Category Archives: Expert Opinions

Detention Center

ICE Claims Ex-Official Not Authorized To Testify as Expert

The United States Immigration and Customs Enforcement Agency has publicly rebuked a former official for giving testimony as a paid expert witness for GEO Group.

The Testimony

Former Immigration and Customs Enforcement (ICE) employee Tracey Valerio was retained by GEO Group to give testimony in Ugochukwu Goodluck et. al v. The Geo Group. Valerio was retained to defend the Geo Group, a large private prison and immigrant detention company that is also ICE’s biggest contractor.

The lawsuit charged GEO with violating minimum wage laws by paying immigrants who are locked up in prison as little as $1 a day to do work such as cleaning toilets or working in the kitchen. Critics of the program, which was authorized by a 1950 immigration law, say that paying immigrant detainees below minimum wage is unlawful because they have not been convicted of or pleaded guilty to any crime; therefore, there is no reason to exclude them from minimum wage law.

Valerio provided a sworn written statement indicating that she was responsible for “the development and implementation of ICE’s budget and all agency contracting was under my purview and supervisory responsibility.” Valerio stated that “ICE could not expend more than $1.00 a day for detainee wages in a ‘detention center’ without Congress setting a higher rate and appropriating the funds needed to pay the higher rate.”

Alleged Violation of the Touhy Regulations

ICE attorney Anne M. Rose wrote in a letter to the court, “As Ms. Valerio was not authorized to speak on behalf of the agency or provide the information contained in the declaration submitted, ICE objects to the submission of the declaration to the extent that it purports to be provided on behalf of the agency or express agency views.” In her letter, Rose explained that Valerio’s testimony was a violation of the Touhy regulations.

According to 6 C.F.R. §§ 5.41-5.49, or the Touhy regulations, the service of subpoenas, court orders, and other demands or requests for official information must be served on the DHS Office of the General Counsel (OGC). The Touhy regulations are an “absolute condition precedent to obtaining testimony or other information from a Department of Homeland Security (DHS) employee of which ICE is a component, and the regulations must be complied with before the DHS or ICE may respond to any such request.” Why the regulation would apply is unclear, given that Valerio was a former employee, not an employee, and was expressing her own understanding of ICE’s policies, not ICE’s official views.

Ethical Concerns

Valerio appears to be one of many top officials at ICE and the Federal Bureau of Prisons who quit their positions and then went on to take a lucrative position at GEO or another private prison company. There are laws that exist that are intended to mitigate the ethical concerns that are created when these types of job moves are made.

The Procurement Integrity Act specifically prohibits former federal officials from accepting compensation for at least one year from companies to which their agencies awarded a contract worth $10 million or more.

GEO won several contracts worth over $10 million during Valerio’s last year as ICE’s executive associate director for management and administration. GEO won more than $327 million in funding during the 2018 fiscal year.

A countervailing ethical concern, however, is the agency’s attempt to silence a former employee who has relevant expert information about the agency’s practices. The Procurement Integrity Act was intended to close the revolving door that allowed government employees to use their government connections to benefit private businesses. The concerns addressed by the Act do not necessarily implicate an independent expert who is retained by a business to provide testimony.

Prosecutor Proposes to Allow Expert Testimony to Address Misconceptions About Sexual Assault Victims

An Iowa prosecutor has proposed new legislation that would allow expert testimony in sexual assault cases to address some common misconceptions about victims and help jurors better understand how victims respond to trauma.

First Assistant Linn County Attorney Nick Maybanks proposed the legislation after the widely-publicized United States Supreme Court confirmation hearings of Brett Kavanaugh.  Maybanks said that the dialogue following Christine Blasey Ford’s testimony before the Senate Judiciary Committee after she accused Kavanaugh of sexual assault was concerning. Many misconceptions about how victims should act following an assault were raised and he realized that a change in the law was needed.

Maybanks said, “There is so much victim bias — about how they are supposed to act or behave and blaming the victim for not reporting it.”

Maybanks has been a prosecutor for sexual assault cases for 20 years. He says that he has an understanding of the basic behaviors of victims and abusers through his work with victim advocates, forensic interviewers, medical experts and law enforcement.

Proposed Legislation

The statute that Maybanks is proposing would clarify what is allowed into testimony. The exact language of the statute is still being revised.

Maybanks hopes that the new statute will give judges clarity on the type of the testimony that should be allowed into court. Currently, some judges in Iowa do not allow experts testify about common misconceptions about victims in sexual assault trials because they see the testimony as “vouching” for the credibility of the victim.

There is, in fact, a fine line between testimony about how a sexual assault victim might behave and testimony that implies a witness is telling the truth because she behaved in a particular way. Writing legislation that balances the need for expert testimony to educate jurors against the protection of a defendant’s right to a fair trial will be a difficult challenge.

