Category Archives: ExpertWitness

Court room

Prosecution Challenges Psychologist Testimony in Rape Case

The prosecution in a Santa Cruz, California rape case is challenging the credibility of a proposed defense expert on sexual consent.

The Crime

Christian Daniel Rodriguez, 29, of Watsonville, California is accused of raping and restraining a woman on September 11, 2015. Rodriguez is charged with five felonies: two charges of rape by force or fear involving an impaired victim and a victim who is falsely imprisoned; two charges of forced sodomy; and false imprisonment. Rodriguez has denied all charges.

The Trial

Rodriguez was tried for the first time in January 2017, but the jury was unable to reach a unanimous verdict. The vote was deadlocked 11 to 1. Rodriguez was scheduled for a retrial. The retrial was postponed four times during 2018. Rodriguez’ second trial finally began on January 30, 2019. He has been held in Santa Cruz County Jail since December 4, 2015 with a bail that was set at $100,000.

Rodriguez’ current trial is being held in front of Santa Cruz County Superior Court Judge Stephen Siegel. Multiple witnesses have testified, DNA evidence has been filed, and a transcript was read from previous testimony by the woman who has alleged that she was raped. There was also a transcript from the prior case where a witness confirms that someone was held down and raped.

Rodriguez has nine prior criminal cases that have been tried in Santa Cruz County Superior Court. In 2010, he was convicted of having sex with a minor more than three years younger than him and soliciting or encouraging a minor in connection with the sales or transport of a controlled substance.

Expert Witness Controversy

Public defender Alyssa Thompson is representing Rodriguez. Thompson proposed to add Dr. Deborah Davis as an expert witness to testify on Rodriguez’ behalf.

Dr. Davis is a professor at University of Nevada who specializes in psychology and law. Specifically, Dr. Davis focuses on the areas of: witness memory, false confessions, issues of sexual consent, rules of evidence, and jury research. Prior to her tenure at University of Nevada, Dr. Davis served as an assistant professor of psychology at Georgia State University and Southern Illinois University and as a post-doctoral research associate at Ohio State University, where she received her Ph.D. She also currently serves on the Faculty of the National Judicial College.

Attorney Thompson submitted a PowerPoint presentation that described the topics of Dr. Davis’ testimony. Prosecution took issue with the contents of the presentation.

Assistant District Attorney Steven Moore filed a motion that disputed the credibility of Dr. Davis on the issue of sexual consent. He wrote, “The use of statistical charts to prove consent or a defendant’s mental state is not admissible . . . . If it were, the people would call rape experts to show that only two percent to eight percent of women falsely report rape. I would then argue that just based on the report alone, our case is proved to be 92 percent to 98 percent accurate.”

Bamboo stick massage

Medical Expert Opinion Ruled Admissible Despite Failure to Examine Patient

Dawn Dawsey sued Carnival and the company that provided spa services for a cruise she took, alleging that her hip was fractured when excessive force was used during a bamboo massage. Each party brought Daubert motions to exclude the expert testimony offered by the opposing party. The judge sensibly decided to admit all the expert testimony and let the jury sort it out.

Treating Physicians’ Testimony

The defendants asked the court to exclude the expert testimony of Dawsey’s treating physicians on the ground that they did not prepare expert reports. The court denied the motion as to all experts who were not providing testimony as to the cause of the fracture, because treating physicians are not generally required to provide reports concerning their diagnosis and treatment.

Plaintiff’s Expert’s Causation Testimony

Dr. Christopher Troiano, an orthopedic surgeon, reviewed Dawsey’s post-cruise medical records and concluded that the massage caused her hip injury. The defendants challenged his methodology, claiming that he had none.

In particular, the defendants complained that Dr. Troiano did not examine Dawsey, did not interview her or read her deposition testimony, relied on “anecdotal” statements that she made to treating physicians who recorded them in her medical records, reviewed only the medical records provided by her attorney, and did not consider other possible causes of the injury.

In effect, Dr. Troiano concluded that, given the absence of evidence of any other traumatic event, the massage must have caused the hip fracture. That opinion is supported by logic, as an expert should not be required to speculate about alternative causes of an injury in the absence of evidence that anything else happened to Dawsey that could have fractured her hip.

The court recognized that Dr. Troiano’s methodology was not ideal and appeared to be on the fence as to whether the doctor’s opinion was admissible. As the judge noted: “Reviewing only medical records selected by the plaintiff’s attorney is problematic, to say the least, especially when the expert does not also review the plaintiff’s medical records from before the cruise or review her deposition testimony.”

The court nevertheless took note of cases holding that a medical expert does not necessarily need to examine a patient before forming an opinion about the cause of an injury. The court concluded that it is the jury’s function to weigh evidence. After cross-examination at trial, a jury might give the expert’s opinion no weight at all. That call, however, is one that should be made by a jury, not a judge.

