Category Archives: Expert Opinions

Arizona Supreme Court Allows “Cold” Expert Witness Testimony

The Arizona Supreme Court issued a landmark ruling last week, changing the way criminal trials in the state can make use of expert witness testimony. Rejecting an appeal of a lengthy prison sentence, the Court admitted testimony of a “cold” expert witness – meaning an expert who has not interacted with the victims.

Arizona Admits Cold Expert Witness Testimony

Martin Salazar-Mercado appealed his conviction of multiple counts of child abuse to the Arizona Supreme Court due to the prosecution’s use of an expert witness who knew nothing about the particular victims involved in the case. At trial, the state presented testimony of a forensic interviewer who discussed a condition known as Child Sexual Abuse Accommodation Syndrome in order to explain the behavior of Salazar-Mercado’s victims. Many of the child victims delayed reporting the abuse, had trouble recalling the timing of events, and even changed stories during the course of investigation – symptoms common among young victims of sexual abuse. Salazar-Mercado’s attorney objected to use of the expert witness because she had not interviewed any of the children or connected personally with the case.

In a unanimous decision, the Court rejected Salazar-Mercado’s appeal and set a lasting standard for the use of experts in Arizona criminal trials. Holding that the state’s forensic interviewer expert testimony was admissible, the Court found that, “Expert testimony about general behavior patterns of child sexual abuse victims may help the jury understand the evidence.” In this case, the state’s expert helped the jury understand reasons for the delayed and inconsistent reporting. In its conclusion, the court was careful to limit cold expert witness testimony to “general principles of social or behavioral science,” and reminded judges that cold testimony must still satisfy legal standards for admissibility.

Understanding Cold Expert Witness Testimony

Expert witness testimony is often used to analyze facts of the case and explain how professional or scientific knowledge applies directly to the particular issues jurors must decide. Experts are called upon to conduct investigations, write reports, and offer pointed testimony that help judges or jurors answer questions about the facts of the case. Traditionally, experts who have not interacted with the particulars of the case have not been used to speak to victim behavior, however the continued advances in social and behavioral science have made the use of cold expert witnesses possible.

A cold expert witness is so termed because she has not connected personally to the facts of the case, but instead is called upon to offer testimony on general principals – often relating to behavior. Courts make use of cold experts in order to understand why the parties involved behaved in a particular manner, but their testimony is limited in scope. In the Salazar-Mercado appeal, the Arizona Supreme Court properly restricted cold expert testimony by forbidding one to testify about “the accuracy, reliability or credibility of a particular witness,” because an expert who has not personally investigated the facts cannot comment on specific issues. As with any expert, a cold expert witness speaking to social or behavioral science must be able to show her testimony is supported by reliable and scientific knowledge before being admitted at trial.

Florida’s Third Circuit Issues First In-Depth Treatment of Daubert

A recent decision from Florida’s Third District Court of Appeal provided an in-depth discussion on the differences between the old Frye standard of expert witness admissibility and the currently used Daubert test. In Perez v Bell South, the Court considered expert witness testimony in a personal injury claim, and clarified for future litigants how the Daubert requirements differed from the state’s previous Frye test. Although the decision applies only to Florida, analyzing the case is useful to attorneys who need to be aware how Daubert expert witness admissibility rules compare to the older standard.

Perez v Bell South Emphasizes Use of Daubert

Maria Perez filed a personal injury claim on behalf of her developmentally disabled son, Osmany, against her former employer for negligently creating a stressful work environment that resulted Osmany being born 20 weeks early. Ms. Perez alleged that Bell South caused her such significant difficulty that she suffered a placental abruption, which led to Osmany’s premature birth and subsequent developmental deficits. As part of her case, Maria called upon the medical expert testimony of Dr. Isidro Cardella, a board-certified obstetrician and gynecologist. Dr. Cardella testified that, in his opinion, Bell South’s refusal to allow Ms. Perez frequent bathroom breaks or limit her working hours to 40 created such stress on her body that she suffered the placental abruption.

The trial court dismissed Dr. Cardella’s expert testimony and Ms. Perez’s case because it was based solely on his opinion as a medical expert. Applying the Frye test, the trial judge determined that an opinion not supported by medical evidence or research is inadmissible. Ms. Perez appealed, arguing that “pure opinion” testimony does not fall within the guidelines of Frye. On appeal, Florida’s Third District Court correctly made the dispute over Dr. Cardella’s testimony moot by analyzing under the state’s newly adopted Daubert standard – clarifying for attorneys, and judges, how expert witness testimony, including opinion, is to be evaluated in the future.

Daubert Test v Frye Test

Created by the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, the Daubert standard sets forth an evidentiary rule that determines whether or not expert witnesses are permitted to testify at trial. Over the last two decades, all federal jurisdictions and over half of the states have implemented the Daubert test, however, a number of states, including California and Illinois, have yet to make the switch. Relevant to the Perez case, Florida’s legislature enacted a law that made the Daubert standard the official state rule as of July 2013.