Addressing Sexual Abuse Myths

Maybanks highlighted some of the myths about sexual assault victims that stood out to him from the Kavanaugh hearings. In particular, he noted the myth that sexual abuse is immediately disclosed in full to law enforcement after it occurs. He also discussed his perception that a suspect’s denial should not turn a sexual assault case into a “he-said, she-said” battle with no resolution.

Maybanks explained that in the majority of the adult sexual abuse and assault cases that he deals with, disclosure is almost always delayed. When the victim finally tells someone, it is usually a close friend or family member or therapist and not law enforcement. It is also common for victims to reveal more details about the abuse over time.

Maybanks hopes that allowing expert witnesses to testify in these cases on this issue would help to explain about how many victims will not report an incident out of embarrassment, shame, humiliation, fear, or because they do not think they will be believed. He also said that a victim’s statement is often more heavily scrutinized than a suspect’s statement because a suspect is expected to deny the accusation. The latter concern, however, does not lend itself to legislation, as juries have a duty to scrutinize every criminal criminal accusation to determine whether it constitutes or is supported by proof beyond a reasonable doubt.

Maybanks explained that his office only prosecutes a portion of the total sexual assault cases that are referred because of issues with credibility, proof, lack of corroboration, or victims who are unwilling to testify. Maybanks stressed, “But it doesn’t mean the sexual assault didn’t happen…. It’s just that we don’t have enough evidence to prosecute.”


New Hampshire Supreme Court Affirms Admission of Expert Testimony Regarding Cause of Salmonella Infection

Brandon Stachulski sued the owner of an Applebee’s restaurant in New Hampshire, alleging that he contracted salmonella when he ate an Applebee’s hamburger. The Applebee’s owner argued that Stachulski could not prove that its hamburger was the source of the salmonella. The owner argued that Stachulski could have been infected by his pet lizard or other sources of salmonella bacteria.

The jury found in favor of Stachulski and awarded him $750,000 in damages. On appeal, the Applebee’s owner challenged the trial judge’s decision to admit Stachulski’s expert evidence. The New Hampshire Supreme Court ruled in favor of Stachulski and affirmed the judgment.

Expert Testimony

Dr. Seth Rosenbaum, an expert in infectious diseases, testified for Stachulski. Dr. Rosenbaum reviewed Stachulski’s medical records and noted that he was diagnosed with a non-typhodial salmonella infection. That form of salmonella is typically food-borne.

After eating the Applebee’s hamburger, Stachulski became ill within the time frame during which symptoms of a salmonella infection would typically appear. Stachulski’s brother-in-law dined with Stachulski and also ate a well-done hamburger. Stachulski and his brother-in-law became violently ill at the same time, a fact that pointed to the hamburger as a source of the illness.

Dr. Rosenbaum thought it was unlikely that Stachulski contracted salmonella from his lizard because other family members had contact with the lizard but did not become ill. Other family members also eat the same food at home that Stachulski’s wife prepares. The fact that they did not become infected tended to rule out a home-based source of infection.

Stachulski’s wife has a health condition that, in Dr. Rosenbaum’s opinion, would make her susceptible to a salmonella infection. The fact that she did not become ill strengthened the inference that Stachulski’s home could be ruled out as the source of Stachulski’s salmonella infection.

Admissibility of Expert Opinions in New Hampshire

New Hampshire follows a version of the federal Daubert test for determining the admissibility of expert evidence. To be admissible, the evidence must meet a threshold of reliability. Reliable expert opinions are based on sufficient facts or data, are the product of reliable principles and methods, and result from the reliable application of those principles and methods to the facts of the case.

The state supreme court emphasized that the New Hampshire rule is interpreted liberally in favor of the admission of expert testimony. The proponent’s burden of proving that expert testimony is admissible is “not particularly onerous.” If an expert’s testimony is well grounded, it should be tested by the adversary system of justice, just like the testimony of fact witnesses. It is improper in New Hampshire to exclude expert testimony out of fear that juries are incapable of weighing its inadequacies.

Appellate Court’s Analysis

The supreme court determined that the facts recited above were sufficient to provide a basis for Dr. Rosenbaum’s expert opinion. The court also decided that Dr. Rosenbaum reliably identified and eliminated other potential causes of the salmonella infection, leaving the meal at Applebee’s as the most likely cause. The court noted that a “differential etiology” analysis is widely accepted as a reasonable means of determining the likely cause of a disease.

