Category Archives: ExpertWitness

Tennessee Prohibits Reliance on an Involuntary Expert to Establish Standard of Care

Brenda Pringle had an operation to remove pelvic cysts. Her recovery did not go well. Additional surgeries were required before she could return to work.

Pringle made a complaint against her surgeon, Dr. Christy South, to the Kentucky Board of Medical Licensure. The Board contracted with Dr. Elvis Donaldson to review the complaint. He apparently made a determination that Dr. South did not follow an appropriate standard of care.

Pringle then sued Dr. South for medical malpractice. Pringle disclosed her expert witnesses. All but one were treating physicians. None of the treating physicians offered an opinion that Dr. South breached the applicable standard of care.

Pringle identified Dr. Donaldson as an expert witness but did not retain him to testify. Dr. South subpoenaed Dr. Donaldson to testify in a discovery deposition. The Board moved to quash the subpoena, arguing that its contracted doctors should not be required to repeat the opinions they give to the Board in unrelated court proceedings.

The trial court granted the motion to quash long after the deadline for disclosing experts had passed. Dr. South then moved for summary judgment, arguing that in the absence of expert testimony, Pringle could not prove that Dr. South breached the standard of care.

The trial court agreed and granted judgment in Dr. South’s favor. Pringle appealed.

Appellate Analysis

The Kentucky Court of Appeals affirmed the trial court’s decision. Kentucky follows the general rule that the standard of care in all but the most obvious cases of medical malpractice must be proved by the testimony of an expert. Summary judgment was therefore appropriate unless the trial court erred by refusing to allow Dr. Donaldson’s compelled testimony.

Pringle argued that she was entitled to present Dr. Donaldson’s investigation, findings, and conclusions as memorialized in a report that Dr. Donaldson prepared for the Board. While acknowledging that no Tennessee precedent existed, the Court of Appeals relied on an unpublished decision for the proposition that relevant fact testimony can be compelled by issuing a subpoena, but relevant expert testimony “is not the property of litigants.”

In some contexts, that rule has obvious merit. Expert witnesses should be entitled to pick and choose the persons for whom they work. The leading expert in a field might be deluged with subpoenas to compel testimony if he or she could be forced to give expert opinions.

In addition, unlike fact witnesses, expert witnesses are entitled to be paid for their time. Retained experts can bill for their time and have a contractual right to be paid. An expert who is forced to provide an opinion without being retained might end up testifying for free.

This issue is most likely to arise when the plaintiff visits a physician who opines that the treating physician committed malpractice but is unwilling to say so in court. That happens regularly, given the reluctance of physicians to testify against each other. Forcing that physician to testify as an involuntary expert is not something that most courts are prepared to do.

Accordingly, the appellate court created a blanket rule that a party to a medical malpractice action cannot compel involuntary expert evidence from a physician. Parties must instead retain their own expert witnesses.

Lessons Learned

One might think that a report prepared by a medical expert retained by a state agency for a public purpose would be admissible evidence if it either identified malpractice or exonerated the investigated doctor. Unlike retained experts, who are often disparaged as “hired guns,” Dr. Donaldson was a neutral expert. He formed his opinions at the request of the public, not for an interested party. His opinions might therefore be seen as public property, unlike the opinions of privately retained experts that are, in the view of the court, the property of the party who retains them.

Once an expert’s report prepared for a state agency becomes a public record, there are good reasons to believe a party should be entitled to compel the expert’s testimony. The physician has already chosen to express an expert opinion and has, in fact, done so. The expert has been paid for that work. While the expert would certainly be entitled to additional compensation for testifying in a deposition or in court, the policy considerations that weigh against forcing an involuntary expert to testify have less merit when applied to experts who were voluntarily retained to provide opinions to a public agency. Depriving litigants of valuable evidence that is already a matter of public record does not seem to promote justice.

Notwithstanding the unique circumstances presented here, lawyers should be guided by the court’s blanket rule. It is unwise to rely on the expectation that an expert witness can be compelled to testify. The better practice is to retain an expert.

Whether the retained expert would be entitled to rely on the report written by the Board’s expert to inform the retained expert’s opinion is a separate question. The answer in most states will likely depend on whether physicians routinely rely on the opinions of other physicians when they form their own expert opinions.

 

Expert CV Checklist

Tara Reade’s Expert Witness Credentials Questioned

Tara Reade, the former Senate staffer who has accused Democratic presidential candidate Joe Biden of sexual harassment and assault, is under scrutiny for misrepresenting her qualifications under oath when appearing as an expert witness in domestic violence cases.

Joe Biden Accusation

Tara Reade, 56, has accused 2020 presidential candidate Joe Biden of sexually harassing and assaulting her while she worked in his office in 1993. Since first coming forward with her allegations, Reade’s recounting of the 1993 events has changed and numerous news publications have begun to investigate her allegations.