Prior to Daubert, courts analyzed expert witness testimony under a test established in the 1923 case, Frye v United States. The Frye test simply required courts to determine if an expert witnesses testimony was based on scientific methods that are “sufficiently established” in, and generally accepted by, the scientific community to which the expert belongs. As the Perez Court pointed out, the Daubert standard, as adopted by Florida’s legislature in 2013, requires additional analysis. Ensuring that an expert’s methods are accepted and established by the greater scientific community is one of many factors that a court must consider under Daubert, as now codified in Florida’s rules of evidence.

Florida courts must consider a number of factors to ensure expert witness testimony is scientifically reliable – most notably determined by analyzing an expert’s methodology and scientific knowledge. In addition to an expert’s approach being generally accepted, courts must also consider the level of peer review it has been subjected to, the error rate that can influence his results, and the existence of professional standards that govern the operation of an expert’s investigation. The Daubert standard requires courts to look at a variety of factors, and the Perez case noted that a simple Frye evaluation of expert witness testimony is no longer sufficient in Florida.

Understanding the Daubert Standard

Reviewing Dr. Cardella’s testimony through a Daubert lens, Florida’s Third District Court of Appeal arrived at the same conclusion – his testimony was inadmissible. The pathway to the correct decision is important, however, because, as Ms. Perez’s attorneys pointed out, a Frye analysis is not sufficient to evaluate a pure opinion testimony. Using the Daubert test, which applies to any expert witness testimony, Florida courts can determine the admissibility of an expert’s analysis of facts and his opinion of the case. Under Daubert, Dr. Cardella’s testimony still fell short because he did not back his conclusions with scientifically reliable support.

Attorneys who intend to use expert witnesses must understand the proper application of the Daubert standard and be prepared to use an expert who can provide reliable, scientific knowledge to support testimony. With limited exception, the Daubert standard controls expert witness admissibility, and, as Florida’s Perez v Bell South demonstrates, Daubert is more comprehensive and thorough than the once widely-used Frye test.

The Art of Finding the Value of Rare Coins

Many people dream about owning a piece of history. One of the most popular ways to accomplish this is through the ownership of coins. Ancient coins hold a magical attraction. Did the coin from biblical Israel circulate in Solomon’s temple in Jerusalem? Then there are coins that are literally brought up from the depths of the ocean. Prior to the Civil War, the SS Central American, a side wheel steamer, sank in a hurricane in September, 1857 off the coast of the Carolinas. The ship was carrying 30,000 pounds of gold, which came from the San Francisco mint. The impact of the loss was so great, that it contributed to the panic of 1857.

In 1988, the ship was located in the depths of the Atlantic Ocean. Since the gold, now with an estimated value of somewhere between $100 – $150 million, has captured the imagination of the collecting public. These recovered coins are highly sought after by gold coin collectors.

The Role of the Appraiser

Regardless of how the discovery of that long-forgotten coin or collection came about, you will want to bring in the professional appraisers, for any number of reasons: estate taxes, equitable distribution, donations to charitable groups such as museums, or for eventual sale. Many people have trusts. With the passing of the first spouse, the trusts must be appraised to re-establish the basis of the estate. Whatever the reasons, you will want to hire an appraiser who is accredited and certified numismatic experience with the American Society of Appraisers (ASA, for short).

Factors in Valuing Rare Coins

To start a numismatic appraisal, an inventory list has to be made. There are four primary factors which determine value, that is, how much the marketplace determines what people will pay.

First is the denomination, such as a $20 gold coin. This is the face value of the coin, which never changes, for it is part of the minting process.

Second is the mint mark (if any). This means what mint the coin was made. Like the denomination, this is also part of the minting process and never changes. The location of the mint mark varies from denomination to denomination. Some are on the obverse (front), just below the date. Others are on the reverse under the eagle tail feathers, such as the Morgan dollar. Coins made at the Carson City Mint usually have greater value then coins made at other mints because so few were made.

Third is the date (year) on the coin. Like the denomination and mint mark, this is also part of the minting process and never changes. Japanese coins do not represent the calendar year as is the custom in the western nations, but the number of years the emperor has been on the throne. Islamic coins reflect the year on the Islamic calendar.

Lastly is the grade. This is the amount of wear (physical condition) on the coin. This is the big variable in determining the value of the coin. Wear can never be reversed and the degree of wear determines the grade which is used by dealers and grading services. Coins in pristine condition and high eye appeal are generally worth more than a coin which is badly corroded or has nicks and scratches.

Like all other commodities and goods, the laws of supply and demand play an important role in determining the value of coins. For example, in 1916, the Winged Liberty Head dime was minted at three different mints. At the Philadelphia and San Francisco mints, millions were produced. However, at the Denver mint, a little more than 250,000 were minted. The Denver coins are highly sought because of the low mintage.

