Category Archives: ExpertWitness

Lipitor, drugs, white pills

Fourth Circuit Upholds Exclusion of Expert Testimony in Lipitor Trial

The Fourth Circuit has upheld a lower court’s ruling that excluded expert testimony in a multidistrict litigation claiming that Lipitor causes Type 2 diabetes.

Lipitor Multidistrict Litigation

Lipitor is a cholesterol drug manufactured by Pfizer.  More than 3,000 women sued Pfizer, claiming that they developed diabetes as a result of taking Lipitor.  The women claimed that Pfizer was negligent in its design and promotion of Lipitor and that it failed to warn against Lipitor’s known risks.

The lawsuits were transferred to the district of South Carolina for consolidated proceedings and four plaintiffs were chosen to serve as bellwether cases.  The plaintiffs retained general causation experts to testify about the causal association between Lipitor and diabetes and specific causation experts to testify that Lipitor proximately caused the onset of diabetes for each of the bellwether patients.  The plaintiffs also retained an expert biostatistician to testify that taking Lipitor led to a statistically increased risk in diabetes.

Exclusion of Experts

Pfizer moved to exclude the plaintiffs’ expert witnesses under Daubert and Federal Rule of Evidence 702.  Following hearings and an opportunity for the experts to amend their reports, the lower court excluded testimony from three experts.  The court’s rulings left plaintiffs without their bellwether cases and limited them to a small subset of patients who had taken an 80 mg dose. The district court issued show cause orders asking any plaintiff to submit evidence that would enable her to survive summary judgment.  When no plaintiff was able to provide sufficient evidence, the district court granted summary judgment against all plaintiffs.

The plaintiffs appealed the lower court’s decision.  A panel from the Fourth Circuit Court of Appeals reviewed the district court’s decision and found that the lower court did not abuse its discretion.

The district court ruled that statistician Dr. Nicholas Jewell’s methodology was too tainted with potential bias and error.  The district court decided that Jewell was not qualified to make determinations about what data should have alerted Pfizer to a possible link between Lipitor and Type 2 diabetes.  The district court took issue with Jewell’s choice to include in his report only the test results that supported the plaintiffs.  The panel wrote, “The district court concluded (we think reasonably) that such an approach lacked the hallmark of science properly performed.”

The district court also excluded the testimony of Dr. Sonal Singh.  Singh testified about the association between various dosages of Lipitor and diabetes.  The district court found that Singh didn’t reliably apply the Bradford Hill criteria for causation to the data to determine if using Lipitor caused an increased risk in diabetes.  The panel agreed with the district court, “where, as here, each plaintiff took one of only several commercially available doses, clinical data exist that enable an expert to perform a causation analysis at each dose, and experts (including plaintiffs’ own) acknowledge that there is some relationship between dosage and harm, the district court doesn’t abuse its discretion in asking the expert to produce a dose-by-dose analysis.”

The district court also excluded the testimony of Dr. Elizabeth Murphy.  Murphy testified in a bellwether case that Lipitor specifically caused the patient’s diabetes.  The district court found that Dr. Murphy had dismissed other possible causes of the patient’s diabetes in a “cursory” fashion.  The panel concluded that the district court acted within its discretion in excluding Dr. Murphy’s testimony.

Medical Examiner, Pathologist

Medical Examiners Must Testify When Autopsy Reports Used in Murder Cases in Pennsylvania

The Pennsylvania Supreme Court has ruled that when autopsy reports are used to substantiate cause of death in murder cases, the medical examiner who wrote that report must testify in court.

The Shooting

In December 2012, Darnell Brown attended a party in Philadelphia after hiding a revolver in a nearby parked car. At the party, Brown got into an argument with Cory Morton. Brown’s friend, Marcus Stokes, retrieved the gun and gave it to Brown, who shot Morton four times.

Dr. Marlon Osbourne of the Philadelphia Medical Examiner’s Office performed an autopsy on Morton and prepared a report of his findings. The autopsy report detailed four gunshot wounds that struck the victim’s ribs, heart, left lung and left shoulder. The report noted that three bullets entered the front of the victim’s body and one entered his back. The report concluded that the cause of death was multiple gunshot wounds and that the manner of death was homicide.

Case History

When Brown’s case went to trial, Dr. Osbourne was no longer employed by the Medical Examiner’s Office and he was not called as a witness. His autopsy report was entered into evidence. The Commonwealth called a different medical examiner who had not been present at the autopsy to provide expert testimony based on portions of the autopsy report and photos.

Defense counsel objected to the admission of the autopsy report and medical examiner’s testimony, arguing that the report was testimonial evidence and its admission violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. The trial court overruled the objection and Brown was convicted of third-degree murder and related offenses. Brown was sentenced to 25 to 50 years in prison.

Brown appealed, arguing that it was an error to let another medical examiner testify about the cause and manner of the victim’s death based on Dr. Osbourne’s autopsy report.

