Category Archives: Expert Opinions

Can Expert Witnesses Be Sued for Careless Opinions?

Like everyone else, expert witnesses sometimes make mistakes. When those mistakes affect the outcome of litigation, they can be costly. In some cases, experts might need to worry that their failure to render a careful and informed opinion will expose them to a lawsuit for negligence.

Maritime Experts Sued for Negligence

A dispute that illustrates the potential risks experts take when they provide opinions involves a cargo ship that was heavily damaged by fire. The owners contended that the ship was a total loss, meaning that the cost of repairs exceeded the ship’s value. The insurers disagreed. The insurance companies offered the ship’s estimated repair costs — an amount that they contended was less than the ship’s value — to settle the claim.

The owners eventually scrapped the ship and offered to settle for about $1.1 million. When the insurance companies declined that offer, the owners sued. The insurers hired a marine consultancy firm to provide an expert opinion concerning the vessel’s repair costs. The firm based its opinion on information provided by the ship’s builder and by two Chinese shipyards.

The primary dispute involved the amount of steel that would be required to repair the accommodation block (the portion of a cargo ship in which crew cabins are located). The marine consultancy firm estimated that the repairs would require 312 metric tons of steel. The owners’ technical expert estimated that 542 metric tons would be needed. The price differential between the two estimates was substantial. The cost of 542 metric tons of steel would have exceeded the ship’s value prior to the fire, while 312 metric tons would have produced a repair cost that was less than the ship’s value.

The experts eventually met and, as a result of the meeting, the marine consultancy firm revisited its opinion. It decided that it relied on faulty information and that the actual cost of repair would be almost $4 million more than the ship’s insured value. The insurance companies then settled the owners’ claim for $1.3 million, plus legal fees.

The insurers brought a claim for negligence against the consulting firm, arguing that they could have settled for a lesser amount if they had been properly advised. They also would have been responsible for lower legal fees. The insurers’ claim against the consulting firm was settled after mediation.

American Law Concerning Expert Liability

The case involving the cargo ship arose under British law, which in 2011 abandoned the immunity that experts who are hired for litigation previously enjoyed. Would the result be different in the United States? The answer depends upon the law of the state in which the expert has been hired.

The traditional rule in the United States has given witnesses — including experts — immunity for their courtroom testimony, even if the testimony is mistaken. Whether experts who are hired in anticipation of litigation should receive immunity for erroneous opinions that are rendered outside the courtroom is less clear.

What is clear is that the law is changing, at least in some states. In half a dozen jurisdictions — California, Connecticut, Louisiana, Massachusetts, Missouri and Pennsylvania — litigants are permitted to sue the experts that they hire for malpractice or breach of contract. At least two states (New Jersey and Vermont) allow court-appointed experts to be sued for negligence. Other states, including Michigan, continue to give experts immunity from suit for their testimony, but permit the party that hired the expert to sue for damages that result from reliance on the expert’s mistaken opinion.

The standard of absolute immunity for expert testimony is eroding as courts increasingly ask whether the truth-finding function of a trial is assisted by granting immunity to experts who form their opinions carelessly. How many American states will eventually follow the lead of the United Kingdom by abolishing immunity for expert witness testimony is uncertain. It is certain, however, that experts should exercise care and adhere to professional standards when they form their opinions. The failure to do so will hurt their reputations and might subject them to disciplinary sanctions imposed by professional organizations or licensing boards. If they are hired in a state that permits malpractice actions against expert witnesses, rendering careless opinions might also hurt an expert’s pocketbook.

Florida Continues to Debate Standard for Expert Testimony

Until the state legislature decided it was time for a change, Florida followed the Frye standard for the admissibility of expert testimony. The state legislature adopted a rule governing expert evidence that parallels Rule 702 of the Federal Rules of Evidence. Widely known as the Daubert standard, that rule arguably raises the bar for the admission of expert evidence.

ExpertPages analyzed a Florida appellate opinion in 2014 that provided the state’s first in-depth discussion of how Florida trial courts are to apply the new rule. That case rejected proposed medical testimony because the expert’s opinion was not based on scientific research. The expert would have testified that a stressful employment environment caused the premature birth of the plaintiff’s baby.

About 35 states have either adopted the Daubert standard (sometimes with slight modifications) or have interpreted their existing evidentiary rules as being consistent with Daubert. The Daubert standard is widely endorsed by the business community, which regards it as a check against expert opinions that are based on “junk science” or that are unsupported by scientific research or a reliable methodology. Critics of Daubert suggest that the standard is designed to make it more difficult for plaintiffs to recover damages from businesses and insurance companies for injuries that were caused by a defendant’s negligence.

Florida Debates Daubert

The Florida Bar is considering a proposed recommendation that the Florida Supreme Court abandon the Daubert standard and return to the Frye standard. A committee of the Florida Bar that considers procedural rules and codes (including the state’s evidence code) narrowly favored the rejection of Daubert. The Bar’s Board of Governors tabled the vote at a meeting on October 16, 2015, but placed the issue on the agenda of a meeting in December.

