Category Archives: ExpertWitness

Court Dismisses Expert Witness Lawsuit Against Professional Association

Expert Witness Testimony Frees Woman Unjustly Convicted of Murder

Last year, ExpertPages called attention to the difference that expert witnesses might have made in the prosecution of Rosa Jimenez. Prosecutors in Travis County, Texas claimed that Jimenez caused the death of a child by stuffing paper towels down his throat.

No witness saw Jimenez place paper towels in the child’s mouth, but medical experts testified that no child would be capable of swallowing a wad of paper towels. The experts cited no studies and conducted no experiments to support their opinions.

An ER doctor testified that the child’s gag reflex would have pushed the wad out of Bryan’s mouth if it had not been forced down his throat. A forensic pathologist testified that Bryan’s throat was too narrow to ingest the paper towels. The other two experts simply testified that the towels could not have become lodged in the child’s throat accidentally.

As it now concedes, the prosecution’s case rested entirely on the testimony of its medical experts. The Travis County Conviction Integrity Unit of the District Attorney’s Office now admits that its prosecutors “presented  no  evidence  of  motive,  prior  mistreatment,  substance  abuse,  or  any  other  evidence  to  support  its  theory that [Jimenez] perpetrated an unprecedented attack on a young boy  in  her  care.”

Jimenez’s defense attorney was not given the funding it needed to present highly qualified experts. The defense managed to call a medical examiner who opined that the choking could have been accidental, but the expert had no pediatric training and did not belong to any forensic science organizations.

The one-sided presentation of expert testimony convinced the jury of Jimenez’s guilt. A judge sentenced her to 99 years in prison. Until recently, her efforts at overturning her conviction were consistently rebuffed.

State Concedes New Expert Evidence Is Persuasive

With the help of the Innocence Project, Jimenez marshaled new expert testimony to refute the opinions of the prosecution experts. Her attorneys gathered affidavits from four leading pediatric otolaryngologists: Dr. Michael J. Rutter, Dr. Douglas Sidell, Dr. Ron Mitchell, and Dr. Karen B. Zur. All of the experts specialize in pediatric airways, including the removal of foreign bodies from a child’s airway. They all agreed that a child can accidentally swallow the quantity of paper towels found in the child’s throat.

In addition, the doctors all agreed that it is very unlikely that one person, acting alone, would be able to stuff paper towels down a child’s throat. One of the doctors noted that he can’t even place a tongue depressor in a struggling child’s mouth without the assistance of another adult.

In addition, a prosecution expert, Dr. Elizabeth Peacock, admitted that her testimony was mistaken. She no longer believes that the child’s death could not have been accidental. After reviewing the information provided by the defense experts, she conceded that their knowledge of pediatric airways is superior to her own.

While the Conviction Integrity Unit, perhaps as a face-saving measure, suggested that the medical understanding of pediatric airways has evolved since Jimenez’s 2005 trial, qualified experts could likely have offered the same opinion at Jimenez’s trial if she had received the expert witness funding she needed. They could at least have testified to the absence of scientific support for the opinion that it would be “impossible” for a child to swallow paper towels accidentally.

Jimenez Released

Texas Judge Karen Sage agreed that Jimenez is innocent. She ordered Jimenez released on bond pending further proceedings in the case. Jimenez was released just in time to attend her daughter’s wedding.

The Innocence Project reports that U.S. Immigration and Customs Enforcement officers had told Jimenez that “we’re taking you to Mexico and doing an expedited deportation.” Perhaps realizing that taking an innocent person into custody after her release by a federal judge would not reflect well on an agency that has been directed to take a more compassionate approach to immigration enforcement, USCIS changed its mind and decided not to hold Jimenez in custody. Her freedom, at least for the moment, has been made possible by diligent defense lawyers who found the expert witnesses that Jimenez needed.

Expert’s Testimony that Dumpster Fire Was Probably Started by a Flame Adds Little to Arson Prosecution

When experts merely state the obvious without grounding their testimony in known facts, their testimony is typically excluded as being unhelpful to the jury. At a preliminary hearing in a criminal prosecution, however, decisions are made by a judge rather than a jury. Judges tend to be more lax about admitting expert testimony when they act as the decisionmaker.

It may nevertheless be worth questioning the value of an arson investigator’s expert opinion that a dumpster fire was probably started by a lighter or matches. Flames start most dumpster fires, but in the absence of evidence connecting a flame to a defendant, the expert opinion tells the judge nothing that the judge doesn’t already know.

Arson Prosecution

Efren Uribe is homeless. He was charged with arson in Sacramento County, California. Prosecutors allege that he used a lighter to start a fire in a dumpster and that he did so intentionally.

The dumpster is one that Uribe visits regularly in a search for food. He was seen entering the dumpster and then climbing out of it on the day of the fire. A convenience store employee had seen Uribe search the dumpster for food on multiple occasions during the previous two or three years.

There is no dispute that a fire began in the dumpster a few minutes after Uribe climbed out of it. No video captured the cause of the fire. No eyewitness saw anyone start the fire. The prosecution therefore relied on expert testimony to make a case against Uribe at his preliminary hearing.