Counterfeit coins

Numismatic appraisers have to constantly be aware of counterfeit coins. This is especially true of coins made in the ancient world, such as Greek, Roman and Islamic. An estimated one-third of coins from the ancient world are counterfeit. Only a specialist in these coins can tell the difference from legitimate minted coins from its counterfeits. To help determine the validity of the coins, some coins have to be sent to a grading service, which authenticates the coins, then determines the grade. Grading services are independent third party companies that verify if the coin was made by a government mint or produced by counterfeiters.

Coins Minted with Errors

Occasionally, the mint produces coins which have errors. So-called error coins are legal to own. A typical example of an error coin includes die rotation. A die rotation happens when the die accidentally slips and turns, but is not caught by mint officials. The obverse and the reverse designs are normally opposed by 180 degrees. If a die rotates, and the reverse is other than 180 degrees, you have an error coin. Not surprisingly, many coins that contain mistakes actually have considerable value since mistakes do not happen often. Many people specialize in collecting error coins and are willing to pay a premium.

Disposing the Coins

In today’s world, many heirs chose not to keep the property their parents or grandparents had for decades, opting instead to sell the items and take the cash. This can be accomplished several ways: (1) selling rare coins at auction; (2) working with a coin broker (not a local coin dealer) who has a world-wide business; (3) selling the coins to a private party, or (4) selling to another heir who would rather have the highly valued coins as a form of investment or for their beauty, similar to a piece of art. Frequently, the trust often specifies that property be distributed by equitable distribution. What is important to remember is that federal law allows the trustees and heirs of estates up to nine months to start the appraisal process. Regardless when the appraisal is performed, the values that must be present in the appraisal report reflect the values at the date of death, not the date the items were reviewed.

Accident Reconstruction Expert Testimony Rejected by Oklahoma Court of Appeals

An interesting expert witness case out of Oklahoma this past week, as the state’s Court of Appeals dismissed expert testimony regarding the cause of an accident that injured a 12-year-old boy who was struck by a car while walking in the street. On an appealed decision, Oklahoma’s second highest court rejected two accident reconstruction expert witnesses for taking their testimony beyond the facts, and speaking directly to the key determination of negligence.

Defense Accident Reconstruction Witnesses

The incident in Moore v Blackwell occurred in September of 2007 when 12-year-old Jerrit Moore was walking alongside an interstate service road in Norman, Oklahoma. The boys were walking at night without reflective clothing or lights of any kind, and decided to cross the street in order to walk with traffic. As they crossed, the defendant, Robert Blackwell, was driving along the road. Blackwell swerved to avoid the boys, who were in the middle of crossing, and clipped Jerrit, causing him injury. Jerrit’s father filed a negligence claim seeking $10,000 in damages for Jerrit’s injuries.

As part of his defense, Blackwell called the investigating police officer, Michael Thomson, and an accident reconstruction expert, Terry Harrison. Thomson testified that his investigation concluded that Jerrit, who was in the middle of the road, was more at fault than Blackwell. Officer Thomson did not issue a citation to Blackwell for the accident because, in his opinion, the driver had not acted inappropriately considering the circumstances.

Accident reconstruction expert Harrison reaffirmed Officer Thomson’s investigation by testifying that he found no negligence on the part of Blackwell. According to Harrison’s expert analysis of the accident, Blackwell was driving within the speed limit, recognized a danger in the road, and reacted appropriately considering the circumstances. Although striking Jerrit was unfortunate, accident experts Thomson and Harrison testified that, in their opinion, Blackwell was not negligent in striking the young man.

Oklahoma Court Rules Accident Reconstruction Expert Testimony Inadmissible

At trial, Moore unsuccessfully attempted to have both experts prevented from testifying before a jury ruled in favor of Blackwell due to lack of negligence. On appeal, the Oklahoma Court of Appeals agreed with Moore and sent the case back to trial without the specific testimony offered by Thomson and Harrison. Finding that the experts spoke to the ultimate issue in the case – negligence and the cause of the accident – the Oklahoma court found that both experts had failed to provide the type of testimony that was permissible for expert witnesses.

Judge Jane Wiseman wrote, “The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore’s negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.” Neither expert offered an analysis of the facts that required their particular expertise, but instead spoke only to which party’s negligence caused the accident. According to the Court, Oklahoma law requires experts to limit their testimony to opinions of the facts and not speak to issues of negligence or fault.

Dissent Supports Use of Accident Reconstruction Experts

The difference between testifying to negligence, and offering expert accident reconstruction opinion seems difficult to comprehend, and dissenting members of the Oklahoma Court of Appeals voiced a strong argument against the decision. Judge John Fischer claimed that the majority had misinterpreted the law, and under the Daubert standard, which has been adopted in Oklahoma, both of Blackwell’s experts offered reliable and scientifically sound testimony that interpreted the facts and allowed jurors to make the necessary decision regarding negligence.

