Category Archives: Expert Opinions

Death Penalty Discrimination Expert Witness Receives $1.75 Million

The State of Connecticut has agreed to pay a death penalty expert witness $1.75 million to settle a fee dispute that arose after the unsuccessful lawsuit alleging racial discrimination in inmate executions.  The expert witness bill, originally $3.5 million, represented six years of services in investigating discriminatory processes during capital cases in Connecticut.

Connecticut Inmates Allege Death Penalty Discrimination

Five of Connecticut’s eleven death row inmates filed a discrimination lawsuit alleging that black defendants were more likely to receive a death sentence than whites, particularly if the crime featured a black defendant and a white victim.  Although the death penalty was outlawed in Connecticut in 2012, the eleven inmates already receiving a death sentence were unaffected, and the five plaintiffs sought to have their punishment commuted to life in prison without possibility of parole.

The Connecticut Public Defender’s office took on the task of representing the inmates – which is common practice in prisoner civil rights lawsuits – meaning that all expenses incurred as a result of the trial would be billed to the State. As part of the lawsuit, the Public Defender’s office reached out to Stanford law professor John Donohue III with a request to conduct a study of Connecticut’s death penalty sentencing and sit as an expert witness during the discrimination trial.

Death Penalty Expert Witness Study Suggests Discrimination

Donohue’s work as an expert witness for death row inmates involved a comprehensive study of all 205 death-penalty-eligible cases from 1973 to 2007 and found a difference in charge for black defendants, particularly ones who committed a crime against a white victim.  Donohue’s work seemed to confirm the allegations that black defendants were more likely to receive death penalty sentencing than whites, suggesting that discrimination existed in Connecticut’s capital punishment system.

Donohue was challenged by the State’s Attorney’s expert witness, Stephan Michelson, who works for a research firm, and has expertise in conducting studies and analyzing data.  Over the course of six years, Michelson offered a variety of critiques to Donohue’s work, forcing the plaintiffs’ expert to continually refine his research and data analysis before the case finally went to trial last October.

Judge Dismisses Connecticut Inmates Death Penalty Discrimination Challenge

Last October, Judge Samuel J. Sferrazza issued an opinion in the case that dismissed the plaintiffs’ allegations of racial discrimination in Connecticut death penalty cases.  As part of the ruling, Judge Sferrazza found Dr. Donohue’s work as a plaintiff expert witness ultimately unconvincing to the issue of racial bias influencing death penalty outcomes.  Writing that, “Doctor Donohue’s testimony was a relevant starting point, but a far cry from the proof necessary to establish the invalidity of the death sentence imposed upon the individual petitioners,” Judge Sferrazza determined that Donohue’s analysis fell short of the necessary proof for racial discrimination.

Although the case will continue to the Connecticut Supreme Court, Dr. Donohue submitted the invoices he compiled during his six year service as an expert witness, leaving the Public Defender’s office with a $3.5 million bill that the State was unwilling to pay.

Expert Witness Settles Fee Dispute for $1.75 Million

When Dr. Donohue’s expert witness invoice was first submitted to the Connecticut Public Defender Services Commission, officials refused to remit the full payment of $3.5 million.  After negotiations with Donohue, the commission agreed to pay half the sum, $1.75 million, and requested the state legislature and governor to approve emergency funding to accommodate.  Although the Connecticut Public Defender was unhappy with the process Donohue used in his billing, at no point did anyone allege that he had not done substantial work that was deserving of significant compensation – an opinion that resulted in the $1.75 million settlement.

Police Use-of-Force Experts Used in Officer Assault Trial

A police officer in California was convicted of misdemeanor battery for kicking a suspect in the groin during an arrest after a home invasion last year. During the trial, expert witnesses for both sides debated the appropriate use of police force during an arrest, with prosecutors succeeding in showing that Officer Christopher Melton had crossed a line while performing his duty.

Police Officer Assaults Suspect During Arrest

On April 13, 2013 Officer Melton pursued Daniel Reagan, who was spotted fleeing a residence.  Melton, and fellow officer Ross Bays caught up with Reagan who, according to Officer Bays, laid down to surrender while saying “I’m done” to the two arresting officers. As Reagan lay on the ground, Officer Melton approached and kicked him hard in the groin, causing him to curl into a fetal position in pain. Officer Melton testified during his trial that he saw Reagan look over his shoulder, leading him to believe that the suspect was going to make a threatening move, and necessitating the use of force during the arrest.

