Category Archives: Expert Opinions

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Expert Witness Establishes GEICO’s Failure to Pay Reasonable Cost of Windshield Replacements

A Florida judge in Hillsborough County consolidated eleven lawsuits that Glasso, Inc. filed against GEICO. In each case, Glassco replaced windshields that were damaged in cars insured by GEICO. Glassco took an assignment of the insurance benefits from the car owners and billed GEICO directly for the replacement cost.

The lawsuits alleged that GEICO paid less than the invoiced amount. GEICO admitted that it did not pay the invoices in full. It relied on a clause in its insurance contract that limits its liability to the “prevailing competitive price” for repairs. GEICO contended that Glassco’s billings exceeded the prevailing competitive price for windshield replacements.

To support its claim, Glassco relied on the testimony of owners of businesses that make windshield repairs. Glassco also called an expert witness. The judge agreed with the expert’s opinion and entered judgment in favor of Glassco.

Facts of the Case

At trial, the owner of Glassco and the owners of two competing auto glass companies explained how they determine pricing. They take into account the cost they pay for replacement glass and for the materials (molding, clips, and adhesive) they use to install the glass. They also take into account their labor costs. All of those depend on the make, model, and year of the vehicle that needs a replacement windshield.

To reach a final price, the owners add profit to their costs. To calculate profit, the owners take into account the amounts charged by competitors in their same market. They also consider the charge that most insurance companies will pay without dispute.

The owners of Glassco’s competitors testified that Glassco’s pricing structure was consistent with prevailing market prices. They also testified that 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of insurance companies pay their bills without dispute. Glassco has a similar rate of undisputed payment.

Expert Testimony

Barrett Smith testified as an expert witness for Glassco. Smith is an expert in the appraisal of collision damage repair. He operated an auto body repair shop before joining the insurance industry. As a claims adjuster, Smith evaluated collision damages and estimated reasonable repair costs. He returned to the collision repair industry before founding a business that provides expert appraisal and mediation services regarding collision damage.

Smith testified that he was hired to “perform comparative market research regarding the products and services provided in windshield replacement service” and to tender an opinion “as to the prevailing competitive price of the goods and services.” He concluded that Glassco’s prices were competitive and prevailing within its market.

Smith surveyed 24 glass repair facilities to determine their pricing structure. Based on that survey and his considerable experience in the collision repair and insurance industries, he found that Glassco’s prices were at the lower end of the prevailing range of prices in the market.

GEICO’s Defense

GEICO did not contest that Glassco performed the windshield repairs competently. GEICO did not disagree that Glassco was conveniently situated to the owners who brought their vehicles in to be repaired.

GEICO offered no expert testimony. It instead relied on the testimony of a corporate representative who handles glass litigation claims. She testified that GEICO paid invoices according to its own determination of the “prevailing competitive price.” She based her opinion of that price on GEICO’s glass pricing agreement with its affiliate SGC/Safelite.

Court Decision

The court decided that Glassco had the initial burden of offering “substantial, competent evidence to establish its prima facie case for what the prevailing competitive price is” because Glassco could not prove a breach of contract without demonstrating that it invoiced the prevailing competitive price. If Glassco succeeded in making a prima facie case, the burden shifted to GEICO to establish that the invoices exceeded the prevailing competitive price.

Glassco met its burden with industry and expert testimony. In particular, the court credited Smith’s expert testimony that Glassco’s pricing was at the low end of the prevailing range of competitive pricing.

To rebut that testimony, GEICO offered only the opinion of its own employee. The court faulted GEICO’s representative for failing to offer any data to support her conclusory opinion. GEICO’s pricing agreement with a single affiliate did not establish a prevailing price within the industry. The court therefore agreed that GEICO breached its insurance contracts by failing to pay the full amount that Glassco billed for its services.

Lesson Learned

Glassco’s lawsuit illustrates the impact that expert evidence can have in litigation. While Glassco may have prevailed by relying only on the testimony of glass company owners, the court might have regarded that testimony as self-serving, given the owners’ interest in maximizing their profits by forcing GEICO to pay their bills.

By calling an expert witness with years of experience in both the collision repair industry and in the insurance industry, Glassco offered important support for its claims. The expert collected a significant amount of survey data to support his opinion, giving the court a strong basis for understanding the prevailing competitive price structure for auto glass repair. The court’s favorable view of that expert evidence clearly contributed to Glassco’s litigation success.

 

GEICO Expert Cleared to Testify in Insurance Fraud Case

A GEICO expert has been cleared to testify in an insurance fraud case where a physician has been accused of improperly certifying certain healthcare services for payment.

The Alleged False Statements

Dr. Luis Mas is a family medicine specialist with a practice in Coral Gables, Florida. Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. filed a suit against Dr. Mas, alleging violations of the Racketeer Influenced and Corrupt Organizations Act, the Florida Deceptive Unfair Trade Practices Act, the Florida Civil Remedies for Criminal Practices Act, common law fraud, and unjust enrichment.