Accident reconstruction experts walk a fine line between diagraming an accident and offering their opinion on which party is negligent. Attorneys in car accident negligence cases must be acutely aware of the relevant state law, and ensure that their accident reconstruction experts carefully word testimony to explain the cause of an accident without offering conclusions that experts are not permitted to make. In Moore v Blackwell, the defendant’s attorneys allowed his experts to drift away from offering technical analysis and instead speak directly to the ultimate question of negligence – violating Oklahoma’s standards for expert witness admissibility.

Pennsylvania Supreme Court Allows Expert Testimony on Eyewitness Identification

Pennsylvania’s Supreme Court made a significant ruling on expert witnesses this week when it determined that juries may hear experts testify to the reliability of eyewitness identification. Social scientists have dedicated years of study that casts doubt on the ability of eyewitnesses to accurately recall events – meaning that juries may be making decisions based on incorrect accounts. Many state jurisdictions and federal courts already allow expert witnesses to inform jurors about the unreliability of eyewitnesses, making Pennsylvania the latest in a long list of courts to take this step.

Eyewitness Testimony is Questionably Reliable

Study of the human brain has revealed that we have difficulty accurately recalling information, and often fill in the memory gaps with embellishment or fiction to produce a false account of what occurred. Much of this is subconscious, meaning that eyewitnesses may believe they are telling the truth, but, regardless of intent, scientists suggest that many eyewitness reports are tainted by untruths that could significantly alter a juror’s perception of what occurred. From misidentification of a defendant, to inaccurate recollection of events, experts on eyewitness testimony have identified a number of concerning legal consequences of the human brain’s inability to accurately recall information.

Complicating the inaccuracies that plague eyewitness testimony is the value that jurors place on that type of evidence. Jurors find eyewitnesses to be strongly convincing, which means that trials are heavily influenced by information that is potentially unreliable given the source. Further study has demonstrated that jurors are not able to tell when an eyewitness is lying, so there are few safeguards in place to prevent reliance on inaccurate testimony. Although the effect of an eyewitness expert testifying to the unreliability of personal recollections at trial is unknown, many legal jurisdictions have recognized the importance of having an expert inform the jury of the scientific community’s investigation into eyewitness accounts.

Pennsylvania’s Eyewitness Identification Expert Ruling

Pennsylvania’s Supreme Court considered the case of Benjamin Walker, a man convicted of a 2005 robbery of two college students in Philadelphia. Walker, who is serving 35 years in prison, was convicted because the victims identified him during their testimony. Walker and his attorneys brought the challenge in an attempt to allow him to present a psychology expert witness who would explain to jurors that eyewitness identifications are potentially unreliable.

The four-justice majority in the case agreed with Walker’s argument, and determined that Pennsylvania jurors will now be allowed to hear expert testimony on the reliability of eyewitness identification. Writing for the majority, Justice Debra Todd stated, “Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present.” Finding that the statistical evidence suggesting the inaccuracy of eyewitness testimony is “substantial,” Justice Todd supported the use of expert testimony to inform jurors of concerns of eyewitness identification.

Eyewitness Expert Testimony Ruling Not Unanimous

Two judges on Pennsylvania’s Supreme Court dissented from the majority, writing that a better approach would be to allow the judge to inform jurors about the potential issues with eyewitness identification during juror instruction. Arguing that allowing expert witnesses to testify about eyewitness identification would open the door to allow experts to confuse jurors with testimony questioning all aspects of eyewitness accounts. Chief Justice Ronald Castille went on to defend jurors’ ability to understand the problems with eyewitness identification, saying that social science experts are not needed to inform juries about “matters affecting human perception and recall.”

Despite the dissent, which seems to ignore convincing study on the value of social science experts on eyewitness testimony, many criminal defense attorneys consider the Pennsylvania decision to be a step in the right direction. Defense attorney organizations argue that allowing eyewitness experts to testify about recall problems will help reduce wrongful convictions, and Pennsylvania’s decision to join other jurisdictions in allowing social science expert witnesses to contribute testimony is a positive outcome for the integrity of criminal prosecutions.

Sixth Circuit Dismisses EEOC’s “Race Rating” Expert

The US Court of Appeals for the Sixth Circuit issued a ruling that dismissed an unreliable expert witness, demonstrating the strict requirements that must be met by parties seeking to admit expert testimony into a trial. In EEOC v Kaplan Higher Education Corp, the Sixth Circuit criticized the EEOC for calling an unreliable expert to bring a case “on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted by only the witness himself.”