Commonwealth v. Brown

The Pennsylvania Supreme Court agreed with Brown that the autopsy report was testimonial. In the majority opinion, Justice Kevin Dougherty wrote that “the law requires the coroner or medical examiner charged with conducting and reporting the results of such autopsies to consult and advise the local district attorney to the extent practicable. . . . Accordingly, we determine the primary purpose for preparation of an autopsy report under these circumstances is to establish or prove past events potentially relevant to a later criminal prosecution and that any person creating the report would reasonably believe it would be available for use at a later criminal trial. Thus, we conclude the autopsy report in this case was testimonial.”

However, the court ruled that Osbourne’s absence was harmless. The majority explained that the report was inadmissible and that the medical examiner who testified based his testimony on other factors. “Here Dr. Chu formed an independent conclusion and testified to that conclusion based on his own review of both the otherwise inadmissible facts and data contained in the report and the data provided by the autopsy photographs. . . . Because Dr. Chu properly formed an independent opinion, and was available to be cross-examined regarding the basis of that opinion, we conclude there was no confrontation clause violation with respect to his opinion regarding the cause of death. Additionally, Dr. Chu’s testimony was sufficient to satisfy the commonwealth’s evidentiary burden regarding the victim’s cause of death.”

Tax Returns

Tax Court Rejects Expert Report as Unsupported by Data

In a recent decision, the U.S. Tax Court rejected a taxpayer’s attempt to use an expert witness to prove that the taxpayer’s computation of tax liability was proper. While an expert witness might play a role in tax litigation, the Tax Court ruled that an expert report, standing alone, cannot satisfy the taxpayer’s burden of proving that deductions were improperly disallowed by IRS auditors.

Facts of the Case

The IRS decided that certain taxpayers who owned shares of Total Health Concepts, LLC (“THC”) miscalculated their tax liability. THC is a Colorado company that sells medical marijuana. It elected to be treated as an S corporation, meaning profits and losses would be passed through to shareholders for tax reporting purposes.

THC reported business losses for tax years 2009 to 2011. The company calculated its income by subtracting cost of goods sold from receipts. It then claimed “below the line” deductions for wages, rent, depreciation, and other costs of doing business. The taxpayers then claimed THC’s pass-through losses on their individual income tax returns.

The IRS audited THC’s return and reclassified many of the claimed business expenses as “cost of goods sold.” It disallowed THC’s remaining “below the line” deductions. The adjustments increased THC’s taxable income and thus increased the taxable income of the taxpayers, who challenged the IRS determinations in Tax Court.

Expert Witness

When the IRS decides that a taxpayer has a greater tax liability than is reported on a tax return, it is the taxpayer’s burden to prove that the IRS is wrong. Taxpayers must usually meet that burden by producing records that substantiate the amounts and purpose of deductions that the IRS disallowed.

Instead of producing business records to substantiate THC’s deductions, the taxpayers submitted into evidence an expert report. The report was written by Jim Marty, a C.P.A. with expertise in cost accounting within the marijuana industry. The report discussed how THC should compute costs of goods sold and opined that its “below the line” deductions were proper.

The IRS moved to exclude the expert report. The IRS argued that the report consisted of legal opinions that usurped the role of the Tax Court judge. The IRS also argued that the taxpayers were not entitled to rely on an expert report as a substitute for business records that they failed to produce.

Tax Court Ruling

The Tax Court applied the federal Daubert standard to determine whether the report was admissible. It concluded that the report was “brief and summary” and that its content was unreliable. Some of its assertions of fact were unsupported by reference to any source of those facts. When the report did refer to a source, the source was not produced so that the accuracy of the assertions could be determined. In short, the report lacked “sufficient information or data” to support a conclusion that the opinions expressed were based on anything other than conjecture.

For example, the report made assumptions about the average wholesale purchase price of medical marijuana, but did not explain the basis for those assumptions. The report also assumed that the cost of goods sold equals 55% of gross sales, a figure that was apparently based on industry averages. The report also included “reconstructed” tax returns as exhibits that purported to show that THC had a higher cost of goods sold than the industry average in the relevant tax years. Supporting exhibits did not include any business records showing actual sales figures or any other supporting documentation.

The Tax Court noted that the expert report was not based on personal knowledge of the taxpayers’ business. The court held that a reconstructed tax return based on industry averages was not an adequate substitute for substantiation of actual business expenses.

Finally, the Tax Court agreed with the IRS that the report consisted primarily of the expert’s legal opinions as to the types of expenses that should be included in the cost of goods sold. The court held that legal conclusions are not a proper subject of expert testimony because the court, not the expert, determines the law. To be admissible, expert opinions must explain facts, not law.


Child Abuse Expert Testifies in Murder Trial

A child abuse expert has offered testimony in the trial of a California man who is charged with beating his 6-week-old daughter to death.

The Death

On November 12, 2012, emergency responders reported to a Visalia home for reports of a baby who was not breathing. The 6-week old baby girl was covered in bruises and had fractured ribs and legs. Peyton Rowe was rushed to Kaweah Delta Medical Center. The doctors said that Peyton had to be resuscitated by paramedics on her way to the hospital. Peyton died at the hospital less than an hour later.