PBS NewsHour interviewed 74 former Biden staffers to get a “broader picture of his behavior toward women over the course of his career, how they see the new allegation, and whether there was evidence of a larger pattern.” None of the 74 people said that they had experienced sexual harassment, assault, or misconduct by Biden. All of those interviewed said that they had never heard any previous accusations of Biden engaging in sexual misconduct.

In conducting its investigation, CNN interviewed Reade and learned more about her background. Reade told CNN that she had earned a bachelor of arts degree from Seattle, Washington-based Antioch University under a “protected program,” where the former president of the school ensured that her identity was protected while she was attending classes. Reade also claimed that she was a visiting professor at the university, on and off for a period of five years.

When CNN fact-checked Reade’s story, Karen Hamilton, an Antioch University spokesperson confirmed that Reade had “attended but did not graduate from Antioch University.” Hamilton also stated that Reade, “was never a faculty member. She did provide several hours of administrative work.” Antioch University also told CNN that it had never had a “protected program.”

Expert Witness on Domestic Violence

Misrepresenting her past is especially problematic, as Reade has previously served as an expert witness in domestic violence cases.

On December 12, 2018, Reade appeared as an expert witness in California state superior court in Salinas. The Monterey County District Attorney’s Office called Reade as an expert witness on the dynamics of domestic violence. As part of her qualifications, Reade listed a bachelor’s degree from Antioch University. Reade also listed a role as an “ongoing online visiting professor” at Antioch for five years.

According to Roland Soltesz, the lawyer of the woman who was charged for attempted murder in the case where Reade testified as an expert, Reade was “beloved” by local prosecutors. Patrick McKenna, executive director of a legal group that handles appeals for indigent defendants in the Salinas area, said that Reade had previously testified in court and that she has testified as an expert witness over 20 times.

At the time of the trial, Soltesz and another lawyer had challenged Reade’s credentials as an expert, arguing that Reade’s experience “was largely in advocacy work.” The trial court judge rejected the argument, ruling that Reade had the proper educational background and experience to testify as an expert.

 

Netflix Series Highlights Issues With Bite Mark Evidence

A popular Netflix series has called attention to the faulty science behind bite mark evidence.

Bite Mark Evidence

Bite mark evidence purports to be a branch of forensic odontology, where dentists attempt to match marks that were found at crime scenes to dental impressions of suspects. When a victim has been bitten during the commission of a crime, dentists claim the ability to match the bite mark to the teeth of a suspect.

Bite mark evidence has been used for many years in criminal prosecutions. Oftentimes, bite marks are found at the scene of violent crimes such as murders and assaults on areas like skin, clothing, and soft tissue.

Opponents to the use of bite mark evidence argue that is flawed because it is subjective to the person examining the evidence. Since skin stretches, it can easily be maneuvered into a position that seems like a match.

The California Innocence Project notes that, “Different experts have found widely different results when looking at the same bite mark evidence. Such subjectivity has no place being touted as science in the courtroom, as it is extremely persuasive to a jury, especially where someone has been wrongfully accused.”

Netflix Series “The Innocence Files”

The popular streaming company, Netflix, recently released a limited series entitled, “The Innocence Files,” which examines cases of wrongful convictions. In the first three episodes of the series, bite mark evidence is called into question.

In the first episode, the series introduces two men from Noxubee County in Mississippi: Levon Brooks and Kennedy Brewer. In 1992, Brooks was convicted of the capital murder of three-year-old Courtney Smith. His conviction was supported by eyewitness testimony and bite mark evidence. Later that year, Brewer was convicted of the rape and murder of three-year-old Christine Jackson. His conviction was in part supported by bite mark evidence.

Forensic odontologist Dr. Michael West testified in both trials. In Brooks’ trial, Dr. West testified that “Levon’s dental impressions were a ‘really good match’ for a potential bite left on the victim’s wrist.” In his medical report, Dr. West opined “that ‘indeed and without a doubt the bite marks on Courtney were made by Levon Brooks.” In Brewer’s trial, Dr. West offered testimony about the presumed bite marks found on the victim and Brewer’s dental impressions. Brewer’s defense team retained a world-renowned forensic odontologist, Dr. Richard Souviron, to rebut Dr. West’s claims; however, the jury ultimately found Brewer guilty.

In 2000, Brewer reached out to the Innocence Project for help proving his innocence. The Innocence Project tested the DNA of the victim’s rape kit, which excluded Brewer as the source of the semen. Further investigation revealed another possible suspect for the murders of Christine Jackson and Courtney Smith—a man who had a previous record of multiple home invasions in the same community, Justin Albert Johnson. Johnson’s DNA matched the DNA found in Christine Jackson’s rape kit. He eventually confessed to the murder of both girls; however, he denied ever biting either one.

As a result of Johnson’s confessions, Brooks and Brewer were exonerated for their convictions. According to the documentary, Dr. West’s expert testimonies have contributed to 6 known wrongful convictions.