EEOC v Kaplan Higher Education Uses Unique Expert Witness

Kaplan, a for-profit educational company noted for its college and graduate school test preparation programs, was sued by the EEOC for requiring a credit check from potential applicants as part of the hiring process. The credit check, according to the EEOC, violated Title VII of the Civil Rights Act because it had a disparate impact on African American applicants – meaning more black candidates were eliminated due to the check than white.

In order to prove the disparate impact, the EEOC relied on data from one of the third-party credit-check services used by Kaplan in its hiring process. Since the credit-check service did not have data on the race of each applicant, the EEOC combined the credit data with information on each applicant obtained from the candidate’s state department of motor vehicles. Most states also did not include information on race, however, each provided a color copy of the applicant’s driver’s license – which included a photograph.

Completing the link between credit-check data and the race of each applicant required the EEOC to hire an expert witness who created a process known as “race rating.” The expert’s process, created specifically for the litigation, required five “race raters” to independently identify the race of each applicant based on a visual inspection of the driver’s license photo. If at least four of the five raters agreed, the EEOC’s expert determined that the applicant was a member of the identified race.

Sixth Circuit Dismisses EEOC’s Race Rating Expert Witness

Upon reviewing the EEOC’s race rating expert report, the trial court refused to allow him to testify against Kaplan. On appeal, the Sixth Circuit agreed, finding that the race rating process created specifically for the lawsuit did not meet the Daubert requirements for expert witness testimony. Under Daubert standards, an expert witness may only present testimony to the court if his opinion is based on reliable and scientifically supported knowledge – a standard that the EEOC race rating process failed to satisfy.

In its ruling, the Sixth Circuit identified several reasons to disallow testimony on racial identification by the EEOC’s race rating expert witness:

The EEOC expert did not demonstrate that his newly created race rating system had been tested or that it had an acceptable rate of error. Although the EEOC cross-checked the results with other external sources identifying the Kaplan applicants’ race, the Sixth Circuit determined that cross-checking a sample of the results was insufficient.
The expert’s methodology, invented specifically for the litigation, was not subject to peer review or “submission to the scrutiny of the scientific community.” Courts are often unfamiliar with the subject matter expert witnesses testify about, so when an expert’s methodology has undergone review and critique from his peers, his investigation is more likely to be accepted by the legal community.
The EEOC race rating system did not have a standardized methodology for determining race. Instead, the process relied on the visual assessment of five independent raters who knew the names of each applicant – a fact the court felt could impact the racial analysis.
Without peer review from the scientific community, there was no evidence that the race rating methodology had been generally accepted as reliable.
The court determined that the sample of 1,090 applicants was not representative of Kaplan’s applicant pool as a whole. Of the EEOC expert’s sample, 23.8{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed the credit-check, however, only 13.3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed overall – meaning that the EEOC expert’s results were skewed to favor the plaintiffs’ claim.

The Sixth Circuit’s opinion clearly identified reasons why the EEOC’s rate rating expert witness failed to satisfy the Daubert standard for scientific expert testimony. The unique and highly specific review process created for the purpose of the EEOC’s case against Kaplan was not reviewed or critiqued by the scientific community, and was not created using a sound or objective methodology. As such, the Sixth Circuit refused the EEOC’s expert testimony.

9th Circuit Roundup: A Case of Contaminated Water and Medical Expert’s Failed Methodology

The 9^th Circuit handed down two recent decisions to provide guidance on the treatment of expert witnesses by trial judges. The attention expert witnesses receive from the federal circuit serves as a point of emphasis on how important it is to have experts who can pass judicial scrutiny prior to offering their testimony.

9^th Circuit Revives Expert Testimony in Contaminated Water Case

Earlier this month, the 9^th Circuit overturned a lower court’s dismissal of expert testimony by pointing out that judges do not have the authority to question an expert’s conclusions. When evaluating whether or not an expert witness is permitted to testify, a judge must follow the Daubert standard and focus on the expert’s qualifications and the methodology he used to support his testimony.

Pomona, California filed a lawsuit against SQM North America Corporation (SQMNA) for contaminating water by importing Chilean materials into the town several decades ago. To support its claim, Pomona called Dr. Neil Sturchio, the director of the Environmental Isotope Geochemistry Lab at the University of Illinois at Chicago. Dr. Sturchio conducted a study of Pomona’s water using a “stable isotope analysis” and determined that sodium nitrate from Chile’s Atacama Desert, used by SQMNA in fertilizer, was responsible for contaminating the town’s water.

A lower federal court determined that Dr. Sturchio’s conclusions were outside of the scientific mainstream, and therefore he was not permitted to testify at court. On appeal, the 9^th Circuit pointed out that Dr. Sturchio’s expert testimony was supported by a methodology that was published in a 2011 manual for the Department of Defense, and therefore was built on a sufficiently sound foundation. During the publishing process, Dr. Sturchio’s methodology was reviewed by two other laboratories, giving the process further credence as a collaborative work. In its conclusion, the 9^th Circuit pointed out that when an expert witness is supported by scientifically sound methodology, the validity of his conclusions are facts that are reserved for a jury, not for a judge.