Expert Testimony

The arson investigator, Brandon Lynch, works for the Sacramento Fire Department. His job is to investigate the origin of fires. He has done so on dozens of occasions. The court allowed him to testify as an expert witness.

Lynch testified that the dumpster fire originated from an “open flame device … such as a lighter or potentially matches.” The fact that flames start fires is obvious and uncontroversial. Electrical fires don’t occur in dumpsters. Nor was the dumpster struck by lightning.

Yet fires do not need to be started by lighters or matches. As Lynch admitted on cross-examination, someone could have tossed a cigarette into the dumpster, igniting its contents. A heated Sterno can or some other hot object tossed into the dumpster might also have started the fire.

In short, the arson investigator had no evidence as to how the fire started. His opinion that it was probably started by a flame is one that the judge could just as easily have formed without the benefit of expert testimony.

The prosecutor apparently believed that Lynch’s testimony was significant because Uribe had three lighters in his possession when the police arrested him. Yet Lynch’s testimony that the fire was caused by “a lighter or potentially matches,” while carefully phrased to make it seem that a lighter was the more likely source of the flame, added little to the prosecution’s case.

Uribe might have used a lighter to start the fire while he was inside the dumpster, but nobody saw him do so. Lynch admitted that he could think of no reason why Uribe would want to set the dumpster on fire. An expert opinion that “lighters can start fires” says nothing about whether this fire was started by a lighter, much less by one of Uribe’s lighters.

Hearing Outcome

A preliminary hearing is held to determine whether the prosecution has sufficient evidence to allow the case to proceed to trial. Prosecutors face a low standard of proof at a preliminary hearing. The judge who presides does not evaluate the credibility of witnesses. If the evidence that a jury could believe to be true makes it probable that the defendant committed a crime, the case will proceed to trial.

Given that low standard, the judge allowed the case to proceed to trial. Given the gaps in the testimony provided by its expert witness, however, the prosecution may decide that it lacks the evidence it needs to meet the trial standard of proof beyond a reasonable doubt. Uribe’s prosecution is a reminder that expert opinions cannot salvage a weak case when the opinions are grounded on speculation rather than evidence.

 

California Law Legal System Concept

California Bill Would Improve Quality of Forensic Evidence in Criminal Cases

The quality of forensic evidence used in support of criminal prosecutions has been a subject of continuing controversy. In response to a 2009 report by the National Academy of Sciences that criticized the state of forensic science, the Obama administration asked the President’s Council of Advisors on Science and Technology (PCAST) to identify actions that would improve the validity of forensic evidence used in the legal system. The resulting PCAST report represented a serious attempt to restore credibility to forensic science.

Shortly before President Biden’s inauguration, the Trump administration issued an unsigned statement denouncing the PCAST report on the ground that it “contained several fundamentally incorrect claims.” Critics suggest that the Department of Justice undermined the PCAST report to protect junk science that prosecutors rely upon in criminal prosecutions.

It is too early to know how the Biden administration will respond to the forensic evidence controversy. A California state senator, Scott Weiner, has weighed in on the issue by authoring the “End Wrongful Convictions Act.”

End Wrongful Convictions Act

According to Sen. Weiner, “inaccurate expert testimony and faulty forensics are the largest factors in [California’s] high rate of wrongful convictions, with approximately 200 people wrongly serving extended jail sentences for serious crimes like rape or murder in California since 1989.”

The “End Wrongful Conviction Act” (California SB 243) would raise the bar on the admission of expert testimony in criminal cases. The relevant text states:

In any criminal proceeding, a court considering whether expert testimony is based on matter that is of a type that reasonably may be relied upon by an expert in forming an opinion pursuant to this article, shall determine whether the expert’s opinion, and any underlying literature, studies, research, and other materials on which the expert relies in forming that opinion, are based on a reliable foundation, proper methodology, and sound logic. If the opinion or underlying literature, studies, research, or other materials lack a reliable foundation, proper methodology, and sound logic, they are not matter that may be reasonably relied upon.

The bill is similar to Daubert in its requirement that expert opinions must be grounded in a reasonable methodology and a reliable application of that methodology to the facts of the case (which might be considered the equivalent of basing an opinion on “a reliable foundation” and “sound logic”). While California has not formally adopted Daubert, the state supreme court has moved state law in that direction. Still, courts tend to be more cautious about expert testimony offered by plaintiffs in civil cases than they are about expert testimony offered by prosecutors in criminal cases.

The bill would likely render inadmissible the “junk science” of bitemark evidence and shaken baby syndrome. It might also restrain experts who overstate the reliability of their opinions by claiming, without a factual basis, that they can be completely certain that their opinion is correct. Opinions of that nature are often advanced, for example, by fingerprint experts, despite studies demonstrating that opinions based on fingerprint comparisons are often wrong.