 

Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Case Illustrates Why Defense Lawyers Must Fight for Expert Witness Funding

Bryan Gutierrez died three months before his second birthday. Efforts to revive him after he stopped breathing were futile. A paramedic eventually used forceps to extract a wad of paper towels, about the size of an egg, from his throat. By that time, however, his brain had been deprived of oxygen for too long. His body was kept alive for another three months, but he suffered brain death.

Suspecting that a toddler could not have ingested such a large mass of paper towels on his own, police officers interrogated Rosa Jimenez, who was babysitting Bryan at the time of his death. Jimenez was caring for her own son while she babysat Bryan.

Jimenez told the police that she used paper towels to wipe the noses of both boys after they woke up from a nap. The boys then started rolling paper towels into balls and throwing them at each other. Jimenez told them to stop, then went into the kitchen to make lunch.

Bryan soon entered the kitchen in distress. He appeared to be choking on something. Jimenez could not find anything in his mouth. Slapping him on the back had no result, so she rushed him to a neighbor for assistance. The neighbor called 911.

The officer who interrogated Jimenez pressed his own theory, telling her that she must have wanted a few moments of peace and stuffed paper towels into Bryan’s throat to silence him. Jimenez protested that she loved Bryan like her own son and insisted that the officer’s version of events was false. After five hours of intense interrogation, Jimenez was released, only to be arrested in her home at 11:00 p.m.

Unfair Trial

Jimenez was charged with injury to a child. Despite the absence of any physical evidence suggesting that Jimenez had abused Bryan, a jury found her guilty. In 2005, Jimenez was sentenced to 99 years in prison.

Since then, at least four judges have questioned the fairness of Jimenez’ trial. A Texas Monthly investigation notes that each time Jimenez was granted a new trial, Texas prosecutors appealed, causing the verdict and sentence to be reinstated.

Federal Magistrate Judge Andrew Austin is one of the judges who recommended a new trial. When the case came before him for a second hearing, Magistrate Austin noted that Jimenez received “a very infirm trial and that there is likely an innocent woman who is sitting in a jail for seventeen years.”

It isn’t unusual for innocent defendants to spend many years behind bars before the slow-moving judicial system corrects the errors that caused their wrongful convictions. Delay is particularly tragic in Jimenez’ case, however, because she suffers from stage-four chronic kidney disease. She is likely to die in prison if her appeal is not expedited.

The state is doing everything it can to delay a final decision in Ms. Jimenez’ case. Its apparent strategy is to run out the clock, allowing her to die so that the unjust conviction it obtained will never be exposed.

Prosecution’s Expert Evidence

In the absence of an eyewitness or any physical evidence suggesting a crime had been committed, prosecutors attempted to prove that a boy as young as Bryan could not have stuffed paper towels so far down his throat. Since Jimenez was the only adult present, the prosecution theorized that she must have done it.

Prosecutors relied on four expert witnesses to make its case. The ER doctor who treated Bryan testified that his gag reflex would have pushed the wad of paper out of Bryan’s mouth if it had not been forced down his throat.

A pediatric ICU doctor echoed the ER physician’s testimony and expressed the opinion that there was “no way” Bryan could have placed the paper towels in his mouth by himself. She testified that Bryan must have been forcibly held down, despite the absence of any bruises that would have supported that testimony.

A forensic pathologist testified that Bryan’s throat was too narrow to ingest the paper towels voluntarily. A pediatrics and child-abuse specialist testified that Bryan’s death was not accidental. All of that expert evidence seems to be based on speculation rather than scientific studies.

Defense Evidence

The defense pointed out Jimenez’ DNA was not found on the paper towels. The defense also argued that the untrained officer who first arrived on the scene may have forced the paper towels farther into Bryan’s throat while attempting to administer CPR.

The defense called witnesses who testified that Jimenez was a good babysitter who never lost her temper. The defense also emphasized that Jimenez had no motive to harm Bryan.

The defense wanted to call its own expert witness, but two potential witnesses declined. One was still owed a fee for testimony provided in an earlier case; the other thought the fee that Jimenez’ court-appointed lawyer offered was insufficient.

The defense retained Ira Kanfer, a Connecticut medical examiner. He regarded the lack of trauma on Jimenez’ face as evidence that the choking was accidental. But Kanfer had no pediatric training and did not belong to any forensic science organizations. He apparently formed his opinions by printing out articles he found on the internet.

Kanfer also testified that a toddler could wad up paper towels and swallow them, particularly if they were wet. There was evidence that Bryan had a history of throwing paper into the toilet.

Kanfer lost his cool after a cross-examination questioned his credentials. During a break in his testimony, he confronted the prosecutor in the hallway and made a rude remark to her. She questioned him about the remark when he resumed his testimony. Whether the judge would have deemed the remark to be relevant is unclear since defense counsel did not object to it.