The court noted, however, that “Dr. Troiano’s opinion testimony on causation is far from strong and barely squeaked by the pre-trial motion to exclude it.” The court decided only that the opinion was admissible. Whether the opinion would be sufficient to support a verdict in Dawson’s favor was an issue the court could not decide until all evidence was presented at the trial.

Defense Experts’ Causation Testimony

The defense experts opined that a bamboo massage cannot result in a broken hip. Dawsey moved to exclude that testimony because none of the experts offered an opinion as to the actual cause of the hip fracture.

The court concluded that the experts were not required to explain how Dawsey’s hip was fractured. They were permitted to criticize the causation testimony of Dawsey’s expert and to opine about inconsistencies in Dawsey’s testimony that made the massage an implausible cause her injury.

Defense Radiologist’s Testimony

Dawsey also challenged the admissibility of Dr. Whiteman’s expert testimony. Dr. Whiteman is a diagnostic radiologist. Dawsey argued that Dr. Whiteman is unqualified because he is not a surgeon and does not treat hip fractures. The court concluded that the radiologist could offer an opinion about causation while noting that Dawsey was free to cross-examine him vigorously about any limitations in his medical training that could affect his credibility.

Dr. Whiteman’s report stated: “I do not know the cause of Ms. Dawsey’s left hip fracture, but it definitely was not caused by the massage.” Dawsey argued that Dr. Whiteman rendered that opinion without considering the amount of force that was exerted as the masseuse “placed a hand under the bamboo stick and against the hip and extended the stick outward to stretch the outer side muscles and hip joints.”

Repeating its ruling that defense experts do not need to pinpoint an alternative cause of an injury, the court noted that the defense has no burden to disprove causation. Rather, a defense expert’s testimony is admissible if it casts doubt on the plaintiff’s theory about the cause of an injury. Since Dr. Whiteman did so, it was up to the jury to determine whether his testimony would undermine Dawson’s theory of causation.

Motel

Conviction Reversed Because Police Officer Gave Inadmissible Expert Opinion in Prostitution Trial

The Mount Laurel, New Jersey Police Department arrested John Salyerds as the result of a sting operation. The police ran an internet ad that allegedly offered prostitution services. Salyerds was arrested in a motel room after he responded to the ad.

The police contended that the ad offered a “$50 short stay special.” Prior to the trial, Salyerds asked the prosecution to produce the ad to which he responded. Salyerds contended on appeal that the prosecution gave evasive responses to his request and never produced it.

The prosecutor made the unlikely claim that the police officers who posted the ad to the internet “did not have access to a printer” and therefore did not print a hard copy. The prosecutor also asserted that the police tried to find the ad before the trial so they could print it, but it had mysteriously vanished from the internet. The trial judge barred any reference to the content of the ad since the ad was not produced in discovery.

Salyerds called the number in the ad and asked for the “$50 special.” He was given a motel room number. Salyerds went to that room and asked for the “short stay special.” An undercover detective told him to put the money on the table. As Salyerds was doing so, the detective went into the bathroom. Armed officers then burst into the room and arrested Salyerds for engaging in prostitution as a patron (purchaser of services).

There was no prostitute in the room. The undercover detective did not intend to provide sex. No touching occurred. The judge nevertheless found Salyerds guilty because he provided money in exchange for sex. Whether the prosecution proved Salyerds’ intent was the key issue at trial.

Officer’s Testimony

During Salyerds’ municipal court trial, the prosecutor asked one of the detectives who was involved in the arrest to explain the meaning of “short stay special.” Salyerds objected that the question called for expert testimony and that the detective had not been designated as an expert.

The municipal judge overruled the objection and said that the detective could explain what the term meant to him. The real question, however, was what “short stay special” meant to Salyerds, not what it meant to a police detective.

The detective testified that a “short stay special” is “an agreement between two people to engage in an act of prostitution under circumstances where they agree to the act and the amount itself.” The detective agreed that “short stay special” is not a common term and testified that his understanding of the term was based on his training and experience as a police officer.

The municipal judge found Salyerds guilty on the strength of that testimony. On appeal from a New Jersey municipal judge’s decision, a defendant is entitled to a new trial before a Law Division Judge. The detective gave the same testimony before the Law Division Judge, who overruled an objection that the testimony constituted an expert opinion.

The Law Division Judge decided that the detective was giving an admissible lay opinion and found Salyerds guilty. Salyerds took another appeal, this time to the New Jersey Superior Court Appellate Division. That court reversed his conviction.

Appellate Ruling

Pretrial discovery obligations in a New Jersey criminal prosecution require identification of expert witnesses and production of either a copy of an expert report or a summary of the expert’s testimony. The prosecution did not comply with that rule. The question on appeal was whether the detective’s opinion was a permissible lay opinion or inadmissible expert testimony.

The term “short stay special” is not self-defining. The term may have different meanings, depending on context. A resort might use “short stay special” to refer to a discounted room price for a weekend getaway. Prostitutes might use the term to mean something very different.

