers used double-speak in public communications to attract individuals with a violent agenda to their rally while using private communications (including “burner phones”) to coordinate violent and illegal activities in secret. Bree and Simi explained how public expressions of the right to exercise self-defense were part of a false narrative that was used as a pretext for violence. They also explained how “joking” references to violence and the use of the Confederate flag as a recruiting symbol communicated a violent purpose underlying the rally.

Because the proffered testimony is “not only helpful but necessary for jurors to have an informed understanding of language” used by the defendants, it is admissible. The testimony does not tell the jury how to decide the case. The testimony might, if believed by jurors, guide the jury’s understanding of the defendants’ intent, but the defendants are free to introduce evidence of alternative explanations. “The fact that Plaintiffs’ experts’ interpretation may be different from Defendants’ does not render it improper.”

References to White Supremacist Movement

The defendants argued that the experts should not be allowed to use the phrase “white supremacist movement.” In their view, the term implied an organized effort or a conspiracy. The court noted that the defendants did not invent the phrase WSM. Their characterization of the beliefs and goals that unite the defendants is relevant to the plaintiffs’ conspiracy allegations. The defendants are free to dispute the characterization, but they made no convincing argument that expert testimony using the phrase would be unfair to them.

The defendants also objected to “testimony regarding certain traits, methods, or characteristics shared by various white supremacist groups,” including the embrace of violence to achieve a white-dominant society. The experts’ proposed testimony provided a context that would help the jury understand the shared beliefs of WSM adherents. The expert testimony was therefore relevant to prove that the defendants intentionally conspired with each other to violate the civil rights of nonwhites.

Nor would it be unfairly prejudicial to the defendants to discuss belief systems that jurors might find abhorrent. If abhorrent beliefs motivated the conspiracy, it isn’t unfair to discuss those beliefs at trial.

Comments Upon Credibility

Finally, the defendants argued that the expert testimony would improperly comment upon the credibility of the defendants, some of whom may characterize the Unite the Right rally in non-conspiratorial terms. The plaintiffs advised the court that the experts would not comment upon the credibility of any defendant.

The court noted that the defendants are free to deny participating in a conspiracy to violate civil rights. The jury will then decide whether the defendants’ behavior suggests their joint support of the WSM. Expert testimony about the beliefs and goals of WSM adherents is not a comment upon the credibility of the defendants. The expert testimony is therefore admissible.

 

a doctor and a child

Child Abuse Pediatrician Removed from Roster of Expert Witnesses After Making False Statements in Court

Medical experts can play a significant role in diagnosing child abuse. As medical science has evolved, however, the judicial system has come to realize that expert testimony about whether an injury or death was caused by abuse can be problematic.

Medical experts are not present when an injury occurred and have no firsthand knowledge of its cause. To decide whether an injury was caused accidentally or intentionally, experts must engage in deduction. The line between deduction and speculation can be exceedingly thin.

Until recently, a pediatrician in Tacoma was regarded as one of Washington’s leading child abuse experts. Authorities believed she had an uncanny ability to detect “subtle” signs of child abuse. Unfortunately, “subtle” evidence is usually synonymous with “ambiguous” evidence. The pediatrician’s opinions have been called into question, in part because she provided untrue information about her expertise.

Dr. Elizabeth Woods

Government authorities in Washington routinely relied on Dr. Elizabeth Woods to provide expert opinions about child abuse. Those opinions provided the foundation for criminal proceedings and for civil actions to remove children from their parents.

Until recently, Dr. Woods was the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma. On several occasions, Dr. Woods’ professional opinions were controversial.

In one case, Dr. Woods opined that a mother had abused her 5-year-old daughter by seeking excessive and harmful medical treatments. Authorities responded by removing the 5-year-old and the mother’s 8-year-old (who was never alleged to be a victim) from the mother’s custody.

In another case, Dr. Woods concluded that a 2-year-old child’s bruise was caused by abuse. Although her opinion contradicted a pediatrician’s opinion that the bruise was consistent with the parent’s explanation that the child accidentally fell on a heating grate, authorities who regarded Dr. Woods as a child abuse expert removed the child from the parent’s home.

Those cases and others were the subject of an extensive investigation by NBC News and one of its affiliates. NBC discovered that Dr. Woods “lacks key medical training for assessing potential abuse cases.”

Lack of Credentials

In some cases, the results of child abuse are so obvious that most pediatricians can readily determine that injuries could only have been inflicted with the intent to harm the child. In other cases, the evidence is less clear.

Pediatricians who specialize in child abuse now receive extensive training that helps them identify abuse. In addition to general training in pediatrics, a child abuse pediatrician completes a 3-year child abuse pediatrics fellowship. The physician must then pass an examination to become board certified in child abuse pediatrics.

In the case of the 5-year-old who was allegedly subjected to unnecessary treatment, Dr. Woods admitted on cross-examination that she did not complete the medical fellowship that is required to specialize as a child abuse pediatrician and was not board certified in the field. She claimed that the training is unnecessary.

While the necessity of specialized training might be a matter of opinion, Dr. Woods also testified about facts that are simply untrue. Dr. Woods testified that there “are approximately 250 of us nationwide that function as child abuse consultants” and “a very small minority of those have received training.” She also claimed that she had not completed the training because it was first offered three years before she testified.

NBC reported that the child abuse subspecialty was created in 2009, while Dr. Woods was still in medical school. NBC also reported there are 375 certified child abuse pediatricians in the United States, all of whom either completed the training or were allowed to take the board exam based on years of experience prior to the 2009 creation of the subspecialty.