The separation of powers doctrine arguably gives the state Supreme Court the final say over rules of evidence governing expert testimony, regardless of the state legislature’s attempt to impose the Daubert standard on the state’s judicial system. Even if the Board of Governors decides to make the recommendation, it is not clear whether the Florida Supreme Court would give the Bar’s recommendation greater weight than the legislature’s attempt to amend the evidence code.

A lawyer from the state’s largest personal injury firm argues that “Daubert only benefits rich, powerful people, and corporations or insurance companies.” Plaintiffs’ lawyers argue that Daubert increases the cost of litigation by requiring judges to hold extensive hearings before ruling on the admissibility of expert testimony. Not surprisingly, the Orlando Sentinel reports that opposition to the proposed recommendation “is coming from business groups and defense counsel.” They argue that Daubert is an essential safeguard that protects litigants from verdicts that are based on unreliable expert testimony.

Does the Standard Matter?

For all the effort that lawyers make to convince courts to adopt standards that might favor the clients they represent, it seems likely that the standard makes little difference in most cases. In the Florida case that rejected expert testimony attributing a premature birth to a stressful work environment, the trial court applied the Frye standard in rejecting the proposed expert testimony. The appellate court applied the Daubert standard and arrived at the same result.

Some have argued that the Frye standard, which admits expert evidence only if it is based on principles that are generally accepted in the scientific community, is actually more restrictive than the Daubert standard. The Daubert decision condemns Frye’s “generally accepted” standard as being too rigid. By focusing on the reliability of the expert’s methodology rather than its general acceptance, the Daubert decision may have opened the door to the admission of evidence that would have been excluded under the Frye standard.

Daubert and Supreme Court cases that followed in its wake gave trial judges substantial discretion to admit or exclude expert testimony. Most expert testimony (a DNA analysis, for example) is relatively uncontroversial and will be admitted routinely. In toxic tort and product liability cases where expert testimony is more often challenged, whether the judge will admit borderline evidence often hinges upon how the judge views expert testimony in general. Some judges are skeptical of expert testimony while other judges trust juries to decide whether experts are worthy of belief.

Florida’s struggle with the choice between Daubert and Frye may therefore be much ado about nothing. A study by Professors Cheng and Yoon concluded that basing admissibility on the Daubert standard or the Frye standard “does not make any practical difference.” Judges who are inclined to let juries evaluate expert evidence will admit expert testimony using either standard while judges who are suspicious of expert testimony are more likely to exclude it, regardless of the standard that governs their decision.

Police Use of Force Expert Witness Reports Suggest No Prosecution for Officer in Tamir Rice Shooting

Expert reports submitted to prosecutors in Cuyahoga County suggests that a Cleveland police officer will not be charged in fatal shooting of a 12-year-old black boy at a recreation center last November. The expert reports, which were made public last week, do not represent a final decision in the investigation, but the implication that prosecutors believe the officer acted reasonably created a wave of disappointment among advocates for police prosecution in fatal shootings.

Cleveland Officer Not Prosecuted for Fatal Shooting of Tamir Rice

On November 22^nd, 2014 Cleveland police officer Tim Loehmann – a rookie on the force – responded to a 911 call regarding a black youth who appeared to be armed in a public park. The youth was 12-year-old Tamir Rice who was spending his afternoon playing with a toy gun that looked realistic enough to prompt a call to the police and aggressive action from Officer Loehmann mere seconds after he arrived. Within two seconds of Loehmann and his partner Frank Garmback pulling up to the gazebo where Rice was sitting, Loehmann had fired a point blank gun shot into the boy’s abdomen. Although the officers frantically called for emergency vehicles, Rice’s wound was fatal and the boy died before medical aid arrived.

During the 10 months since the shootings, the Cuyahoga County prosecutor’s office has received intense pressure to arrest and charge Loehmann for his role in the shooting, which many critics argued was evidence of a broad problem of overly violent behavior instigated by Cleveland police officers. For his part, Loehmann claimed that he believed the replica air pistol that Rice was playing with was a real gun, and he followed department procedure to warn the boy to put his hands up before Loehmann deployed his weapon. Loehmann also did not receive information about the details of the 911 call during which the caller told dispatch operators that the gun was “probably a toy.”

Despite Loehmann’s claims, members of Tamir Rice’s family and advocates for police accountability have actively pressed for the officer’s arrest and prosecution. Demonstrations and protests have been accompanied by national commentary and debate, including a highly critical review of Cleveland police tactics submitted by the Justice Department. After several months of investigation, prosecutors released two expert witness reviews of the Tamir Rice shooting that seem to affirm Loehmann’s claim that he acted reasonably and within department guidelines.

Expert Witness Reports Support Police Action in Tamir Rice Shooting

As part of the investigation into Rice’s tragic shooting, Cuyahoga prosecutors commissioned two independent expert witness reports to evaluate the incident and comment on the reasonableness of Loehmann’s behavior as an officer approaching the scene. One of the experts is a retired FBI agent and the other is a prosecutor in Colorado, and both reports suggested that the incident – however tragic – was not clearly demonstrative of excessive use of police force.