While municipal judges typically allow police officers to give any testimony the prosecution wants to elicit, the Appellate Division paid close attention to the law governing expert evidence. The prosecution offered the detective’s opinion precisely because the detective had more knowledge than the judge about what “short stay special” might mean when that term is used by prostitutes.

Lay opinions might help a judge understand evidence, but New Jersey law confines lay opinions to knowledge acquired through a witness’ perceptions. A witness who simply interprets what the witness saw or heard, without relying on other information, is giving a lay opinion. “It looked to me like he was aiming the gun” is an example of a lay opinion.

Expert opinions, on the other hand, depend on specialized knowledge that is beyond the ken of an ordinary person. The detective testified that his understanding of the term “short stay special” was informed by his training and experience as a police officer. Since the detective relied on specialized knowledge to help the court understand a term of art allegedly used by prostitutes, the detective was testifying as an expert.

Slang Experts

Police officers often testify about their understand of drug jargon in drug prosecutions to explain how a defendant might have understood common words like “rock” (crack cocaine) or “bump” (one gram). They identify numbers jotted on a piece of paper as a “drug ledger.” All of those opinions are based on a claim of specialized knowledge and can only be provided if the prosecution complies with rules governing the admissibility of expert testimony.

The Appellate Division concluded that the trial judge failed to apply the proper legal standard when it ruled that the detective could give a lay opinion about the meaning of a slang term. Since the detective was testifying as an expert, the prosecution’s failure to identify him as an expert witness barred his testimony.

Finally, the court noted that Salyerds engaged in no sexual behavior and did not discuss sex with the undercover officer, except to refer to a “short stay special.” The only evidence of Salyerds’ criminal intent was therefore his use of that phrase. Since Salyerds’ conviction hinged on the detective’s inadmissible opinion that the phrase referred to an act of prostitution, Salyerds’ conviction had to be reversed.

Texas flag and gavel

Attorney-Client Privilege Shields Attorney Communications with Expert Who Is Employed by Party

On occasion, a party in a case will act as his or her own expert witness. When a party proposes to testify as an expert, is the opposing party entitled to obtain communications between the party and the party’s attorney concerning the expert testimony?

Certain communications between a testifying expert and the attorney who retained the expert are discoverable. On the other hand, communications between an attorney and a client are privileged. Which rule controls when the client testifies as an expert?

The Texas Supreme Court tackled that question in In re City of Dickinson. The decision comes down on the side of attorney-client privilege.

Facts of the Case

Hurricane Ike damaged property owned by the City of Dickinson. The city made a claim under its windstorm insurance policy. The city sued Texas Windstorm Insurance Association when the company failed to pay all the insurance proceeds that the city demanded.

Texas Windstorm relied on the affidavit of its corporate representative and senior claims examiner, Paul Strickland, in opposing a summary judgment motion. The affidavit stated facts and also expressed expert opinions. Strickland testified in a deposition that the affidavit had gone through a process of revision based on emails with Texas Windstorm’s attorney.

The city demanded production of those emails, citing a Texas discovery rule that allows a party to obtain all documents “provided to, reviewed by, or prepared by” an expert “in anticipation of a testifying expert’s testimony.” That rule would typically require production of written communications from a party’s lawyer that the expert reviews before preparing a report or affidavit.

Texas Windstorm resisted production of the documents on the ground of attorney-client privilege. Texas Windstorm’s attorney argued that Strickland was the liaison between Texas Windstorm and its law firm. In counsel’s view, the emails were privileged communications between the law firm and its client.

The trial court ruled that Texas Windstorm waived attorney-client privilege by using an employee of its client as an expert witness. Texas Windstorm challenged that ruling with a writ of mandamus. The Texas Court of Appeals ruled that the emails were privileged.

The city petitioned the Texas Supreme Court for mandamus, arguing that the court of appeals abused its discretion in failing to apply clear discovery rules to experts who are also parties to litigation. The conflict between expert discovery rules and attorney-client privilege had not previously been resolved in Texas.

Texas Supreme Court’s Legal Analysis

The supreme court noted that a comment to the expert discovery rule suggested that the work-product privilege does not shield materials prepared by an attorney from discovery when they are shared with an expert. However, the comment suggested that other privileges might still apply.

The supreme court observed that the rule governing discovery from expert witnesses was subject to a broader discovery rule that allows discovery of all materials that are relevant and not privileged. The expert discovery rule creates no explicit exception to attorney-client privilege. Reading the rules together suggests that no discovery of privileged materials (except those covered by work-product privilege) can be obtained from experts.

A question left open by that analysis, however, is whether a client waives attorney-client privilege by designating its own employee as an expert. The expert discovery rule makes no distinction between experts who are retained and those who are employed by a party. The failure to make that distinction might imply that an expert who is employed by a party should have no greater right to shield documents from discovery than an expert who is retained by a party.

Parties are deemed to waive attorney-client privilege when they knowingly disclose facts that would otherwise be privileged. The city argued that Texas Windstorm waived the privilege by using an expert with knowledge that the expert would be subject to the discovery rules that apply to testifying experts.