The pediatrician who determined that a child’s bruise was consistent with accidentally falling on a grate was astonished that child welfare authorities accepted Dr. Woods’ claim that the bruise was caused by abuse. The authorities claimed they believed Dr. Woods because of her “extensive training,” prompting the pediatrician to ask, “Where’s the extensive training?”

How Training Shapes Opinions

Certified child abuse pediatricians have been trained not to give opinions that exceed the bounds of medical knowledge. For example, Dr. Woods prepared a report that claimed two young parents probably abused their child because, in her opinion, they didn’t display an appropriate emotional reaction when they learned that their baby had suffered several fractures. Medical knowledge does not allow a doctor to identify abusers by their emotional reactions. In any event, certified child abuse pediatricians are trained to understand that their role is to identify abuse, not to identify the abusers.

In another case, Dr. Woods reported that twin babies who suffered multiple fractures must have been the victim of abuse because “a motor vehicle collision” would be the only possible alternative cause of those injuries. Dr. Woods identified no medical basis for that opinion, but child welfare authorities accepted it without question and removed custody of the children from their parents.

Three medical experts later concluded that the fractures were probably caused by a mineral deficiency that weakens bones, a potential cause that Dr. Woods failed to identify. A well-trained specialist would have ruled out all potential alternative causes of the injuries rather than jumping to the conclusion that they resulted from abuse.

Having appropriate training is important because child welfare authorities generally defer to medical experts. If an expert claims that an injury was likely caused by abuse, child welfare authorities tend to err on the side of protecting the child. That often means removing children from their parents, even if the parents are entirely innocent. Authorities who base decisions on suspicions rather than solid evidence often harm, rather than help, the children they are charged with protecting.

Slow Response

Hospital leaders were slow to recognize that Dr. Woods held herself out to be an expert in the absence of credentials possessed by actual experts. A spokesperson for Mary Bridge Children’s Hospital claimed that Dr. Woods “has treated thousands of children over her many years of dedication to this field.” There is a difference, however, between treating an injured child and determining the cause of the injury. The fact that Dr. Woods has years of experience doesn’t mean she has a history of correctly identifying child abuse when the medical evidence is ambiguous.

The spokesperson also praised Dr. Woods for being “an ally to the vulnerable children in our community.” Unfortunately, experts who regard themselves as an ally for a cause often slant their opinions to serve that cause. An expert who regards herself as an advocate for children will tend to find abuse when the evidence is ambiguous. An expert witness should be an advocate for the truth, not for a cause, even if the cause is as worthy as preventing child abuse.

For a time, officials at Mary Bridge and Seattle Children’s Hospital, which manages the state’s child abuse medical consultation network, simply ducked questions about Dr. Woods’ misstatements under oath. They apparently did not consider whether Dr. Woods should be trusted to form reliable opinions about child abuse if she could not give reliable answers about her credentials.

Belated Removal from Role as Child Abuse Expert

While reluctant to accept an uncomfortable truth, Washington authorities and hospital administrators belatedly acknowledged that Dr. Woods’ credibility is open to challenge. Dr. Woods is no longer the director of the child abuse intervention program at Mary Bridge. Internal documents obtained by NBC imply that hospital officials initiated the change in response to a review of the program that the hospital asked an outside expert to conduct.

Last month, Dr. Woods was removed from the roster of doctors who provide expert medical reports to Washington’s child welfare agency. Dr. Woods’ removal was celebrated by parents whose children were taken away based on Dr. Woods’ expert opinion. Some of those parents have told their stories in a Facebook group devoted to wrongly accused families.

At least two Washington prosecutors have taken the honorable step of reviewing cases in which Dr. Woods testified. One prosecutor is notifying defense attorneys in those cases that grounds exist for challenging Dr. Woods’ credibility. Prosecutors in two counties added Dr. Woods to their list of potentially discredited expert witnesses, and the prosecutor in Kitsap County is considering whether it should add Mary Bridge Children’s Hospital to that list.

Lessons Learned

Expert witnesses for both the prosecution and the defense provide critical testimony in criminal cases. Expert reports in civil cases can persuade child welfare authorities to take the drastic but common step of separating children from their parents out of an abundance of caution, an action that may inflict more harm on children than it prevents.

Given the importance of expert opinions, it is vital that child abuse experts have appropriate training. It is just as vital for experts to have integrity. Experts should base opinions on their best assessment of medical evidence, not on a well-intentioned desire to protect children. Any bias that grows out of an expert’s desire to advance a cause necessarily compromises the expert’s objectivity and impairs the expert’s value to prosecutors and child welfare agencies.

 

Court

Expert Witnesses Properly Barred After Removal of Case from State to Federal Court

After a case is removed from state court to federal court, the federal rules of evidence apply. A federal appellate decision regarding a lawsuit that was filed in Massachusetts makes clear that lawyers cannot expect to be rescued by reliance on state rules when they fail to make the expert witness disclosure required by federal rules. Nor can lawyers gain back door admissibility of expert opinions by filtering them through a disclosed expert who lacks the qualifications to render those opinions.

Facts of the Case

A doctor in Massachusetts prescribed Levaquin to Kevin Carrozza. Levaquin is a quinolone antibiotic. Carrozza took the prescription to a CVS pharmacy to be filled. Neither Carrozza nor the prescribing doctor knew that Carrozza had an allergy to quinolones.