Benefits of Assuring Reliability of Forensic Evidence

Faith in the criminal justice system is shaken whenever news articles remind the public that bad science has caused an epidemic of wrongful convictions. Weiner believes his bill would “boost public confidence that the criminal justice system is working the way it is supposed to.”

Weiner also notes that every wrongful conviction means that a guilty person has gone free. Public safety may therefore be endangered by reliance on poor forensic evidence. Research suggests that guilty criminals who benefit from the wrongful conviction of the innocent often commit new crimes.

Unfortunately, by the time a case goes to trial, police and prosecutors tend to be locked into their view of guilt. “Not guilty” verdicts rarely persuade the police to look for a more likely suspect. They are more likely to think that the jury got it wrong than to admit they made a mistake.

Wrongful convictions have an additional cost. The expense of incarcerating the innocent, hearing their post-conviction legal challenges, and settling lawsuits arising out the convictions is substantial. One study concluded that over a twelve-year period, wrongful convictions in California alone cost taxpayers more than $282 million. Avoiding wrongful conviction by improving expert evidence offered by forensic scientists would therefore benefit the public as well as the wrongly accused.

Expert Witness

Expert Witness Report Rule Relaxed in Expedited Litigation

A Virginia district court has relaxed the expert witness report rule in the case of expedited litigation.

The Abduction

Bryce Gerald Randall Nowlan and Nina Lynn Nowlan were married and had a daughter, “AEN.” Bryce Nowlan is a Canadian citizen who resides in Canada. Nina Nowlan is an American citizen who currently resides in Virginia. Bryce Nowlan alleges that Nina Nowlan wrongfully took their daughter from his custody in Canada to Virginia.

Bryce Nowlan filed a petition for AEN’s return to Canada under The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the International Child Abduction Remedies Act. He also filed a motion to expedite the proceedings under the Hague Convention.

Court Proceedings

The parties submitted a proposed scheduling order. The parties agreed on all matters with one exception. Bryce Nowlan proposed that both parties should provide “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure” and “full and complete rebuttal expert disclosures, which shall also comply with Rule 26(a)(2)(A)-(C). Nina Nowlan objected to “importing the strict disclosure requirements of Rule 26, particularly since this matter is proceeding on an expedited basis.” Rule 26 requires that a witness prepare and sign a detailed report at the expense of the disclosing party. Since Nina Nowlan is indigent, she requested that the court instead require counsel for each party to provide summaries of each expert’s anticipated opinions.

The court granted Nina Nowlan’s request and required each party to provide “detailed written summaries of their experts’ opinions and conclusions.” The court noted that it was “cognizant of the onerous burden imposed by Rule 26 regarding expert witness disclosures and Ms. Nowlan’s objection to complying with the strictures of the rule due to both time and expense. The court agrees and notes that this, at bottom, is a summary proceeding with expedited deadlines, modified procedures, and relaxed standards for the admissibility of evidence. Given these unique factors, respondent’s objection is persuasive. The court will grant the parties latitude during the cross examination of any expert witness as necessary to account for any expert report that is less than fulsome than a standard Rule 26 report.”

Bryce Nowlan objected to the “truncating” of expert-disclosure obligations under Rule 26(a)(2)(B) in light of Nina Nowlan’s claims that he had sexually abused AEN. His objection stated that the court’s order did not provide him with the opportunity that he would have had under Rule 26 to note any Daubert challenges or move in limine to exclude a proposed expert in advance of trial.

Court Ruling

The court noted that district courts are “afforded substantial discretion in managing discovery.” It also noted that Rule 26(a)(2)(B) contemplated deviations from the typical requirements for expert witnesses’ written reports by including the language “unless otherwise stipulated or ordered by the court.”

The court noted that its order still required the parties to produce “detailed, written summaries” and that it had granted the parties “latitude during the cross examination of any expert witness as necessary.”

The court was satisfied that the parties were able to adequately prepare for the bench trial and bring any purported insufficiencies or shortcomings of the other party’s expert witnesses at trial and overruled Bryce Nowlan’s objections.

Georgia

Georgia Supreme Court Hears Argument on Paying Expert Witness Fees for Defendant with Private Attorney

The Georgia Supreme Court has heard oral argument of the issue of whether Georgia’s Indigent Defense Act allows for public funding for expert witnesses when a defendant is represented by a private attorney.

The Crime

In October 2005, high school teacher Tara Faye Grinstead was reported missing.  Her disappearance remained a mystery until 2017, when Bo Dukes reported that his friend Ryan Alexander Duke had confessed to the murder.  Dukes told the authorities that Duke told him that he had broken into Grinstead’s home to rob her, but that he ended up strangling her to death.  Dukes claimed that he helped Duke to transport Grinstead’s body and assisted him in burning it.

On February 22, 2017, Duke confessed to authorities that he was solely responsible for Grinstead’s murder.  Duke was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.

Expert Witness Funding Issue

Duke was initially represented by the Tifton Judicial Circuit Public Defender.  In 2018, private attorneys offered to take on his case pro bono.  Duke’s attorneys filed a pretrial motion requesting state funding to pay for an investigator and defense expert witnesses.  The trial court denied the motion.  It stated, while Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State.”  Duke’s attorneys appealed.