Specifically, the lawsuit alleged that Dr. Mas submitted thousands of fraudulent insurance charges, misrepresented coding levels on billing statements, and changed which medical provider administered treatment on the examination reports. The lawsuit claimed that unsupervised massage therapists and physical therapist assistants performed services that were billed as doctors.

The Daubert Motion

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. retained Dr. James Dillard to testify on their behalf.

Dr. Mas’s defense team filed a Daubert motion seeking to exclude Dr. Dillard’s testimony.  They sought to exclude Dr. Dillard because his testimony could not be used to prove that Dr. Mas falsified any medical examinations or billing records.  Instead, Dr. Dillard opined that healthcare providers committed fraud in three ways: (1) that Dr. Mas falsified his clinical judgment on the medical necessity of the treatment protocols, (2) that Dr. Mas and others falsified the examination results for the purpose of inflating medical bills, and (3) that the therapeutic care at each facility was performed without supervision.  Dr. Mas’s attorneys argued that, under Florida law, opinions were not actionable for fraud and Dr. Dillard needed to instead rely on statements of fact to undermine Dr. Mas.

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. argued that Dr. Mas’s motion had no merit because it contained conclusory arguments and failed to question Dr. Dillard’s qualifications or helpfulness to the jury.

The United States District Court for the Southern District of Florida ruled that even if Dr. Mas only gave a statement of opinion, he was a person with superior knowledge on the subject and he knew or should have known from the facts in his possession that the statement of opinion was false.  Because of this, Dr. Mas fell under the exception to the Florida rule that an action for fraud generally may not be predicated on statements of opinion.

The district court noted that Dr. Mas’s motion had three weaknesses.  First, it made the assumption that Dr. Mas rendered an opinion.  Second, the motion “cherry-picked” portions of cases to support its reasoning. Third, it did not take into account that an exception could apply in this case. Based on the allegations and the evidence in Dr. Dillard’s report, an exception may apply because there is a factual dispute on Dr. Mas’s involvement with how the medical facilities handled treatment and billing records.

Accordingly, the district court denied the motion and allowed Dr. Dillard to testify.

NRA Files Motion to Exclude “Mouse Brain” Expert

The NRA has filed a motion to exclude a developmental neuroscience expert in a gun rights suit, arguing that the expert on “mouse brains” is not qualified to offer testimony in this case.

The Lawsuit

The National Rifle Association (“NRA”) filed a lawsuit against Pam Bondi, the Attorney General of Florida, and Rick Swearingen, Commissioner of the Florida Department of Law Enforcement, based on their administering and enforcing Florida laws relating to the sale of firearms.  The NRA sought declaratory and injunctive relief. The NRA wanted a declaration that Florida’s law banning adult, law-abiding citizens under the age of 21 from purchasing firearms was unconstitutional under the Second and Fourteenth Amendments. It also wanted an injunction that prevented Florida from enforcing that law.

Proposed Expert Testimony

The Florida Department of Law Enforcement retained Dr. Pradeep G. Bhide to testify on its behalf.  Dr. Bhide is a Professor and Jim and Betty Ann Rodgers Eminent Scholar Chair of Developmental Neuroscience and Director of the Center for Brain Repair at Florida State University College of Medicine.

Dr. Bhide’s proposed testimony included the statement that “Modern neuroscience establishes what parents have known for generations, that ‘on average 18-year old individuals are more likely to engage in behaviors that are impulsive, emotional, risky and that offer immediate or short time reward compared to 21-year old individuals, on average.’”

The NRA filed a motion in limine to exclude Dr. Bhide’s testimony.  In its motion, the NRA argued that Dr. Bhide had not offered any hard evidence that young adults from age 18 to 20 are more likely to commit criminal violence with a purchased firearm than other adults. The NRA claimed that Dr. Bhide’s opinion would consist only of “secondhand pseudoscience.”

The NRA argued that Dr. Bhide failed to meet the requirements of Daubert.  Specifically, it claimed that while Dr. Bhide may be an expert in the broad area of neuroscience or brain development, this was not a substitute for expertise in the area of adolescent brain development. The NRA argued that even if Dr. Bhide had academic credentials in neuroscience and taught in that area, it did not demonstrate that he was competent to give an expert opinion in every area of neuroscience.

The NRA argued that Dr. Bhide was not qualified to give the opinion that 18-to-20-year-olds were more likely to commit crimes with purchased firearms because he had not personally studied human brain development. iWhen questioned whether he had published any peer-reviewed articles that distinguished between the development of a teenage brain and an adult brain, Dr. Bhide responded that he had not written articles about the human brain, he had only written about mouse brain development.

The NRA also argued that Dr. Bhide should be excluded as an expert because his opinions were not based on any reliable methodology. Dr. Bhide’s opinion was not based on his own research, his opinion was based upon the research of others that did not relate to the risk of firearm purchase by 18-to-20-year-olds.