The CVS computer system alerted the pharmacist on duty, Richard Wokoske, of Carrozza’s allergy to quinolones. Wokoske checked Carrozza’s patient profile, which indicated that Carrozza had been prescribed Levaquin in the past and had denied knowledge of a quinolone allergy.

Pursuant to CVS policy, Wokoske used his own judgment in deciding how to resolve the conflicting information. He chose to dispense the prescription.

Carrozza took the Levaquin and suffered an allergic reaction. He alleged that the reaction caused permanent damage to his eyes. Carrozza sued CVS for dispensing the medication after being alerted to his allergy.

Carrozza’s lawsuit was removed to federal court. CVS filed a motion to preclude the testimony of Carrozza’s expert witness, Dr. Kenneth Backman. Carrozza filed a motion to take a deposition of a second expert witness, Dr. Stephen Foster. The trial court denied the motion to take Dr. Foster’s deposition because the discovery deadline had passed. The court then granted summary judgment in favor of CVS.

Dr. Foster’s Opinion

Carrozza initially based his case on information provided by Dr. Foster, an ophthalmologist. Dr. Foster executed an affidavit in which he opined that Carrozza’s ingestion of Levaquin caused his eye injuries.

The affidavit was arguably admissible evidence under Massachusetts law, which makes an exception to its hearsay rule for certain sworn statements from physicians, including “the opinion of such physician or dentist as to proximate cause of the condition so diagnosed.”

Federal law has no corresponding exception. When the case was removed to federal court, Carrozza could no longer rely on Dr. Foster’s affidavit as trial evidence. Carrozza nevertheless filed a motion, relatively early in the case, to admit the affidavit as evidence. The district court ruled that the affidavit was essentially an expert report. The court advised Carrozza that if he wanted to rely on Dr. Foster’s affidavit, he needed to designate Dr. Foster as an expert witness and to comply with federal rules governing the disclosure of expert opinions.

Dr. Backman’s Opinions

Carrozza did not designate Dr. Foster as an expert. He instead designated Dr. Backman. Carrozza supplied an affidavit from Dr. Backman opining that Wokoske’s decision to dispense Levaquin despite the warning was a breach of the standard of care. Dr. Backman also opined that Carrozza’s ingestion of Levaquin was the likely cause of his injuries.

Dr. Backman’s medical background includes a specialization in allergies and immunology. During his deposition, Dr. Backman admitted that he did not know the standard of care applicable to pharmacists. Dr. Backman also testified that he based his opinion about Carrozza’s eye injuries on Dr. Foster’s affidavit.

Denial of Motion to Depose Dr. Foster

CVS moved to exclude Dr. Backman’s testimony on the ground that he had no relevant knowledge of Carrozza’s injuries but was merely channeling the information in Dr. Foster’s affidavit. In response to that motion, Carrozza asked the court for permission to take Dr. Foster’s deposition so that he would have an admissible expert opinion.

The district court denied the motion. The court noted that Carrozza had never disclosed Dr. Foster as an expert witness despite having ample time do so. The court had warned Carrozza that Dr. Foster’s affidavit would be inadmissible hearsay at trial. Dr. Foster’s opinions might have been admissible as the opinions of an expert witness, but Dr. Foster was never designated as an expert. Taking his deposition would not result in admissible evidence because expert opinions can only be offered by witnesses who have been identified as experts.

The court of appeals determined that the district court reasonably exercised its discretion in denying the motion. Carrozza did not explain why he failed to designate Dr. Foster as an expert witness despite having sufficient time to do so after his motion to admit Dr. Foster’s affidavit was denied. In the absence of that designation, Carrozza had no grounds to reopen discovery so that he could take Dr. Foster’s deposition.

Exclusion of Dr. Backman’s Testimony

There isn’t much doubt that a party who fails to disclose an expert can’t use the expert. The more meaningful question in Carrozza’s case was whether he was entitled to use Dr. Backman as an expert. There was no dispute that Carrozza made a timely disclosure of Dr. Backman.

Dr. Backman testified that he had no personal knowledge of the standard of care that applied to pharmacists. Carrozza argued that as an allergist, Dr. Backman understood whether a pharmacist should dispense Levaquin to a patient after being alerted of the patient’s allergy to quinolones.

The appellate court disagreed. While Dr. Backman is qualified to discuss the standard of care an allergist would follow, the question here is how a pharmacist should react when the pharmacist has inconsistent information about a customer’s possible allergy to a particular drug. Dr. Backman’s admission that he did not know the standard of care that applies to pharmacists made him unqualified to render an expert opinion.

Nor did Dr. Backman’s testimony establish his familiarity with the cause of Carrozza’s eye injury. Dr. Backman relied on Dr. Foster’s affidavit in forming the opinion that Levaquin caused the injury.

Experts are entitled to rely on the opinions of other experts to the extent that experts in the field would generally do so, but that rule does not permit experts to serve as a back door conduit to admit an expert opinion that is otherwise inadmissible. Since Dr. Backman had no expertise of his own in ophthalmology and was not familiar with the causes of an eye condition like Carrozza’s, he was not qualified to render an expert opinion as to the cause of Carrozza’s injury.

Lessons Learned

A standard of care expert is nearly always needed to prove a professional negligence claim. Lawyers risk exclusion of expert testimony if their expert does not have experience in the same field as the negligent professional. An allergist is unlikely to have significant knowledge about the standards that are routinely followed by pharmacists when they determine whether it is safe to dispense medications. A pharmacist would have been an appropriate expert on standard of care in Carrozza’s case.