Prosecutors argued that Melton purposefully and maliciously assaulted Reagan without cause, and included Officer Bay’s testimony as well as testimony from Officer Joshua Klinge who testified that Melton bragged about the incident later that night. In addition to witnesses to the assault and Melton’s reaction, prosecutors called police expert witnesses to explain proper arresting procedure and contrast reasonable use of force with Melton’s actions.

Police Force Expert Witnesses Testify in Officer Assault Trial

Prosecutors called Jeff Martin, a police use-of-force expert, to testify that it would be unjustified for a police officer to kick a suspect in the groin in a situation in which the suspect appears to be compliant. Martin is an instructor in California’s Peace Officer Standards and Training program, and he told the jurors that Melton did not appear justified in kicking Reagan during the arrest. Martin analyzed the facts, and told the jury that in this case, “We have compliance, there shouldn’t be use of force.”

Countering the testimony of Martin, Officer Melton’s defense team called Don Cameron, an instructor at the Sacramento Public Safety Training Center who is also a use-of-force expert witness. Cameron told jurors that he trains officers to use full force when hitting or kicking a suspect who poses a threat or might attempt to escape because doing so is the most efficient way to stop the threat immediately.  Cameron also testified that when Reagan turned his head to look over his shoulder, it was reasonable for Melton to perceive a threat. Calling the head turn “target seeking,” Cameron told the jury that a suspect moves his head “to see how he’s going to attack you, to see how he’s going to shoot you.” He said that a head turn is a sign of escalation, and warned jurors that reaching for and firing a gun takes only 2.5 seconds. Cameron assessed the situation, which occurred in the dark of early morning, and testified that Melton was justified in taking his action.

Jury Convicts Officer of Excessive Force Assault

Despite testimony from Mr. Cameron, jurors determined that Officer Melton was not justified in kicking Reagan, and was thus guilty of battery. Jurors decided that the lawful necessity to use violent force did not exist in the Reagan case, and Melton had violated his duty by kicking the suspect in the groin during the arrest. Judge Linda McFadden sentenced Melton to five days in jail, 100 hours of community service, and three years of informal probation saying, “We rely on police officers to keep us safe, not harm citizens, even someone believed to have committed an egregious crime.”

Texas Anti-Abortion Expert Witnesses Dismissed by Federal Judge

Four anti-abortion expert witnesses in Texas were dismissed by a federal judge for improperly allowing a state employed consultant to have significant editorial and creative liberty over their opinions. In a decision that struck down portions of the state’s anti-abortion provision, Federal District Court Judge Lee Yeakel issued a strong reproach over the manner in which the Texas attempted to influence its expert testimony during the trial.

Texas Anti-Abortion Statute Limited

Late in August, Judge Yeakel issued an opinion that struck down provisions of Texas’ anti-abortion law that required rigorous accreditation for all abortion clinics in the state. Under the Texas law, abortion clinics would need to meet the same medical standards as ambulatory surgical centers, which would have required significant structural changes to room and door size along with installation of anesthesia pipelines. All but a few of the abortion clinics in the state would have been forced to close had the new provisions been upheld, but Judge Yeakel determined that the regulation was an unconstitutional burden on the right of women to choose abortion.

The focus of his decision was, as Judge Yeakel wrote, the fact that the law’s requirement “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v Wade,” but the judge included a footnote that fired a direct criticism at the State’s use of an anti-abortion expert witness.

Federal Judge Condemns Texas Evidence in Anti-Abortion Case

In dismissing Texas’ abortion clinic requirements, Judge Yeakel cited a “dearth of credible evidence” that the law would make abortion clinic’s safer for women – a key component of conservative lawmakers’ justification for the enhanced medical standards. As part of its failed argument, Texas presented four expert witnesses to testify about medical conditions of abortion clinics and psychological effects of abortion, all of whom attempted to convince the court that strict abortion restrictions were justifiable.

Judge Yeakel was not only unconvinced by the testimony from Texas’ experts, but found troubling evidence that all four of the State’s expert witnesses were strongly influenced by Vincent Rue, an influential anti-abortion consultant who has a checkered relationship with the American legal system.

Texas Conceals Involvement of Discredited Expert Witness

Rue, who helped legislators write the new anti-abortion bill, is a marriage therapist with a doctorate in family relations who has built a long career of passionate anti-abortion advocacy across the country. His professional reputation was built largely on his coinage of the term post-abortion stress syndrome, which is a condition unrecognized by any professional psychological association and roundly rejected by many clinicians, including former US Surgeon General, C. Everett Koop.