The motion in limine is currently under advisement in the United States District Court for the Northern District of Florida.

 

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

Eighth Circuit Discusses Whether an Expert Considered “Sufficient Facts” to Support a Conclusion

Joseph and Cindy Hirchak sued W.W. Grainger, Inc. and its subsidiary for selling and failing to warn about an allegedly defective product. They based their claim that Grainger sold the product on the opinion of an expert witness. A federal judge in Des Moines ruled that the expert’s testimony was inadmissible and granted summary judgment to Grainger. The Court of Appeals for the Eighth Circuit affirmed that decision.

Facts of the Case

Grainger distributes industrial equipment, including web slings. A web sling consists of straps or webbing. The webbing is typically made from polyester or a similar synthetic material. Web slings are wrapped around heavy objects and attached to a lifting device (such as a crane). The sling supports the objects as they are being lifted.

Joseph Hirchak was employed by Weiler Inc. Hirchak was working at Weiler’s plant when a web sling broke. The sling had been holding a load of steel tubing. The tubing fell on Hirchak, causing injuries.

While workers’ compensation is generally an exclusive remedy against an employer, an injured employee can bring injury claims against third parties if their negligence contributed to a work injury. Hirchak’s suit against Grainger alleged that Grainger supplied a defective web sling to Weiler and failed to warn Weiler about the defect.

Grainger distributes a variety of slings, including slings made by Juli Sling Company. Juli is a Chinese company. Hirchak alleged that the Grainger sold the defective Juli sling to Weiler. Grainger admitted that Weiler has an account with Grainger but denied that it supplied the defective sling to Grainger.

Grainger relied on its sales records and on the absence of Weiler purchase records evidencing sling purchases from Weiler. Grainger also argued that the Juli slings it distributes have sewn-in tags that the defective sling lacked. According to Grainger, those tags are sewn in by Juli. Grainger therefore contended that the defective sling was not a Juli sling.

Expert Evidence

To prove that Grainger supplied the defective sling, Hirchak relied on an expert opinion. Hirchak’s expert identified similarities between the defective sling and slings manufactured by Juli and distributed by Grainger. The expert based that comparison on two Juli slings that Grainger distributed, including a sling purchased from Grainger for the purpose of comparison and one furnished by Weiler. How Weiler determined that the sling was acquired from Grainger was unclear to the appellate court.

Grainger challenged the expert report. Grainger argued that virtually all web slings distributed in the United States share the similarities that the expert identified, regardless of their manufacturer. Grainger also argued that the expert failed to establish that it distributed the defective sling.

District Court Opinion

The district court decided that the expert’s opinion was not based on sufficient facts. Assuming that the points of comparison were sufficient to identify the defective sling as a Juli sling, that identification did not prove that Grainger distributed the sling. Weiler could have acquired it from any of Grainger’s competitors.

After excluding the expert opinion, the district court asked whether the remaining evidence established that Grainger distributed the defective sling. Finding none, it granted summary judgment in Grainer’s favor.

Appellate Opinion

The Eighth Circuit noted that experts must base opinions on sufficient facts to assist the jury in deciding factual disputes. When are facts “sufficient”? One measure of sufficiency is whether the facts both support the expert’s opinion and allow the expert to exclude other possibilities.

The court recognized that it isn’t necessary to rule out every possible alternative conclusion. It is, however, necessary to consider enough facts to account for obvious alternatives. The failure to rule out obvious alternatives suggests that the expert either failed to consider sufficient facts or failed to explain why the expert’s reasoning makes the expert’s conclusion more sound than alternative conclusions.

The court decided that the expert failed to consider sufficient facts to rule out the conclusion that a different distributor supplied the defective sling to Weiler. The expert’s focus was on facts tending to show that Juli manufactured the sling. The expert considered only a few facts to prove that Weiler obtained the sling from Grainger.

The expert compared the defective sling to two Juli-manufactured slings that came from Grainger. That comparison supported a conclusion that Grainger sells slings that are similar to the defective sling. Since other distributors also sell Juli-manufactured slings, the facts upon which the expert relied were not sufficient to rule out the alternative conclusion that a different distributor supplied the sling to Weiler.

Hirchak argued that, since Weiler had a Grainger-distributed Juli sling in its plant, it is reasonable to infer that Weiler acquired the defective sling from Grainger. Oddly, the court of appeals held that the expert could not draw that inference because only the jury could do so. Yet by granting summary judgment, the court deprived the jury of the opportunity to draw the inference.

A better analysis might focus on whether the inference is sufficiently reasonable that it would support a jury verdict in Hirchak’s favor. The fact that Weiler had one Juli-sling that was distributed by Grainger does not imply that all of its other slings came from Grainger.