The defense argued that only the methods used by public health authorities to trace a disease outbreak to a particular source should be deemed reliable, because those are the only methods that have been tested and peer-reviewed, and are the only methods known to have low error rates. The fact that other or arguably superior methodologies exist, however, did not render Dr. Rosenbaum’s methodology unreliable.

The defense failed to establish that Dr. Rosenbaum’s methodology was likely to lead to an inaccurate result. The appellate court therefore deferred to the trial court’s conclusion that the methodology met the threshold standard for reliability. It was up to the jury to decide whether the defense attacks upon the methodology undermined the conclusions that Dr. Rosenbaum drew.

Finally, the defense complained that Dr. Rosenbaum had no basis for believing that the health condition of Stachulski’s wife made her more susceptible to a salmonella infection. Dr. Rosenbaum candidly admitted that he had no way of quantifying how much more susceptible to infection Stachulski’s wife might have been because of her condition. Even if that aspect of Dr. Rosenbaum’s methodology was questionable, Dr. Rosenbaum’s admission concerning the limits of his analysis minimized any prejudicial impact the testimony could have had.

Placing Trust in Juries

In the end, the court decided that Dr. Rosenbaum’s testimony had a reliable basis. The testimony may not have been perfect, but the law does not require perfection. To the extent that Dr. Rosenbaum’s testimony had weaknesses, the purpose of cross-examination is to expose those weaknesses.

After expert testimony is tested by cross-examination, the jury’s job is to weigh its strengths and weaknesses. Juries are the ultimate judges of the facts in our civil justice system and there is little reason to believe that they are less capable than judges of evaluating expert testimony. Because Dr. Rosenbaum’s testimony satisfied a threshold of reliability, it was up to the jury to decide whether his testimony proved that Stachulski’s disease was caused by eating an Applebee’s hamburger.


Patent law

Federal Court Grants a Daubert Motion and Denies Another in a Trademark Infringement Lawsuit

Through two Florida business entities, Superior Consulting Services, Inc. markets a blood-testing service to consumers that includes the creation of a “Healthprint” profile. Superior trademarked the term “Healthprint” to identify a profile that is “customized to a client’s unique biochemistry.” Superior markets the profile as assisting in the early detection of disease. Superior also provides nutritional advice to consumers who purchase a profile.

Shaklee Corporation applied for a trademark for “Healthprint” to identify a free, online survey that results in a recommendation for Shaklee’s nutrition supplements and related products. The recommendation purports to be tailored to a customer’s health goals, needs, and budget.

Superior sued Shaklee in federal court for trademark infringement and for violating a Florida law that prohibits deceptive trade practices. Both parties wanted to use expert witnesses at trial, and each party filed a Daubert motion to exclude the other’s expert.

Survey Evidence

Both experts offered opinions as to whether consumers are likely to confuse Shaklee’s use of “Healthprint” with Superior’s use of “Healthprint.” Both experts relied on survey evidence. The court’s Daubert analysis therefore focused on the methodologies the experts used to arrive at their diametrically different results.

Shaklee’s expert, Hal Poret, showed survey participants the Shaklee website displaying its “Healthprint” mark and the Superior website displaying its “Healthprint” mark. The survey then asked questions that were designed to determine whether the consumers were confused about whether the marks related to the same or different companies. Poret also used a control group that was shown the term “Healthstamp” instead of “Healthprint” as a safeguard against false positives.

Superior’s expert, Kirk Martenson, showed the word “Healthprint” to consumers in a plain font and described the services offered by Superior. He then asked questions designed to determine whether participants perceived the Healthprint name or services as relating to one or two companies. Martenson used no control group.

Both surveys purported to be versions of the Squirt test, which courts generally accept as a means of proving that similar trademarks are or are not confusing to consumers. The Squirt test typically places marks as they appear on products side by side and asks questions to determine whether their similar marks cause consumers to become confused about the source of each product.

Martenson’s survey found that the two uses of “Healthprint” were very likely to cause consumer confusion. Poret’s survey found little likelihood of confusion.

Martenson’s Flawed Methodology

The court faulted Martenson for designing a survey that failed to display the competing “Healthprint” terms to consumers in the context in which they were used. The court concluded that Martenson’s methodology was unreliable because it did not meet the basic standards of a Squirt survey: displaying two marks as they are actually used in the marketplace side by side to test whether they confuse consumers.

By asking questions about the term “Healthprint” without providing the context in which Superior and Shaklee used the term, the survey divorced the test from the real world. For example, customers were asked whether they thought the term “Healthprint” came from one company, two companies, or no company at all. The relevant question is not whether consumers are able to guess at the origin of a mark but whether they are confused, when they see two marks, about whether both marks are associated with the same product or service.