The supreme court rejected that argument. The rule states that a party “may request” disclosure from experts but does not require the expert to disclose anything. The supreme court decide that the city was entitled to request the emails but Texas Windstorm was not required to provide emails if they were protected by an applicable privilege. Of course, the rule writers would not have compelled parties to make discovery requests, so the use of the phrase “may request” rather than “must request” probably has nothing to do with the obligation of the opposing party to respond to the request.

Texas Supreme Court’s Policy Analysis

The answer comes down to a question of competing values. Do we want parties to give up the important benefits of attorney-client privilege when they use their employees as expert witnesses? Do we want businesses to shield themselves from discovery of materials that influence expert opinions by using their own employees as experts?

To the extent that the Texas Supreme Court engaged in a policy analysis, it focused on the attorney-client privilege as “quintessentially imperative” to the legal system. The privilege assures that lawyers can give candid advice to their clients. While that might be a quintessential imperative, the privilege also assures that the opposing party will never learn the extent to which a lawyer shaped the expert’s opinions when the expert is the lawyer’s client.

Fortunately, while the court’s decision frustrates discovery of attorney communications that may influence or dictate an expert’s opinion when the expert is employed by a party, that loss of discovery is mitigated by the reality that judges and juries recognize the inherent bias of a party’s employee. Parties who use their own employees as experts take a substantial risk thata judge or jury will not regard the employee as a credible witness. Retaining an independent expert reduces the risk that a jury will see the expert as biased. For that reason, parties do not usually use their own employees as critical expert witnesses in litigation.

Human brain

Expert Testifies SC Man Charged with Killing 5 Children Has Brain Defects

A brain expert has testified that the Lexington, South Carolina man who is charged with killing his five children has suffered from long-term brain injuries.

The Crime

In 2014, 37-year-old Timothy Jones, Jr. killed his five children. According to prosecutors, Jones killed his son Nahtahn, 6, after the boy broke an electrical outlet in their mobile home on August 28, 2014. Jones then strangled his 8-year-old daughter Merah and his 7-year-old son Elias with his hands. Jones then wrapped a belt around the necks of his 2-year-old son Gabriel and 1-year-old daughter Abigail and ended their lives.

Jones reportedly stuffed all of the bodies in garbage bags, loaded their remains into his Cadillac Escalade SUV and drove them through four different states. He finally dumped his children’s bodies in a deserted part of Camden, Alabama.

On September 6, 2014, Jones was arrested at a police checkpoint in Smith County, Mississippi after an officer detected what he described as “the smell of death” along with blood, maggots, and synthetic marijuana.

Under police questioning, Jones admitted to killing his children, but said that he did so as preemptive self-defense. Jones stated that he was worried that they would “chop him up and feed him to the dogs.”

Jones was charged with five counts of murder in connection with his children’s deaths. He faces the death penalty if convicted.

Murder Trial

Jones’ defense team has conceded that Jones killed his children, but he has pleaded not guilty by reason of insanity. In their opening statements, Jones’ lawyers claimed that he suffers from undiagnosed schizophrenia. Jones’ defense team brought in a brain expert to testify in his defense.

Dr. Travis Snyder is a neuro-radiologist from Las Vegas. He testified via prerecorded testimony about his examination of an MRI scan that was taken of Jones’ brain in April 2018. Dr. Snyder testified that he found evidence of “serious traumatic brain injury” in the left frontal lobe of Jones’ brain. He categorized this injury as a decompressed skull fracture. This testimony aligns with earlier defense statements that Jones was involved in a bad car accident as a teenager.

Dr. Snyder testified that people with injuries such as Jones’ may experience such symptoms as lower IQs and trouble focusing. However, not everyone has the same side effects. With regards to Jones’ MRI scan, Dr. Snyder testified that “You can have injuries to the corpus callosum, in a traumatic brain injury, but it could potentially relate to schizophrenia or schizoid-effective type disorders, it’s a positive correlation . . . it’s very difficult to [diagnose] schizophrenia from an MRI. I want to be clear to the jury, to diagnose schizophrenia from an MRI is very difficult.” Dr. Snyder testified that the scan indicated a likelihood of a schizophrenia diagnosis.”

However, Dr. Snyder also testified that current scientific research does not indicate that traumatic brain injuries cause schizophrenia. He said, “I don’t think it’s accepted medical fact that a traumatic brain injury causes schizophrenia, there may be some research that talks about it but schizophrenia does not have [a] known cause, it’s multi-factorial.”

Update

Notwithstanding Dr. Snyder’s testimony, the jury found Jones guilty. He has been sentenced to death.

Florida Supreme Court

Florida Supreme Court Adopts Daubert After Rejecting It

What a difference a judge makes. Or, in the case of the Florida Supreme Court, three newly appointed justices.

On October 15, 2018, the Florida Supreme Court rejected the state legislature’s adoption of the Daubert standard for expert witness testimony. The majority opinion concluded that the standard infringes the jury’s role to determine whether expert testimony is reliable.