While an expert may well have been able to identify the manufacturer of the defective sling, identifying its distributor was probably beyond the realm of expert testimony. Purchases and sales are typically proved by purchase records or the testimony of sellers or buyers. In the absence of that evidence, Hirchak had little hope of proving his case through expert testimony.

 

Court

Court Relies on Expert Witnesses in Affirming Dismissal of Challenge to Harvard Affirmative Action Policy

The controversy surrounding university admissions policies that consider race has been fueled by lawsuits alleging that the policies discriminate against Asians. In a recent appellate victory for Harvard, the court considered competing expert witness testimony in ruling that Harvard’s admissions policy did not violate the law.

Students for Fair Admissions (SFFA) sued Harvard University, alleging that its admissions policies discriminated against Asian Americans. The SFFA has initiated similar suits against the University of Texas at Austin and the University of North Carolina as part of a national litigation strategy to overturn U.S. Supreme Court rulings that permit a very limited form of affirmative action to promote racial diversity in student populations.

Harvard Admissions

Harvard selects about 1,600 students each year from a pool of about 35,000 applicants. Since it cannot give a position to each applicant who is likely to achieve academic success, academic excellence is only one of several factors that guide its admissions decisions.

Harvard recruits students who have good grades and high college admission test scores without regard to their race. To expand its applicant pool, Harvard also recruits minority students who did not do as well on standardized tests. Whether Harvard recruited a student, however, is not a factor that Harvard considers when it makes admission decisions.

Applications provide Harvard with a wealth of information, including the applicant’s standardized test scores, transcripts, extracurricular and athletic activities, awards, teacher and guidance counselor recommendations, intended field of study, a personal statement, and other information an applicant would like Harvard to consider. Applicants can reveal their race but are not required to do so.

Consideration of Race in Admissions Decisions

Admissions officers give applications a numerical rating in various categories of achievement: academic success, extracurricular pursuits, athletic pursuits, school support (as measured by the strength of teacher and guidance counselor recommendations), and a personal rating that considers the positive effect the student might have on the Harvard community. The personal rating considers the applicant’s perceived leadership, maturity, integrity, personality, ability to overcome setbacks, concern for others, and whether the applicant is “a good person to be around.”

Experiences pertaining to race, such as an applicant’s struggle to overcome discrimination, might inform the personal rating. However, race does not play a direct role in the personal rating and Harvard instructs admissions officers not to consider the race of applicants when assigning a personal rating.

Finally, admissions officers assign an overall rating. They can consider “tip factors” when assigning an overall rating. Tip factors include legacy status and athletic ability. About 30{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of Harvard’s students are legacy applicants, the children of donors, the children of faculty members, or recruited athletes. Applicants in those categories have a significantly higher chance of being admitted than applicants outside of those categories.

Other tip factors include race and ethnicity, geographical location, and economic background. Apart from legacy status (which often rewards alumni who contribute to the school) and recruited athletes, one goal of tips is to achieve a racially, ethnically, geographically, and economically diverse student body. Harvard also considers an applicant’s intended field of study to assure adequate student interest in the classes that it offers.

Expert Testimony

A good bit of the trial addressed the legal validity of Harvard’s policy of promoting racial diversity in its student body. Supreme Court precedent prohibits racial quotas or “racial balancing” in admissions. It also prohibits race from being a mechanical factor that gives applicants a decisive advantage. Precedent nevertheless allows schools to consider race as one of many factors for the purpose of promoting diversity, which the Court recognizes as a compelling educational interest. However, race can only be considered if no race-neutral alternative is available that would achieve the same diverse student body.

The trial and appellate courts were persuaded by expert testimony that race was not a decisive factor in Harvard admissions. Even SFFA’s expert witness admitted that Harvard rejects most Hispanic applicants, and almost half of African American applicants, who are “among the top 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} most academically promising applicants to Harvard in terms of standardized test scores and GPA.” Harvard’s admissions process is so competitive that it admits only highly qualified students, regardless of race.

The expert evidence did not suggest that Asians who were rejected were any more likely to succeed at Harvard than black and Hispanic applicants who were accepted. In fact, the evidence established that ancestry enhanced the opportunity of some Asian applicants to be accepted.

The district court rejected SFFA’s racial balancing claim. It determined that Harvard treats every applicant as an individual and that every applicant competes for every seat. The court of appeals accepted that finding after noting that SFFA presented no expert evidence to support its claim that Harvard denies the applications of Asian American applicants in order to promote admissions of non-Asian applicants.

A statistical analysis presented by Harvard’s expert witnesses established that “the share of Asian American applicants admitted to Harvard has increased roughly five-fold since 1980 and roughly two-fold since 1990.” Expert analysis also demonstrated that the annual admission of Asian applicants varies more than the number of applications submitted by Asians, a finding that undercuts the claim that Harvard engaged in racial balancing.