Kimberly Crawford, a retired FBI agent who is an expert in police tactics, wrote that Officer Loehmann could not be expected to recognize Tamir’s gun was fake, and stated that in order to properly evaluate the officer’s behavior prosecutors must ask if a “reasonable officer, confronting the exact same scenario under identical conditions could have concluded that deadly force was necessary.” Citing the relevant federal legal standard and the information that Officers Garmback and Loehmann were operating under, Crawford concluded her analysis by writing, “In light of my training and experience, it is my conclusion that Officer Loehmann’s use of deadly force falls within the realm of reasonableness under the dictates of the Fourth Amendment.”

Crawford’s expert opinion was echoed by another expert in police tactics, Colorado prosecutor S. Lamar Sims who similarly found that Loehmann used reasonable force. According to Sims’s expert report, Loehmann had every reason to believe that he was responding to a call about teenage to adult male carrying a real gun, and when he saw Tamir Rice with an authentic looking toy pistol, his immediate response to a threat – even if incorrect in retrospect – was reasonable. After reviewing the facts of the situation, the life-like appearance of the gun, and the information Officer Loehmann was given from the 911 call, Sims concluded his letter by writing, “There can be no doubt that Rice’s death was tragic and, indeed, when one considers his age, heartbreaking. However … Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”

Tamir Rice Family and Supporters Disheartened by Expert Witness Reports

Although the Cuyahoga prosecutor office told the press that they are not reaching conclusions based solely on the expert witness reports, attorneys for the Rice family released a statement expressing the family’s concern that there will not be a criminal prosecution. Prosecutors have indicated the case will still go to a grand jury to determine charges, but Jonathan S. Abady, an attorney for the Rice family, said in the statement that not enough is being done.

Abady wrote, “Prosecutors exercise substantial influence over the grand jury process and whether an indictment will issue or not. The video footage and other evidence readily available from the outset made clear that this was a completely unreasonable use of deadly force against Tamir.” Nothing has been decided yet, but if the two police use of force expert reports carry substantial weight, then Officer Loehmann may avoid prosecution for the shooting.

Expert Medical Examiner Accused of Being Gun for Hire

Can a medical examiner who is employed by the state serve as an expert witness for private parties? Assuming the state imposes no barrier to outside consulting, the question is whether testifying for private parties might create a conflict of interest.

The potential peril of acting as an expert witness for private litigants is illustrated by a special report in the Atlanta Journal Constitution that criticizes Dr. Kris Sperry, the chief medical examiner for the Georgia Bureau of Investigation. The AJC investigation accuses Sperry of acting as a “hired gun” who tailors his testimony to suit the needs of the lawyers who pay him.

Since 2003, Sperry has worked on more than 500 cases as a paid forensic consultant, all while being employed fulltime by the State of Georgia. The AJC investigation suggested that Sperry’s outside consulting, which doubles the $184,000 salary he earns from the State of Georgia, undermines his credibility as a witness for the state.

Sperry’s Critics

In 2013, Sperry testified as an expert witness for federal prosecutors who accused a former police officer of committing murder by shooting a victim with a sniper rifle. The victim’s body was burned beyond recognition and no bullet was ever found. Without examining the body, Sperry confidently asserted that the victim was shot in the back by a high-powered rifle. Sperry was paid $5,000 for that testimony.

Sperry based his opinion on his review of an X-ray. Although Sperry claimed that “any competent forensic pathologist” would agree with his opinion, four pathologists condemned his opinion as the product of supposition rather than forensic science.

The medical examiner in New Orleans concluded that the X-ray showed metal fragments from the car. According to that expert, no other explanation could account for the missing bullet, which would not have been destroyed by the fire.

Dr. Steven Karch, an Oakland pathologist, said that Sperry was relying on “junk science” to support his opinion. Dr. Jerry Spencer, the former chief medical examiner for the Armed Forces Institute of Pathology, agreed that no credible medical examiner would base a conclusion that a victim was shot by a high-velocity rifle on an X-ray.

The most prominent of Sperry’s critics in the New Orleans case was Dr. Vincent DiMaio, the medical examiner in San Antonio, Texas. DiMaio is the author of several leading forensic science treatises, including one on gunshot wounds. MiMaio not only disagreed with Sperry’s interpretation of the X-ray, he testified that Spencer’s testimony about entrance and exit wounds and the bullet’s supposed path through the body was insupportable without examining the body.

Credibility and Controversy

Not all of Sperry’s detractors focus on his alleged willingness to tailor testimony to the needs of the lawyers who hire him. An Atlanta television station criticized Sperry a few years ago for contradicting the medical examiners in other states when he testified privately. That criticism was probably unjustified, since Sperry exposed testimony that was arguably slanted to favor the examiners’ employer. That’s exactly what an expert should do, making it all the more ironic that Sperry now seems to be slanting his own testimony to favor the people who hire him.

Prosecutors have been accused of intimidating state medical examiners who act as expert witnesses for criminal defendants. Some prosecutors apparently feel that medical examiners should always be on the side of the prosecution, when in fact they should be on the side of the truth. Science is a process of discovering the truth, even if the truth contradicts a prosecutor’s theory of how a crime was committed.