Just seven months later, the court ruled that the “grave constitutional concerns” about Daubert’s now “appear unfounded.” What changed in the seven months since the court rejected Daubert? Did the weight of precedent compiled over a mere seven months persuade the court that it had made an incorrect decision? It usually takes years, and often decades of accumulated rulings, before a court disturbs its own precedent.

The only thing that changed is the composition of the court. The 2018 decision was authored by Justice Peggy Quince. Her opinion was joined by Justices Barbara Pariente, R. Fred Lewis, and Jorge Labarga.

Since then, Justices Quince, Pariente, and Lewis have all reached Florida’s mandatory retirement age. They have all been replaced by Gov. Ron DeSantis, creating what the Sun-Sentinel describes as “the most conservative Florida Supreme Court in decades.”

Ironically, Gov. DeSantis championed his appointments as masters of “judicial restraint” who oppose “judicial activism.” Overruling a recent precedent simply because a court wants to move Florida law in a more conservative direction is the very definition of judicial activism.

The Court’s Opinion

The court decided in 2017 that it would not adopt Daubert as part of Florida’s evidence code, notwithstanding the legislature’s desire to do so. The 2018 decision reversed a trial court ruling that applied Daubert.

The court’s newest decision claims not to “readdress” the correctness of its 2018 decision. Rather, the court’s decision reconsidered its 2017 decision not to adopt the Daubert standard.

The court decided to “revisit the outcome of the recommendation on the Daubert amendments.” The court decided that “the ‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.”

To support that conclusion, the court quoted extensively from a dissenting opinion in the 2017 decision. As Justice Labarga noted in dissenting from the new opinion, the court acted “without further input from the Committee or the public.” The court held no new hearings and considered no new evidence. The only intervening change suggesting that the “grave constitutional concerns” identified in 2017 had suddenly become “unfounded” was the addition of three new justices who agreed with the 2017 dissent and saw an opportunity to impose their will on Florida law.

Ramifications of Adopting the Daubert Standard

Whether the Florida court’s judicial activism is wise depends on the reader’s perspective. Florida’s Frye standard has its faults, chief among them its failure to recognize that expert opinions might be well founded even if they are based on new or novel techniques that are not yet generally accepted by the scientific community. Those faults persuaded the U.S. Supreme Court to reject the Frye standard in Daubert.

The Daubert standard also has its faults, including its tendency to force judges who are unschooled in science to evaluate the reliability of scientific methodologies. There is little evidence that judges are more capable of evaluating expert testimony than jurors who might collectively have a stronger background in science than the judge. The decision has been justly criticized for diminishing the importance of juries in civil trials by substituting a judge’s opinion of expert evidence for the community’s opinion as represented by jurors whose duty is to evaluate evidence.

Business lobbyists and the insurance defense industry are the strongest proponents of Daubert because they view it as a shield against “junk science.” They tend to view any science offered by plaintiffs in toxic tort and products liability cases as “junk” if it might cause corporate defendants to lose trials.

Another view of Daubert, however, sees the decision as liberalizing the standard for admitting expert evidence by permitting expert testimony to be heard even if it is based on new or novel methods, provided those methods are reliable. Whichever interpretation of Daubert a court might adopt, it is clear that Daubert has increased the cost of litigation by encouraging Daubert motions that are advanced for strategic reasons, regardless of their merit.

The disparity in those competing views of Daubert explains why different courts have sharply divergent ideas about how Daubert should be applied. Empirical studies suggest that judges are excluding significantly more expert evidence after Daubert than before Daubert, despite the Supreme Court’s stated intent to liberalize the standard for admitting expert opinions.

To the extent that junk science was ever a serious problem in civil cases, studies suggest that judges in civil cases have become less likely to admit expert evidence that is scientifically groundless, whether or not they apply the Daubert standard. In criminal cases, however, junk forensic science remains a problem of crisis proportions. If the adoption of Daubert encourages Florida judges to be skeptical of prosecutors who use unreliable evidence in an effort to prove guilt beyond a reasonable doubt, the Florida Supreme Court’s abrupt “about face” might improve the quality of justice.

OSHA Faults Expert for Failing to Investigate Facts Before Rendering Opinion

A company relied on an expert witness to convince the Occupational Safety and Health Administration (OSHA) that its workplace could not have been made safer than it was at the time of an accident that killed an employee. The expert based his opinion on an understanding of the facts that was not supported by the evidence.

The decision rendered by the Department of Labor affirmed the rejection of the expert’s testimony. The decision serves as a reminder that experts should gain personal knowledge of the facts whenever they can.

Employee’s Death

CSA Equipment is a stevedoring company that loads and unloads cargo from ships. Certain CSA employees at the Port of Mobile in Alabama are tasked with checking large steel coils after they are unloaded from a vessel.

At the time of the accident, forklift operators delivered the coils to one of the warehouse entrances. A CSA employee verified the condition of each coil and determined where it should be stored in the warehouse. The employee then wrote location numbers on the coils so a forklift operator who worked inside the warehouse would know where to take them.