The Georgia Supreme Court granted an appeal to answer the question,  “Did the trial court err in holding that an indigent defendant in a criminal case who is represented by private, pro bono counsel does not have a constitutional right or a statutory right under the Indigent Defense Act…to state-funded experts and investigators?”

The Georgia Supreme Court heard oral argument on the issue on January 12, 2021.

Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act in order to protect his Sixth Amendment rights to counsel and a fair trial.  His attorneys pointed out that a trial court judge made a specific finding that Duke is indigent and that his need for experts in this case was “compelling.”  The attorneys argued that if the trial court’s ruling is allowed to stand, indigent defendants will be forced to choose between having an attorney with sufficient time, knowledge and skill to defend the case or work with a potentially overworked attorney with little time to devote to the case to have the benefit of working with experts.

The State argued that indigent defendants do not have a constitutional or statutory right under the Indigent Defense Act to state-funding investigators or experts.  The State also claimed that Duke does not even qualify as indigent because of his evidence of “other resources,” such as his ability to pay for private counsel.  The State argued that under the Indigent Defense Act, an indigent who opts out of public representation also opts out of public defense resources.

The Georgia Supreme Court took the matter under advisement.  The court typically makes its ruling on cases within six months of oral argument.  After its ruling, Duke’s case will be sent back to Irwin County court to schedule a new date for trial.

 

Police Brutality

Police Captain Who Testified at Rodney King Trial to Testify in George Floyd Case

The retired Los Angeles police captain who testified that the officers did not use excessive force in the Rodney King trial is set to testify as a defense expert in the upcoming George Floyd trial.

George Floyd Case

On May 25, 2020, George Floyd, who was a black man in handcuffs, died after Derek Chauvin, a Minneapolis police officer pressed his knee against Floyd’s neck as he said he couldn’t breathe.  Chauvin and the other three officers who were present, were fired and are scheduled to stand trial.

Chauvin is charged with unintentional second-degree murder and second-degree manslaughter.  The three others, Thomas Lane, J. Alexander Kueng, and Tou Thao, are charged with aiding and abetting both counts.

Each of the former police officers will be tried separately.

Use-of-Force Expert

Former Minneapolis police officer Thomas Lane is represented by attorney Earl Gray.  Gray filed a notice that he plans to call Greg Meyer as a use-of-force expert at his client’s trial.

Greg Meyer is a retired Los Angeles police captain who was employed by the Los Angeles Police Department from 1976 to 2006. Meyer is also an expert on police training, intervention, detention, and arrests.

Meyer offered testimony at the Rodney King federal civil trial in 1994.  In 1991, Los Angeles police officers were trying to stop an unarmed King from speeding when he fled.  After a high-speed chase, the officers used stun guns and beat King with batons.  Bystander video of the incident led to increased concern over the effect of race on policing.

At the trial, Meyer testified that the officers did not use excessive force when they beat Rodney King in 1991.  Meyer testified that the officers had not used excessive force because of police policy.  Jurors awarded King $3.8 million in damages, but declined to award punitive damages.

Meyer has been critical of bans of neck restraint holds and upper-body control holds or “chokeholds.”

Meyer wrote an opinion piece for the L.A. Times in 1994.  In his piece, Meyer blamed the City Council and board of police commissioners for stopping the use of chokeholds.  Meyer explained that an upper-body control hold applies pressure to the carotid artery in the neck to render the subject unconscious. When chokeholds were banned, some warned that the next level of force would be the baton.

Meyer noted that after the chokehold ban, injuries to suspects had risen 661% and injuries to officers had risen 521%.

Meyer wrote, “Police officers and jailers will continue to have violent confrontations with persons who choose to resist. And the public will grow tired of making millionaires out of convicted criminals and others who resisted arrest. The public must insist on a re-evaluation of police policy in a more rational policy-making process than Los Angeles experienced in the early 1980s. Law-enforcement leaders must adopt a more humane use of force on a scale governed by the severity of injuries that result from any given tactic.”

He continued, “If we can put a man on the moon and return him safely to Earth, why can’t we put a man on the ground and take him safely to jail?”

Skinny Horse

Expert Testimony Inadmissible in Case Alleging Misbranding of Drugs Administered to Racehorses

Can a defendant who is charged with misbranding drugs that were administered to racehorses offer expert testimony that the drugs were not performance enhancing? The Court of Appeals for the Third Circuit held that the expert testimony was inadmissible.

Misbranding Drugs

Pennsylvania has a law that prohibits administering nearly all drugs to a horse during the 24 hours prior to post time if the horse will run in a thoroughbred race. Veterinarians who administer drugs to racehorses must keep a record of the date, time, and drug that was given to the horse.

Murray Rojas is a horse trainer who handles horses at Penn National Race Track. He was accused of executing a scheme to administer drugs to horses within 24 hours of their races. While that conduct would typically result in prosecution of a state crime, prosecutors “made a federal case out of it” by indicting Rojas with 21 federal charges, including multiple counts of wire fraud and misbranding of animal drugs. He was also charged with conspiring to commit those crimes.