The legal system, too, has discredited Rue, most notably in the significant case Planned Parenthood v Casey in which his expert testimony was described as “devoid of analytical force and scientific rigor [and his] personal opposition to abortion suggests a possible personal bias.” Rue has been recognized by courts and abortion proponents as a biased source of anti-abortion information, severely diminishing his involvement as an expert witness. Texas officials, who paid Rue over $42,000, seemed to understand the risks of involving him at trial, and kept his involvement largely behind the scenes during the proceedings.

Plaintiff’s attorneys, however, were able to demonstrate via emails and testimony that Rue had a strong guiding hand in crafting the arguments and compiling the factual content that informed each of Texas’ four expert witnesses’ opinions.

Judge Dismisses Four Anti-Abortion Expert Witnesses

As the details of Rue’s involvement became clear, Judge Yeakel did not hesitate to dismiss the expert’s contributions to the trial. Yeakel condemned the State’s tactics, writing, “The credibility and weight the court affords the expert testimony of the State’s witnesses Drs. Thompson, Anderson, Kitz, and Uhlenberg is informed by ample evidence that, at a very minimum, Vincent Rue, Ph.D, a non-physician consultant for the State, had considerable editorial and discretionary control over the contents of the experts’ report and declarations. The court finds that, although the experts each testified that they personally held the opinions presented to the court, the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts’ opinions. Further, the court is dismayed by the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions.”

Rules of evidence require that expert witnesses be open and honest about how all opinions that comprise testimony are formed. This enables opposing parties to directly challenge an expert, and allows judges and juries to determine how much weight to give expert testimony.  By allowing four experts to build their testimony, either in whole or in part, on the opinions and ideas of Vincent Rue, Texas misused its expert witnesses and received a stern reprimand from the federal court.

Sixth Circuit Allows Expert Testimony Lacking Daubert Requirements in Wal-Mart Injury Lawsuit

An expert witness on slip and fall injuries recently used by Wal-Mart to successfully defend a personal injury lawsuit was affirmed by the United States 6th Circuit Court of Appeals last week despite objections from the injured plaintiff. In its ruling, the 6th Circuit clarified the standard for non-scientific expert witnesses under the guiding principles of expert admissibility found in Daubert v Merrell Dow.

Wal-Mart Injury Leads to Lawsuit

Plaintiff Carolyn Wood filed her personal injury lawsuit against Wal-Mart after tripping on a quarter-inch lip of sidewalk in front of one of the company’s Tennessee stores and seriously injuring her hand. Ms. Wood fell where the asphalt of the parking lot transitions into the sidewalk, which was designed to be flush, but had become uneven after the parking lot asphalt settled. Ms. Wood’s lawsuit alleged two theories of recovery: 1) Wal-Mart was negligent for failing to repair and warn of the quarter-inch change in elevation; and 2) Wal-Mart was liable under the legal theory of negligence per se because the quarter-inch lip violated applicable building codes.

Negligence per se allows recovery for injuries suffered because the defendant violated a law, regulation, or, in this case, construction codes. Unlike general negligence, which considers a number of factors, negligence per se only requires a plaintiff to prove that a violation of an applicable law occurred and the injury resulted. In this case, Ms. Wood’s per se argument relied on the interpretation of two building codes that defined the area where she fell as a “means of egress,” which are required to be flush. During trial, the parties presented competing expert witnesses to interpret the codes, with Wal-Mart using an architect named Mr. Edwards to inform the jury that the area in question was not considered a means of egress, and therefore the store was not in violation of building codes.

The trial court did not instruct the jury on negligence per se, meaning that Ms. Wood’s only hope of recovery was on a general negligence claim. When the jury found in favor of Wal-Mart, Wood filed an appeal claiming that Mr. Edwards was not a reliable expert witness under the requirements of Daubert because his testimony was not adequately supported by scientific evidence or methodology.

Sixth Circuit Affirms Wal-Mart Trip and Fall Expert Witness

On appeal, the 6th Circuit rejected both of Ms. Wood’s challenges to Wal-Mart’s use of Mr. Edwards as an expert witness regarding the applicable building codes. Wood, citing Daubert’s requirements on expert witness reliability, argued that Mr. Edwards should not have testified because his analysis of the situation was not supported by generally accepted authority or reliable testing, did not reflect industry standards, and did not offer peer reviewed or published opinions. These factors are critical to a Daubert analysis, and Edwards’ testimony was built solely on his personal knowledge and experience with construction and the housing codes in question.