Forklift operators drive in reverse when moving the coils because the coils block their forward view. Their view to the rear is obstructed by the forklift’s counterweight. The forklift emits a beep when operating in reverse and employees who check cargo are instructed to listen for the beep and to get out of the way of oncoming forklifts.

An earlier procedure had employees standing near a yellow safety post as they checked the cargo. They then signaled forklift operators to move in after they completed the checking. The evidence persuaded OSHA that CSA abandoned that procedure, despite objections that its new procedure was less safe, to appease a customer who wanted cargo moved into the warehouse more quickly.

A forklift struck and killed a CSA employee who was checking coils inside the warehouse. After the accident, CSA had its employees check coils immediately after they were unloaded by crane from the vessel. After the crane unloaded four coils, the crane moved away and the employees checked the coils. Then the employees moved away and signaled for a forklift operator to move the coils to the warehouse.

OSHA Proceedings

An OSHA investigation determined that CSA violated a federal law that imposes a duty on employers to maintain a workplace that is “free from recognized hazards.” The hazard that OSHA identified involved CSA’s failure to designate paths for forklift travel that provided the forklift operator with a clear view, exposing employees to the risk of harm while they were checking materials into the warehouse. The citation identified three ways that CSA could avoid the hazard it created.

CSA contested the citation. According to CSA, no paths can be designated for forklift operation because the warehouse configuration changes constantly. The Administrative Law Judge (ALJ) who heard the case agreed with OSHA that one abatement procedure — setting up a “safe area” where employees could check materials into the warehouse without being exposed to unexpected forklift traffic — was feasible and had, in fact, been implemented after the accident.

OSHA appealed the ALJ’s finding, arguing that the proposed abatement procedure created hazards of its own. OSHA remanded the case and directed the ALJ to make specific findings regarding that defense.

CSA Expert Witness

There was no dispute that, at the time of the employee’s death, CSA recognized that forklifts created a hazard to its employees. The only question was whether a feasible and effective means existed to reduce the hazard.

CSA relied on the expert testimony of Eustis John Faulk. In her first decision, the ALJ found Faulk’s testimony to be unreliable because she regarded his opinion that “you couldn’t conduct cargo handling operations unless you had people on the ground and you had machines in the immediate area” to be in conflict with evidence that CSA had “in fact” separated the employees from the forklifts at the dock under its post-accident checking procedure.

OSHA instructed the ALJ to reconsider whether Faulk’s testimony nevertheless established that the proposed abatement procedure continued to place employees at risk. The judge reviewed the testimony again, describing it as “speculative, hyperbolical, and not grounded in the facts established by the undisputed testimony of the eyewitness who actually observed and experienced the pre-accident and post-accident operations at issue.”

The ALJ faulted the expert for failing to inspect the work site before rendering his opinion. The ALJ rejected the expert’s “idealized” explanation of how coils were unloaded and moved inside the warehouse because he assumed that coils were unloaded, checked, and moved away from the checking area one at a time, when witnesses testified that coils frequently “backed up,” creating a hazardous environment for employee who checked the coils.

The ALJ also faulted the expert for testifying that the new system posed its own hazards because workers who check the coils stand under the cranes as the coils are unloaded. Witnesses who actually worked at the site testified that workers wait until the coils are unloaded and the crane moves away before approaching them.

The ALJ concluded that the expert “manifested a stubborn refusal to acknowledge the actual pre-accident and post-accident operations as established by eyewitnesses.” It is not clear where the expert got his information, but he did not get it from personal observation. The ALJ credited the testimony of witnesses who actually viewed the worksites before and after the accident, rather than the testimony of an expert who apparently never saw the worksite that he described.

The ALJ again found that creating a safe work area for checking coils was a feasible and effective means of reducing the risk of workplace accidents. CSA again appealed, but OSHA affirmed that decision. This time, OSHA agreed that “Faulk ignored contradictory testimony from the three eyewitnesses, all of whom had personally observed the coil-checking procedures.” OSHA therefore rejected the claim that the ALJ had no basis for discrediting Faulk’s expert testimony.

Lesson Learned

Experts must apply their expertise to real-world facts. Sometimes they have no choice but to rely on facts supplied to them by the party that hires them. When facts are in dispute, experts can base an opinion on one view of facts while acknowledging that they are not deciding which view of the facts is true. Resolving disputes of fact is the task of judges and juries, not expert witnesses.

Experts should nevertheless be wary of relying on facts that have no support in the evidence. Faulk could not have known about working conditions at the accident site on the day of the accident, but his reliance on an “idealized” view of the facts was suspect in the absence of any dispute that coils “backed up” as they were brought to the warehouse.

More troubling is Faulk’s failure to assess the risks associated with the post-accident procedure that CSA implemented. Whenever possible, an expert should gain personal knowledge of the facts that the expert relies upon in testifying.