9^th Circuit Requires Closer Scrutiny of Medical Expert

In April, the same 9^th Circuit court kicked back an asbestos lawsuit because the plaintiff’s expert witness was not sufficiently evaluated by the lower court judge before being allowed to testify. At trial, the judge refused to conduct a Daubert review of a medical expert witness, allowing him to take the stand despite objections from the defense over his credentials and methods employed during pre-trial investigative studies.

In Barabin v Asten Johnson, Inc, the plaintiff and his wife alleged that he developed mesothelioma from asbestos exposure while working at the defendant’s paper mill. A medical expert witness was called to connect fibers found in the mill’s dryer felts to the asbestos exposure that caused the plaintiff’s condition, and, with his assistance, the plaintiff was successful. On appeal, the 9^th Circuit Court determined that the lower court had failed to properly evaluate the expert’s methodology, which involved tests performed in different conditions than present at the paper mill, and sent the case back for a re-trial that involved a Daubert review to scrutinize the medical expert’s qualifications.

Medical expert witnesses, who are critical in toxic tort cases, must pass close scrutiny to ensure that testimony presented to a jury is reliable and supported by sound scientific investigation. In Barabin, the trial judge failed to properly scrutinize a key expert witness, leading to the 9^th Circuit reversing the trial’s outcome.

As the use of expert witness testimony becomes more commonplace, decisions like these from high ranking federal jurisdictions will provide emphasis on the importance of properly evaluating experts before allowing them to speak at trial.

Dueling Experts and the Oscar Pistorius Case

On Valentine’s Day, 2013, noted South African Olympian Oscar Pistorius, who gained fame for competing in the 2012 London Olympics despite not having legs below his knees, fired four gunshots through his bathroom door to kill his live-in girlfriend, model Reeva Steenkamp. Now, from halfway across the globe, the ensuing murder investigation has captured the attention of the American public and kept legal experts and laymen wrapped up in the twists and turns of the trial.

As the case unfolds, expert witnesses have emerged as important characters in the drama by providing factual analysis to support or contradict Pistorius’ claim that he fired the shots in self-defense under the belief that the person behind his bathroom door was an intruder. A recent two-week adjournment provides opportunity to pause for analysis of the impact the critical expert witnesses have had.

Experts for the South African Prosecution

Lead South African prosecutor Gerrie Nel notably called experts in ballistics and pathology to help contradict Pistorius’ claim that he fired on what he suspected was a home invader. Police ballistics expert Chris Mangena and pathology expert Gert Saayman were both called by Nel in order to call into question Pistorius’ testimony about the evening and the fatal encounter.

Ballistics expert witness Mangena: Of critical issue to Pistorius’ claim that he was unaware that the person behind his bathroom door was Steenkamp is the order in which the bullets hit her. Both sides agree that the fatal wound was administered by a shot to the head that would have caused instant death, and the prosecutor’s ballistic expert witness testified that the head-shot was the third and final bullet to make contact. Mr. Mangena further testified that Steenkamp was struck with two other bullets – one in the hip and one in the arm – both of which would have caused pain and given cause for the victim to scream prior to being killed with the third shot. Mr. Mangena also claimed that the pattern of wounds on the body would make Pistorius’ story that he fired two rapid “double taps” impossible, meaning that he would have had the opportunity to hear her scream and identify her before firing the fatal shot.

Pathology expert witness Saayman: Gert Saayman’s testimony of the gruesome wounds suffered by Ms. Steenkamp was highlighted by the defendant vomiting in court at the graphic description. However, his most contested claim was in regards to something far less serious: the contents of the victim’s stomach. Pistorius has told the court that he and Steenkamp were in the bedroom by 10 PM, and asleep shortly after, and that he thought she was still sleeping next to him when he discharged the firearm against the suspected intruder. However, according to Saayman, Ms. Steenkamp had probably eaten around 1 a.m. – meaning that the two were not together in bed from 10 p.m. until the time of the shooting.

The prosecution’s use of expert witnesses was well crafted, and targeted key points of Pistorius’ story of how the shooting took place. Defense attorney Barry Roux aggressively questioned both, and shaped his own expert witness list to directly challenge their findings.

Pistorius Calls Pathology Expert Jan Botha

First to testify for Pistorius was pathology expert witness, Dr. Jan Botha. Dr. Botha opened by calling into question the methodology used by Dr. Saayman when he determined that Steenkamp had eaten only two hours prior to the shooting, calling the claim to be questionably supported by facts. Dr. Botha then turned his attention to the claim that Pistorius would have had the opportunity to hear the victim scream before firing the fatal shot. Although he did not speak to the order in which Ms. Steenkamp’s wounds were caused, Dr. Botha did testify that the pain caused by the impact of the bullets would have caused her body to go into shock – making it highly unlikely that she would have cried out unless there was significant time between the shots.