The 6th Circuit acknowledged the lack of support for Edwards’ opinions, however, pointed out that the list of Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” The Court clarified that non-scientific expert witnesses, like Mr. Edwards, can establish the relevant reliability by drawing on personal knowledge or experience, and it is up to a trial judge to determine if a non-scientific expert relying on experience is sufficiently reliable given the circumstances. In the Wal-Mart case, Mr. Edwards had been an architect for over 40 years and had specific experience with the codes in question – more than enough to justify the trial court’s admission of his expert testimony.

By affirming Wal-Mart’s expert witness in this trip and fall case, the 6th Circuit reminded litigants that trial courts have a great deal of latitude when allowing testimony from a non-scientific expert whose testimony is based on personal experience. Under Daubert, judges are afforded room to evaluate a non-scientific expert’s qualifications and experience when determining admissibility of testimony.

Museum and Non-Profit Experts Present Alternatives to Corcoran Gallery Merger

The future of the historic Corcoran Gallery of Art, an independently owned art gallery in Washington DC which is one of the oldest museums in the country, sits in the hands of a DC Judge after days of testimony in a merger lawsuit. The proposal, which involves millions of dollars in both endowment funds and value of an extensive art collection, has met vigorous opposition from supporters of the museum who have presented a variety of expert witnesses with specialties ranging from financial planning to art valuation who argued at trial that the Corcoran can continue to exist as an independent gallery as it has for over 150 years.

Corcoran Gallery Merger Trial

After years of financial struggles, trustees of Corcoran have submitted a proposal that requests legal authority to abandon the 1869 deed of trust, which established the institution in favor of a merger with George Washington University and the National Gallery of Art. Opponents to the proposal, made up of current faculty and students of the Corcoran College of Art, challenged the trustees, arguing that there are alternative means to raise capital, better manage the museums financials, and keep Corcoran in its traditional place as an independent art gallery and college.

Under the merger, Corcoran would donate most of its 17,000 artworks to the National Gallery of Art, and give the building, along with $35 million for renovations, to the George Washington University – merging Corcoran’s art college into GWU. Citing $28 million in cumulative deficits since 2008, the Corcoran trustees claim they have no choice but to seek support from stronger institutions and claim the merger will keep the Corcoran tradition alive even if the institution is no longer independent. During trial, the Corcoran trustees presented witnesses who outlined the dire financial situation and promised that the merger would preserve the institution’s history and legacy, cutting at the opponents’ position that the proposal would dissolve the museum for good.

Corcoran Merger Opponents Call Expert Witnesses

Opponents of the Corcoran merger, known as Save the Corcoran (STC), sought to attack the trustees’ argument that the financially insolvent museum had no alternative but to merge with GW and the National Gallery of Art by use of three expert witnesses. The experts specialized in non-profit management, museum oversight and development, financial planning, and donor fundraising. During the 8-day trial, these experts explained that Corcoran’s financial troubles were not inevitable nor irreversible, and that proper non-profit management could undo the trustees’ dysfunction and keep the museum operating independently.

The STC’s experts pointed out that proper management of non-profit museums like Corcoran could keep institutions financially solvent and even successful. During testimony, the experts made use of tutorials on how art museums operate, and pointed to real life examples across the country of art galleries that raised millions in capital through effective donation and development offices that Corcoran lacks. The STC’s expert witnesses also contrasted the failings of Corcoran’s management with successful museum operations and presented testimony that supported alternative plans for the museum’s financial recovery.

Corcoran’s fate now sits in the hands of District of Columbia Superior Court Judge Robert Okun who will consider whether or not the trustee’s request to break the terms of the deed is allowable. With the Corcoran’s art collection and building worth more than $2 billion in assets, the decision will have a significant impact across DC’s cultural and educational community.

Independent Pathologists Provide Unbiased Insight Into Michael Brown’s Death

While the world watches the political and racial protests unfolding in Ferguson, Missouri, officials investigating the Michael Brown police shooting turn attention to testimony from expert forensic pathologists to identify details in the teen’s death. Although witnesses to the shooting will provide information regarding the incident, the scientific data gathered by pathologists is expected to provide hard evidence designed to help investigators clear up the uncertainties surrounding Brown’s death.