In addition, while Martenson found that consumers were confused as to the origin of the generic term “Healthprint,” the absence of a control group made it impossible to determine the cause of their confusion. Martenson contended that he was testing for the presence, not the cause, of confusion, but it is the cause of confusion that is relevant to a trademark infringement claim. If consumers are confused for reasons that have nothing to do with an allegedly infringing mark, their confusion is immaterial.

Finally, when Martenson’s survey described the service with which “Healthprint” is associated, it described only Superior’s service. It did not describe Shaklee’s. The court noted that a survey respondent “can only compare and contrast two services if they are given two services to compare and contrast.” If participants concluded that the term was associated with one service rather than two (which Martenson interpreted as a confusing association of the mark with a single service rather than two distinct services), the court deemed that conclusion to be compelled by survey questions that described only one service.

The court decided that Martenson’s methodology was “fatally flawed.” It therefore granted the Daubert motion and excluded Martenson’s testimony at trial.

Poret’s Reasonable Methodology

Superior complained that Poret only surveyed consumers who would consider using blood-test services to analyze nutritional needs. The court rejected the argument that Poret should also have surveyed consumers who might want a nutritional analysis without taking a blood test. While Superior occasionally offers nutritional advice without a blood test, it does not actively market those services using the “Healthprint” mark, so it was reasonable for Poret to exclude those consumers from his survey.

Superior also complained that Poret surveyed consumers who are at least 21 years old, while most of Superior’s customers are over the age of 50. Since Superior markets its services to all adults, however, Poret’s methodology was reasonable.

Superior complained that Poret showed survey participants a brochure that reproduced its website pages rather than showing them the actual website. That methodology was reasonable because it provided participants with the website content while assuring that each participant saw the same materials.

Finally, Superior complained that Poret showed participants the nutrition-related questions that Shaklee’s website asks but did not show them the questions that Superior’s website asks. Superior’s questions, unlike Shaklee’s, are included in the company’s order form. Showing the order form to participants would have underscored the fact that Superior’s services are much costlier than Shaklee’s and would have decreased the likelihood of finding consumer confusion. The decision not to show Superior’s order form to participants did not prejudice Superior and did not undermine the reliability of Poret’s methodology.

Having rejected all Superior’s challenges, the court denied its Daubert motion. The decision highlights the importance of using reliable survey methods when basing a patent infringement lawsuit on an expert’s opinion about the likelihood of consumer confusion.


$14.5 Million Award After Expert Admits License Suspended for Fraud

A six-person jury has awarded a Bronx man $14.5 million in a verdict against New York’s Metropolitan Transit Authority after the MTA’s expert witness admitted that his medical license had been recently been suspended over fraudulent exam reports.

The Accident

In 2013, an MTA bus crossed two lanes of traffic and hit a Honda Odyssey minivan driven by Miguel de los Santos. De los Santos was driving his wife to her birthday party on Pelham Parkway near the Bronx Zoo in New York when the crash occurred.

The accident left de los Santos with serious back injuries that required spinal reconstructive surgery.  His attorney, Eric Subin, said that the 66-year-old retired building superintendent now “shuffles around with a cane.”

His spouse, a NYPD police officer, was a passenger in the vehicle. She escaped with minor injuries.

The Lawsuit

De los Santos sued the MTA in Bronx Supreme Court. The MTA retained Dr. Roger Antoine, a surgeon at Wyckoff Hospital in Brooklyn as its medical expert. Dr. Antoine testified on November 15 that a February 2015 exam showed that de los Santos had normal muscle strength and range of motion in his back.

At trial, de los Santos’ attorney Eric Subin cross-examined Dr. Antoine on the stand and got the doctor to admit that he had “no memory” of examining de los Santos.

Subin asked Dr. Antoine, “Do you remember performing that exam?” Dr. Antoine replied, “I do not remember.” Subin asked again, “No memory of it at all?” Dr. Antoine replied, “No.”

Dr. Antoine also acknowledged that he was temporarily barred from treating injured workers and performing independent medical exams. The Workman’s Compensation Board conducted a two-year investigation of Dr. Antoine’s activities and determined that he had signed off on phony reports, including a report where the doctor incorrectly stated that a victim was faking his injuries.

According to Subin, the medical report was fabricated by a “chaperone” paid for by the MTA who sat in on the exam, took notes on the exam, then used the doctor’s electronic signature on the document. Dr. Antoine admitted that he is supposed to review and sign all exam reports.

Dr. Antoine resigned his authorizations to treat injured workers and perform independent medical examinations in the New York State workers’ compensation system on March 16, 2018. Due to this resignation, Dr. Antoine is prohibited from rendering treatment and care to injured workers. Reports submitted by Dr. Antoine for services rendered prior to March 16, 2018 are authorized. Any report submitted by Dr. Antoine for services rendered after March 16, 2018 are not authorized.