Dr. Foster might have been an appropriate expert to prove that Levaquin caused Carrozza’s eye injury. However, Dr. Foster was not identified as an expert. Lawyers who are accustomed to filing cases in state court and following state rules of evidence should take note of the Carrozza case. When a lawsuit is removed to federal court, the federal rules of evidence apply, including rules governing the disclose of expert witnesses and their reports. The failure to follow those rules will doom a party’s ability to rely on an expert witness.

 

Pills

Scope of Health Expert Testimony in Dispute in Opioid Trial

The scope of a health expert’s testimony is a matter of heated contention between the parties in a landmark federal opioid trial.

The Dispute

The Cabell County Commission and the City of Huntington in West Virginia claim that three wholesale drug companies, McKesson, Cardinal Health, and AmerisourceBergen, should be held accountable for the costs of opioid addiction in West Virginia communities. The government entities claim that the three wholesalers compounded the opioid crisis by saturating the region with opioids.

According to the Cabell County Commission and the City of Huntington, the drug companies distributed nearly 100 million opioid pills in Cabell County over a 10-year period. A West Virginia drug overdose death report states that 7,200 West Virginians died with at least one opiate in their system between 2001 and 2015. Cabell County attorney Paul Farrell Jr. has stated that there have been about 1,100 opioid-related deaths and 7,000 overdoses in the past decade in Cabell County alone.

The lawsuits claim that the distributors breached their duty to monitor, detect, investigate, refuse, and report suspicious orders of prescription opioids coming into West Virginia over the past several years.

The Expert Witness Dispute

As the case is finally proceeding to trial after a long delay due to COVID-19, the drug companies filed objections to the proposed expert testimony of health official witnesses, who walk the line between fact and opinion witnesses. The drug companies argued that health official witnesses were interviewed without knowledge, which means they are experts expressing their opinion on the matter instead of just the facts.

The main dispute is over the testimony of Dr. Rahul Gupta. Dr. Gupta served as the Commissioner of Public Health and West Virginia State Health Officer from 2015 to 2018 and as the executive director of the Kanawha-Charleston Health Department for the five years before that. The Washington Post recently reported that Dr. Gupta is a leading candidate to head the Office of National Drug Control Policy under President Joe Biden.

The drug companies wanted to limit Dr. Gupta’s testimony to what he experienced and observed during his time dealing with the communities that have been affected by the opioid epidemic. They argued that, “Gupta’s high-level involvement in opioid-related projects do not give him carte blanche to opine as a hybrid expert on any and all issues related to the opioid epidemic in West Virginia.”

The drug companies hoped to prevent Dr. Gupta from testifying about whether opioids are a gateway to illegal street drugs, whether oversupply of prescription drugs led to overdose deaths, how the opioid epidemic affected the foster care and education systems, and the nature of addiction.

Gavel and scales

Maryland AG Invites Public to Comment in Review of Chief Medical Examiner’s Cases

The Maryland Attorney General’s Office has invited the public to comment as part of the review of in custody death investigations that were conducted by the office of Dr. David Fowler, who served as the chief medical examiner of Maryland.

The Controversy

Dr. David Fowler was a key defense witness in the trial of Derek Chauvin, the ex-Minneapolis police officer who was convicted in the murder and manslaughter of George Floyd. Dr. Fowler testified that Floyd died of a sudden heart rhythm problem due to his heart disease while being restrained by the police. He testified that Floyd’s cause of death was “undetermined” and not a homicide. Dr. Fowler’s testimony was contradicted by several other experts who said that Floyd died due to a lack of oxygen.

Following Dr. Fowler’s testimony at Chauvin’s trial, the former medical director of Washington, D.C., Roger A. Mitchell wrote a letter to Maryland Attorney General Brian Frosh, saying that Dr. Fowler’s testimony and conclusions were so far outside the bounds of accepted forensic practice that all his previous work could come into question.  This letter was signed by 431 doctors from around the country.

The letter stated, “Dr. Fowler’s stated opinion that George Floyd’s death during active police restraint should be certified with an ‘undetermined’ manner is outside the standard practice and conventions for investigating and certification of in-custody deaths. This stated opinion raises significant concerns for his previous practice and management.”

Attorney General Response

After receiving this letter, Maryland Attorney General Brian Frosh made the decision to review all cases from 2003 to 2019, which fell under Dr. Fowler’s tenure.

Frosh’s office released the following statement, “My office, in consultation with Governor Hogan’s Chief Legal Counsel, has begun working to develop the process and timeline for the audit of in-custody death determinations made by the Office of the Chief Medical Examiner (OCME) during the tenure of Dr. David Fowler.”

Frosh continued, “We are committed to overseeing a professional and independent audit that adheres to the highest standards of impartiality and integrity. We will be consulting experts, examining similar audits in other jurisdictions, and doing a preliminary review of OCME data and protocols. Our intent is to appoint a panel of independent subject matter experts to perform the audit, and at the conclusion of the review, to release a public report on its findings.”

The Maryland AG’s office also indicated that it was taking steps to wall of those in its office representing the Office of the Chief Medical Examiner and any of its current and former employees from those who are involved in the review of the office’s reports.