Expert testimony established that the elimination of race as a factor in Harvard’s admissions policy would reduce the African American share of Harvard’s student body from 14{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 6{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} and would reduce the Hispanic share from 14{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 9{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. Experts examined race-neutral alternatives proposed by SFFA, such as strengthening recruiting and financial aid, eliminating standardized testing, and eliminating tip factors. The expert witnesses concluded that none of those alternatives were viable means of assuring racial diversity.

Discriminatory Intent

The SFFA relied on the expert testimony of Peter Arcidiacono, an economics professor at Duke University, in its effort to prove that Harvard intentionally discriminated against Asians. Harvard countered with the expert testimony of David Card, an economics professor at UC-Berkeley. Both experts relied on statistical models that used regression analysis to explain how one variable (race) affected admissions while controlling for all other variables (such as grades and test scores).

The models suggested that Asian applicants tended to receive better scores than other applicants based on academic criteria but slightly worse scores based on personal factors. While the personal rating was correlated with race, the court of appeals agreed with the district court that correlation does not prove causation. In other words, the expert evidence did not establish that race influences the personal rating. The court regarded the statistical evidence of intentional discrimination as inconclusive and therefore held that SFFA failed to prove that Harvard violated the law by intentionally discriminating against Asian applicants.

 

Prison, Barbed Wire

Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction

A Mississippi woman who pleaded guilty in 2007 to shaking an infant to death will be allowed a hearing to argue that her life sentence should be overturned.

The Infant’s Death

On July 18, 2005, Amy Wilkerson was 29-years-old when she was caring for an 8-week infant child, Tristan Chinn.  At 2 pm on that day, Wilderson called 911 and told the authorities that Tristan had stopped breathing.

Investigators questioned Wilkerson after the boy’s injuries turned out to be consistent with those of other victims of shaken baby syndrome. Court records showed that “Wilkerson gave several conflicting accounts of the events surrounding Tristan’s death. At the hospital, Wilkerson told Tristan’s mother that Tristan had been injured while riding in the car. Wilkerson later told police detectives that Tristan’s injury occurred when he fell from the couch and hit his head. Wilkerson eventually confessed that her ‘couch story’ was false and that she had shaken Tristan to death.”

The Legal System

Wilkerson was indicted for capital murder. Wilkerson initially pled not guilty, but later entered a guilty plea for depraved-heart murder. Following her guilty plea, Wilkerson was sentenced to life in prison, with eligibility for parole after 30 years.

Three years later, Wilkerson filed a motion for post-conviction relief, arguing that her trial attorneys were ineffective. The circuit court denied her claim. Wilkerson appealed the dismissal of her motion, arguing that her guilty plea was involuntary and that her trial attorney was ineffective. The Court of Appeals of Mississippi affirmed the lower court’s decision.

The Innocence Project

Wilkerson brought her case to the Innocence Project. The Mississippi Innocence Project and the Wisconsin Innocence Project took her case.

With the help of her Innocence Project lawyers, Wilkerson argues that new evidence has arisen since the date of her trial. New scientific evidence has increasingly discredited shaken baby syndrome as a cause of death and an expert who had originally consulted on her case has been discredited.

Wilkerson’s original defense attorneys had consulted with pathologist Dr. Steven Hayne before trial. Dr. Hayne had opined that the cause of death was shaken baby syndrome. Dr. Hayne has since been discredited. In 2008, the Mississippi public safety commissioner removed Hayne from the state’s list of authorized medical examiners.

Four medical experts on Wilkerson’s legal team, two forensic pathologists, a pediatric neuropathologist, and a neuroradiologist, reviewed the records and believe that Tristan likely died from a stroke. Defense expert forensic pathologist Janice Ophoven wrote, “Tristan’s brain reflects a longstanding pathology that eventually led to collapse while in Ms. Wilkerson’s care, for reasons having nothing to do with intentional trauma.”

Wilkerson’s defense team presented this new evidence to the court. In 2018, Circuit Court Judge Dale Harkey denied Wilkerson a hearing. However, the Mississippi Court of Appeals reversed Judge Harkey’s ruling and decided to allow an evidentiary hearing in Wilkerson’s case.

At this hearing, Wilkerson will be allowed to present expert testimony showing that the infant’s brain injury happened before the baby was placed in her care and that the brain bleeding may have begun at the time of the infant’s birth.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Court Reinstates Sexual Assault Conviction After Dismissing Expert Witness Objections

The Texas Court of Criminal Appeals has reinstated the sexual assault conviction of former Baylor University football player Sam Ukwuachu after dismissing claims that defense witnesses had been improperly impeached by false evidence.

The Crime

In October 2013, a female Baylor University student-athlete alleged that Sam Ukwuachu raped her at his Waco apartment. The victim alleged that Ukwuachu took her to his apartment following a homecoming party and forced himself on her. The following day, she went to the hospital and had a rape examination. Her injuries were consistent with sexual assault.

In June 2014, Ukwuachu was indicted on two felony charges. Following a trial, he was convicted of one count of sexual assault. In 2015, Ukwuachu was sentenced to ten years of felony probation, 180 days in county jail, and 400 hours of community service.