There is nothing inherently wrong with a state medical examiner doing private consulting for a private party. Testifying for the prosecution, the defense, and civil litigants may help medical examiners retain their independence. On the other hand, there is something very wrong with a medical examiner who departs from objective scientific findings by slanting testimony to favor the party that pays the examiner, particularly when that testimony has no foundation in science.

Double Billing

Sperry testified 13 times for the State of Georgia between 2010 and 2014. During that same period, he testified 42 times for private parties.

Sperry told his boss that he puts in his 40 hour weeks for Georgia and works for private clients during his free time, including his leave time. He also told his boss that he doesn’t recall much about his private work and shreds his files after he is done testifying.

Motion for New Trial Based on Art Valuation Experts

Luke Brugnara made the mistake of representing himself in a federal criminal trial. Brugnara was convicted of mail fraud, wire fraud, and a number of lesser charges.

A lawyer would probably have hired an expert to testify for Brugnara during his trial. Expert testimony might have persuaded the jury that Brugnara was the victim of fraud rather than the perpetrator.

Brugnara’s Trial

The fraud charges were based on Brugnara’s agreement to pay millions of dollars to a New York art dealer for paintings, drawings, sketches, and sculptures by Willem de Kooning, Edgar Degas, George Luks, Joan Miró, and Pablo Picasso. The art was shipped to Brugnara in April 2014 but, according to the government, Brugnara refused to pay and refused to return the art.

An FBI search found four crates containing most of the art in Brugnara’s garage. A fifth crate, containing a Degas sculpture, was never recovered.

Brugnara, a former real estate investor and casino owner, consistently proclaimed his innocence. He represented himself in federal district court in San Francisco during a three week trial that was described as chaotic. Despite frequent outbursts that might have turned the jury against him, Brugnara managed to win acquittals on two charges of wire fraud and two charges of making false statements.

Brugnara has not yet been sentenced. With the help of counsel, he is seeking a new trial. His lawyers argue that new evidence if the form of expert testimony establishes Brugnara’s innocence.

Expert Testimony

Brugnara apparently based his defense on the argument that he did not pay the $11 million that he promised the art dealer because the art he received was “fake” and “worthless.” Unfortunately, his defense was based on his own rants rather than expert testimony. He also undermined that defense by making the arguably inconsistent claim that the dealer gave him the art as a gift.

Lawyers filed a motion for a new trial on the ground that expert testimony supports Brugnara’s view that the art dealer tried to swindle him. Brugnara’s expert testified that, viewed collectively, the art objects were worth $895,000, not the $11 million that Brugnara agreed to pay. The government’s expert agreed that much of the art the dealer sold to Brugnarra had no commercial value.

Even if the art was worth less than 10 percent of the amount Brugnarra agreed to pay, he might still have defrauded the dealer by refusing to return the art. The judge reasoned that Brugnara was not entitled to defraud the art dealer just because the art dealer tried to defraud Brugnara.

On the other hand, the jury might have resolved the charges in Brugnara’s favor if he had called an expert witness during his trial. The jury might have concluded that Brugnara’s refusal to pay $11 million for art that was worth less than $1 million was based on a desire to avoid being cheated rather than an intent to defraud.

While the judge has not yet ruled on the motion, the judge did point out that Brugnara claimed during his trial that the art was worthless. Brugnara had the opportunity to cross-examine the art dealer concerning its value but added to his woes by choosing to ask no questions. The judge suggested that Brugnara might need to live with the consequences of that decision.

Authenticity Versus Value

The government and defense experts both testified that their expertise lies in valuing art, not in authenticating it. Yet both experts expressed reservations about the genuineness of the art they inspected.

The government expert testified that the paintings by de Kooning were stylistically inconsistent with his authenticated work and that they appeared to have one signature painted over another. The defense expert testified that he had examined many paintings by de Kooning and that the artist’s signature on genuine works differed from the signature on the works that Brugnara purchased. At the same time, he testified that there is a market for art forgeries and that “suspect” de Koonings might have some commercial value.

The judge, who apparently engages in rants of his own, expressed reservations about the value of expert testimony. He told the defense expert: “All experts do is speculate” and “You’re an expert; all you’re doing is speculating anyway.” That attitude, more common among jaded judges than juries, explains why so many litigants opt for jury trials rather than allowing a judge to decide the case.

Valuing a Missing Sculpture

The value of the Degas sculpture is particularly difficult for the experts to assess, given that the sculpture was not recovered. The government claims that a similar bronze cast from the same foundry recently sold in a Hong Kong auction for $1.8 million. The defense expert testified that established auction houses like Sotheby’s and Christies refuse to sell bronzes from that foundry and questioned whether the Hong Kong buyers had an informed sense of the object’s true worth.

The defense expert was troubled that the auction house refused to disclose the auction catalog that would have established the auctioned sculpture’s value and history. The judge responded: “You’re putting this beyond the reach of any ordinary mortal to put a value on it. You’re discounting based on not knowing.”