Misbranding typically refers to changing or removing labels on prescription drugs. Another federal law provides that certain animal drugs may be “dispensed only by or upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian’s professional practice.”

A prescription “authorized by law” is a lawful order. Dispensing such a drug without a lawful order is deemed a form of “misbranding” of the drug. While the government stretched to find a theory that supported a federal charge, the facts fit the charge well enough for prosecutors to federalize the crime.

Rojas’ Trial

At Rojas’ trial, three veterinarians testified that, at Rojas’ direction, they administered drugs to horses and falsified reports by either backdating or misrepresenting the drugs that were administered. The court rejected Rojas’ argument that the statute only prohibits “dispensing” drugs and that “administering” the drugs does not violate the law.

A jury acquitted Rojas of the wire fraud and associated conspiracy counts but convicted him of each count of misbranding animal drugs and conspiring to do so. Among the issues Rojas raised on appeal was whether the court erred by disallowing expert testimony.

Expert Testimony

Rojas argued that the Pennsylvania law making it unlawful to administer drugs to a racehorse within 24 hours of the race is meant to assure that races are fair by preventing owners from winning races through fraudulent means. In his view, if the drugs could not have affected the race, they were lawfully administered and thus were not misbranded.

Rojas wanted to establish his defense with expert testimony. His expert would have testified that the drugs were therapeutic rather than performance enhancing. The expert would also have testified that the drugs could not have improved a horse’s opportunity to win a race.

The jury might have wondered why Rojas wanted veterinarians to falsify the names of the drugs and backdate the reporting forms if the drugs were innocuous. In any event, the jury did not hear the expert testimony because the trial judge concluded that it was irrelevant.

The appellate court affirmed that decision. To be admissible, expert testimony must help a jury decide a disputed fact. The court of appeals decided that Pennsylvania law made no distinction between therapeutic and performance-enhancing drugs. The administration of all drugs must be reported accurately. Since no drug may be administered within 24 hours of a race, regardless of the drug’s nature, the expert’s opinion was not relevant to any fact that the jury needed to find.

Lessons Learned

Expert witness admissibility often turns on the expert’s qualifications or on the reliability of the expert’s testimony. Just as fundamental is whether the expert has something useful to say.

Rojas’ expert may have been well qualified and may been able to offer a reliable opinion about the effect of drugs on racehorses. If there had been a question about the identity of the drugs that were administered, an expert could have provided a useful opinion. Unfortunately for Rojas, the case turned on whether he caused drugs to be administered without a lawful order, regardless of the nature of the drugs.

Since the expert’ opinions did not address facts that mattered to the verdict, the expert testimony was properly excluded. The Rojas case stands as a reminder that expert testimony, while often an important means of proving facts, will only be admitted if it proves facts that matter.

A white cop

Seventh Circuit Permits Police Officer to Testify as Drug Jargon Expert

The odds of admitting expert testimony are stacked against defendants in criminal cases. An analysis of federal criminal prosecutions found that judges almost always admit expert testimony offered by prosecutors but usually disallow the expert testimony of defense experts.

Prosecutors commonly rely on police officers to provide expert testimony. While the officers are not allowed to testify that a defendant is guilty (an issue that only the jury can decide), they are often allowed to give “ultimate issue” testimony that invites the jury to find guilt. To a jury, there is little difference between testifying that “In my opinion, the defendant sold drugs” and testifying that “In my expert opinion, all of the evidence is consistent with the defendant selling drugs.”

Federal courts have been criticized for their lax application of the Daubert standard to police officer testimony. Other experts are required to demonstrate that they formed opinions through the reliable application of a sound methodology to sufficient facts. Police officers are often allowed to couch any opinion as an expert opinion simply by claiming that the opinion is based on their experience in law enforcement.

A common example of the lax application of Daubert involves “expert” testimony about the meaning of “drug jargon.” A recent decision of the U.S. Court of Appeals for the Seventh Circuit determined that police officers can offer expert opinions about the hidden meaning of ordinary words that a defendant uses in text messages.

Facts of the Case

Maurice Gardner was the passenger in a car that was stopped by police officers in Evansville, Illinois. For reasons that the appellate opinion does not explain, the officers searched the vehicle. They found bags containing six grams of methamphetamine, digital scales, and a loaded firearm. Officers testified that they asked Gardner why he was in the vehicle and Gardner admitted that he was trying to sell drugs.

Given those facts, the government had a slam dunk case on the drug charges. It nevertheless bolstered its evidence by calling Evansville Police Officer Cliff Simpson as an “expert in narcotics distribution.” Since the jury was just as capable of interpreting the evidence as Simpson, this was not the kind of case in which the testimony of an “expert in narcotics distribution” would normally be admissible. The prosecution, however, wanted Simpson to “translate” text messages on Gardner’s phone that the prosecution claimed were “coded.”