After the Trial

A filmmaker who covered Jimenez’ case is convinced of her innocence. Jimenez was a poor Mexican who did not have immigration documents. The filmmaker suspected that the jury would never have convicted a white middle-class woman on the basis of such flimsy evidence.

The documentary caused a stir in Mexico that eventually prompted the Mexican government to fund Jimenez’ defense. New lawyers located Dr. Karen Zur at the Children’s Hospital of Philadelphia. Dr. Zur is the associate director of the Center for Pediatric Airway Disorders. Dr. Zur reviewed the evidence and swore in an affidavit that the size of the paper towel wad was not inconsistent with accidental choking. She also explained that the gag reflex could actually result in paper towels being pulled deeper into the throat.

Three other experts, including another pediatric otolaryngologist, a critical care surgeon, and a forensic pathologist, all agreed that it was possible for a toddler to accidentally swallow the paper towels. The otolaryngologist explained that he had removed a wad of bread of a similar size from the throat of a 28-month-old child.

The forensic pathologist had conducted autopsies on children who choked to death. He testified that it is not unusual for children to place a large wad of paper towels in their mouth. He faulted the prosecution experts for basing opinions on speculation rather than medical science.

Defense Lawyers Must Identify Effective Expert Witnesses

Had Jimenez’ defense lawyer called an expert in pediatric otolaryngology —  an expert with appropriate credentials who would not have been so easily flustered on the witness stand — the trial outcome might have been different. Unfortunately, publicly funded defense lawyers in states like Texas are unable to match the resources available to prosecutors.

Politicians are typically more willing to fund experts for prosecutors than for the defense, while pro-prosecution judges are skeptical about paying defense experts the fees that they deserve. The scales of justice are thus rigged to favor the prosecution.

Child abuse justifiably makes people angry. Some prosecutors seize upon that anger to convince juries to base verdicts on their emotions rather than the facts. An evidence-based appeal to rationality is the only strategy that counters that emotion. The strategy begins by identifying and finding a way to fund the right expert witness.

Jimenez’s trial attorney testified that he informally asked the trial judge for more funding, a claim that the judge denied. The lawyer now acknowledges that he should have placed his request in writing. Whenever a verdict in a court-appointed case may turn on expert evidence, lawyers need to make a written record of the need for a qualified expert witness and of the reasons a defendant will be deprived of the right to a fair trial without one.

 

Judge in courtroom

Failure to Challenge Expert Testimony of Pathologist Results in New Trial

Janet Walsh was murdered by strangulation in her apartment. The police questioned Gregory Hopkins, who admitted that he had a casual sexual relationship with Walsh during the summer but denied being present when she died. Having no evidence to the contrary, the investigation languished.

Walsh died in 1979. More than three decades later, advances in technology allowed Pennsylvania to test crime scene evidence for traces of DNA. The police reopened the investigation and discovered the presence of Hopkins’ semen on items that were on or near Walsh’s body.

Since Walsh admitted having a sexual relationship with Hopkins, the presence of his semen was consistent with his innocence. Having no evidence that the semen was deposited at the time of Walsh’s death, prosecutors strengthened their case by calling a forensic pathologist, Dr. Cyril Wecht, as an expert witness.

Dr. Wecht opined that “topographical distribution” of Hopkins’ semen proved that he was present at the time of Walsh’s death. The jury accepted that testimony and found Hopkins guilty of third-degree murder.

After Hopkins’ conviction was affirmed on appeal, Hopkins filed a postconviction motion based on his trial lawyer’s failure to seek exclusion of Dr. Wecht’s testimony. On appeal from a denial of that motion, the Pennsylvania Superior Court agreed that Dr. Wecht should not have been allowed to present his novel “topographical distribution” theory as an expert opinion.

Trial Evidence

Walsh separated from her husband shortly before her death. When her body was discovered, her hands were bound behind her back with the belt from her bathrobe. Walsh was wearing a nightgown and her body was covered by a sheet. A bandana around her neck had been used to strangle her.

The sheet had been placed on Walsh’s body by her father when he discovered her body. The sheet was removed and replaced multiple times by police officers, including the investigating trooper. The trooper examined the scene closely but saw no wet spots or stains on the sheet or on Walsh’s nightgown. Forensic specialists took swabs from Walsh’s mouth and vagina but found no evidence that Walsh had engaged in sexual activity at the time of her death.

The best suspect appeared to be a drifter who danced with Walsh at a club and then went to a restaurant with her in the late-night hours before her death. The drifter’s checkbook was found in a gutter near Walsh’s apartment.

Hopkins candidly admitted to the police that he had sex with Walsh several times during the summer. Their last sexual encounter was about three weeks before her death. He denied being with her (and nobody claimed to have seen them together) on the evening before her death.