The Verdict

Following a month-long trial, a four-woman, two-man jury returned a $14.5 million verdict for de los Santos.

De los Santos was pleased with the award.  He said, “I’m happy. . . . The MTA lied a lot. All the way from the [bus] driver to the doctor. But the jurors made their decision and they felt for me.”

Photo Credit: An M15 SBS bus passes Madison and James Streets, bound for South Ferry, Fan Railer (talk). Own work (Original text: I (Fan Railer (talk)) created this work entirely by myself). Fan Railer [Public domain], from Wikimedia Commons

Justice Scales

Prominent Child Abuse Expert Dies at 100

Prominent California child abuse expert and pediatrician, Dr. Jess Diamond, has died at 100 years old.

Early Career

Dr. Jess Diamond was born in the Bronx, New York on September 18, 1918 to a restaurateur and apartment manager. Diamond grew up in New York and became interested in medicine because of his uncle, who worked as a doctor with a family practice. Diamond became an Army captain assigned to the Medical Corps during World War II. Dr. Diamond worked as a pediatrician at hospitals in New York and Illinois. In 1980, he moved to Bakersfield, California where he became the chair of Kern Medical Center’s Department of Pediatrics.

Prominent Child Abuse Expert

Dr. Diamond became well-known in the community as a child abuse expert and served as a witness for the Kern County District Attorney’s Office on hundreds of cases. His colleagues knew him for his tireless work ethic.

Kern County District Attorney Lisa Green used Dr. Diamond as an expert witness in many child sexual abuse cases in the 1980s and 1990s. She said, “In Kern County, there really weren’t any other people who had the qualifications he had… He was a great man, and a great witness, and he really had a passion for kids.” Green also complimented Dr. Diamond on his accessibility. She said, “Doctors can be a little difficult to get in touch with… Dr. Diamond just made himself so accessible.”

False Evidence Testimony

Dr. Diamond also showed that he was willing to reevaluate past decisions that he made. Dr. Diamond testified for the prosecution in the trial of Vicente Figueroa Benavides, who was sentenced to death in 1991 for allegedly sexually assaulting and killing 21-month-old Consuelo Verdugo.

After receiving the girl’s medical records, Dr. Diamond changed his mind and recanted his testimony. In 2012, Diamond wrote in a habeas corpus petition, “I do not believe Mr. Benavides received a fair trial and I provide this declaration in the hope that the current legal proceedings will correct this injustice.”  Dr. Diamond said, “After reviewing the medical records and photographs that I should have been provided in 1993, I am convinced that this case presents a tremendous failing of the criminal justice system.” Due in part to Dr. Diamond’s testimony, the California Supreme Court overturned the charges against Benavides, who was freed after serving 26 years on death row.

Robert Carbone, the district attorney who originally prosecuted the case, said that he didn’t understand why Dr. Diamond changed his mind, but that he respected the doctor’s opinion. “Most of what I learned about prosecuting child molestation or other sexual assault cases came from Dr. Diamond. … He was our source.”

Experts now say that the little girl was likely never assaulted and was probably run over by a car.  Dr. Astrid Heger, one of the top child abuse experts in the country, said that the original autopsy finding, that the child died of sex abuse “… is so unlikely to the point of being absurd.”

Dr. Diamond retired in June 1999, at age 81, but continued to work as a volunteer.  He is survived by his wife Ann, three children, six grandchildren, and two great-grandchildren.


Judge Orders Mental Health Treatment Recommended by Defense Expert Witness

A Pennsylvania judge has taken the advice of an expert witness and ordered a specific regimen of mental health treatment for a defendant who has been sentenced to state prison time.

The Crime

On June 17, 2016, 31-year-old Calvin McDonald from Allegheny County, Pennsylvania got into an argument with his girlfriend at their residence. McDonald duct-taped and tied up his girlfriend with rope, choked her, and threw her into the back of their minivan. McDonald drove around for hours, going as far as Wheeling, West Virginia. The couple’s two children were also in the vehicle.

When McDonald later returned to his residence, his girlfriend was able to communicate with a neighbor through an upstairs window to call the police.

The Trial

During his trial, forensic psychologist Shannon Edwards testified that McDonald suffered from  post-traumatic stress disorder. Edwards also testified that McDonald was in a dissociative state during the incident.

A jury found McDonald guilty but mentally ill on five counts, including aggravated assault, kidnapping, and false imprisonment. The jury acquitted McDonald of sexual assault, endangering the welfare of children and criminal attempt of homicide.