Simpson claimed expertise because he had “interpreted” text messages and phone calls in more than a dozen wiretap investigations. The prosecution apparently offered no evidence that Simpson had interpreted the communications accurately.

Expert Opinions

Gardner received a text message that said “she will pay 245 for it.” Simpson testified that the message meant “someone would pay $245 for methamphetamine.” Since neither “245” nor “it” are drug jargon, it is difficult to understand why the judge felt that an expert was needed to decode the message. Whether “it” referred to methamphetamine was an inference that the jury could draw without Simpson’s guiding hand.

The same is true of Gardner’s reply: “I can do one for 250 and dat’s all.”  The phrase “do one” likely means “sell one” in context, but there’s nothing coded about that language. Simpson’s testimony that Gardner meant that he was willing to sell a quantity of the drug for $250 hardly requires an expert interpretation.

Simpson might have relied on expertise when he testified that 3 grams of methamphetamine would retail for $250, but the message did not say “I can sell three” or “I can sell an eight ball” (jargon that describes an eighth of an ounce, or about 3.5 grams). The jury was just as capable as Simpson of inferring that “one” referred to an unspecified drug quantity.

Finally, Gardner texted, “I ain’t got dat kind of deal rite now. I’m grinding dis out.” Simpson believed “dat kind of deal” referred to a lower price, an obvious conclusion that requires no expertise.

Simpson also testified that “grinding dis out” meant that Gardner was not selling large amounts but was breaking down his supply to sell in smaller amounts. Perhaps that’s true. Or perhaps Gardner was saying that he was just trying to get through the daily grind of his day. It is not at all clear that Simpson’s opinion about the meaning of Gardner’s words was grounded in expertise rather than assumptions.

Daubert Challenge Rejected

Perhaps the common practice of street dealers to make more money by risking multiple smaller sales rather than giving a quantity discount for a larger sale is not a practice that juries would understand without expert testimony. But Simpson did not explain how street dealers work. He simply offered a personal opinion of what “grinding dis out” meant. A reasonable expert methodology would require the expert to study the jargon used by drug dealers and to identify other instances in which “grinding dis out” meant “selling smaller quantities.” Nothing in the appellate opinion suggests that Gardner based his opinion on a reasonable methodology.

The appellate court nevertheless concluded that a different standard of reliability applies when an expert witness is a police officer. The expert officer does not need to employ a reasonable methodology to arrive at a reliable opinion. It is enough for the officer to base an opinion on the officer’s experience. The court held that “the reliability of the expert’s methods may reasonably be inferred from the expert’s background.”

Experts who testify about harms caused by dangerous drugs and toxic exposures need to rely on reasonable methodologies, no matter how “vast” their experience might be. Why is the Daubert rule different for the police? The Seventh Circuit made no attempt to justify its application of a different standard that benefits the prosecution in criminal cases. A cynic might conclude that the court simply wanted to make it easier for the government to win criminal cases and abandoned doctrinal consistency to advance that goal.

The court also rejected the argument that “Simpson interpreted innocuous, everyday words that need not be decoded by an expert.” According to the Seventh Circuit, words that might “seem entirely innocuous” to ordinary jurors can be recognized as “drug jargon” by police officers. Perhaps there are instances where that might be true, but nothing in the phrase “I can do one for 250” even remotely qualifies as coded drug jargon. What Gardner meant by “one” is an inference to be drawn from all the facts. It is not a “coded” word that only an expert can interpret.

In the end, the case against Gardner was so strong that Simpson’s testimony likely had no impact on the verdict. The court of appeals covered itself by noting that the district court’s decision to admit the testimony would have been a harmless error even if the appellate court had found the decision to be erroneous. The decision nevertheless provides further support for the sad conclusion that “the Daubert revolution, aimed at upgrading the quality of expert evidence, has had surprisingly little impact in the criminal courts.”

 

USA legal system conceptual series - Illinois

Court Rejects Claim that Expert Failed to Determine a Business Valuation

Payroll Services by Extra Help, Inc. and Teresa Katubig sued Kimberlyn Haag in an Illinois state court. They asked the court to determine the value of Haag’s 25% shareholder interest in Payroll Services.

Pursuant to the shareholder agreement, Haag retained an expert who offered an opinion about the fair market value of the shares. Payroll Services and Katubig asked the court to reject the expert’s report on the ground that it was a “calculation” and not a “valuation.”

After the report was revised, and against Payroll Services’ objection that the expert merely changed the report’s title, the court decided that the expert’s opinion did, in fact, constitute a valuation. An appellate court agreed with that decision.

Facts of the Case

Katubig was the president of Payroll Services. Haag was an employee. Katubig and Haag entered into a shareholder agreement that gave Katubig 75% ownership and Haag 25% ownership of the business. Payroll Services later fired Haag and exercised its option to purchase her shares.

The shareholder agreement allowed the parties to agree upon a business valuation company and to abide by its determination of the business value. In the absence of agreement, it allowed each party to retain a business valuation company. In that event, the purchase price for the shares would be based on an average of the two valuations.

Payroll Services hired the Anders firm to prepare a valuation of the company. Haag hired Kemper Group to prepare a valuation.