When the investigation reopened in 2010, forensic investigators used a technique to identify traces of semen that are invisible to the naked eye. Forensic investigators testified that they found semen on the sheet, the bathrobe belt, and the nightgown. Although much of the semen had degraded and could not be reliably tested for DNA, investigators testified that DNA found in some samples came from Walsh. No DNA was found on the bandana that was used as a murder weapon.

The forensic investigators admitted that they did not know when the sheet, nightgown or bathrobe belt had last been washed. They also admitted that no test can identify the date on which semen is deposited prior to its collection for testing.

The prosecution nevertheless constructed a theory that Walsh died during a sexual encounter with Hopkins. That theory was unsupported by any physical evidence and was inconsistent with evidence that no semen was found in Walsh’s vagina. In addition, a physical examination of Walsh’ body in 1979 revealed no evidence of recent sexual activity.

Expert Testimony

Undeterred by the absence of any evidence that Walsh had sex on the night of her death, the prosecution obtained an expert report from Dr. Wecht to bolster its case. Dr. Wecht is an experienced forensic pathologist. He concluded that Hopkins’ semen had been deposited on the night of Walsh’s death.

Dr. Wecht based his opinion on the placement of the semen on Walsh’s bathrobe belt, nightgown, and bed sheet. He concluded that the location of the semen somehow established that Hopkins was on the bed on top of Walsh’s back at the time of her death. Dr. Wecht’s “topographical distribution” theory suggested that Hopkins strangled Walsh while he was having intercourse with her from behind.

Dr. Wecht admitted that DNA can be transferred from one object or location to another when objects are handled or laundered, although he discounted that possibility in this case. He could not explain why trained investigators failed to observe fresh semen stains if they had been deposited just hours before Walsh’s body was discovered.

Two defense experts (a forensic pathologist and a DNA expert) challenged Dr. Wecht’s opinions. They agreed that the semen could have been deposited prior to the night of Walsh’s murder.

Challenge to Dr. Wecht’s Testimony

Hopkins’ counsel challenged the admissibility of the opinions provided by Dr. Wecht on the ground that they were not stated to a reasonable degree of medical certainty and that they were not scientific opinions and thus not helpful to the jury. Counsel did not challenge the opinions on the ground that they failed the Frye test.

The trial judge agreed that Dr. Wecht identified no scientific principle that allowed him to determine from semen “placement” the date on which the semen was “placed.” The prosecution appealed that pretrial ruling. In a cursory 2-1 opinion, the Superior Court concluded that the testimony was admissible under Pennsylvania’s liberal standard for the admissibility of expert evidence. The dissenting judge agreed that Dr. Wecht’s opinion was unsubstantiated by any scientific principle and was therefore an inadmissible lay opinion rather than expert testimony.

Post-Conviction Motion

Pennsylvania has consistently rejected the Daubert standard of admissibility. It has adhered to the Frye standard for decades and incorporated Frye’s “general acceptance” standard into the state evidence code shortly before Hopkins’ trial.

The appellate court emphasized that trial counsel’s challenges to Dr. Wecht’s testimony did not specifically include a Frye challenge. That is, he did not argue that testimony based on a “topographical distribution” theory was inadmissible because the theory was not generally accepted by the scientific community.

At a hearing on his post-conviction motion, Hopkins presented the expert testimony of two forensic pathologists: Dr. David Fowler, the chairperson and former president of the National Association of Medical Examiners, and Dr. Kimberly Collins, the incoming president of that association.

Both experts testified that Dr. Wecht’s topographical distribution theory is “not medical science” and that engaging in a topographical distribution analysis is outside the boundaries of accepted practice in the field of pathology. In fact, neither expert had ever heard of the theory before.

While Pennsylvania courts recognize the admissibility of expert testimony based on novel theories, those theories must be founded on methodologies that are generally accepted by the scientific community. General acceptance can be established from a variety of sources, but an expert’s personal opinion is not enough. The opinion must be supported by recognized scientific authority.

In deciding the post-conviction motion, the trial court recognized that Dr. Wecht’s topographical distribution theory had no scientific validity but bizarrely concluded that his testimony was admissible precisely because it was not based on science and was therefore not subject to the rules governing the admissibility of expert opinions.

Appellate Analysis

The appellate court recognized that the trial court’s decision would make all expert testimony admissible, whether or not it was based on generally accepted principles of science. The prosecution presented Dr. Wecht as an expert and urged the jury to accept his expert opinion. An opinion that purports to be based on science must be supported by a generally accepted methodology.

The prosecution argued that Dr. Wecht’s conjecture was supported by “common sense.” However, common sense is not science. Juries and lay witnesses are entitled to use their common sense. Experts in science must be guided by science.

Since Dr. Wecht’s opinion was supported by nothing beyond his own conjecture, his opinion was inadmissible. The appellate court concluded that Hopkins’ counsel was ineffective in failing to seek exclusion of the testimony on Frye grounds. Had he done so, the testimony would have been excluded. And without Dr. Wecht’s testimony, no evidence supported the theory that Hopkins was present at the time of Walsh’s murder. Hopkins is therefore entitled to a new trial.