Brown Family Hires Two Independent Pathologists

New York City Chief Medical Examiner, Dr. Michael Baden, and forensic pathologist Shawn Parcells were called upon by family members to conduct an independent autopsy of Michael Brown’s body. Although Ferguson officials had performed an autopsy, the importance of understanding how the teenager died has warranted independent forensic expert testimony.

After conducting the autopsy, Drs. Baden and Parcells confirmed that Brown was shot at least 6 times, possibly 8, with two of those shots, including the fatal one, hitting the young man in the head. Dr. Baden also confirmed that Brown did not have gunpowder on his body – suggesting he was not shot at close range – and that the angle of the fatal head shot indicated the young man was bent forward when he was shot. Baden theorized that Brown could have survived the other wounds, but the head shots would have caused immediate death.

Beyond the certainty that Brown was shot multiple times, including twice in the head, the independent expert pathologists were unable to make definitive conclusions after their review of the body. Parcells noted that a bullet wound to Brown’s right arm may indicate that his hands were raised at the time of impact – confirming witness accounts that Brown’s arms were above his head – but more investigation into the wound is required. Brown’s bullet wounds could also suggest that he had his back to the police officer, but neither Baden nor Parcells were able to say with clarity that this was the case.

Independent Pathologist Experts Alleviate Fears of Cover Up

Brown family attorney Benjamin Crump announced that Michael’s relatives wanted the independently performed autopsy due to distrust of the officials conducting the investigation. “They could not trust what was going to be put in the reports about the tragic execution of their child,” Crump said in a news conference this week. Dr. Baden reinforced the importance of the independent expert testimony by noting that the unbiased transparency of his and Dr. Parcell’s examination was key to alleviating the concerns of an already on-edge community.

Adding to the investigation will be a federally performed autopsy ordered by US Attorney General Eric Holder, a step that Baden called “appropriate,” but also “extremely unusual.” Despite unanswered questions, the Brown family expressed encouragement by the confirmation that Michael was shot at least 6 times, a fact that will likely be used to build both a prosecution of the responsible officer and a lawsuit against the Ferguson police department. As the investigation continues, federal, local, and independent forensic pathologist experts will conduct more thorough examinations of Brown’s body and clothing in an effort to determine what happened on the day of his shooting.

Expert Witnesses Key in Detroit Teen Murder Verdict

Earlier this month, jurors in Detroit found homeowner Theodore Wafer guilty of second-degree murder, manslaughter, and a felony firearm charge for fatally shooting 19-year-old Renisha McBride when she banged on his door after crashing her car. Throughout Wafer’s trial, a variety of expert witnesses testified by explaining the issues that were critical in helping jurors understand how the fatal incident transpired.

Homeowner in Detroit Porch Shooting Guilty of Murder

Last November, 19-year-old Renisha McBride approached the home owned by Theodore Wafer at around 4:30 AM and began banging on his door. Wafer, who lives alone, responded to the loud pounding on his door by getting his shotgun, approaching the doorway, and eventually firing a shot that killed McBride. During testimony, a visibly shaken Wafer claimed that he had grabbed the gun out of fear for his safety, and he did not know it was loaded before it discharged. Wafer also testified that the shotgun discharged accidentally, reinforcing his argument that he did not mean to kill McBride.

Prosecutors argued that Wafer’s actions were unreasonable and unnecessary considering the level of threat that McBride presented, and Wafer’s defense team countered that his actions were driven by fear of being attacked and that he did not intentionally discharge the gun. After nearly two days of deliberations, jurors agreed with the prosecution and convicted Wafer of second-degree murder, manslaughter, and felony firearm usage. Both parties relied heavily on expert witnesses familiar with gun safety, forensic pathology, and police investigations during the trial.

Expert Witnesses Key to McBride Murder Verdict

During Wafer’s trial for the murder of Renisha McBride, both parties leaned heavily on expert witnesses to support, or refute, Wafer’s recollection of the events and to interpret the evidence gathered by police at the scene. Prosecutors, attempting to demonstrate that Wafer fired intentionally in an unreasonable response to the perceived threat, called the following:

  • Shawn Kolonich, a forensic firearms expert witness, testified that the 12-gauge shotgun used by Wafer was in good condition and did not have any defect that would have caused it to fire accidentally. Part of Wafer’s testimony was his claim that he had not intentionally fired the gun, but Kolonich’s expert opinion indicated that it is unlikely that the gun misfired. Kolonich further testified that the gun’s safety mechanism had been released, which enabled Wafer to fire it.
  • Detective Stephen Gurka, lead investigator in charge of the case, offered expert testimony on the evidence gathered at the scene of McBride’s death. Det. Gurka testified that the police found no evidence of attempted entry into Wafer’s home, and nothing to suggest that a second individual was attempting to enter through the home’s side door – a claim Wafer made to reinforce his perception of the threat. Gurka’s work was criticized by defense attorneys who argued the police investigation was botched, resulting in tainted evidence.
  • Dr. Kilak Kesha, MD was the final prosecution expert witness. Dr. Kesha performed the autopsy on Renisha McBride and testified that he did not observe swelling or injuries on her hands – supporting the prosecution’s claim that she was not the aggressor.

In response, the defense presented two expert witnesses to support Wafer’s claim:

  • Dr. Werner Spitz, MD is a widely recognized expert on forensic pathology, and he directly contradicted Dr. Kesha’s assessment that McBride did not have wounds on her hands. Dr. Spitz testified that there was evidence of bruising on McBride’s hands that would suggest she banged violently on Wafer’s door. Dr. Spitz also testified that McBride was severely intoxicated at the time, an assessment Dr. Kesha agreed with. Prosecutors challenged Dr. Spitz, getting him to admit he had based part of his testimony on Wafer’s own statements rather than the condition of McBride’s body.
  • David Balash is a firearms expert witness who was called to testify about the condition of Wafer’s screen door at the time he fired the shot that killed McBride. Mr. Balash testified that the angle of the gun at the time it fired suggested that the screen door was dislodged from the force of McBride’s banging. Balash also testified that Renisha was very close to the door – less than a foot – at the time she was shot.

Wafer’s guilty verdict is not necessarily an indication that his expert witnesses were unconvincing. Despite evidence that McBride aggressively banged on his doorway, jurors determined that Wafer’s response was unnecessary and sufficiently out of line to justify a murder conviction. Expert testimony in support of the prosecution demonstrated flaws in Wafer’s story, and contributed to a guilty verdict.

 

Sheriff’s Racial Profiling Trial Features Expert Witness Testimony

The Department of Justice (DOJ) has filed a civil lawsuit against Sheriff Terry Johnson, who operates in Alamance County, NC, for racially profiling minority drivers in traffic stops throughout his jurisdiction. The trial in the case of United States v Sheriff Terry Johnson will depend heavily on expert witness testimony, and both sides have made motions to exclude opposing experts from taking the stand.

Sheriff Terry Johnson Accused of Racial Profiling

In 2010, the DOJ began investigating Alamance County Sheriff Terry Johnson due to allegations of “discriminatory policing and unconstitutional searches and seizures.” Johnson and his officers allegedly stopped a disproportionate number of Latino drivers, and were more likely to arrest Latinos rather than issue citations. After a 2-year investigation, the DOJ filed a federal civil rights lawsuit against Sheriff Johnson in December of 2012. As the case has worked its way through pre-trial discovery, both sides have leaned heavily on expert witnesses to conduct independent investigations of the Alamance County Sheriff’s office in preparation for the upcoming trial.

DOJ Requests Expert Witnesses Be Excluded

Prior to the start of the trial against Johnson, the DOJ filed a motion last week to have two of the Sheriff’s expert witnesses removed:

  • First, the DOJ asked for removal of Mark Dockery, Jr., who is a crime analysis expert witness working with the Alamance County Sheriff’s office. According to the DOJ motion to exclude Mr. Dockery, Johnson “neither provided an expert nor disclosed the subject matter on which Mr. Dockery will present evidence and a summary of the facts and opinions to which he will testify as required.” Without adequate notice about Dockery’s qualifications or the specific testimony he would offer, the DOJ argued that Johnson’s defense team had failed to demonstrate that his testimony satisfied the Daubert standards for expert witnesses.
  • The DOJ also requested that expert witness David Banks be excluded. Dr. Banks is an expert in statistical analysis, and was hired by Johnson to analyze the Alamance County Sheriff’s records of traffic stops and arrests of Latino drivers. Dr. Banks concluded that “there is no statistical evidence that checkpoints were sited in ways that targeted the Latino population,” which counters results of the DOJ’s investigation. In its motion to exclude, the DOJ argued that Dr. Banks could not offer reliable testimony, saying his experience as a statistician is “irrelevant [because] Dr. Banks lacks knowledge and experience to design analyses to test whether bias influences law enforcement activities.” The DOJ took umbrage with Dr. Banks applying general statistical analysis techniques in crafting his expert witness testimony because doing so did not adequately address the question of whether or not the Alamance County Sheriff’s office was employing discriminatory practices. As expert witnesses must provide testimony that is relevant, the DOJ argued Dr. Banks’ opinion is out of the trial’s scope.