Peyton’s parents were arrested in connection with her death. Peyton’s mother, Courtney Rowe, pleaded guilty to felony child abuse with an allegation of willful harm or injury causing death. Peyton’s father, 28-year-old Aaron Rowe, was charged with murder and proceeded to trial. Rowe faces the death penalty if convicted.

The Trial

At trial, Rowe’s defense attorneys argued that Peyton’s death was an accident. Rowe claims that he slipped while holding his daughter. The Tulare County Prosecutor Brenda Broker told the jurors, “The evidence will prove that Peyton was anything but daddy’s little girl. . . . Peyton throughout her short life had been continuously physically abused, ultimately tortured, and then intentionally murdered by her father who was a man with a propensity for violence.”

The prosecution called Dr. Frederic Bruhn to testify as an expert on child abuse. Dr. Bruhn has seen more than 1,000 children who suffered from some form of abuse. In preparation for his testimony, Bruhn reviewed Peyton’s X-rays and her autopsy report. Peyton’s autopsy revealed that she died from blunt force trauma to the head and her X-rays showed both fresh fractures and old breaks.

Dr. Bruhn testified about the injuries that doctors found on Peyton when she arrived at the hospital.  Bruhn labeled Peyton’s injuries “suspicious.” Bruhn said, “Her rib fractures led doctors at [Kaweah Delta Medical Center] to suspect abusive injuries.” Bruhn commented that the amount of fractures to Peyton’s ribs and back of rib cage are “rarely seen and highly correlates to abusive injuries in children. . . . The number [of fractured ribs] suggest abusive injury.”

Dr. Bruhn described bruising to Peyton’s cheek and ear as another “red flag.” Bruhn said, “Children as young as Peyton don’t do much. . . . If they don’t move they don’t bruise.” Bruhn said that facial bruises on children Peyton’s age are rarely accidental. Peyton’s left inner thigh was also bruised. According to Bruhn, the pattern of the bruises on Peyton’s body was consistent with fingers gripping.

Dr. Bruhn opined that Peyton suffered broken ribs as a result of shaking and squeezing around her chest and that the fractures to her leg and arm could not have been caused by a fall. He said, “You have the head injuries, you have the optic nerve injuries, you have the skeletal injuries, you have the bruising injuries. . . . Once you get to that amount of injuries, you can’t explain it all by one simple fall.”

The defense countered with medical experts who testified that Peyton may have suffered from a bone disease. They concluded that the evidence is consistent with Rowe’s statement that he fell with Peyton in his arms days, causing her death.


Expert Testifies That Selling Nuclear Plant Will Leave Public Liable

An expert in the field of environmental liability transfers has testified that the proposed sale of the Vermont Yankee nuclear plant will leave the public at risk for environmental liability.

The Proposed Sale

The Vermont Yankee nuclear power plant shut down in December, 2014. It had been active for 40 years. The plant’s current owner, Entergy, wants to sell the plant by the end of the year. The proposed sale is under review by the Federal Energy Regulatory Commission and Vermont Public Service Board.

NorthStar Decommissioning Holdings wants to buy the closed Vermont Yankee nuclear plant. Northstar claims that it can dismantle and decommission the plant much faster than the timetable that Entergy planned. NorthStar claims that it can decommission the site by 2030, which is decades earlier than planned by Entergy.

Numerous parties have expressed concern about the sale. State officials have said that the deal “raises numerous, thus-far-unanalyzed health, safety and environmental concerns.” The New England Coalition has argued that NorthStar is “pitching an untested method,” that it can’t guarantee a good outcome for the environment, and that it may run out of money before the work is done. Bill Irwin from the Vermont Department of Health has stated that, “There is a significant risk that, if approved, the sale of Vermont Yankee to NorthStar will lead to a shortfall in the amount of funding available to fully and safely decommission and radiologically decontaminate Vermont Yankee and manage its spent nuclear fuel. . . . This would place public health, safety and the environment at risk.”

The Hearing

The Public Utility Commission held a hearing on the proposed sale of the Vermont Yankee plant.

Under review is a recent settlement agreement between the state office that represents the ratepayers, Entergy, NorthStar, and several intervenors. The proposed settlement agreement provides that NorthStar will provide and additional $30 million plus payments totaling $25 million in escrow to pay for unanticipated costs. NorthStar also agreed to obtain a pollution liability policy with $30 million in coverage and a $140 million “support agreement” where NorthStar’s parent company will provide additional funds as needed. Entergy agreed to put an additional $60 million into a site restoration trust fund and an additional $40 million by 2023 if certain conditions are not met.

The Conservation Law Foundation has argued that sale of the plant could cause problems for taxpayers and the environment. The foundation brought Michael Hill to testify in support of its argument. Michael Hill is an attorney, insurance broker, and expert in the field of environmental liability transfers. Hill is critical of the proposed settlement package.