The Value of Expert Testimony

Given the judge’s acerbic comments, it seems unlikely he will give Brugnara a new trial. It also seems doubtful that Brugnara can prove the expert evidence is “newly discovered” (the standard he must meet to win a new trial) since expert evidence was available to Brugnara and he chose not to pursue it. On the other hand, whether a conviction should be based on outright lies about value is a question that may need to be resolved on appeal.

The immediate lesson to learn from Brugnara’s case is that attempting to call an expert witness in order to win a new trial is an uphill climb. Expert witnesses should be consulted as soon as a litigant realizes that an expert opinion might influence the outcome of a trial.

Soil Scientists Testify in Botanical Gardens Controversy

A Connecticut judge was recently asked to decide whether a restraining order should be entered to halt work on a project that allegedly violated environmental laws. Expert testimony by soil scientists was the focus of a two day hearing in New London Superior Court.

The Chelsea Gardens Controversy

A nonprofit foundation plans to create an 80-acre nature preserve and butterfly pavilion on land in Mohegan Park that it leased from the City of Norwich. The controversial Chelsea Botanical Gardens project has inspired protest from city residents who fear that pristine wilderness will be lost to structures that include a visitor’s center and an international gardening school. Supporters of the project argue that it will attract hundreds of thousands of visitors each year, providing an economic benefit to Norwich.

Clearcutting began on six acres within the park in April. Officials of Chelsea Gardens Foundation claimed the deforestation “is necessary to give future investors an idea of the project’s layout as they seek private contributions.”

Norwalk resident Chuck Evans Jr. disagrees. He filed a lawsuit against Chelsea Gardens Foundation alleging that the clearcutting is a public nuisance. Evans contends that the Foundation has violated local and state environmental regulations. The lawsuit seeks an injunction that would prohibit the project from moving forward.

As part of his lawsuit, Evans asked for a temporary restraining order. Granting the order would force the Foundation to stop working on the project until a final decision is made on Evans’ request for a permanent injunction.

Expert Testimony at the Restraining Order Hearing

Evans relied on the expert opinion of Stamford-based soil scientist Steven Danzer. During more than four hours of testimony, Danzer explained his belief that the clearcutting was environmentally harmful to the park’s wetlands because the Foundation had no plan to prevent soil erosion. According to Danzer, storm water runoff will increase due to the lack of ground cover. Danzer also testified that the clearcutting did not fall within the scope of state and local permits issued to the Foundation and that the Foundation failed to obtain a required storm water management permit.

On cross-examination, Danzer admitted that he did not inspect the wetlands before the clearcutting began and therefore could not perform a before-and-after comparison. He also acknowledged that he took no photographs to support his opinions.

The Foundation countered with the testimony of Norwich-based soil scientist Robert Russo. He testified that he prepared an ecological inventory of the site in 2000 and drafted a wetlands report in 2012.

Based on recent visits to the site, Russo contended that the clearcutting did not have an adverse effect upon wetlands. He testified that the porous soil remained capable of absorbing rainwater. Russo said he saw no significant difference between vegetation and habitat in the wetlands before and after the clearcutting.

Restraining Order Denied

The court denied the request for a temporary restraining order. That does not end the controversy, as the court could still grant an injunction after hearing more evidence during a trial. On the other hand, it will probably take strong evidence to persuade the judge to stop the project after his initial ruling permitted the Foundation to move forward.

The Chelsea Gardens Foundation waited less than a day after defeating the restraining order application before launching a campaign to raise the funds it requires to move the project into its next phase. Fundraising should be easier now that legal challenges to the development seem less likely to prevail.

Expert Witnesses Do Not Always Need a College Degree

Many experts have advanced degrees in specialized fields, but other experts gained their knowledge through experience. Rule 702 of the Federal Rules of Evidence permits expert testimony that will help the jury if the expert is qualified “by knowledge, skill, experience, training, or education.” Most states follow a similar rule.

Experience in the kitchen was enough to qualify a cookie expert to testify in a case from Hawaii that an attorney recently discussed in The Ukiah Daily Journal. The case involved a lawsuit that Big Island Candies, Inc. brought against The Cookie Corner, alleging that The Cookie Corner improperly copied its cookie design. In its defense, The Cooker Corner presented sworn statements from a number of cookie experts, including Wally Amos, better known to cookie lovers as Famous Amos.

The Cookie Design Dispute

According to the court decision, Big Island marketed “a rectangular macadamia-nut shortbread cookie with ‘bull-nose’ (i.e., rounded) corners that is diagonally dipped in chocolate.” The court expressed no opinion whether the cookie is as delicious as it sounds.

Big Island did not accuse The Cookie Corner of copying the cookie’s recipe, but of stealing the cookie’s design. According to Big Island, covering only half the cookie in chocolate along a diagonal line that ran from corner to corner, along with its rectangular shape and bull-nose corners, gave the cookie a distinctive appearance that it was entitled to protect. The Cookie Corner’s version of the cookie was nearly identical, except that its cookie was slightly larger.