The Sentencing

Judge Alexander P. Bicket of the Allegheny County Court of Common Pleas sentenced Calvin McDonald to 5 to 10 years in state prison. Judge Bicket also ordered the state to provide McDonald with the specific mental health regimen recommended by defense expert witness Shannon Edwards.

Edwards recommended that McDonald receive the psychotropic drugs already prescribed to him, individual and group counseling, and other kinds of therapy. Edwards also requested that Judge Bicket reevaluate McDonald’s mental health after one year. Edwards said that McDonald will regress if he does not continue to follow his current treatment regimen.

Mental Health Courts

Allegheny County is one of the many counties that has mental health courts that deal with nonviolent offenders whose psychiatric problems are the underlying factors in their criminal cases. In Allegheny County, the mental health court is designed to divert individuals with non-violent criminal charges who have a documented diagnosis of a mental illness to community based services; maintain treatment, housing, benefits, supervision and community support services for the individual; maintain effective communication between the criminal justice system and mental health system; and support public safety.

Benefits of mental health courts include giving an offender the opportunity to be released from jail and placed in mental health services/treatment in lieu of incarceration. An offender who is placed on probation by a mental health court is supervised  by a special services probation officer and receives support from an Office of Behavioral Health Mental Health Court probation liaison.

However, mental health court is only available to defendants with a documented diagnosis of a mental disorder, mental disability or dual-diagnosis with a mental disorder and substance abuse who is charged with committing a misdemeanor and/or non-violent felony in Allegheny County and is awaiting trial and/or sentencing.

Judge Bicket’s ruling is an example of how mental health court principles might be applied to prisoners with mental health issues who have committed violent felonies.


Ninth Circuit Declines to Rehear Case that Asks Whether Admissible Expert Evidence Is Required to Support Class Certification

Does expert evidence need to be admissible at trial before a judge can base a class certification decision on the evidence? A Ninth Circuit panel said “no” while a divided court recently declined to review the panel’s decision en banc.

Facts of the Case

Two registered nurses (“RNs”) filed a class action complaint against their former employer, Corona Regional Medical Center, alleging that Corona violated California wage laws in several ways, including the failure to pay wages for all hours worked, to pay overtime wages or all overtime hours worked, to provide RNs with off-duty meal and rest periods, to pay timely wages upon the termination of employment, and to provide accurate wage statements.

The RNs filed their lawsuit in state court. Corona removed it to federal court. The RNs asked the federal district court to certify subclasses as to each category of wage violation. The court denied that motion on several grounds, including its determination that the RNs’ financial injuries were not typical of those suffered by class members. In reaching that decision, the court decided that certain expert evidence offered by the plaintiffs was not admissible under federal law, and that the plaintiffs therefore failed to demonstrate any injury at all.

The RNs appealed. The Court of Appeals for the Ninth Circuit reversed the district court’s order. The court based its ruling in part on the conclusion that the RNs were entitled to rely on evidence to demonstrate typicality that would not be admissible at trial.

Expert Evidence

To establish the typicality of their injuries, the RNs submitted a declaration prepared by a paralegal employed by their law firm. The paralegal reviewed payroll records and determined that Corona “rounded” the time shown on time cards to the nearest quarter hour.

Using a sampling of timesheets, the paralegal compared the time for which Corona paid its employees to the time they actually worked, as recorded on time cards. The paralegal concluded that over hundreds of shifts, Corona’s rounding practice undercounted one RN’s time by eight minutes per shift and undercounted the other RN’s time by six minutes per shift.

The RNs did not submit declarations until after Corona challenged the paralegal’s declaration. Nor did the RNs have a payroll expert or statistician prepare the analysis on which they relied. Had their counsel taken those steps, the legal issues raised on appeal would likely have been avoided.

The district court concluded that the paralegal’s analysis was not admissible because:

  • the paralegal was a lay witness who had no personal knowledge of the data that he analyzed;
  • the opinions that the paralegal offered were “technical” and “specialized” and thus could only be offered by an expert witness; and
  • the paralegal was not qualified to provide expert testimony.

Since the paralegal’s analysis was based on the kind of arithmetic a high school graduate should be competent to perform, the district court’s conclusion that the paralegal’s opinions were based on “technical” or “specialized” knowledge is doubtful. The larger question, however, is whether evidence of typicality must be admissible at trial before it can satisfy the requirements of class certification.

Evidence Required for Class Certification

Class certification decisions require the district court to analyze facts. The Ninth Circuit cautioned that the analysis does not require a “mini-trial.” A trial determines the merits of claims asserted by plaintiffs. Courts decide whether to certify a class without deciding the merits of class claims.