Hill testified that the additional insurance policy that the parties to the sale agreed to is insufficient to cover all of the potential liability issues involved. He said, “To present this to the commission, as something that should change its mind in terms of financial assurances, is in my opinion and speaking bluntly and under oath a terrible thing to do. . . . I think the commission would be very ill-advised to accept this as any sort of evidence of any sort of protection.”


Exclusion of Defense Expert Upheld in Case Involving Negligent Chemical Peel

A Florida plaintiff was awarded almost $815,000 after a chemical peel aggravated her rosacea. The spa employee who performed the peel admitted that she was negligent in failing to read the plaintiff’s disclosure of her medical condition.

The defendants contended that the chemical peel did not aggravate the rosacea. They sought to introduce expert testimony on the issue of causation, but the trial court excluded the testimony. The defendants appealed.

Facts of the Case

Johana Cinque went to Body & Soul Retreat in Coral Springs, Florida for a facial. Cinque suffered from rosacea, a chronic inflammatory skin condition. Cinque disclosed that condition on a form that the spa provided.

An aesthetician employed by Body & Soul, Gloria Sanchez, performed a chemical peel on Cinque’s face. Sanchez admitted that she administered the facial without reading the form that Cinque completed. If Sanchez had known Cinque had rosacea, she would have used a different product or tested it on her skin before performing the chemical peel.

While Cinque’s rosacea was mild before the chemical peel, manifesting as a rosy flushing of the cheeks, her face “became blistered, bruised, scabbed, and crusted, and it oozed” after the facial. Cinque testified that her face felt like it was burning during the procedure.

Prior to the chemical peel, Cinque’s face was smooth. Three years later, at the time of the trial, Cinque’s face was bumpy and easily turned red when exposed to the sun or temperature increases. Wearing the gear required for Cinque’s occupation as a firefighter paramedic also aggravates her rosacea. The bumps on her face form the same shape as the burn she experienced immediately after the chemical peel.

Plaintiff’s Expert Witnesses

Dr. Peter Wallach, a dermatologist, treated Cinque for rosacea before her chemical peel. She returned to him on the day following the chemical peel for burn treatment. He diagnosed irritant contact dermatitis that was caused by the chemical peel. He testified that Cinque’s rosacea was improving during his treatment but noted that her face was very red when he examined her. Dr. Wallach prescribed an antibiotic cream. During later visits, he prescribed medication to reduce the inflammation of her skin.

Dr. Quang Le, a dermatologist, treated Cinque after Dr. Wallach. His efforts to control her rosacea outbreaks were unavailing. He opined that the exacerbation of Cinque’s rosacea was caused by the chemical peel. He explained that damage to the top and mid-dermal layer of her skin changed her condition from one that was easily controlled to one that was difficult to control. He expected her to need a lifetime of treatment. He suggested that she explore laser treatment.

Cinque eventually stopped seeing Doctors Wallach and Le and stopped taking her medications. She testified that the medications were not working and she did not obtain further treatment from dermatologists because the treatment was ineffective.

Dr. Thomas Zaydon, a cosmetic surgeon, testified that the chemical peel had removed the skin’s protective barrier, permanently damaging Cinque’s face, producing scarring and aggravating her rosacea. He testified that a chemical peel should not be administered to a person with rosacea because it penetrates the skin’s protective barrier and worsens the inflammatory process.

Dr. Zaydon opined that Cinque suffered from a permanent injury to her skin and would suffer from periodic outbursts of rosacea. He testified that Cinque would never regain the appearance she had prior to the chemical peel and that she would need a lifetime of dermatological care.

Dr. Zaydon testified about various treatments that might benefit Cinque in the future, including laser treatments, stem cell treatment, and a deep tissue facioplasty. He also projected the cost of each treatment.

Defense Expert

The spa retained Dr. Evan Schlam, a dermatologist, to testify as an expert. He performed a 20-minute examination of Cinque. In his deposition, he testified that he observed mild rosacea during his examination and opined that the rosacea was not caused or permanently aggravated by the chemical peel.

Cinque was taking medication at the time of the examination. Dr. Schlam did not examine her when she was off her medication to determine whether the medication changed the appearance of her rosacea. He did not did not see a photograph of her before the chemical peel. He testified that it would have been helpful, but not necessary, to compare her appearance before and after the chemical peel. The rosacea he observed was so minimal that he deemed her prior appearance to be unimportant to his findings.

Dr. Schlam also testified that he assumed Cinque had a classic distribution of rosacea before the chemical peel because the medical records he reviewed did not specify otherwise. Dr. Schlam also assumed that a particular visit to Dr. Wallach was for rosacea even though the records of that visit do not mention rosacea.

Cinque moved to exclude Dr. Schlam’s testimony because it was not based on a reliable methodology or on adequate data, as Florida’s version of the Daubert standard requires. The trial court granted that motion. The spa based its appeal, in part, on the claim that the trial court erred by excluding Dr. Schlam’s expert testimony.