The case turned on whether the cookie’s design was inherently distinctive and therefore protectable by intellectual property laws. If Big Island’s cookie was a generic design, The Cookie Corner had as much right to use it as Big Island and Big Island was not entitled to claim that its design had been copied.

A generic design is one that relies upon basic product features that are common to most similar products. The size and shape of cookies, for example, are usually basic design features because most cookies share similar sizes and are made in one of a few common shapes. A design is deemed generic when it is so common that consumers do not identify it with a particular manufacturer. A distinctive design, on the other hand, is not only unique but is intended to make consumers associate the design with a particular brand.

Expert Cookie Opinions

To apply these rules to chocolate-covered macadamia nut shortbread cookies, the court turned to the expert evidence that Big Island and The Cookie Corner supplied. Big Island offered expert survey evidence from researchers who showed the cookie to consumers and asked if they knew who made the cookie. Roughly a quarter of the consumers associated the cookie with Big Island, but that evidence did not persuade the court that consumers thought the cookie design’s primary significance was its ability to help them distinguish Big Island cookies from other brands. Besides, consumers could see the name “Big Island Candies” on the cookie wrapper, which likely helped them identify the manufacturer more than the cookies’ design.

Big Island also offered expert evidence from a seller of cookie-making machines who testified that he “could not recall” seeing other brands of shortbread cookies that were half-covered with chocolate on a diagonal. Since that failure of recollection did not refute the testimony provided by The Cookie Corner’s experts, the court held that it did not establish the distinctiveness of the Big Island design.

The Cookie Corner, on the other hand, offered the opinions of several experts “with extensive training and experience in the baking and cookie industries.” Those experts (including Wally Amos) offered opinions that the size, shape, and diagonal chocolate coating of Big Island’s cookie were widespread design features that are commonly used in the cookie industry. The court ruled in favor of The Cookie Corner because its expert evidence was essentially unrefuted.

Cookie Expert Qualifications

Big Island argued that The Cookie Corner’s experts were not qualified to provide expert evidence because they did not have adequate credentials. In particular, Big Island asked the court to discount Wally Amos’ opinion because he “did not graduate from high school and because he does not have a degree in a culinary field.”

The court noted that Rule 702 does not require experts to have formal degrees. Expertise can be acquired by on-the-job experience. Wally Amos founded the Famous Amos Cookie Company, has traveled extensively to meet with cookie makers and bakers, and has acquainted himself with hundreds of cookie recipes. The court had no trouble accepting Amos as a cookie expert based on his extensive experience in the cookie industry.

Medical Expert Witnesses Duel in Child Abuse Murder Trial

Expert witnesses in child injury and abuse disagreed with each other on the stand this week as both prosecutors and defense lawyers relied on medical experts in the murder trial of a Madison, Wisconsin man accused of killing his girlfriend’s 5-year-old son. During the course of this week’s testimony, expert witnesses dueled on the nature of the child’s injuries and the cause of his tragic death.

Wisconsin Man Charged with Killing 5-year-old

Dakota Black, 25, has been charged with first degree reckless homicide in the death of 5-year-old Brayden Turnbill who died from severe brain injury. According to prosecutors Black was responsible for watching Turnbill, his girlfriend’s son, when the child came home from school, during which time he fatally abused the boy. Turnbill was found unconscious by his mother when she returned from work, and was unresponsive to efforts to revive him. He died in the hospital three days later.

After investigating the incident and talking to the medical examiner, prosecutors formally charged Black alleging that he abused the child so severely that Turnbill suffered fatal brain injuries. In order to support their contention that Turnbill’s injuries were caused by physical abuse by Black instead of an accidental fall as the defendant claimed, prosecutors called a variety of medical expert witnesses who alleged the boy’s injuries were the result of child abuse.

Prosecution Expert Witnesses Testify to Signs of Child Abuse

Early in the Dakota Black homicide trial, prosecutors called to the stand medical examiner Kristin Roman who was responsible for examining Brayden’s body after his death. According to Dr. Roman, the contusions suffered by the child were not suggestive of an accidental fall, but instead were consistent with signs of child abuse. Dr. Roman told jurors that Brayden Turnbill died of blunt force trauma that was not accidentally caused.

The next medical expert witness to testify for the prosecution was Dr. Barbara Knox of the American Family Children’s Hospital Child Protection Program who testified that Brayden was likely unconscious at the time of his injuries and did not have a period of awareness between the time his head trauma occurred and his injury. Dr. Knox, who was present for surgery that attempted to save Brayden’s life, told jurors that the nature of his injuries suggested the brain damage occurred immediately after he suffered a physical blow to the head. The timing of Brayden’s injuries is critical because defense attorneys for Black allege that the boy could have suffered the trauma at any time – including the period before Black had sole responsibility for watching him. In response to questioning about the possibility that Brayden’s injuries could have happened before a traumatic event, Dr. Knox held firm and reiterated that in her expert medical opinion the nature of the boy’s injuries precluded a lucid interval between the blunt force and his brain damage.