Accordingly, the appellate court deemed it a matter of common sense that the “formal strictures” of a trial, including the rules of evidence, should not necessarily constrain the court’s determination of whether the facts support bringing the case to trial as a class action. “Inadmissibility alone,” the court held, “is not a proper basis to reject evidence submitted in support of class certification.”

The court acknowledged that the Fifth Circuit requires all evidence in support of class certification to be admissible, while the Third and Seventh Circuits require expert evidence to be admissible. The Eighth Circuit, on the other hand, noted that the limited decision to certify (or not) a class is a preliminary determination made early in the case, usually before the conclusion of merits discovery. For that reason,the Eighth Circuit allows courts to rely on evidence to certify a class that might not be admissible to prove the merits of a claim.

Since evidentiary uncertainty is inevitable at the certification stage and since a class can always be decertified later, the Ninth Circuit agreed with the Eighth Circuit that the Daubert standard applies to the evaluation of evidence proving the merits of a case, not to the preliminary decision to certify a class.

Formalism v. Justice

At least as applied to the facts of this case, the decision was in fact based on common sense. The paralegal’s statistical analysis may not have satisfied Daubert  because it was not accompanied by an explanation of the methods used to extract data, but it is fair to assume that the methodology would be fairly obvious to anyone who examined the spreadsheets that the paralegal created from the payroll data. If data was cherry-picked, one would expect the defense to point that out by submitting its own analysis using a different sampling of the data.

The appellate court concluded that the district court’s reliance on “formalistic evidentiary objections” prevented it from considering evidence that “likely could have been presented in an admissible form at trial.” For example, the plaintiffs responded to Corona’s objections by presenting declarations that authenticated the payroll data — the accuracy of which Corona never challenged — but the district court rejected the declarations as “new evidence.” The only thing new, however, was the authentication of the payroll data, not the payroll data itself.

The appellate court noted that the district court’s “narrow approach” told it nothing about whether the typicality requirement was actually satisfied, and thus prevented the court from determining whether allegations about Corona’s violation of California wage laws should most efficiently be resolved in a class action. In essence, the district court elevated evidentiary formalities over justice.

Using a paralegal to crunch data was not an ideal way to present evidence to the court. Still, the plaintiffs were certainly capable of giving admissible testimony that “we weren’t paid for all the hours we worked,” which is all it would have taken to demonstrate that they — and employees like them — were harmed by wage violations. That they did so only after Corona challenged the admissibility of the payroll analysis they presented hardly seems like a sufficient justification to deny an entire class of employees the opportunity to prove that Corona cheated them out of the full wages they earned.

Lessons Learned

The Ninth Circuit recently denied a petition to rehear the appeal en banc (that is, to have the entire court consider the issue), but five judges dissented from the denial. The dissenting judges believed that circuit precedent, the prevailing view in other circuits, and “the Supreme Court’s clear guidance” compel the conclusion that expert evidence must pass the Daubert test of admissibility before it can be considered in support of a certification motion.

The dissenters were incredulous that the other judges were willing to accept the calculations of a mere paralegal, whether or not the calculations were probably correct. The dissenters devote a footnote to their assumption that the paralegal’s simple arithmetic had to be supported by expert testimony, despite ample precedent for the proposition that arithmetical calculations that most reasonably intelligent people could make, and that most jurors could understand, need not be made by experts.

The Ninth Circuit’s decision results in an apparent circuit split that may be resolved by the Supreme Court if Corona petitions for review. In the meantime, prudent attorneys who need to present statistical evidence in support of certification motions would be well advised to hire a payroll expert, an accountant, or a statistician to derive conclusions from payroll records or other data compilations. Whether or not an expert is strictly necessary (and in some circuits, an expert’s testimony is vital), employing the services of an expert in a wage claim should significantly improve the odds that a court will certify a class.

Siberian Husky

Prosecutor Requests Admission of Evidence Without Expert

A Lapeer County Prosecutor has requested that he be allowed to admit evidence relating to an animal’s genetics into court without presenting an expert to testify about this evidence at trial.

The Incident

On July 7, a black husky and another dog owned by Geuorgui Shopov were running loose in Attica Township, Michigan. The two dogs killed four roosters, four fully-grown guineafowl, and two rabbits belonging to an Attica resident. The reported damages were $260.

On July 11, the Lapeer County Animal Control Dept. took custody of the black husky. Shopov was charged with violation of the Wolf-Dog Cross Act. In relevant part, the act prohibits owning, possessing, breeding, or offering a wolf or wolf-dog hybrid for sale.


Sec. 4. (1) A person shall not possess 1 or more wolf-dog crosses unless all of the following apply:

(a) The person owns the wolf-dog crosses or has temporarily been given possession of the wolf-dog crosses by the owner.