An accountant employed by the Anders firm opined that Haag’s shares were worth nothing. That accountant referred to his analysis as a “valuation engagement.”

An accountant employed by the Kemper Group opined that Haag’s shares were worth $587,000. That accountant referred to her analysis as a “calculation engagement.” The accountant explained that a calculation engagement is based on a methodology defined by the accountant’s client and may differ significantly from a valuation engagement.

Haag requested payment of the average of the two values. Payroll Services objected, contending that a “calculation” is not the “valuation” required by the shareholder agreement. Payroll Services filed suit, asking the court to declare that it owed Haag nothing.

Expert Testimony

Haag argued that the shareholder agreement did not define the term “valuation.” In her view, the agreement did not require a “valuation engagement” and did not prohibit a “calculation engagement.”

Payroll Services countered that “valuation” is a term of art that is defined by the American Institute of Certified Public Accountants (AICPA). The AICPA’s Statement on Standards for Valuation Services, however, defines valuation as the process of determining the value of a business.

The AICPA statement describes both a valuation engagement and a calculation engagement while noting that a valuation engagement results in a “conclusion of value” while a calculation engagement results in a “calculation of value.” Whether to use a valuation engagement or a calculation engagement is decided by the accountant’s client.

The Anders accountant testified that business valuations can be prepared by using an asset approach, a market approach, an income approach, or a hybrid of those methods. Which method to use was a matter of professional judgment.

The Anders accountant noted that Payroll Services was in debt because it had recently purchased some other companies. Since the debt exceeded the company’s equity value, the accountant employed an income stream approach to decide that the shares had no market value.

The Kemper accountant testified that she could not prepare a valuation engagement because Payroll Services refused to provide the financial information that she needed. She therefore agreed with Haag to prepare a calculation engagement.

The Kemper accountant used the comparable company approach to valuation. She considered the price that Payroll Services had paid to acquire similar companies. Her valuation was based on that comparison.

The Kemper accountant testified that a valuation engagement should consider the economic reality of the company. She did not believe that the Anders accountant’s valuation reflected that reality because the stock of an ongoing enterprise that is regularly acquiring competing companies is probably not worthless.

Trial Court Decision

The court initially decided that Haag’s expert did not make a sufficient “valuation” as that term is used in the business valuation industry. Given the parties’ dispute as to whether the shareholder agreement required the term “valuation” to be defined by industry standards, as well as the dispute as to whether a calculation engagement satisfies the industry standard for valuations, the court granted Haag leave to file a new expert report.

Haag’s expert then prepared a “full valuation.” Payroll Services objected that the full valuation used the same methodology as the calculation engagement and arrived at the same conclusion. Payroll Services asked the court to reject the report because it was little more than the former report with a new title.

Haag’s expert explained that she conducted new research and calculated a book value in preparing her new report. The new information she received persuaded her that comparing Payroll Services to recent purchase prices of comparable companies would yield that most realistic valuation. She also explained that she rejected the income stream analysis relied upon by Payroll Services’ expert because the company’s acquisition of new businesses created debt that made the income stream an unrealistic measure of the company’s value.

The trial court determined that Haag’s new expert report met the definition of “valuation” as it was used in the business valuation industry. It accordingly admitted the report and awarded Haag the average of the two competing valuations.

Appellate Opinion

Competing methods for valuing property can yield dramatically different conclusions. In many cases, a judge or jury will decide which of two competing methods arrived at the most accurate result.

In this case, however, the judge merely needed to decide whether each expert produced a “valuation” as required by the shareholder’s agreement. If they did, the judge’s role was limited to calculating the average of the two valuations.

The appellate court rejected the trial court’s initial decision that a calculation engagement is not a valuation. The court noted that the shareholder agreement did not specify the means by which a valuation was to be made. The AICPA recognizes that both engagements are valuations and leaves it to the accountant and the client to determine which engagement to use.

The appellate court also rejected the holding that the term “valuation” should be defined according to business valuation industry standards. Since the parties did not adopt a particular definition of “valuation,” the court gave the term its ordinary meaning: an estimation of worth, especially one that is made by a professional. Regardless of its label, Haag’s expert prepared a valuation that met that definition.

Haag’s only obligation was to retain an expert to prepare a business valuation. She did so. The shareholder agreement left no room for the courts to decide which expert prepared a better valuation. Since both parties obtained valuations prepared by business valuation experts, the appellate court affirmed the trial court’s decision to award the average of those two valuations to Haag.

 

Mesothelioma

Court Denies Daubert Challenges to Expert Opinions About Asbestos Exposure in a Shipyard

John Wineland died from mesothelioma. Wineland’s personal representative sued Todd Shipyard and other defendants for negligently exposing Wineland to asbestos during Wineland’s service in the Navy.

Todd Shipyard filed a Daubert motion to exclude the testimony of four expert witnesses. Recognizing that the shipyard’s arguments addressed questions of credibility that should be decided by a jury, the court determined that the opinions of each expert were admissible.