 

USA legal system conceptual series - Illinois

Illinois Considers Updates to Supreme Court Expert Discovery Rules

Two proposed changes to the Illinois Supreme Court Rules that are pending before the Chicago Bar Association Civil Practice Committee affect expert witness discovery. The affected rules are Illinois Supreme Court Rule 203 and Rule 213.

Illinois Supreme Court Rule 203

Illinois Supreme Court Rule 203 is titled, “Where Depositions May Be Taken.” Its current version was effective January 1, 1996. The rule currently reads, “Unless otherwise agreed, depositions shall be taken in the county in which the deponent resides or is employed or transacts business in person, or, in the case of a plaintiff-deponent, in the county in which the action is pending. However, the court, in its discretion, may order a party or a person who is currently an officer, director, or employee of a party to appear at a designated place in this State or elsewhere for the purpose of having the deposition taken. The order designating the place of a deposition may impose any terms and conditions that are just, including payment of reasonable expenses.”

The proposed changes to the rule would require a controlled expert witness to come to the county where the case is pending for the deposition. Under the new rule, an expert would be responsible for his or her expenses, which would then get passed on to the party. This rule would apply whether the deposition was for the purposes of discovery or evidence.

Opponents to the proposed change argue that this would impose burdens on parties that they may not be able to bear, by requiring them to pay travel fees for their chosen expert witnesses. The opponents note that the proposed rule shifts the costs of expert travel to benefit the deposing party. They argue that the cost of an in-person deposition should be borne by the party who requests that deposition. The new rule would also remove the option that currently exists to have the expert travel to the county where the case is pending because it is cheaper to pay to have the witness travel than the lawyers.

Illinois Supreme Court Rule 213

Illinois Supreme Court Rule 213 deals with “Written Interrogatories to Parties.” Its current version was amended December 29, 2017 and effective January 1, 2018. In pertinent part, Rule 213(f) requires parties to disclose, for independent expert witnesses, “the subjects on which the witness will testify and the opinions the party expects to elicit,” and for controlled expert witnesses, “(i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.”

The proposed change to this rule would exempt from disclosure all draft expert reports, draft expert disclosures, and communications with the expert except for those related to the fee agreement, billing and payment. This proposed change aims to bring Illinois more in line with the Federal Rules of Civil Procedure.

Opponents to the proposed rule argue that the proposed rule change should fail because without enacting the federal rules as a whole, adopting a portion of them does a poor job of balancing privilege with discovery. As Donald P. Eckler, legislative chair of the Illinois Association of Defense Trial Counsel, wrote of the proposed rule change, “This proposal would place an obstacle to the search for the truth and harm civil justice in Illinois.”

 

Florida Case Over Whether Expert Required to Corroborate Request for Fees Gains Attention

A dispute over legal fees is gaining attention in Florida as its courts are examining whether attorneys need expert witnesses to corroborate their requests for legal fees.

Underlying Dispute

The case began as a fee dispute between the Law Offices of Granoff & Kessler and its client, Richard Randal Glass. Attorney Roy E. Granoff was attempting to collect fees owed to him under a retainer agreement for his representation of Glass. The parties had an agreement that provided for an initial retainer plus $325 per hour for out-of-court services and $375 per hour for time spent in court. The total amount of the dispute was $34,345.

Granoff sued Glass in Miami-Dade Circuit Court. The Miami-Dade Circuit Court ruled that Granoff needed an independent expert to provide testimony to validate his fees. Granoff appealed.

Third District Court of Appeal

On appeal, the Third District Court of Appeal reversed the circuit court’s decision and ruled in favor of Granoff. The court remanded the case back to trial court to enter a judgment in Granoff’s favor. The court also certified a conflict with Florida’s Second District of Appeal’s decision in Snow v. Harlan Bakeries Inc.

Mark Goldstein, attorney for Glass, announced that he plans to ask for a rehearing en banc before all of the judges of the Third Circuit Court of Appeal. Goldstein claims that the appellate court’s decision “gutted a lot of law.”

Goldstein stated, “They essentially held when a lawyer directly sues his client for breach of contract, the rules of requiring a corroborating expert witness don’t apply.”

Granoff disagrees with Goldstein. He notes that his case has an important distinction. He said, “I was seeking it in the separate breach-of-contract action, and the case law holds you do not need an expert witness. Glass owed me attorney fees. I sued him in a separate lawsuit just for the fees he owed me. When I do it that way, I do not need an expert witness corroborating the fees.”

Granoff gave the following example as a comparison, “If there was an architect and he sued for fees, he would not have to bring in another architect to testify to the reasonableness to the fees. If there was a doctor, he wouldn’t have to bring in another doctor. But with lawyers, the law had been they have to bring in another lawyer.”