If Faulk had visited the worksite and seen employees standing under the crane, his expert opinion would have carried more weight. Basing an opinion on facts that do not actually exist damages an expert’s credibility, particularly when the expert could have investigated the worksite and based an opinion on his own observations, rather than making assumptions about risks that did not actually exist.

Amtrak train

Expert Testimony Excluded in Amtrak Crash Trial

The exclusion of expert evidence likely contributed to a not guilty verdict for a driver who was accused of causing a crash with an Amtrak train. Dana Naylor, Jr. was charged with involuntary manslaughter after an Amtrak train crashed into the garbage truck he was driving.

The crash occurred near Crozet, Virginia. A co-worker in Naylor’s truck was killed and another was injured. Some Republican legislators who had chartered the train suffered minor injuries.

The prosecution obtained a grand jury indictment before the National Transportation Safety Board (NTSB) completed its investigation of the accident. The NTSB recently released a document claiming that “video from the train shows the truck driving around the gates.” That video was not introduced as evidence at Naylor’s trial. Train operators, however, testified that Naylor drove around the barriers.

The defense contended that Naylor’s garbage truck was already on the track before the barriers came down. A defense witness who lives near the crossing testified that “safety arms at the crossing have malfunctioned in the past, and they don’t seem to activate with enough time when high-speed passenger trains are coming through.”

The NTSB and the waste disposal company that employed Naylor tried to recreate the accident by driving a similar garbage truck around the barriers. They discovered that it was impossible to drive the truck around the barriers after they were already down.

If the barriers were not functioning properly, fault for the accident may rest with the train company, which has a duty to maintain the barriers. The final NTSB report has not been released, so whether the NTSB drew any conclusions about the operation of the barriers is unclear.

If the barriers began to descend after the truck was already entering the tracks, that malfunction might explain why the video would show Naylor apparently “driving around the gates.” He may have been maneuvering to avoid having his truck hit by a descending barrier.

DUI Evidence

Naylor had also been charged with a crime known colloquially as “DUI maiming.” The prosecution’s theory was that Naylor was under the influence of THC, the active ingredient in marijuana. A small amount of marijuana was found in a lunch pail inside the truck.

The DUI maiming charge required evidence that Naylor was under the influence of THC. Shortly after the accident, the police obtained a warrant to take a blood sample from Naylor. The warrant was supported by an officer’s doubtful claim that Naylor “smelled like beer.” Subsequent testing of Naylor’s blood showed no presence of alcohol, suggesting that the police obtained the warrant under false pretenses in a routine fishing expedition for evidence of a crime.

The blood test did show the presence of THC, prompting the prosecutor to allege that Naylor was driving under the influence of THC, the active ingredient in marijuana. The prosecution hoped to rely on the testimony of Dr. Jayne Thatcher, a forensic toxicology expert, to prove its case.

Expert Testimony Excluded

Dr. Thatcher’s testimony was offered to prove that Naylor was under the influence of THC. Her testimony would also have been relevant to the manslaughter charge if she could establish that Naylor placed lives at risk while driving under the influence.

Naylor’s defense lawyers moved to exclude the testimony. Testifying outside the presence of the jury, Dr. Thatcher conceded that the presence of THC in blood does not establish that a driver was under the influence of marijuana. “You cannot say whether or not a person was impaired based on toxicology,” Dr. Thayer testified.

Thatcher nevertheless relied on a study that purported to show that “71 percent of participants with 2.5 to 5 nanograms per milliliter of THC in their blood samples were found to be impaired when fulfilling three different performance tests.” Studies in controlled environments, however, have little relevance to real-world driving. When a study compared driving by someone who smoked a controlled amount of marijuana to someone who smoked a placebo, smoking marijuana had no significant effect on vehicle handling, driving in traffic, traffic observation, or turning.

Even taken at face value, the study that Dr. Thatcher relied upon would demonstrate that almost 30% of marijuana users with a high concentration of THC in their blood were not under the influence of marijuana. The study offered no way to establish whether a particular test subject was or was not impaired without conducting other tests.

Dr. Thatcher’s admirable honesty about the limits of science should be a model for all testifying experts. The court granted the defense motion to exclude her testimony because she forthrightly acknowledged that she could not say whether Naylor was or was not impaired by marijuana when he was driving. The prosecution was forced to dismiss the DUI charge and the jury found Naylor not guilty of manslaughter based on the ambiguous admissible evidence.

Rapper Drake

Expert Witness Files Small Claims Case Against Drake

An expert witness has filed a small claims case against Drake, claiming that the rapper failed to pay his expert witness fees.

The Original Lawsuit

Drake, the Canadian rapper, singer, songwriter, actor, and producer, was involved in a legal dispute with the production company, Hebrew Hustle. 

On April 16, 2014, Hebrew Hustle and the Estate of James Oscar Smith sued Drake and Cash Money Records, claiming that Drake had infringed upon one of their songs. Hebrew Hustle claimed that Drake willfully infringed their song by using an unapproved sample of the late Jimmy Smith’s 1982 song “Jimmy Smith Rap” on his “Pound Cake/Paris Morton Music 2.”