Finally, prosecutors called to the stand Dr. Wilbur Smith, a pediatric radiologist who is an expert in blunt force trauma. Dr. Smith, who has testified as an expert witness in over 100 child abuse trials across the country, told jurors, “This was a very major injury, so it would have taken a lot of force to cause this injury.” Going further, Dr. Smith said that it was highly unlikely that the force required to cause Brayden’s injuries was accidental because it was so severe.

After the prosecution closed its expert witness heavy case, defense attorneys for Dakota Black mounted a response with an expert witness to counter the assertion that Braydon’s injuries were definitely caused by child abuse.

Defense Uses Expert Witness to Counter Claims of Child Abuse

Defense attorneys for Dakota Black began their case by calling Dr. John Plunkett to the stand to counter prosecution experts who told jurors it was highly unlikely that Brayden Turnbill’s injuries were accidental. Dr. Plunkett, an experienced expert witness in the field of forensic pathology who has testified in more than 150 trials, told jurors that Brayden could have died from an accidental fall and questioned the validity of the prosecution experts’ conclusions.

Dr. Plunkett directly contradicted testimony from Dr. Knox and told jurors that it was possible Brayden experienced a lucid interval between the trauma that caused his injury and the severe brain damage that he suffered. Under Plunkett’s theory, Brayden could have been injured at any time – even the time before Black had sole responsibility for the boy’s care. Dr. Plunkett further testified that the boy could have had a latent injury in his brain that was aggravated by significantly less force than other expert witnesses said was required for Braydon’s fatal injury. Although Dr. Plunkett did not hypothesize about a cause of death, he told jurors that it was reasonable to doubt conclusions that Braydon Turnbill died of intentionally caused blunt force trauma.

Expert Witness Will Be Allowed to Explain Alleged Victim’s Recantation

Expert witnesses are commonly called by both the prosecution and defense to testify concerning accusations that a defendant sexually assaulted a child. Defense experts usually explain why children are susceptible to influence that may cause them to believe that false accusations of sexual assault are actually true. Prosecution witnesses include medical experts who testify that certain injuries are consistent with sexual abuse, as well as experts in child psychology who explain why children delay reporting incidents of sexual abuse.

A federal prosecutor in a Pennsylvania trial wants to have an expert explain why children might make truthful accusations of abuse and later recant them. The defense unsuccessfully objected that the expert, who has never interviewed the alleged victims, should not be allowed to testify.

Allegations in the Maurizio prosecution

Although sex offenses are typically state crimes rather than federal offenses, Rev. Joseph Maurizio, a former priest at Our Lady Queen of Angels Parish in Central City, Pennsylvania, has been charged with eight federal crimes concerning the alleged abuse of children in Central America. The crimes include traveling to a foreign country to engage in illicit sexual contact with a minor, possession of child pornography, and transporting money out of the country for an illegal purpose.

Father Maurizio allegedly had illicit contact with minors over a ten year period during his visits to orphanages in several Central American countries. The indictment focuses on a six year period during which Father Maurizio visited an orphanage in Honduras. Alleged victims reportedly told Homeland Security agents that Father Maurizio had sexual contact with minors, offered them money or candy for sexual favors, and attempted to take nude photographs of them. Father Maurizio was relieved of his duties in September 2014, after federal agents seized computers and electronic storage devices from his parish home and chapel.

The Child Sexual Abuse Accommodation Syndrome controversy

The prosecution proposes to call a clinical psychologist, Veronique Valliere, as an expert witness. Although federal procedural rules require the nature of proposed expert testimony to be disclosed in advance of trial, there is some dispute as to exactly what Valliere will say if she testifies.

According to the defense, Valliere is expected to testify about the Child Sexual Abuse Accommodation Syndrome (CSAAS). That controversial syndrome, developed to account for the behaviors of sexually abused children, purports to explain why abuse victims delay reporting or fail to report incidents of sexual abuse and why they retract truthful accusations.

Critics of CSAAS argue that the syndrome is meaningless because it suggests that reporting, failing to report, and denying sexual abuse are all evidence of sexual abuse. Critics suggest that CSAAS ignores the possibility that a child delayed reporting abuse, denied abuse, or recanted a past allegation of abuse because the abuse never happened. Advocates of CSAAS, on the other hand, argue that the syndrome provides a scientifically valid explanation of the behaviors of child sexual assault victims.

Court decisions concerning the admissibility of CSAAS have been mixed. Whether they apply the Frye or the Daubert standard for the admissibility of expert testimony, most courts have guardedly permitted experts to base testimony about the reaction of children to sexual abuse on CSAAS research, at least when the defense relies upon delayed reporting or recantation to attack the accuser’s credibility. Courts generally conclude that the testimony is helpful since most jurors do not have firsthand experience upon which to base judgments about how children react to sexual abuse.

At the same time, courts generally hold that experts cannot themselves assess the credibility of alleged abuse victims, since that assessment can only be made by a jury. Some courts instruct jurors that testimony about CSAAS is being admitted solely to show that a victim’s recantations are not necessarily inconsistent with having been molested, not as proof that the recantation is truthful.