Daubert Analysis

The Florida District Court of Appeal agreed with the trial court that Dr. Schlam’s opinion was not based on a reliable methodology that was supported by adequate data. The appellate court concluded that Dr. Schlam did not have sufficient information upon which to base an opinion about the impact of the chemical peel on Cinque’s rosacea. He viewed no pictures of Cinque before the chemical peel. He made assumptions about the intensity and distribution of the rosacea based on Dr. Wallach’s medical records, but those records did not support the inferences he drew.

The trial court regard it as “unreliable to base an entire causation analysis on a one time examination while the patient was medicated for the subject condition.” The appellate court did not expressly adopt that reasoning, but did not question it. The decision should stand as a reminder to experts who perform an independent medical examination that admissible expert opinions must be based on adequate data, which a brief physical examination and a review of medical reports might not always provide.

The appellate court noted that, in some cases, existing medical records will give a physician enough data to support a medical opinion. In this case, however, Dr. Schram based his opinions “on assumptions not rooted in any facts actually contained in the medical records relied upon.” Perhaps reasonably drawn inferences can support an opinion if they are supported by facts, but Dr. Schram’s opinions were based on conjecture. His opinions therefore did not meet Daubert’s reliability standard and were properly excluded.


New Trial Ordered in Hip Implant Case Because Evidence of Payments to Experts Was Not Disclosed

The U.S. Court of Appeals for the Fifth Circuit reversed a substantial verdict against Johnson & Johnson and its subsidiary, DePuy Orthopaedics Inc., and ordered a new trial after determining that the plaintiff’s lawyer made misleading remarks about the independence of the expert witnesses who testified for the plaintiffs in the case.

While Johnson & Johnson and the pharmaceutical industry, as well as a Wall Street Journal editorial, have touted the appellate decision as a huge win, the court of appeals agreed that the evidence supported the jury’s finding that the implants are defective. In the end, nothing in the court’s opinion will prevent the next jury from arriving at the same result based on the same expert testimony.

Hip Replacement Litigation

The appeal involved the second “bellwether” trial against Johnson & Johnson for allegedly defective DePuy hip implants. Although the first trial ended in a verdict for Johnson & Johnson, the next three trials resulted in verdicts for the plaintiffs. All of the plaintiffs’ victories are on appeal.

The second trial involved five plaintiffs from Texas. The jury awarded a total of $502 million to the plaintiffs. The trial court reduced that award to about $152 million because Texas places a cap on punitive damages.

In addition to appealing the judgment, Johnson & Johnson brought a motion asking for the verdict to be thrown out because the “plaintiffs’ counsel, Mark Lanier, concealed payment arrangements with two key expert witnesses.” The trial judge denied that motion, but the court of appeals agreed that the statements may have influenced the verdict and ordered a new trial.

The DePuy Implant

The cases involve DePuy’s “metal on metal” hip implants. A metal “ball,” or head, is implanted into the femur, while a metal cup is implanted into the hip socket. A metal liner fits into the cup. The head rotates against the liner, essentially serving the same function in the hip as the “ball and socket” bones they replace.

Early versions of hip plants raised safety concerns. Those concerns were largely resolved by using ceramic or plastic liners rather than metal liners. However, some plastic liners cause problems because debris from worn plastic can dissolve the surrounding bone. The industry eventually solved that problem by sterilizing the plastic liner with radiation, giving it a much longer life.

The plaintiffs alleged that DePuy designed an implant that returned to a failed concept by using a metal liner. They alleged that Johnson & Johnson began a marketing campaign to lure doctors away from products with plastic liners by misrepresenting the advantages of its metal-on-metal design. The plaintiffs claimed that Johnson & Johnson rushed the product to market without conducting clinical tests that would have revealed its flaws, and that it supported its marketing campaign with academic papers that purported to be neutral but were actually authored by DePuy.

Johnson & Johnson argued that metal-on-plastic might be a better design for older patients but that its metal-on-metal design has advantages for younger patients. It also contended that it made comparative risk information available to doctors. The jury rejected those defenses and found in favor of the plaintiffs.

The Merits of the Case

The court of appeals rejected DePuy’s claim that the metal-on-plastic design was a different product entirely and therefore could not be regarded as a safer alternative design of a hip implant. The court also rejected DePuy’s claim that federal and state regulation of hip implants preempted product liability lawsuits for the defective design of the specific implant at issue. In addition, the court rejected DePuy’s seemingly inconsistent claim that its hip implant is “unavoidably dangerous” and therefore immune from product liability claims.

Johnson & Johnson’s claim that it marketed the implants with an adequate warning met with no greater success. The warnings did not address the specific complications caused by metallic debris that the metal-on-metal device produces, including the risk that bits of metallic debris will cause specific kinds of bone and tissue damage that will need to be alleviated by future surgery. While two of the plaintiffs were not entitled to judgment on the failure-to-warn claim because there was no evidence that their doctors ever read or relied upon the inadequate warnings, the evidence supported the judgment for the other three plaintiffs on their failure-to-warn claims.