Pistorius Recent Defense Expert Creates Confusion

The most compelling expert presented in the case has been Pistorius’ forensic expert witness, and apparent jack-of-all-trades, Roger Dixon, whose contradictory account of the shooting led prosecutor Nel to question his qualifications and create doubt about the defendant’s version of the incident.

Dixon, hired by Pistorius as an expert witness to support his version of the shooting, is a former police forensics investigator who now teaches geology. During a dramatic three-day affair, Dixon initially testified to confirm Pistorius’ account that the room was too dark for him to recognize that Ms. Steenkamp was no longer in bed with him. He then contradicted ballistic expert Chris Mangena’s testimony that the victim was in a defensive position – indicative of an argument between her and Pistorius – when the shooting started by testifying that she was leaning towards the door handle in preparation to come out of the bathroom – supporting Pistorius’ account that he reacted to an unfamiliar noise. Finally, Dixon conducted visual and audio tests to dispute testimony from Pistorius’ neighbors that called into question the timing of the gunshots and the position the shooter was in.

Sparks began to fly when Mr. Dixon was cross-examined by prosecutor Nel for having a confessed “laymen’s understanding” of ballistics, for not taking Pistorius’ height into account when recreating the scene, and for contradicting the defendant’s own testimony of what the scene looked like during and after the shooting. Because Dixon is a geologist, and not actively conducting forensic investigations, he was taken to task for being unqualified and for providing testimony that could prove unreliable – calling his entire expert witness credentials into question.

Judge Thokozile Masipa, who is solely responsible for determining Pistorius’ guilt in South Africa’s non-jury system, has delayed the trial for two weeks following the up and down testimony of Mr. Dixon. The defense will resume on May 5^th, and will likely attempt to reconcile Mr. Dixon’s testimony with Pistorius’ version of the events with another independent forensic expert witness.

Intellectual Property Theft: A Major Headache

Intellectual property (IP) infringement has become a serious threat to the United States economy. Research by the FBI and US Border Patrol Services indicates that IP theft causes up to $250 billion in losses per year, which has created the loss of 750,000 jobs. The US Department of Commerce reports that the losses associated with IP theft affect all industries, but most notably manufacturing, consumer goods, technology, software, and biotechnology organizations, such as pharmaceuticals. IP theft ranging from sale of counterfeit goods to stealing patented ideas creates a problem that American businesses need to be aware of and prepared to combat.

Installing IP asset controls to keep intellectual property safe and reduce costly theft or infringement is critical to combatting new age IP crime. Some successful IP asset controls that have been observed include:

Take physical security measures to limit who can access IP assets, and to keep track of every person who has access
Protect IP assets with passwords and access codes that only a select few individuals know
Force individuals with access to IP assets to sign Non-Disclosure and Confidentiality Agreements
Provide company-wide training for all employees demonstrating the importance of protecting IP assets, and educating on procedures for maintaining strict confidentiality about company IP
For IP assets stored electronically, keep strict controls over the network and electronic documents by use of firewalls, intrusion detection, and encryption technology
Make it clear which documents are confidential by marking them, “Confidential”
Conduct background checks on new employees, prospective business partners, and all third-party affiliates (such as independent contractors or temporary employees)
Register all copyright and trademarks with the US Patent and Trademark Office

There are additional procedures that can vary from company to company, but the ongoing theme to remember when protecting IP assets is simple: take the due diligence necessary to monitor and control who can access IP, and how. Intellectual property, whether it be stored physically or electronically, must be protected and controlled by limiting access and by verifying the trustworthiness of parties who are able to view it. Intellectual property infringement is a significant threat to any business, but taking the time to install appropriate IP asset controls can protect valuable information and keep businesses safe from theft.

Ethical Issues in the Legal System: A Dual Standard for Lawyers and Experts

In 1993, prior to Daubert, the civil courts had been over-run with two decades of Toxic Tort and drug product liability suits involving DES (diethylstilbesterol), oral contraceptive pills, Bendectin, intrauterine devices (IUDs), DPT/MMR (diphtheria, pertussis, tetanus, measles, mumps, rubella) Vaccines, L-Tryptophan. Concurrently the civil defense bar was waging war against all plaintiffs’ liability experts and yelling “Junk Science” and “hired gun” to try to ward off the onslaught of law suits that threatened to drain their wealthy pharmaceutical company clients. The pharmaceutical defense lawyers got rich and the experts who dared to testify against their clients got maligned. A.H. Robbins went out of business as a result of the Dalkon Shield litigation, and Merrell-Dow Pharmaceuticals removed Bendectin, a perfectly fit drug for nausea associated with pregnancy, from the market in 1983 due to excessive costs of litigation and insurance.