Capt. Arnold Moore

Captain Moore was offered as an expert on “maintenance practices and conditions aboard Navy ships.” He has professional experience with “naval warships and their machinery, the operation and maintenance of steam propulsion plants, the repair and overhaul of Navy ships, [and] the role of Enginemen aboard naval ships.”

Moore reviewed personnel records regarding Wineland’s naval service, including records of his assignment to the engine room of the USS Tuscaloosa. That ship was overhauled at Todd Shipyard during Wineland’s service. Wineland devoted extensive time to preparing for and overseeing the overhaul.

Moore determined that the diesel engines and heated systems on the Tuscaloosa were insulated with asbestos. Records showed that Wineland frequently visited spaces where Todd Shipyard workers were performing repairs on the Tuscaloosa to observe the repairs and to inspect the repaired equipment.

Moore opined that removal and replacement of gaskets during the overhaul would have produced airborne asbestos fibers. He concluded that Wineland was likely exposed to asbestos dust while the ship was being overhauled at Todd Shipyard.

Todd Shipyard objected that Moore explained the basis for his opinions in insufficient detail. The shipyard noted that Moore identified no witnesses who actually saw Wineland performing the duties that Moore described.

The court decided that Moore’s methodology was reliable. In light of his experience and knowledge of the duties Enginemen, Moore’s review of records allowed him to determine the work that Wineland did while the ship was docked at Todd Shipyard. He did not need eyewitness accounts to understand that Wineland did the kind of work that exposes Enginemen to asbestos. Because his opinions had a reliable basis and would be helpful to the jury, the court denied the Daubert motion as to Moore.

Steven Paskal

Paskal is a certified industrial hygienist. His testimony was offered to explain “how asbestos reacts when released into the air, the risks it poses to human health, and how to mitigate those risks.” Paskal also expressed the opinion that Wineland was exposed to asbestos during his naval service and that work practices in shipyards during Wineland’s service were not designed to minimize exposure to asbestos particles.

Paskal based his opinions on his own experience as an industrial hygienist for the Navy and on his review of Moore’s reports. Todd Shipyard objected that Paskal had no factual basis for his opinions because he did not know the frequency, intensity, or duration of Wineland’s asbestos exposure at Todd Shipyard.

The court was unimpressed with the objection. Paskal was entitled to rely on Moore’s conclusion that Wineland was exposed to asbestos when gaskets and packing were removed and replaced. Moore’s review of maintenance and personnel records satisfied him that Wineland was frequently present when asbestos was released into the air. Details about the intensity and duration of those exposures were not necessary to the conclusion that Wineland was, in fact, exposed to asbestos. Paskal therefore had a factual basis for his opinions.

Paskal’s own training and experience allowed him to determine that each exposure to asbestos was “a million times greater” than Wineland would otherwise have experienced. He also offered the noncontroversial opinion that each exposure contributes to the risk of developing mesothelioma.

Todd Shipyard nevertheless complained that Paskal did not know how much cumulative exposure Wineland received at the shipyard. Apparently recognizing that a cumulative exposure rate was not necessary to Paskal’s opinion, Todd Shipyard argued in a reply brief that Paskal had insufficient evidence of exposure to support an opinion that Wineland’s exposure at the shipyard was a substantial factor in the development of his mesothelioma.

While Ninth Circuit precedent requires evidence that asbestos exposure was sufficiently significant to contribute to mesothelioma, the court was satisfied that Moore’s opinion supplied a factual basis for Paskal’s opinion. Moore determined the length of time that the ship was docked in the shipyard and the approximate frequency with which Wineland supervised and inspected work during the overhaul. That testimony provided an underpinning for Paskal’s causation opinion.

Dr. David Zhang

Dr. Zhang is a physician who practices occupational medicine. In his opinion, Wineland suffered from asbestos-related pleural malignant mesothelioma. Todd Shipyard argued that Dr. Zhang had no factual basis for his opinion that Wineland was exposed to asbestos or that the asbestos caused his cancer.

The court easily dismissed that challenge. Moore and Paskal provided the factual basis for the conclusion that Wineland was exposed to asbestos. Since asbestos exposure is the only known cause of mesothelioma, the conclusion that asbestos exposure harmed Wineland is inescapable.

Charles Ay

Charles Ay is an asbestos consultant. He worked as an asbestos insulator in the shipyard industry for twenty years, then began a career in asbestos detection, testing, and abatement. He expressed opinions about the presence of asbestos in pipe insulation during the 1970s, the consistent methods used to remove pipe insulation in a variety of industries during the 1970s, and the concentrations of asbestos fibers that are present when insulation is removed from pipes.

Ay’s testimony was obviously relevant. Todd Shipyard challenged it on the ground that Ay never worked at Todd Shipyard. The notion that “only our employees can testify against us” is not supported by precedent. Ay had experience in shipyards. Todd Shipyard offered no reason to believe that its asbestos removal procedures were different than those in other shipyards. At best, Todd Shipyard’s objections went to the weight a jury might give to Ay’s testimony, not to its admissibility.