Drake filed a countersuit. In his suit, Drake claimed that Hebrew Hustle and its founder, Stephen Hacker, had improperly used Drake’s name and likeness to promote his business by implying that he had worked with Drake. The claimed implication was in a line of text on the Hebrew Hustle website. The line at issue, which has since been deleted, read, “[Hacker] played a heavy hand with his clients in the creation of hit songs for the likes of Eminem, Jay-Z, Kanye West, Lil Wayne, Drake, Nicki Minaj, and others.”

Drake argued that Hacker and Hebrew Hustle had engaged in false endorsement and violated his right of publicity. He also claimed mental distress, claiming that the name of the company “perpetuates stereotypes regarding persons of Jewish heritage, such as [Drake].”

On May 30, 2017, the United States District Court for the Southern District of New York dismissed with prejudice all the Copyright Claims that Hebrew Hustle and the Estate of James Oscar Smith had filed against Drake.

Expert Witness Testimony

Drake retained CMG Worldwide Founder & Chairman, Mark Roesler, to testify on his behalf in his lawsuit. Roesler has been described as a “dominant force in the evolving intellectual property arena.”

Drake and Hebrew Hustle eventually settled their dispute. According to the agreement, Hebrew Hustle “agreed to compensate [Drake] on confidential financial settlement terms for the False Endorsement and Right of Publicity claims and also to the entry of this consent order.” The parties also agreed that Hebrew Hustle was prohibited from ever using Drake’s name or image on their website.

The agreement provided that:  Hebrew Hustle can no longer use Drake’s name, image, and likeness. Drake’s claims were now considered dismissed with prejudice. Each party would pay their own attorney fees and legal costs. The consent order did not prohibit Hebrew Hustle from appealing their case against Drake. In any post-appeal proceedings on copyright claims, each party’s respective legal rights are fully reserved.

Small Claims Filing

This month, Roesler filed a small claims suit against Drake. The expert claims that Drake never paid him the fee that they agreed upon for his testimony that was given at the October deposition.

Roesler claims that he was deposed in October 2018 for over 8 hours. He claims that Drake agreed to pay a $5,312 for Roesler’s services, but he has not received that amount.


Photo Credit: Drake [CC BY 2.0], musicisentropy.

Domestic violence

Oklahoma Governor Signs Bill Allowing Expert Testimony in Domestic Violence Cases

Oklahoma Governor Kevin Stitt has signed into law a piece of legislation that will allow expert witnesses to testify in cases of domestic violence about the effects of violence on their victims and their children and the risks that abusers pose to the victims and children.

Oklahoma Senate Bill 958 was a bipartisan bill that was sponsored by Senator Kay Floyd [D] and Representative Kevin West [R]. The bill was intended to clarify the admissibility of certain expert testimony.

Amended Statute

The bill amends 22 O.S. 2011, Section 40.7 to read:

In an action of a court of this state, if a party offers evidence of domestic abuse, testimony of an expert witness including, but not limited to, the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.

The bill was passed unanimously by the House of Representatives.

Legislative Intent

The new legislation clarifies that in Oklahoma courts, if a party presents evidence of domestic violence, an expert witness may testify about the effects of violence on the abused. 

Bill co-sponsor Representative West said of the legislation, “It is not acceptable that expert testimony regarding the effects of domestic violence on children and other family members is excluded. . . . I am confident this will be a significant benefit to victims of domestic violence throughout our state, as well as a wake-up call for the abusers.”

The bill’s other sponsor, Senator Floyd, said, “Expert witnesses should be allowed to present research-based and data-driven testimony on the effects of domestic violence on children. This change is long overdue.”

Impact of Legislation

The prior version of the statute did not allow testimony that included the impact of domestic violence that was witnessed by children or allow the presentation of evidence that shows the common traits of abusers, the various types of domestic violence, generational cycles of violence or treatment options.

The updated version of the statute allows such testimony; however, it will still be subject to vigorous cross-examination. The court will remain the gatekeeper of evidence and testimony that is allowed to be presented at trial.

Rules of Evidence

In Oklahoma, the rules of civil procedure allow testimony by expert witnesses.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 

     1. The testimony is based upon sufficient facts or data;

     2. The testimony is the product of reliable principles and methods; and

     3. The witness has applied the principles and methods reliably to the facts of the case.

12 OK Stat § 12-2702 (2014)

Oklahoma follows the Daubert test for the admissibility of expert witness testimony.  Scruggs v. Edwards, 154 P.3d 1257 (Okla. 2007). Under Daubert, the court should ask four questions to help determine the admissibility of expert testimony: “1. Can the expert’s theory or technique be, or has it been, tested; 2. Has the expert’s theory or technique been subjected to peer review and publication; 3. Is there a “known or potential rate of error … and the existence and maintenance of standards controlling the technique’s operation; and 4; Is there widespread acceptance of the theory or technique within the relevant scientific community.”