A minority of courts have concluded that CSAAS is not generally accepted by the scientific community and that CSAAS is therefore inadmissible, or that that testimony based on CSAAS creates an unacceptable risk that jurors will view the expert testimony as evidence that abuse actually occurred. As the Iowa Court of Appeals noted, there is “a very thin line” between an admissible expert opinion that helps a jury evaluate a child’s testimony and an inadmissible expert opinion that the jury will take as substantive proof of a defendant’s guilt.

The prosecution’s response

The prosecution in Father Maurizio’s case wants Valliere to testify in its case-and-chief, not as a rebuttal witness to rehabilitate any child witnesses who recant. The defense argued that the prosecution’s tactic amounts to using CSAAS evidence as proof of the defendant’s guilt.

The prosecution denies that Valliere will testify about CSAAS. The defense suggested that Valliere will rely on CSAAS even if she does not identify the syndrome by name. The defense also argued that Valliere has never interviewed the children and that no studies have validated CSAAS in children from Honduras, who may (for cultural reasons) respond to sexual abuse in ways that differ from American children.

The court denied a defense motion to exclude Valliere’s expert testimony. Father Maurizio’s trial is scheduled to begin in September. It is expected to last three weeks. The defense may decide to call its own expert to counter Valliere’s testimony.

Psychology Expert Witnesses Testify in Colorado Murder Sentencing Trial

A Colorado man convicted of murdering five people outside of a bar avoided the death penalty when jurors found sufficient mitigating factors to believe he deserved jail time instead of execution. In part, the jury was influenced by psychology expert witnesses presented by the defense during the sentencing phase who testified that the defendant’s history of childhood abuse warped his worldview and decision-making.

Colorado Man Convicted of Murder for Stabbing Death of Five People

In mid-August a Colorado jury found Dexter Lewis guilty for murdering 5 people outside of a Denver bar in 2012. Lewis was convicted of stabbing his victims multiple times during what prosecutors called an act of rage and savagery. Lewis allegedly went to the bar with intent to rob it, but instead acted violently against the bar’s owner and four patrons before lighting the building on fire with their bodies inside. Throughout the trial, prosecutors showed grisly pictures of the scene to paint Lewis as a vicious and remorseless killer which convinced jurors that he was guilty of the crimes committed.

After the verdict was announced, jurors prepared to pass judgment in the second phase of the trial which would determine an appropriate sentence. In an effort to reinforce the extreme nature of the crime, prosecutors again highlighted the visual evidence taken from the scene as they argued Lewis deserved to be put to death. Defense attorneys for Lewis countered by telling jurors about the defendant’s history of suffering abuse at the hands of his mother and step-father in the gang influenced environment where he grew up. Lewis’s attorneys called two psychology expert witnesses to use his challenged background as a mitigating factor that would help him avoid execution.

Psychology Expert Witness Testifies about Effect of Childhood Abuse

During the sentencing phase for the Dexter Lewis murder trial, prosecutors attempted to convince jurors that the brutality of the defendant’s actions was severe enough to warrant the death penalty. Defense attorneys for Lewis countered that the abuse the defendant suffered during his childhood effected his brain development and altered the way he perceived the nature of his actions. Prosecutors objected to the use of psychology expert witnesses by arguing it was up to the jury to identify mitigating factors, but both of Lewis’s experts took the stand during his sentencing phase.

First to testify for Lewis was Dr. Bruce Perry, a psychiatrist who is an expert on the effects of childhood trauma on development. During his testimony, Dr. Perry spoke about how abuse, particularly abuse by a parent, alters the way children develop and can explain why they would grow into violent adults. Perry, who founded the Child Trauma Academy in Houston, Texas, told jurors that abuse during the period when children form relationships that help dictate how they view the world leaves executive function of the brain impaired. Dr. Perry concluded his expert testimony by telling jurors that impaired development can cause children to grow up without impulse control or the ability to regulate emotions in stressful situations.

Although Dr. Perry did not work with Lewis personally, his testimony showed jurors that people who suffer the abuse and neglect that Lewis suffered could become violent due to lack of brain development. To directly connect Lewis’s condition with Perry’s testimony, defense attorneys wrapped up their case by calling a clinical psychologist who analyzed the defendant’s mental state.

Clinical Psychologist Expert Witness Takes Stand for Dexter Lewis

Mark Cunningham, a clinical psychology expert witness, took the stand last as defense attorneys for Dexter Lewis argued the defendant did not deserve the death penalty. Cunningham echoed the expert testimony from Dr. Perry by pointing to the long term effects that regular abuse has on children, and showed jurors that the sustained and severe abuse that Lewis suffered throughout his childhood impaired his ability to make reasonable decisions and control violent impulses. Although Cunningham was not permitted to testify about the content of his interviews with the defendant, he told jurors that Lewis’s history of physical and emotional abuse would have a severe impact on the developmental process.

Ultimately the jury agreed that Dexter Lewis deserved leniency to avoid the death penalty, assuring that the defendant will instead spend the rest of his life in prison. Use of psychology expert witnesses during a capital murder sentencing phase has become more commonplace, and attorneys for Dexter Lewis demonstrated that helping jurors understand the negative effects of childhood trauma can convince a jury to opt for life in prison instead of execution.

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