Granoff argued that this process makes no sense because an attorney would simply “bring an attorney friend of his who is going to testify to say his fees are reasonable.” He cited a Florida Bar Journal article by Robert J. Hauser, Raymond E. Kramer III, and Patricia A. Leonard, “Is Expert Testimony Really Needed in Attorneys’ Fees Litigation?,” where the authors opined that the “practice is cumbersome and unnecessary, and should no longer be required.”

Granoff noted that several attorneys have reached out to him and expressed an interest in representing him on appeal, intending to take this matter all the way to the Florida Supreme Court.

Biking, Race

Lance Armstrong Doping Expert Banned for Doping

An expert on doping who was part of Lance Armstrong’s defense team has been banned from the sport of cycling for four years after testing positive for banned substances.

Expert Witness John Gleaves

John Gleaves is an associate professor of kinesiology at California State University, Fullerton (CSUF). Gleaves focuses his research on doping in sport, which he examines from a variety of sociocultural perspectives.

Gleaves was appointed co-director for the International Network for Doping Research from 2012 to 2019. Gleaves is a co-founder and current co-director for CSUF’s Center for Sociocultural Sport and Olympic Research. He also serves as an Associate Editor for the Journal of Olympic Studies. Gleaves co-authored “Doping in Cycling: Interdisciplinary Perspectives” with Bertrand Fincouer and Fabian Ohl, and Practical Philosophy and “History of Sport and Physical Activity” with Scott Kretchmar, Mark Dyreson, and Matthew Llewellyn.

In 2015, Gleaves was an expert witness for Lance Armstrong’s defense during the United States government’s whistleblower lawsuit fraud suit. Gleaves offered testimony about the widespread nature of doping that persisted in the sport at the time that Armstrong was accused of doping.

Armstrong ended up confessing to doping and settling the fraud suit with the federal government for $5 million. As a result of his confession, Armstrong was banned from sanctioned cycling events for life and stripped of all seven of his titles in the Tour de France.

Gleaves’ Doping Ban

In addition to being a kinesiology professor and expert witness, Gleaves is a masters racer on the United States cycling circuit.

On August 31, 2019, Gleaves, 36, gave a urine sample as a participant at the Masters Track National Championships. Gleaves tested positive for oxandrolone metabolites 17α-Hydroxymethyl-17β-methyl-18-nor-2-oxa-5α-androst-13-en-3-one and 17β-Hydroxymethyl-17α-methyl-18-nor-2-oxa-5α-androst-13-en-3-one, as well as clomiphene and its metabolite 4-hydroxyclomiphene.

These substances are prohibited at all times by the USADA Protocol for Olympic and Paralympic Movement Testing, the United States Olympic and Paralympic Committee National Anti-Doping Policies, and the International Cycling Union Anti-Doping Rules.

As a result of his positive sample, Gleaves accepted a four-year period of ineligibility that began on August 31, 2019. Gleaves has also been disqualified from competitive results obtained on and subsequent to August 31, 2019, including forfeiture of any medals, points and prizes.

Doping Among Seniors on the Rise

While the ban of a doping expert for doping may come as a surprise to some, Gleaves himself has been speaking about the rise of doping among seniors for years.

In June 2015, Gleaves spoke about the rise of doping of seniors at the National Athletic Trainers’ Association convention. Gleaves said that current estimates were that 23 percent to 25 percent of all athletes knowingly use a banned substance at least once during their careers. Gleaves noted that experimentation has increased among masters athletes, or athletes who are 35 and older and compete in things such as distance running and cycling competitions.

Gleaves said:

It’s what no one is talking about now. … In cycling, swimming and track and field we’re seeing illicit use. There are a lot of lawyers, doctors and middle- to upper-middle-class people with disposable income and the social capital to be able to get quasi-legal prescriptions.

Gleaves noted that there was little testing at masters events, so few people were caught. However, the United States Track and Field did begin testing masters athletes over the past few years.

 

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Release from Confinement

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should not continue to be confined.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, separate experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5% of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49% of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state responded with a shocking claim that it could not verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.

 

Georgia Supreme Court Prohibits Automatic Exclusion of Expert Testimony as Sanction for Violating Scheduling Order

The failure to disclose an expert witness or to provide an expert report within the time limit set by a scheduling order is a recurring issue. Some courts enforce deadlines rigidly. Others are more flexible.

Overruling several lower court precedents, the Georgia Supreme Court made clear that the late disclosure of an expert should not automatically result in exclusion of the expert’s testimony. Rather, a trial judge should make a ruling that is fair to both parties, given the circumstances of the case.

Smith’s Discovery Disclosures

David Smith II was a highly ranked collegiate high jumper before he fractured his hip in a car accident. Smith sued the other driver, Donggue Lee, for negligence. Lee admitted fault.