First Appeal

Ukwuachu appealed his case. Waco’s 10th District Court of Appeals overturned his conviction because the trial court had not allowed in some text messages that could have shown that the sex was consensual. However, the Texas Court of Criminal Appeals reversed the lower appeals court and reinstated the conviction. The ruling allowed Ukwuachu to continue to appeal his case, but not on the text messaging issue.

Second Appeal

Ukwuachu appealed his conviction a second time. This time, his lawyers argued that prosecutors had improperly used cell phone record evidence to impeach two defense witnesses, which was a violation of Ukwuachu’s due process rights.

At trial, prosecutors had presented cell phone records with time and data location that showed that Ukwuachu’s roommate was across town at the time of the alleged assault, rather than in their apartment. Because the phone records were shown in UTC (Coordinated Universal Time), which was five hours different from local time, Ukwuachu claimed that the records could not show that his roommate’s testimony was not true. The trial court did not allow the admission of the phone records but allowed prosecutors to ask questions about making phone calls.

At a motion for a new trial hearing, Ukwuachu presented an affidavit from an expert in computer forensics that opined “that it was impossible to accurately verify location data solely from the records without additional review by an expert, that the latitude and longitude given on this type phone records was rarely precisely accurate, and that it would take many hours for an expert to accurately provide the location of where an individual was when a call was made.”

Waco’s 10th Court of Appeals agreed with Ukwuachu’s arguments and reversed his conviction.

The Texas Court of Criminal Appeals reversed the decision of the lower court. The court ruled, “The phone records at issue were never admitted into evidence nor made part of the record. Further, no expert testimony was introduced to establish that the state misled the jury regarding any particular information shown in the records. Without these phone records or such expert testimony, Appellant cannot prove that the state actually elicited witness testimony that conflicted with the substance of those records.”

The court remanded the case to Waco’s 10th Court of Appeals for consideration of the remaining appeal issues.

 

Expert Witness

Expert Testimony on Branding Disallowed in Copyright Infringement Case

A company called Afropunk produces music festivals. It paid photographer Mamba Bayoh $1,200 for photographs. According to Bayoh, the photographs were to be used on Afropunk’s website and Instagram account to promote a festival in Brooklyn. Bayoh complained that Afropunk improperly used the photographs in other marketing materials.

After selling the photographs, Bayoh registered the photographs with the Copyright Office. Bayoh then sued Afropunk for copyright infringement. The belated registration prevented Bayoh from seeking statutory damages.

To prove actual damages from the copyright violation, Bayoh relied on two expert witnesses. Afropunk filed a motion to exclude the testimony of Bayoh’s experts. After applying a Daubert analysis, the court granted the motion.

Brand Consultant Expert Testimony

Robert Wallace is a brand consultant. He believed Bayoh’s photographs were “distinctive” and “compelling.” Wallace compared the photographs that Afropunk used before it acquired Bayoh’s photographs and concluded that the earlier photographs were less effective in branding the company. Wallace also concluded that the Bayoh photographs influenced the look of the photographs that Afropunk used subsequently.

Wallace concluded that Bayoh’s photography style is “highly unique, recognizable” and protectable intellectual property. He opined that Afropunk’s brand success was attributable in part to its use of Bayoh’s photographs and to the influence of those photographs on its marketing designs.

To validate his opinions, Wallace surveyed individuals who had purchased tickets for and attended recent African American cultural events. He showed Bayoh’s photographs to half of the survey participants and showed photographs that Afropunk used in marketing prior to acquiring Bayoh’s photographs to the other half.

While 86{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of survey participants said that Bayoh’s photographs made them more likely to attend an Afropunk event based exclusively on the imagery, only 74{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} said that non-Bayoh photographs made them more likely to attend. Participants who saw the Bayoh photographs were also more likely to attend other Afropunk events and to purchase related merchandise.

Infringement Valuation Expert Testimony

Weston Anson chairs a firm that values and monetizes trademarks and copyrights. Anson calculated a figure he assumed to the Afropunk’s profits over a four-year period. Although Afropunk claimed a loss in three of the four years, Anson subtracted an operating expense category from total expenses that he assumed would represent salaries paid.

After deciding that the industry-wide licensing rate for intellectual property is about 6{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}, Anson calculated a “brand value” attributable to the photographs for each year. He concluded that Afropunk’s brand value increased by about $4 million from 2015 to 2018.

Daubert Analysis

The court concluded that Wallace could not testify about Afropunk’s alleged intent to infringe Bayoh’s copyright. Wallace has no expertise in discerning intent. Nor could he express the conclusion that Afropunk actually violated Bayoh’s intellectual property rights. That was a question for the jury to decide.