Sheriff Johnson’s defense team responded to the DOJ’s objections to both of the planned expert witnesses by directly refuting the reasons to exclude. Additionally, the Defense presented arguments against a key expert for the Department of Justice.

Sheriff Johnson Seeks Exclusion of Key DOJ Expert Witness

Not to be outdone by the DOJ’s scrutiny of Defense expert witnesses, Johnson’s team filed a motion to exclude the testimony of the man responsible for the studies supporting allegations of discriminatory practices. DOJ expert John Lamberth conducted a field study on three major roadways in Alamance County from 2008 to 2013, concluding, “the probability that ASCO will stop and cite a Hispanic motorist is about twice as high” in Johnson’s jurisdiction. The Defense, in its motion to exclude, argued that Lamberth selected the roads to monitor in an effort to dictate his study’s results, making his test “fatally flawed,” and not reliable enough to present at trial. Expert witness testimony must be supported by reliable science, and Johnson’s Defense team presented an argument that Lamberth influenced his results to support the DOJ’s allegations of discrimination.

The DOJ responded that Lamberth is “a leading authority on the study of biased traffic enforcement whose carefully devised study of the Alamance County Sheriff’s Office easily surpasses the threshold for reliability.”  US District Judge Thomas Schroeder, who is hearing the case without a jury and will be solely responsible for the decision, will rule on the motions as the trial against Johnson progresses.

DOJ Requests EPA Expert Witness Be Removed Over Conflict of Interest

The Department of Justice (DOJ) has requested that former Environmental Protection Agency (EPA) official Jeffrey Holmstead be barred from testifying in a federal trial against utility company, Ameren Missouri. Holmstead, who has knowledge of EPA enforcement proceedings, has been accused of having confidential information resulting in a conflict of interest that, according to the DOJ, should preclude him from serving as an expert witness.

Former EPA Official an Environmental Enforcement Expert Witness

Ameren Missouri is a utility company charged by the EPA for allegedly failing to obtain proper construction permits and declining to install the best available pollution control technology when the company updated two coal-fired electricity units. Ameren is contesting the EPA, and hired Mr. Holmstead as an environmental enforcement expert to offer his opinion during trial. In an expert witness report filed earlier this year, Holmstead outlined his intent to testify:

  • That the regulations Ameren allegedly violated did not apply to the company’s renovation of its coal-fire units because they only apply to new construction or significant modifications
  • Missouri state regulations have jurisdiction over the case – not the EPA
  • The EPA’s expert witness used improper methodology when predicting the long-term emissions from Ameren’s new coal-fired units
  • The method for analyzing emission increases applied by the EPA was not considered at the time the regulations were created, and therefore the EPA cannot now use it to enforce the rule

Mr. Holmstead, who helped develop the EPA regulations while he was working for the agency, submitted his report after analyzing the government’s case against Ameren. With years of experience working with the EPA, Holmstead’s qualifications as an expert witness are not in dispute, however, his former position with the agency have created questions of a conflict of interest that may prohibit him from being further involved in the litigation.

Government Asks for Removal of Environmental Expert Witness

After reading Holmstead’s report, the DOJ immediately prepared a motion to dismiss him as an expert witness because of the confidential information he obtained while working for the EPA. Although Holmstead is a private attorney now, his time as a government employee gave him access to behind-the-scenes meetings and discussions regarding the creation and enforcement of EPA regulations. Throughout his expert witness report, Holmstead cites his experience with the creation of the regulations Ameren is charged with violating, causing the DOJ to request his removal.

Expert witnesses are usually not permitted to testify if there is, or was, a confidential relationship between the expert and one of the parties to the suit. In this case, the EPA is claiming that Holmstead had, over the course of his tenure with the agency, developed a confidential relationship, particularly regarding the creation and administration of the regulations relevant to the government’s case against Ameren. Holmstead, who held the highest position within the EPA’s Office of Air and Radiation, was privy to internal communications regarding the program Ameren is allegedly in violation of, and the DOJ argued that it is therefore objectively reasonable to disqualify him from testimony.