Finally, the court rejected a number of defenses that Johnson & Johnson raised in an effort to insulate itself from the judgment against its subsidiary, DePuy. As a letter responding to the Wall Street Journal editorial pointed out, the editorial’s celebration of DePuy’s appellate victory was incomplete and misleading, given its failure to acknowledge that DePuy lost on issues that went to the merits of its trial defense. The appellate victory focused on alleged prejudice to DePuy caused by plaintiff’s counsel, not on DePuy’s challenges to evidence that, according to the appellate court, was sufficient to prove its liability.

Prejudicial Evidence

The court decided that DePuy and Johnson & Johnson did not receive a fair trial. First, the court considered whether the jury should have been allowed to hear evidence that Johnson & Johnson subsidiaries violated American law by paying bribes to Saddam Hussein’s government in Iraq and to other governments worldwide. The court questioned whether Johnson & Johnson’s claim to have an ethical corporate culture, consisting of “wonderful people doing wonderful things,” should have been impeached by a subsidiary’s misconduct, notwithstanding Johnson & Johnson’s admission of its responsibility for that misconduct in a plea agreement when it was prosecuted for its subsidiary’s criminal behavior. More importantly, the court thought plaintiffs’ counsel crossed the line by inviting the jury to hold Johnson & Johnson responsible for marketing defective hip implants based on the bad conduct of its subsidiary alone.

Johnson & Johnson also described itself as “employee-friendly,” a description allegedly rebutted by a letter written by an employee who complained of race discrimination and a workplace in which racial slurs were tolerated. Again, even if the letter was admissible (the court suggested that it was barred by the rule against hearsay), the court concluded that it was used in closing arguments to suggest that the jury should punish Johnson & Johnson for condoning race discrimination, an allegation that was unrelated to the claim that it sold defective hip implants.

It isn’t clear that either of those issues, by themselves, would have motivated the court of appeals to order a new trial. The court made clear, however, that it viewed a new trial as necessary because of comments that plaintiffs’ counsel made about expert witnesses.

Expert Witness Claims

The court of appeals described the trial as a “war of experts,” including engineers and medical scientists. Prior to trial, the plaintiffs disclosed Dr. Bernard Morrey, Sr. as an “uncompensated” expert. An expert who is not paid is not required to prepare an expert report.

Plaintiffs’ counsel offered to pay Morrey, but Morrey declined payment. The counsel then offered to make a contribution to a charitable institution of Morrey’s choice. Morrey agreed, and the plaintiff’s counsel contributed $10,000 to a Catholic school that Morrey had attended. During the trial, counsel “repeatedly emphasized Morrey Sr.’s independence . . . and contrasted that independence with the purportedly biased and self-interested work of DePuy’s doctors.”

Morey Sr.’s son, Dr. Morrey Jr., performed orthopedic surgery to correct damage caused by the DePuy implant to one plaintiff and evaluated another plaintiff. The trial court allowed Morrey Jr. to testify to facts beyond his medical treatment, including his opinion that the metal-on-metal implant design was unsafe, because plaintiffs had designated Morrey Jr. as a nonretained expert (not just as a treating physician) prior to the trial.

After the trial, the plaintiff’s counsel gave Morey Sr. a check for $35,000 and gave Morey Jr. a check for $30,000. Counsel also designated them as retained experts for future trials. The evidence suggested that Morey Jr. had always expected to be paid something but was surprised at the size of the generous payment he received.

The trial court concluded that no agreement to compensate the experts existed when they testified and that counsel therefore made no misrepresentations about their “independence” during the trial. The trial court also noted that, even if the post-trial checks were viewed as compensation, they were so small in comparison to the amount that Johnson & Johnson paid to its expert witnesses that their existence would not have influenced the jury’s verdict even if they had been disclosed.

The court of appeals, however, concluded that the plaintiff’s counsel either knowingly or unknowingly misled the jury and that this conduct prevented Johnson & Johnson from challenging the independence of the two experts. Whether the counsel’s misconduct affected the outcome was not the appropriate test. The only question was whether the misconduct prevented Johnson & Johnson from fully and fairly presenting its case.

If Johnson & Johnson had known of the pretrial contribution of funds to a charity of Dr. Morey Sr.’s choice, or had known that Dr. Morey Jr. expected to be compensated, Johnson & Johnson would have relied on those facts in challenging the purported independence of the two experts. Those facts might not have affected the outcome, but Johnson & Johnson was entitled to a fair trial, and the court decided that Johnson & Johnson did not receive a fair trial because those important facts were never disclosed. (Of course, Johnson & Johnson could have asked Dr. Morey Jr. during cross-examination whether he expected to be compensated, an omission the appellate court did not address, but Johnson & Johnson arguably had no reason to ask the question when it had no reason to expect an answer that would assist its defense.)

The court’s suggestion that a gift to charity should be treated as compensation that induces testimony might be strained in the absence of evidence that Morey Sr. benefited from the contribution or that it influenced his decision to testify. Nor was there compelling evidence that Morey Jr.’s expectation of being paid was induced by plaintiff’s counsel, who clearly made no express promise to pay for the expert’s testimony.