The court also excluded Wallace’s opinion that Bayoh’s photographs contributed to the success of Afropunk’s brand. The court faulted Wallace for not studying “the extent to which Bayoh’s photographs were used in marketing a particular Afropunk festival or the extent to which those photographs contributed to the revenues of that festival (as opposed to other marketing materials or the popularity of the festival performers).”

The court concluded that Wallace’s survey did not provide evidence that was relevant to the infringement claim. The fact that survey participants were more engaged by Bayoh’s photographs than other photographs did not prove that the alleged infringement caused an actual loss to Bayoh. Wallace’s analysis would require the jury to speculate on the impact Bayoh’s photographs might have had on Afropunk’s revenues.

The court decided that Anson’s testimony did not close that analytical gap. Anson’s opinions did not provide a causal link between Afropunk’s revenue and the alleged infringement. In the absence of evidence that Afropunk’s revenue increase was caused by Bayoh’s photographs rather than other factors, Anson’s calculation of increased revenues was not relevant. Neither Anson or Wallace employed a methodology to established that “brand value” accounted for the revenue increase.

Finally, the correct measure of actual damages for a copyright infringement is the fair market value of a license covering an infringing use of the copyrighted works. Bayoh offered no evidence of the fair market value of a license for his photographs. Wallace’s analysis focused on brand value rather than the fair market value of a license.

Since neither Wallace nor Anson used a methodology that created relevant evidence, the court excluded the testimony of both expert witnesses. Although Bayoh cannot prove damages, he has argued that he is still entitled to an injunction prohibiting Afropunk from using his photographs in the future.

Timesheet

Court Rules Expert Testimony Not Needed in a Don and Doff Overtime Claim

Rodney Tygar brought an unpaid overtime claim against Precision Drilling Corp. and related companies. Tygar contended that his employer failed to pay workers employed as rig hands for the time they spent putting on personal protective equipment (PPE) prior to their shift and removing it after the shift ended.

Tygar presented expert testimony in support of the overtime claim. The district court excluded the testimony and granted summary judgment to Precision. The Court of Appeals for the Third Circuit reversed after concluding that expert testimony was not needed to prove the claim.

Facts of the Case

Tygar was employed as a rig hand to work on oil and gas rigs. Pursuant to company policies and in compliance with federal regulations, Tygar was required to wear PPE during his work shifts.

The PPE included flame-retardant overalls, steel-toed boots, gloves, goggles, earplugs, and hardhats. The PPE is necessary because it protects against common hazards that rig hands face, including chemical exposures, falling objects, slippery surfaces, and electrical shock.

Rig hands are covered with chemicals at the end of their shifts, some of which are caustic. It was undisputed that the overalls and other PPE reduced the risk that workers would be harmed by exposure to those chemicals.

It takes time to don (put on) and doff (remove) PPE. Precision required its rig hands to don the PPE before clocking in for a shift and to remove the PPE after clocking out. That policy prevented rig hands from being compensated for their donning and doffing time.

If Tygar had been “on the clock” while donning and doffing, Precision would have owed him overtime. Believing that the Fair Labor Standards Act (FLSA) required Precision to compensate rig hands for their donning and doffing, Tygar brought a collective action for unpaid overtime on his own behalf and on behalf of rig hands who were subject to the same compensation policy.

Summary Judgment

The FLSA requires employers to include donning and doffing in an employee’s compensable “hours worked” if wearing the equipment is “integral and indispensable” to their principle job duties. Since federal regulations require employers to provide PPE to employees who are exposed to chemical irritants and hazards, it should seem obvious that donning PPE is an integral and indispensable part of working safely as a rig hand.

The trial judge, however, decided that the “integral and indispensable” question could only be resolved by expert evidence. The court was apparently not certain that caustic chemicals are actually harmful.

Tygar proffered an expert report prepared by Ronald Bishop, an expert in chemical hygiene. Bishop’s report discussed “the health risks associated with exposure to certain hazardous materials on the rigs, in addition to the benefits of wearing PPE.”

In particular, Bishop offered four opinions. First, Precision’s rig hands come into contact with chemicals and substances that are hazardous. Second, PPE protects workers from those substances. Third, PPE becomes coated with hazardous substances as rig hands work. Fourth, it would be unsafe to leave the worksite before removing soiled PPE.

The court denied summary judgment motions filed by both parties after concluding that whether wearing PPE is integral and indispensable to the duties of a rig hand was a disputed factual question. Precision then filed a Daubert motion challenging Bishop’s methodology.

The trial court granted the Daubert motion, excluded Bishop’s testimony, and invited Precision to renew its summary judgment motion. After deciding that whether PPE is integral and indispensable to the job of a rig hand can only be determined on the basis of expert testimony, the court granted summary judgment to Precision because no admissible expert testimony could establish that fact.

Daubert Analysis

The Third Circuit described Daubert as requiring an analysis of qualifications, reliability, and fit. The “overriding consideration” is whether the expert evidence will assist the judge or jury in deciding the facts.