DOJ Leaves Gaps in Request to Disqualify EPA Expert Witness

As the court considers the government’s request to disqualify Holmstead due to his access to confidential information, it is worth noting that the DOJ”s motion does not specify what that information may be. The DOJ simply points to “internal communications” and “privileged information concerning the issues about which he now seeks to testify on behalf of Ameren,” without going into specific details. Further, Holmstead left the EPA in 2005, which is a full six years before the government’s investigation began in 2011 – removing him from years of communications that may have specifically addressed the Ameren case.

While the DOJ is correct that an expert witness with access to confidential information may be disqualified, it is unclear if the government made enough of a case to connect Holmstead’s prior EPA experience with confidential knowledge of its case against Ameren.

Expert Witnesses Debated Bryan Stow Life Expectancy

Earlier this month a Los Angeles jury awarded injured baseball fan Bryan Stow $13.9 million in a civil suit brought on his behalf.  Significant in determining the appropriate damages was the jury’s assessment of Mr. Stow’s life expectancy, a decision that was aided by use of medical expert witnesses who diagnosed Bryan’s condition and projected how long he could survive with the injuries suffered.

Bryan Stow’s Civil Lawsuit against the LA Dodgers

Bryan Stow’s story gained national attention after he was seriously injured during a fight outside of Dodgers Stadium, home of the Los Angeles Dodgers baseball team, on MLB’s Opening Day, 2011.  Stow, a fan of Dodgers’ rival San Francisco Giants, was viciously beaten by two men in the parking lot of Dodgers Stadium after engaging in a verbal altercation following the game.  Stow was left with permanent brain damage preventing him from ever working again and ensuring that he will require round-the-clock medical care for the rest of his life.

Bryan’s attorneys filed a lawsuit against his assailants and the Los Angeles Dodgers seeking over $65 million to compensate him for injuries suffered, wages lost, and the cost of lifetime care.  In addition to pursuing the two men who beat him, Stow alleged the Dodgers organization failed in its duty to provide adequate parking lot security which, his attorneys argued, would have prevented the grisly attack that left Stow permanently disabled. The Dodgers argued that Stow, whose blood alcohol level was .18 percent, played a significant role in instigating the fight – which reduced the team’s liability.

In mid-July, a jury returned a verdict of $13.9 million, with the Dodgers responsible for only 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of that total.  In addition to testimony regarding Stow’s blood alcohol level and eyewitness accounts of the incident, jurors were influenced by expert witness testimony which projected how long Bryan would live – an important determination given that the damage award was heavily influenced by the anticipated costs of his lifetime medical care.

Expert Witnesses Debate Bryan Stow’s Life Expectancy

Featured during the trial were medical expert witnesses debating Bryan Stow’s life expectancy given his condition.  Attorneys representing Bryan Stow retained medical expert witnesses to testify that the 45-year-old did not suffer a severe drop in his life expectancy as a result of his permanent brain damage.  Four physicians testified that they had analyzed Stow’s injuries and taken his previous lifestyle into account to determine that Bryan’s life expectancy had only dropped 2 – 5 years as a result of his condition.  After Stow’s attorneys presented expert witnesses arguing he would not experience a significant decrease in life expectancy, defense attorneys presented an expert countering the assessment.

Robert Shavelle, the technical director of the Life Expectancy Project, was called as a defense expert witness to challenge Stow’s medical experts’ conclusion that his life expectancy was not significantly reduced.  Shavelle testified that Stow’s life expectancy would drop by at least 10 years, and concluded that he expected Bryan to only live 23 more years – countering the 28 – 30 more years that Stow’s experts predicted.  Mr. Shavelle based his calculation on scientific studies and reports about the effect traumatic brain injuries have on life expectancy, and on medical records of the complications Stow has suffered since the 2011 attack.

Stow’s attorneys challenged Mr. Shavelle for not taking Bryan’s physical health prior to the injury into account, but the defense expert witness stood firm that he expected Bryan’s life to be 10 years shorter due to his injuries.

LA Jury Reduces Bryan Stow’s Damages Award

After several days of deliberations, jurors in the Bryan Stow civil suit determined that he was due some damages, but significantly reduced the amount he sought.  Although $13.9 million is not a small figure, jurors clearly felt that Stow’s claims for $65 million overvalued the damages he suffered and the projected costs of his lifetime care.  While there were likely a number of factors in the jury’s decision to limit Stow’s available damages, expert witness testimony that his life would be drastically shortened as a result of the injuries likely played a part in the outcome.