The Invitation to Submit Public Comments

Maryland Attorney General Frosh invited input from members of the communities affected by the focus of the audit or interest or expertise in the work of the Office of the Chief Medical Examiner. Members of the public who would like to provide a comment are encouraged to do so by June 7, 2021 through email to OCMEaudit@oag.state.md.us or via mail to the office of the Attorney General, 200 St. Paul Place, Baltimore, MD 21202.

young man swearing an oath, crossing his fingers in his back

Maryland Investigating All Police Custody Deaths Examined by Chauvin Expert Witness

Dr. David Fowler gained national attention — most of it unfavorable— when he testified as a defense expert in Derek Chauvin’s trial. Chauvin was convicted of murdering George Floyd by kneeling on his neck for more than nine minutes, preventing an adequate supply of oxygen from reaching his heart. Prosecution experts testified that Chauvin’s actions caused Floyd’s heart to fail.

Fowler offered an alternative explanation. He suggested that it was impossible to pinpoint a cause of death, but attributed the death to a variety of circumstances, including preexisting heart disease, Floyd’s ingestion of fentanyl and methamphetamine, and carbon monoxide poisoning from vehicle exhaust.

The jury rejected Fowler’s explanation when it found that Chauvin caused Floyd’s death. But Fowler has frequently rendered expert opinions that favor police officers when a suspect dies in their custody. Whether Fowler based his opinions on medical facts or a pro-police bias is now under investigation.

Lawsuit Against Fowler

Fowler was recently sued by the family of Anton Black, a young man who died under circumstances described as “chillingly similar” to Floyd’s death. During a police encounter, officers in a Maryland town took Black to the ground and pressed against his neck.

An autopsy concluded that “the stress of his struggle” with police contributed to Black’s death, along with bipolar disorder and underlying heart issues, but found no evidence “that restraint by law enforcement directly caused or significantly caused or significantly contributed” to the death. Fowler gave final approval to the conclusion that the death was accidental.

The lawsuit accuses Fowler “of obstructing the officer-involved death investigation by delaying the release of an autopsy for months, being improperly influenced by police and clearing the path for police to ‘develop a narrative that absolved the involved officers of their wrongdoing’.” The autopsy was released to Black’s family only after Maryland’s governor intervened.

Maryland Investigation

Now Fowler is facing an investigation in Maryland, where he was the state’s chief medical examiner from 2002 to 2019. The investigation was announced by the Maryland attorney general and the governor’s office. It will ask independent experts to probe all investigations of deaths in police custody that were overseen by Fowler.

The investigation followed a letter signed by 432 doctors around the country who accused Fowler of advancing an expert opinion for Chauvin that was “outside the standard practice and conventions for investigating and certification of in-custody deaths.” The letter states that professional disagreement with Fowler’s opinion in Chauvin’s case was not a matter of opinion but a question of ethics.

Fowler argues that his opinion in the Chauvin trial was “formulated after the collaboration of thirteen other highly experienced colleagues in multiple disciplines” and that his evaluation “set an ethical standard for the work needed in sensitive litigation.” Other experts disagree with Fowler’s claim of professionalism.

Families Complain About Fowler’s Conclusions

Fowler’s pattern of exonerating the police when deaths occur in police custody is not limited to his opinions concerning the deaths of Anton Black and George Floyd. The families of Karreem Ali and Tyrone West have spent years asking authorities to review Fowler’s conclusions.

Witnesses saw West die after police officers beat him and attacked him with pepper spray. Fowler decided that West, age 44, died of a heart condition that was exacerbated by the summer heat and the stress of his police encounter. The city of Baltimore settled the family’s wrongful death claim for $1 million, a settlement that suggests the city’s lack of confidence in Fowler’s opinion.

Ali died after the police shocked him with a Taser 16 times. Fowler attributed the death to “schizophrenia induced agitated delirium,” a condition that, in the view of most medical authorities, doesn’t exist. Montgomery County paid $450,000 to settle a wrongful death suit brought by Ali’s family.

Expert Accountability

A website that supports medical examiner and death investigation reform has compiled resources that address the lack of accountability for medical professionals who offer cause-of-death opinions in court. The website contends that 66% of deaths in police custody during 2015 were misclassified by medical examiners and coroners. Most pathologists report that they have felt pressure to change their findings in death investigations.

The county coroner system is particularly problematic. The website reports that 43% of forensic pathologists have had a cause of death changed by a coroner who prepared a death certificate. Many county coroners have no medical training at all.

Proposed reforms include:

  • Assuring that medical examiner offices are independent of law enforcement offices. When medical examiners see themselves as working to help the police, they may feel a need to justify the actions of officers who cause deaths.
  • Implementing systems that allow medical examiners to report attempts to pressure them to exonerate police or to influence death investigations. The system should include protection against retaliation for making a report.
  • Eliminating elected county coroners who have no medical training yet pronounce a cause of death.
  • Requiring all autopsy reports to be prepared by certified pathologists.

When pathologists testify as expert witnesses, accountability needs to come from licensing bodies. Experts may legitimately disagree with other. It isn’t unethical to express an honest opinion that others do not share. It is unethical to slant an opinion in favor of the party who is paying the expert to testify.

The review of Fowler’s work by independent experts is a belated attempt to bring accountability to expert opinions that are far outside the mainstream. Ideally, every suspicious death in police custody should be subjected to independent review when a medical examiner exonerates the police.

 

Priest Deemed Expert in Coded Language Used by Church to Refer to Clergy Sexual Misconduct

Filing suit anonymously, John Doe 122 sued Chaminade College Preparatory and the Marianist Province of the United States for clergy abuse. The key issue in the case was whether the school knew that a counselor had abused other students and disregarded that knowledge when it failed to protect Doe from abuse.