Still, the evidence that made the appellate court suspicious could arguably have caused the jury to be suspicious of the experts’ independence and might have been used to the defendants’ advantage at trial, so it is not entirely surprising that the court vacated the judgment and ordered the case to proceed to trial again.  Since none of the substantive evidence about the defective hip implants is likely to differ at the new trial, it is not clear that the new trial will produce a significantly different result. In fact, Johnson & Johnson is taking a risk that the next jury will award even more in damages, but that is a strategic risk that a litigant who seeks a new trial must accept.

Skinny Horse

Forensic Entomologist Testifies In Animal Cruelty Trial

A forensic entomologist has been called to testify in an aggravated animal cruelty trial in Orange County, New York.

Animal Abuse

On July 29, the Hudson Valley Society for the Prevention of Cruelty to Animals and the Town of Goshen conducted a raid on a Goshen farm in response to a complaint. They found the remains of ten horses and one severely undernourished stallion. The investigators also found ten live horses that were of normal weight, but had hooves in terrible condition. The Hudson Valley SPCA’s chief of humane law enforcement, Gene Hecht, said that it was “without a doubt” that the horses found on the property had died of starvation because there “wasn’t a drop of feed” on the property and the only hay they found was moldy and inedible.

The surviving malnourished horse, Seamus, was taken to Pony Tails Rescue in Honesdale, Pennsylvania. Lorie Brinkworth, a 25-year horse trainer and racetrack assistant veterinarian from Pony Tails Rescue described Seamus’ condition. She said, “His backbone was sticking up with protruding hip bones and rib cage clearly visible.” Brinkworth said that Seamus’ teeth were dark and discolored and his molars had sharp edges that prevented him from eating. Brinkworth said that Seamus’ breath smelled of manure and he actually ate his own manure for three weeks after arriving at the rescue.

The owner of the Goshen farm, Jeanne Ryan, is facing felony charges in connection with starving her horses to death. Prosecutors claim that Ryan kept her horses confined without enough food and water. Ryan faces 10 counts of felony aggravated animal cruelty and 10 misdemeanor cruelty. Ryan is a former NYPD officer. She faces up to one year in jail.

The Trial

Ryan’s attorney, Michael Sussman, argues that Ryan’s son, James McSwigin, had agreed to care for the horses, but had failed to do so. McSwigin acknowledged that he received multiple texts from his mother in February 2017 that told him to give the horses food and water. James McSwigin’s fiance, Erika Pohja, testified that McSwigin let his mother know that the horses were getting skinny, but Ryan told him that she could make the hay stretch and sell some of the horses.

The prosecution called Dr. Jennifer Rosati, a forensic entomologist, to testify at trial. Dr. Rosati examined the insects that were found near and on the horse carcasses. Rosati testified that she found pupal casings from three different species of blowflies in one of the barn stalls. Pupal casings are what is left behind when developed larvae become flies. Rosati took into account the life cycles of blowflies, weather conditions, seasons, and the advanced state of decay of the horses to determine that the blowflies laid their eggs between April 26, 2017 and June 10, 2017. Rosati was also able to determine that one of the horses died wearing a bridle.

Under questioning by prosecution, Rosati confirmed that the evidence that she found was consistent with the horses dying in late 2016 and being left in the barn. On cross-examination, Rosati stated that the horses could have also died as late as March 2017.

Election Experts Testify in Virginia Voter ID Case

Mourning Expert Testifies Regarding Removal of Civil War Statues

Litigants who oppose the removal, or even the covering with tarps, of Charlottesville, VA statues commemorating Confederate generals presented an expert in mourning to strengthen their claim that the city council was required to unveil the statues. The city council covered the statues as the city (or at least some of its residents) mourned the deaths that resulted from a clash between White Nationalists and protestors against racism.

Civil War Statues in Charlottesville

A statue of Robert E. Lee astride a horse stands at the highest point of a Charlottesville park. The parkland was donated to the city in 1917. At that time, the city named the park Robert E. Lee Park. The same donor gave additional parkland to the city in 1919. The second park features a statue of Stonewall Jackson, and the park was named Jackson Park.

In February 2017, the city council renamed the parks Emancipation Park and Justice Park in recognition that honoring Civil War generals who fought to preserve slavery is offensive to people of all races who cherish the American values of freedom and equality. The council debated removing the statues, but its members were concerned that the removal was prohibited by state law and would violate the terms under which the land was donated to the city.

City leaders voted 3-2 to remove the statues, but they were left in place pending the resolution of legal issues. In August 2017, however, the council voted to cover the statues with tarps in response to the murder of Heather Heyer by a white supremacist at a Unite the Right Rally. The rally was motivated in part by the city’s decision to remove the statues. The city announced that it was mourning Heyer’s death, as well as the deaths of a Virginia State Police lieutenant and a trooper-pilot, at the divisive rally.

Mourning Expert

A number of individuals, including descendants of the statues’ donor, as well as the Monument Fund and the Sons of Confederate Veterans sued the city to prevent it from implementing its vote to remove the statues. The lawsuit includes a claim for damages, although it is difficult to understand why removing the statues would be any more harmful to individuals in the community than leaving them in place.