(b) The owner was in possession of those individual wolf-dog crosses on the effective date of this act.

(c) The owner applies for a permit for those wolf-dog crosses within 4 months after the effective date of this act, and obtains a permit for those wolf-dog crosses. The permit applies only to those individual wolf-dog crosses. The permit is not transferable to another person except through testate or intestate succession. The permit is valid in any local unit in which the possession of the wolf-dog cross is not prohibited by ordinance.

Violation of the Wolf-Dog Cross Act is a misdemeanor that is punishable by up to 93 days in prison, 500 hours of community service, the loss of the privilege to own any animal, and a $250-1000 fine.

Expert Testimony

The Lapeer County Animal Control sent a genetic sample from the animal to the Veterinary Genetics Laboratory at the University of California-Davis for forensic analysis. The lab determined that the animal is a wolf-dog hybrid. Introduction of this evidence normally requires an expert witness to substantiate it.

Assistant Prosecutor Tom Sparrow filed a motion with the court requesting that the court allow the introduction of this evidence without the need of an expert witness. The cost to secure the testimony of the Veterinary Genetics Laboratory Director, Dr. Christina Lindquist, as an expert witness at trial would be $2,000 per day of testimony, plus $50 per hour of travel, plus the costs of travel, meals, and lodging. However, Sparrow stressed that the Board should consider spending the money on the expert if the court does not allow the introduction of the testimony without an expert. The motion with the court is still pending,

Lapeer County Board of Commissioners would like to achieve the conviction without the use of an expert witness. County Commissioner Ian Kempf stated, “I think it’s clear we don’t want a wolf-dog hybrid in our community, but if we can achieve that with the information in front of us without spending taxpayer money (we should).”

A fair trial depends on the ability to cross-examine witnesses. A lab report cannot be cross-examined. If the county thinks the offense is worth prosecuting, it will probably be required to spend the money to give the defendant a fair trial.

Mental Capacity

Experts Clash Over Defendant’s Mental Capacity

Expert witnesses cannot agree about whether a man who pleaded guilty to murder is mentally fit to face the death penalty.

The Crime

In February 2010, a group of six men held 30-year-old Jennifer Daugherty captive for more than two days. Daugherty was beaten and tortured, bound with Christmas lights, and stabbed to death. Her body was then stuffed into a garbage bin and thrown in a snow-covered parking lot.

Melvin Knight pleaded guilty to first-degree murder for his role in Daugherty’s death. He was sentenced to die by lethal injection, but the sentence was overturned and a new trial was ordered to determine his fate.

Sentencing Testimony

Defense expert Christine Nezu, a clinical psychologist from Philadelphia, testified that Knight was not able to function in society and “profoundly adaptively impaired.” She said, “I believe Melvin has severe deficits and trouble adapting to the real world.” Nezu maintains that Knight did not have the capacity to appreciate his conduct, his emotional and mental ages ranged between 9 and 12, and he was very susceptible to domination by another person.

Knight’s defense team has argued that he was under the influence of his co-defendant Ricky Smyrnes when he participated in the beating, torture, and stabbing of Daugherty.

In preparation for the trial, the prosecutors hired New York mitigation specialist Jennifer Wynn to research Knight’s background in preparation for the trial. Wynn is an associate professor of criminal justice at City University in New York. Wynn was paid $7,117 for her work.

Prosecution expert Bruce Wright testified that Knight knew right from wrong, could function adequately, and is not intellectually impaired. Wright testified that Knight has been working in the prison cafeteria, taking classes to learn skills, and regularly visiting the prison law library. His intelligence scores range between 77 and 97, which indicate that he is not disabled.

Wright testified that Knight was diagnosed with depression, psychosis, substance abuse, attention deficit disorder, and antisocial behavior. He said, “He had the capacity to appreciate his criminal conduct. He chose not to, but he had the capacity.”

District Attorney John Peck described Knight as a mean, vengeful, and vindictive man that deserved to die. He argued that Knight’s actions were to protect his own self-interest and hide the crimes that he had committed against Daugherty, including allegations that he raped her. Peck told the jurors, “The defendant crossed the line. He knew if he didn’t keep this darkness to himself, all his actions were motivated to prevent this rape from being discovered by anyone.”

Jurors also heard testimony from Knight’s mother, Yolanda Rue. Rue testified that her son had been dealing with mental health issues since the age of six. She said that she enrolled Knight in special education classes and special schools to deal with his special needs. Rue testified, “He couldn’t be without supervision because of poor choices he made. He could be talked into anything if he thought it was fun.”

After the sentencing hearing, a jury of six men and six women deliberated several hours before determining that Knight should be sentenced to death for his role in Daugherty’s killing.