Doe offered the testimony of an expert witness who inferred the school’s knowledge from documents in the counselor’s personnel file that made coded references to the counselor’s misconduct. The trial judge concluded that the expert testimony was inadmissible and granted summary judgment in the school’s favor. On appeal, the Missouri Supreme Court held that the trial court erred by excluding the expert testimony.

Facts of the Case

Doe alleged that he was sexually abused by his counselor, Brother John Woulfe, during his senior year at Chaminade. Doe alleged that he put the abuse behind him and didn’t think about it again until he received a letter from Chaminade, almost forty years after his graduation.

The letter advised Doe that allegations of sexual abuse had been made against Woulfe. Doe alleged that the letter brought back memories of his own abuse. Three years later, Doe sued Chaminade on several theories, including alternative counts of negligent and intentional failure to supervise Woulfe.

The trial court held that the negligent supervision claim was barred by Missouri precedent. A decision of the Missouri Supreme Court held that religious organizations have a First Amendment right to hire and retain clergy without government interference. In the court’s view, holding a religious organization liable for making negligent decisions to retain employees would violate the First Amendment.

For similar reasons, the court held that religious organizations cannot be held accountable for negligent supervision of its employees. The court drew the non-obvious conclusion that inquiring into what a church “should have known” about its employee’s conduct would “require inquiry into religious doctrine.” The court therefore held that the well-recognized claim of negligent supervision, while applying to all other employers, cannot be applied to religious organizations because doing so would create an “excessive entanglement” of church and state.

Courts in most states disagree with Missouri’s analysis of the First Amendment. Missouri precedent nevertheless foreclosed Doe’s claim for negligent supervision However, Missouri precedent allows abuse victims to sue for an intentional failure to supervise when a religious employer knows that an employee is engaged in acts of abuse and fails to take action to prevent the abuse from reoccurring.

Documents Addressing Woulfe’s Employment Issues

Doe had no direct evidence that the school or the Marianist Province knew Woulfe was abusing students in 1971, when he allegedly abused Doe. Since the school removed Woulfe in 1977 because of sexual abuse allegations, the school clearly had that knowledge six years later. The question was whether the school knew that Woulfe posed a risk to children in 1971 and disregarded that known risk.

To prove his claim of intentional failure to supervise, Doe relied on a 1968 letter that Brother Gray wrote to Woulfe in 1968. Referring to Woulfe’s departure from St. Boniface, the letter stated that “the actual grace left by this unusual situation may be one which helps you to confront and overcome the problem, which if left untended, would eventually become a serious one for religious life.”

The letter does not describe the “unusual situation” or the potentially serious “problem” to which it refers. A 1970 letter from Gray to Woulfe notifies Woulfe that he would be retained at the school despite the Provincial Council’s “considerable misgivings and reservations.” The letter does not explain the Council’s “misgivings and reservations.”

Expert Testimony

Father Doyle was proffered as an expert witness to decode the meaning of the unexplained words and phrases. Father Doyle spent more than 30 years investigating the problem of sexual abuse within the church. He has reviewed the personnel files of thousands of priests. Based on that experience, he has developed an understanding of how the church encodes specific information about sexual abuse in personnel documents.

Based on his experience, Father Doyle was qualified to determine “what will (and will not) appear in personnel records when a priest has committed acts of sexual abuse and, if reference to such conduct is made, the form such references will take.” He is therefore an expert in how the church encodes information about a priest’s sexual abuse in personnel documents.

In Father Doyle’s experience, personnel documents address most performance issues directly. When a priest has a problem with alcohol, consensual relationships with adult women, or the failure to perform his duties, personnel materials address those issues directly.

Father Doyle noted that the church uses indirect language when a priest has engaged in improper relationships with minors. In his 30 years of experience, including his review of hundreds of personnel files of priests who were accused of engaging in sexual abuse of minors, Father Doyle never saw an explicit reference to sexual abuse. Instead, the files routinely use “coded or euphemistic language” to discuss the priest’s misconduct.

Father Doyle identified references in Woulfe’s file to the “unusual situation” and to his untended “problem” as coded references to his sexual abuse of minors. In Father Doyle’s experience, the church routinely uses language of that nature to describe sexual misconduct with minors.

Father Doyle also concluded that the provincial considered removing Woulfe from the school in 1970 because of sexual abuse allegations. Its reference to retaining him “with considerable misgivings and reservations” fueled Father Doyle’s opinion that the school knew about Woulfe’s history of sexual abuse and chose to retain him.

Father Doyle also concluded that the personnel file’s failure to refer to sexual abuse before 1971 was consistent with a similar failure to refer to sexual abuse when Woulfe was removed from the school in 1977. The priest who made the decision to remove Woulfe testified in a deposition that the removal was based on sexual abuse. The school’s failure to document that reason in Woulfe’s personnel file is consistent with its failure to document its awareness of earlier instances of sexual abuse in plain language.

Court Decision

Father Doyle forthrightly acknowledged the possibility that he was wrong. He did not claim to have “metaphysical certainty” about the meaning of the terms he decoded. But he rested his opinion on the church’s decades-long practice of using similar euphemistic language to avoid making a direct reference to sexual abuse of minors.

The supreme court concluded that Father Doyle’s opinion was admissible evidence. Courts routinely admit the expert opinions of police officers who testify about the “coded language” used by drug dealers. Father Doyle’s expert opinion is no different.