After the city covered the statues, the plaintiffs in that lawsuit asked the judge to order the tarps removed, contending that the mourning period was a “pretext” to cover the statues indefinitely in lieu of taking the potentially unlawful action of removing them. The plaintiffs pointed to a city council resolution to find a more elegant way to screen the statues from public view. The plaintiffs’ attorney persistently but inaccurately characterized the plastic tarps that cover the statues as “trash bags.”

In support of their claim, the plaintiffs called a funeral director as an expert witness on the subject of mourning. The court allowed the witness to testify over objection that he had no expertise in a community’s collective mourning in the aftermath of a traumatic event.

The plaintiffs wanted to establish that mourning periods never last for five months, and that the continued covering of the statues was therefore not consistent with a mourning period. The plaintiffs asked the expert witness, John Mathis, about religious mourning practices. The judge ruled that the proposed testimony was irrelevant, presumably because the city council is prohibited by the Constitution from engaging in a religious practice.

Mathis testified about “public mourning practices for deceased police officers or firefighters: mourning badges, bunting, flags at half mast, wreaths and processions.” When the city’s attorney asked Mathis about the significance of a one year death anniversary, Mathis testified that it is significant to family members but not to people who attend a funeral. That might come as a surprise to American citizens who mourn the deaths of President Kennedy and Martin Luther King, Jr. on each anniversary of their deaths.

Court’s Decision

After taking some time to consider the evidence, the judge ruled that the tarps must be removed. The court based its ruling on its perception that the city intended to cover the statutes permanently, which interferes with viewing the statues in violation of state law.

According to the judge, “it is not a matter of the ‘mourning’ having gone on too long.” Rather, the city’s failure to set a firm date for removing the tarps constituted a failure to prove that the coverings would not be “anything other than permanent.”

At some point, the court will need to decide the merits of the lawsuit, including the city’s claim that the state law does not apply to statues erected before the law’s effective date. The court’s ruling on the motion to remove the tarp may signal its belief that the law applies and that state law will force Charlottesville to continue to commemorate Civil War generals who fought against the emancipation of slaves.


Lethal Force Expert Testifies Police Acted Reasonably in Shooting

An expert on police training and lethal force has testified that two police officers acted reasonably during a 2013 shooting of a mentally ill man in Charlotte, North Carolina.

The Shooting

According to testimony, in January 2013, 55-year-old Spencer Mims III was uncharacteristically upset about the loss of his favorite football team in the NFL playoffs. His father, Spencer Mims Jr., 82, left the home to give him time to cool off. While he was out, Mims Jr. saw a police officer and asked him for help. When the police arrived at the house, Mims was sitting on the porch holding a box-cutter to his neck. Officer Michael Whitlock used a Taser to attempt to subdue Mims, which caused him to yell in pain and come towards Officer Jeremy Donaldson with the box-cutter. Officer Donaldson told Mims to drop the knife, but he did not. Officer Donaldson shot Mims three times, which resulted in his death.

The Mecklenburg County District Attorney cleared Officers Donaldson and Whitlock of any criminal wrongdoing in relation to the shooting.

The Lawsuit

The Mims family filed a wrongful death suit against the city of Charlotte, alleging that the use of deadly force against a person having a mental breakdown was excessive and unnecessary. The lawsuit claims that Mims never threatened the officers and that Mims was turning away from the officer when shots were fired.

Ken Wallentine, special agent for the Utah attorney general and expert on police training and lethal force, testified as an expert witness for the police. Wallentine testified that the officers acted appropriately during their confrontation with Mims.  Wallentine opined that Officers Jeremy Donaldson and Michael Whitlock’s actions were “what we expect from well-trained officers.” He testified that neither officer had been overly aggressive with Mims and said that they could not have stayed away from Mims because they were dealing with an unstable man carrying a deadly weapon.

Attorney for the Mims family, Luke Largess, questioned Wallentine’s understanding of the evidence.  Largess picked apart Wallentine’s grasp of the facts and sequence of events and pointed out that Wallentine had been paid $7,000 to testify. Largess noted that Wallentine rarely testified on behalf of a civilian against the police and claimed that Wallentine did not seem to know the best police practices in dealing with a mentally ill person in a crisis.

During Wallentine’s cross-examination, Largess pointed out that officers are taught not to escalate tensions by acting aggressively. He asked Wallentine whether giving Mims repeated orders to drop the box cutter and aiming a Taser at Mims could be considered aggressive. Wallentine acknowledged that those actions could be considered aggressive. Largess also questioned Wallentine as to whether backing away from Mims into a corner with no means of escape would be a breach of training. Wallentine said, “I agree it’s not the best.” Largess explained that backing themselves into a corner would leave the officer with a choice to kill someone or protect themselves.


The jury agreed with the Mims family and awarded them damages of $100,000. A juror explained that the relatively small wrongful death award represented the jury’s belief that both Mims and the police shared responsibility for Mims’ death.