The appellate court did not question Bishop’s qualifications or the relevance (“fit”) of his opinions to determining whether donning and doffing PPE is an integral and indispensable part of a rig hand’s duties. Rather, the court affirmed the district court’s decision that Bishop’s methodology was unreliable.

The district court concluded that Bishop had insufficient factual support for his opinion that it was important for rig hands to don and doff their PPE on site. According to the court, Bishop lacked quantitative data about the amount of chemical exposure that would be hazardous.

Why that data is necessary to Bishop’s opinion is unclear. The amount of exposure is likely to change from day to day and worker to worker, depending on the hazardous substances with which they happen to be splattered on a given shift. The court did not dispute that the chemicals are hazardous or that PPE protects workers. Just how hazardous the chemicals might be at any given moment is not a fact with obvious relevance to Bishop’s opinion. Still, in a rather cursory analysis, the Third Circuit decided that the district court did not abuse its discretion in excluding Bishop’s testimony.

Need for Expert Testimony

After satisfying itself that Bishop’s expert testimony was inadmissible, the court decided that it was also unnecessary. A work activity is indispensable if an employee must engage in that activity to perform his or her job. Wearing PPE is a job requirement, so rig hands were not allowed to work if they did not first put on their PPE.

The district court steered an incorrect course when it based summary judgment on the failure to prove the degree of toxicity of the chemicals to which rig hands are exposed. The relevant question is whether rig hands could dispense with PPE and still perform their jobs. Tygar presented lay evidence that it would be impossible to perform the work of a rig hand without donning and doffing PPE. The FLSA does not require donning and doffing evidence to be presented in the form of expert testimony.

Since expert testimony was unnecessary, the Third Circuit reversed the district court’s summary judgment decision. The appellate court left it to the district court to decide whether the lay evidence creates a jury issue as to whether donning and doffing PPE is indispensable to the work of a rig hand.

 

a doctor and a child

Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions

A growing number of experts are challenging the existence and symptoms of Shaken Baby Syndrome/Abusive Head Trauma — a medical diagnosis that has sent many people to prison over the years.  This is leading to a rise in appeals and overturned convictions.

The Science

In the early 1970s, pediatric neurosurgeon A. Norman Guthkelch first hypothesized Shaken Baby Syndrome/Abusive Head Trauma as a way to explain infants who had bleeding on the brain but showed no external signs of trauma.

Throughout the 1970s and 1980s, pediatricians published numerous studies on Shaken Baby Syndrome, finding that it could be diagnosed through three distinct symptoms: subdural or subarachnoid hemorrhages (bleeding on the brain), cerebral edema (brain swelling), and retinal hemorrhaging (bleeding in the eye). By the mid to late 1990s, Shaken Baby Syndrome was a widely accepted medical diagnosis.

Pediatricians and researchers hypothesized that caregivers would become frustrated with a baby’s crying, then pick up the child and shake him or her back and forth.  This motion would cause the brain and retina to bleed, brain swelling, and then death.

The American Academy of Pediatrics has released numerous consensus statements on Shaken Baby Syndrome/Abusive Head Trauma over the years. It advised, “While physical abuse has in the past been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support a medical presumption of child abuse when a child younger than 1 year of age has intracranial injury.” It has also advised that short falls are incapable of producing the same symptoms.

Dr. Michael Baxter, a Tulsa child abuse pediatrician, assistant professor of pediatrics at University of Oklahoma in School of Community Medicine in Tulsa and medical director of the Children’s Advocacy Center, has said that, “There’s been multiple consensus statements done — Abusive Head Trauma is an accepted medical diagnosis.”  On average, Dr. Baxter sees between six and eight cases of Abusive Head Trauma per year and two to three cases involving a death.

Questions Regarding Legitimacy

However, a growing number of experts has begun to question the legitimacy of Shaken Baby Syndrome/Abusive Head Trauma diagnosis.  These experts have offered other explanations to explain the symptoms that were previously found to be only attributable to Shaken Baby Syndrome/Abusive Head Trauma.

Dr. John Plunkett, a forensic pathologist who initially supported the theory, published a paper showing that retinal hemorrhaging was present in four out of six children whose eyes were examined after people witnessed them suffering short falls.

As opposition to the Shaken Baby Syndrome/Abusive Head Trauma diagnosis rises, so does the number of appeals for those who have been convicted of this offense.

Andrea Miller, legal director of the Oklahoma Innocence Project, has said that child abuse pediatricians who testify in Shaken Baby cases often make claims for which there is no scientific backing. She said, “You often hear in the prosecution of these cases that a head injury like this could only be caused in a car accident going 70 miles per hour or a drop from a 20-story building — all of which is unprovable because you can’t subject a 2-month-old to any of those circumstances.”

In recent years, the Oklahoma Innocence Project has taken up multiple shaken baby case appeals.  There have been several recent shaken baby cases nationwide that have been overturned on appeal, including at least five cases in Oklahoma and one death penalty case in Texas.