The court also rejected the argument that Father Doyle’s opinion invaded the province of the jury. Father Doyle expressed no opinion as to whether Woulfe sexually abused Doe. He simply explained the meaning of terms that would allow the jury to infer the school’s knowledge of Woulfe’s sexual abuse of students prior to and during the time when Woulf was a student.

Since a jury could believe Father Doyle’s testimony and could conclude from that testimony that the school knew about Woulfe’s sexual abuse of children before he allegedly abused Doe, the jury could find that the school ignored a known danger to students by disregarding its duty to supervise Woulfe. The trial court erred by excluding Father Doyle’s expert opinion and by basing summary judgment on the absence of evidence that the school knew about Woulfe’s sexual abuse of students.

Virginia court gavel

Virginia Court Considers Whether Expert Disclosures Were Timely

A group of Virginia taxpayers brought a legal action challenging the tax assessments of their property by the County of Northampton and the Town of Cape Charles. The taxpayers relied on expert witnesses to prove that the assessors overvalued their property.

The trial court excluded the expert opinions on the ground that the taxpayers failed to disclose them before a deadline established by a scheduling order. The court then granted summary judgment to the government defendants. Noting that the government defendants were well aware of the identity and opinions of one expert, the Virginia Supreme Court reversed the judgment.

Disclosure of Jason Restein

In 2015, the government entities served an interrogatory that asked for the identification of expert witnesses. The taxpayers identified Jason Restein and disclosed his expert report. A plaintiff signed the interrogatory answers under oath, but the taxpayers’ lawyer failed to sign them.

The interrogatory answers were combined in a single document with a response to a request for production of documents. The lawyer signed that response. The lawyer also signed a certificate of service at the end of the document.

In 2018, the court scheduled the case for trial on April 6, 2019. The scheduling order required expert witnesses and their opinions to be disclosed 90 days before trial.

In March 2019, after a government lawyer notified the taxpayers’ lawyer that he hadn’t signed the interrogatory answers, the taxpayers’ lawyer signed them. The government then moved to exclude Reston as an expert witness because he had not been disclosed 90 days before trial.

The trial court ruled that the interrogatory answers did not constitute an effective disclosure of Restein until they were signed by the attorney. Since the attorney did not sign them within 90 days of the scheduled trial, the court granted the government’s motion to exclude Restein as a witness.

Disclosure of Steven Noble

The government served a supplemental interrogatory in December 2018 asking the taxpayers whether their intended experts had changed. The taxpayers responded by disclosing Steven Noble as an expert.

The response promised to elaborate on the disclosure by January 19, 2019. However, no additional response was provided until March 18, 2019, when the taxpayers provided Noble’s report.

The government moved to exclude Noble’s report because it was not disclosed within 90 days of the trial. The court granted that motion.

Appellate Decision

In the absence of testimony from Restein or Noble, the taxpayers could not offer an expert opinion of the fair market value of their property. The court therefore dismissed their lawsuit. The taxpayers appealed.

A Virginia rule of civil procedure allows a trial judge to exclude evidence as a sanction for disobeying a scheduling order. The court had little difficulty affirming the decision to exclude Noble’s testimony. While the disclosure of Noble’s identity was timely, the disclosure of his opinions was not. The taxpayers’ lawyer consented to the scheduling order before the court entered it and therefore had ample notice of the deadline.

The appellate court rejected the argument that the government could have obtained Noble’s opinions by taking his deposition. The court held that litigants must obey scheduling orders even if their opponents could obtain the same information in a different way.

The appellate court took a different view of the order excluding Restein’s testimony. The government received Restein’s report four years prior to the scheduled trial.

The court was unimpressed with the government’s argument that the disclosure of Restein’s identity was untimely because the taxpayers’ lawyer did not sign the interrogatory answers. Virginia procedural rules require that a discovery document contain the lawyer’s signature and address. The lawyer complied with that rule by signing the portion of the response that disclosed documents.

The lawyer’s failure to add a second signature to an unnecessary signature line following the interrogatory answers did not negate the fact that his signature appeared on the document. Since the rule does not require multiple signatures, the interrogatory answers were timely. Nor was it even arguable that the government was prejudiced, given that it received Restein’s report four years before the trial.

The trial court abused its discretion by excluding Restein’s testimony. It therefore abused its discretion by dismissing the case for lack of expert testimony. The appellate court acccordingly reversed the trial court’s judgment.

Lesson Learned

Courts take their orders seriously. While the trial court had no legal basis to exclude Restein’s testimony, the failure to make a timely disclosure of Noble’s opinions resulted in Noble’s exclusion. Lawyers run a huge risk when they fail to comply strictly with expert disclosure deadlines.

dollar bills

Exclusion of Expert Opinion About Lost Profits Reversed on Appeal

Damages for lost profits are notoriously difficult to prove. Judges are often skeptical about projections of profits that were not actually earned. Still, expert evidence can overcome judicial skepticism if the expert bases an opinion about lost profits on an accepted methodology and applies that methodology to the evidence in the case. The California Court of Appeals recently reversed a trial court’s decision that an expert’s opinion about lost profits was too speculative to be admissible.

Two Conflicting Contracts

Jillian Michaels and Empowered Media, LLC sued their law firm, Greenberg Traurig, and one of its partners, David Markman, for professional malpractice. Michaels is a “fitness celebrity” who appeared on the television show, The Biggest Loser.

Michaels co-owns Empowered Media. Michaels and Empowered Media hired Markman to negotiate two contracts. The first addressed Michaels’ compensation from the company that produces The Biggest Loser. That contract contained several restrictions on Michaels’ ability to participate in commercials.