This brief article exposes the dual standard of ethics for lawyers and experts, and demonstrates how experts have become the scapegoat for the inadequacies of the legal system. The fact is, the legal system is either unwilling or unable to police themselves, and tries, instead, to cover that defect by blaming the innocent testifying expert.

Many of the legal cases that have occupied much of our time and energy over the past three decades have involved drugs or pharmaceuticals, e.g., Bendectin from Daubert, carcinogens in Joiner, birth control pills and devices (IUDs), and nutritional supplements. So it is both ironic and appropriate that this piece on ethics and the interface of science and law be penned by a practitioner of pharmacology and toxicology.

On the criminal law side recently, there has been re-focused attention on constitutional issues and how difficult it is for the criminal defendant to obtain his/her 6^th Amendment right to confront the evidence against him at trial, when prosecutors fail to disclose exculpatory evidence under Brady v. Maryland and encourage government witnesses to deliberately mislead the jury. The future of the justice system and fundamental fairness in our courts will require the courts to sanction those practitioners and abusers, and to obtain more input from qualified experts, perhaps through the use of more FRE 706 panels in adjudicating cases. Enforcing standards of ethics and adherence to “The Oath” also have been identified by the report of the National Academy of Sciences and the American Academy of Forensic Sciences as essential to improving the reliability of testimony and the quality of justice in our jurisprudence system today.

Having a reliable scientific test result, like a “confirmed” urine test for amphetamine is fine; but the problem shows up when an expert testifies that he/she can opine with reasonable scientific certainty that the person with the positive urine test was impaired. Urine tests can never be used to infer impairment, only a window of time during which a drug may have been taken or administered. Often a urine test does not test for the drug in question. For example, urine tests for cocaine are usually done for one of cocaine’s metabolic products (metabolites) benzoylecgonine (BE), but BE will not get the user “high” or cause impairment. The same can be said for marijuana. THC, the active ingredient in marijuana, is not found in the urine; what is found is the acid derivative of THC or THCA, which is inactive whether smoked or eaten in brownies. Yet state governments take urine samples from alleged “drugged drivers” and then the government’s experts come into court and say that is evidence of impairment. States also have established “per se” levels of various drugs in urine which the law says indicates impairment. It does not; it indicates possible prior exposure, not impairment at the time of the stop.

The road to excellence in jurisprudence is an ethical issue, not a scientific one. Ethical behavior must be required, and those who breech the standard must be sanctioned by the courts. Many years ago, I was interviewed on TV. The host asked me about “legal ethics” and I told him that it was an oxymoron. Although he laughed and shook his head, the die had been cast, and the genie was out of the bottle.

In order to improve the system, the courts have to take a long look at their current practices, scrutinize its function, and submit to external constructive criticism and self-critical analysis. With each shortcoming identified, the courts must actively deal with each breech or misuse, whether they like it or not. It seems that every week, a state-run forensic lab in a different city, hits the news media regarding fraud, perjury, and unethical behavior by a supervisor or analyst. We have had two such major occurrences here in Boston.

I have voiced opposition before and taken many “semi-lethal” barrages over it. But in the criminal arena, the prosecutors “force” the government experts to misrepresent their testimony in an attempt to win weak cases, which probably should not have been prosecuted in the first place. As a prospective witness for the defense, I can tell the attorney I have nothing favorable to say on behalf of the defendant and that I will not testify, but government employees are subject to the pressure of the prosecutor and can be compelled to testify (falsely). The usual scenario goes something like this:

Prosecutor: “I need you to say that the earth is flat or I can’t win the case.”

Expert: “But everyone knows the earth isn’t flat”.

Prosecutor: “If I say it is flat, it is flat, got it?”

That’s the type of treachery we have to deal with. Recall the “Duke ‘rape case’?” The prosecutor knew the alleged rape victim had been with several men because they found DNA from different men in the secretions in her underwear. Still, he pursued a rape charge rather than recognizing that consensual sex had occurred. That conduct cost him his license to practice law, and justifiably so.

Fortunately, I have had good working experiences with state prosecutors. I testified when I found strong evidence that a crime had occurred, and refused when the evidence was equivocal. That’s the way it should be all the time … but, alas, it isn’t. If the people cannot rely on the courts to police themselves and enforce the rules in order to provide Equal Justice to All, then just where is this high quality of justice our founders envisioned? The evidence indicates that the problem is not the concordance of science and law, but the inability (or lack of desire) of the legal system to police itself and ensure adherence to ethical, civil and criminal rules of procedure. Prosecutorial misconduct is rampant, and law enforcement routinely misrepresents facts to the jury. Judges passively protect the lawyers by taking no remedial action, and in so doing, encourage future abuses. There is an old saying that when government experts testify, their testimony should be preceded by four little words, “Once upon a time….”

Are you sure you want to work as an expert in this system? Then you’d better have a strong stomach and robust constitution.

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