Smith’s complaint requested damages for medical expenses and pain and suffering. The complaint did not specifically ask for an award of lost future earnings, but it did include a boilerplate request for such further relief as is just and proper.

An interrogatory asked Smith to identify expert witnesses. He answered that he had not made a decision about experts and would supplement his answers pursuant to the rules of civil procedure.

Another interrogatory asked Smith to itemize all of his special damages, including lost wages. Smith provided the medical expenses he had available, stated that he had not received final billings for all of his treatment, and promised to supplement his answers pursuant to the rules of civil procedure. The answer made no reference to past or future wage loss.

The last relevant interrogatory asked for information about lost earnings. Smith answered that he was not claiming lost earnings.

In response to a request for production of documents concerning loss of wages or future earning capacity, however, Smith answered that he was not claiming a loss of past or present earnings but might present evidence of lost earning capacity. He stated that he would supplement his response when that evidence was available.

Four years after the accident, Smith was able to compete in the Olympics. A year later, he had surgery to remove a bone chip from his hip joint that he regarded as accident related.

Two months after that surgery, Smith supplemented his discovery responses to state that he intended to call damages witnesses, including a treating physician and his agent. He stated that in the absence of a stipulation, he would also call an economist to testify about reduction to present value of future lost earnings.

Scheduling Order Issues

The trial court then entered a scheduling order setting a deadline for disclosing experts. Before the deadline passed, Smith supplemented his discovery responses again to indicate that he had been losing earnings, and would continue to do so, in the form of endorsement fees, corporate sponsorship fees, appearance fees, and similar compensation regarding his career as a professional high jumper. He also identified a newly retained agent who would testify as an expert witness.

The defense responded by identifying a rebuttal expert. Smith moved to exclude the expert because he was not identified within the time required by the scheduling order. The trial court granted the motion.

The court expressed sympathy for defense counsel’s claim that prior to the last day for disclosing experts, Lee had no notice that Smith intended to call his new agent as an expert or to make a claim for lost endorsement fees and similar future earnings. However, the court was apparently frustrated that the case had been on the docket for so long and did not want to make any rulings that would further delay the trial.

At trial, Smith emphasized in closing arguments that the defense presented no expert testimony to counter the agent’s calculation of lost earnings. The jury returned a general verdict of $2 million in Smith’s favor.

Lee appealed. The Georgia Court of Appeals affirmed the judgment. The Georgia Supreme Court agreed to review the trial court’s exclusion of testimony by Lee’s rebuttal expert.

Automatic Exclusion of Expert Testimony

The Supreme Court considered two principles of Georgia law that are in tension. First, trial courts have broad discretion to manage their cases and to set deadlines in scheduling orders. Since compliance with those orders is “of paramount importance” to effective case management, judges must be given broad discretion to enforce them.

Second, the exclusion of a witness is a “harsh sanction” that should not be used to punish noncompliance with a scheduling order if a lesser sanction will suffice. Only sanctions that “vindicate the court’s authority” should be imposed.

To reconcile those competing principles, trial courts must exercise their discretion in a reasonable way. The state supreme court decided that trial judges cannot automatically default to the exclusion of an expert witness based solely on a late disclosure, because the automatic imposition of a sanction is not an exercise of discretion. Courts must instead weigh the facts and make a ruling that is fair to both parties.

In this case, the court acknowledged that Lee didn’t create the problem but excluded his rebuttal expert solely because he missed a disclosure deadline that he arguably had no opportunity to meet. The court abdicated its duty to exercise discretion by excluding the expert as an automatic sanction for a belated disclosure. The state supreme court thus reversed the court of appeals’ opinion and overruled a string of court of lower court opinions that affirmed the automatic exclusion of a witness based solely on a violation of a scheduling order.

Factors Courts Must Consider When Sanctioning a Scheduling Order Violation

Going forward, the Georgia Supreme Court requires trial courts to consider four factors when deciding whether the late disclosure of an expert witness should be sanctioned by exclusion of the witness:

  • the party’s explanation for the failure to make a timely disclosure;
  • the importance of the testimony;
  • the prejudice to the opposing party if the witness is allowed to testify; and
  • whether a less harsh sanction would be sufficient to ameliorate any prejudice and vindicate the court’s authority.

Granting a continuance of trial or amending the scheduling order to permit discovery regarding the witness are examples of remedies that are less harsh than exclusion of the witness. Whether to select one of those remedies will depend on how the court weighs and balances the other factors.

Discretion should be exercised in the first instance by the trial judge, not by the appellate court. The Georgia Supreme Court therefore remanded the case to the trial judge with the direction to allow the parties to present evidence and arguments relevant to the identified factors. It will be up to the trial judge to decide whether Lee’s expert should be allowed to testify in a new trial, or whether no new trial is necessary because the court would have excluded the witness after conducting the appropriate analysis.