The second contract was with a company called ThinCare that makes nutraceutical products. The contract addressed branding and promotional services to be provided by Michaels.

In the ThinCare contract, Empowered warranted that it had the sole and exclusive right to control Michaels’ participation in commercials. That warranty was inconsistent with the contract that allowed the production company to restrict her participation in commercials.

Michaels’ Litigation with ThinCare

Over the course of time, ThinCare paid Empowered more than $5 million in royalties. ThinCare eventually sued Empowered for making a false representation that induced it to enter into the contract with Empowered.

Empowered settled the ThinCare lawsuit by paying $2.2 million to ThinCare and by foregoing payment of another $1.3 million that ThinCare was holding in escrow. The agreement also required Michaels to continue promoting ThinCare products for a period of time without being paid a royalty.

Empowered and Michaels sued their lawyers. They based the lawsuit on several legal theories, including professional malpractice for negotiating a warranty in one contract that it knew was inconsistent with the terms of the second contract.

Empowered tried to prove damages with the report of an expert witness who computed Michaels’ lost profits. The court held that the expert’s conclusions were speculative and therefore inadmissible. The court later entered summary judgment against Empowered and Michaels on the ground that they could not prove damages. They appealed the judgment.

Lost Profits

In California, an established business can recover lost profits that can be ascertained with reasonable certainty. It is reasonable to ascertain lost profits by examining the business’ past performance to extrapolate potential future earnings.

Empowered relied on an expert report prepared by Sidney Blum, a certified public accountant, to establish lost profits. Blum treated Empowered and Michaels as an established business because Michaels promoted ThinCare products for 16 months before she was sued.

Blum considered the impact on profits of class action complaints that had been filed against ThinCare and Michaels alleging false advertising. Those complaints were filed about a year before ThinCare sued Empowered and were dismissed prior to the settlement of ThinCare’s lawsuit against Empowered.

Blum applied the “Before and After” method of calculating lost profits. He considered the profits that Empowered would have received if the contract dispute had not arisen and reduced those profits by actual benefits that Empowered received.

During the Before period of the analysis, from the commencement of the agreement until ThinCare sued Empowered and Michaels, Empowered received monthly royalties of about $350,000. Blum concluded that the royalties would have been higher if the class action litigation had not harmed ThinCare’s reputation.

Blum divided the After period into two parts. During the first part, extending to the scheduled end of Empowered’s contract, Blum calculated lost profits of more than $7 million. During the second part, to the end of the period during which Michaels was required to promote ThinCare products pursuant to the agreement to settle ThinCare’s lawsuit against her, Blum calculated lost profits of more than $11 million. Blum performed that calculation by multiplying $350,000 by the number of months in each period.

Admissibility of Expert Report

The trial judge excluded Blum’s report on the ground that it was “entirely too speculative” because it was based on assumptions that were unsupported by evidence. Those would be reasonable grounds for excluding an expert report if they were accurate observations. The California Court of Appeals disagreed with the judge’s view of Blum’s assumptions.

The appellate court identified four assumptions that were critical to Blum’s analysis: (1) ThinCare product sales are a direct result of marketing; (2) ThinCare’s profits (and thus royalties paid to Empowered) depended on Michaels’ involvement with marketing; (3) Michaels was prevented from marketing because of ThinCare’s lawsuit against her; and (4) if ThinCare had not sued Michaels and Empowered, Michaels would have continued to market ThinCare products into the “After” period. Whether the lawsuit resulted from Markman’s negligence was a separate question.

Markman persuaded the trial judge that Michaels stopped promoting ThinCare before ThinCare sued her. Markman contended that Michaels was worried about her reputation, given the class action lawsuit alleging that ThinCare had engaged in false advertising. Markman based that argument on documents expressing Michaels’ dissatisfaction with certain aspects of her relationship with ThinCare.

The appellate court faulted the trial judge for finding that Michael’s decision to stop marketing ThinCare products before ThinCare sued her was undisputed. The judge disregarded Michaels’ declaration that she “continued to actively promote” ThinCare products before the ThinCare lawsuit. Michaels stated that she “limited [her] promotional and marketing activity during the class action lawsuits” but “would have continued to meet [her] marketing and promotional obligations under the contract” after the class actions were dismissed if she had not been sued by ThinCare.

While Markman objected that Michaels’ declaration was “self-serving,” truthful statements are often self-serving. The appellate court noted that all evidence submitted in a case serves the interests of a party. Since it is up to the jury to decide whether evidence is credible, evidence cannot be discounted on summary judgment simply because a judge regards it as self-serving.

Other evidence supported Michaels’ claim that she continued to market ThinCare’s products after it was sued for false advertising. The appellate court concluded that the trial judge improperly weighed the evidence and found Markman’s to be more convincing. Juries, not judges, weigh evidence.

The appellate court agreed that lost profits during the second part of the After period were speculative. Michaels stated that she would have agreed to extend her contract to promote ThinCare’s products if ThinCare had not sued her, but there was no evidence — beyond the settlement agreement that required Michaels to promote the products without earning a royalty — that the contract would actually have been extended. Blum’s assumption that Michaels would have continued to promote ThinCare’s products based on a contract extension was too speculative to support a claim for lost profits.

Since there was evidentiary support for a part of Blum’s damages calculation, that part of Blum’s expert opinion was admissible. The judge therefore erred by granting summary judgment based on a failure to establish damages.