Category Archives: ExpertWitness

North Carolina

Appellate Court in NC Malpractice Case Rejects Challenges Based on Expert Testimony

The North Carolina Court of Appeals was asked to decide whether expert testimony justified an “intervening cause” jury instruction when two procedures by different surgeons may have negligently caused a patient’s harm. The court was also asked to decide whether a defense expert gave improper standard of care testimony. The appellate court in Hampton v. Hearn rejected both challenges and affirmed a defense verdict.

Facts of the Case

Delacy Miles had an angioplasty and stent placement. The procedure unblocked a vein that was likely blocked because of catheter placements related to her dialysis. Dr. Andrew Hearn performed the surgery.

Dr. Hearn placed the stent in the innominate vein. Part of the stent protruded into the superior vena cava, the main blood vessel that enters the heart from the right side.

Three days later, Miles needed a permacath placement to create new access for her dialysis treatments. Dr. Gregory Schnier passed a catheter through the superior vena cava. He was unaware that Dr. Hearn had placed a stent at the junction of the innominate vein and the superior vena cava.

The procedure pushed the stent into the chamber of Miles’ heart known as the right ventricle. Miles began to experience a rapid heartbeat (tachycardia) during the procedure. Doctors discovered the broken stent in her right ventricle and transferred her to a different hospital, where a fractured piece of the stent was removed from her heart.

Miles was hospitalized for about a week as she recovered from the surgery. About a week after her discharge, she was hospitalized for a few more days to treat bleeding from the dialysis site. She then entered a nursing home, where she died from unrelated causes.

Miles’ estate sued Dr. Hearn and other parties for medical malpractice. Dr. Hearn was the only defendant at the time of trial.

Expert Testimony

Miles’ estate called Dr. Michael Dahn as its standard of care expert. Dr. Dahn testified that Dr. Hearn breached the standard of care by allowing the stent to protrude too far into the superior vena cava. He agreed that it is acceptable for a stent to extend into the superior vena cava, but considered it problematic for the stent to be positioned more than one or two millimeters into that blood vessel.

Dr. Dahn testified that Dr. Hearns’ stent placement breached the standard of care that applies to the procedure. Dr. Dahn also testified that the stent was sheared in half during the catheter insertion, causing the broken stent to enter Miles’ heart. In Dr. Dahn’s opinion, that harm was caused by Dr. Hearns’ breach of the standard of care.

Two standard of care witnesses, Dr. Steve Powell and Dr. Ray Workman, testified for Dr. Hearn. They both testified that Dr. Hearns followed an appropriate standard of care. The depositions of two other defense experts, one of whom testified as to causation, were also offered as evidence.

Intervening Negligence

A key issue in the case was whether Dr. Schnier was negligent and whether his intervening negligence absolved Dr. Hearn of blame. Two defense experts opined that Dr. Hearn could not have foreseen that part of the stent would sheer off if another doctor passed a catheter through the superior vena cava.

While Dr. Dahn testified that another doctor’s decision to pass a catheter through the superior vena cava was foreseeable, he also testified that Dr. Schnier breached the standard of care by failing to determine the position of the stent before passing a catheter through the vein.

Based on that expert testimony, the court instructed the jury that it should not find Dr. Hearn negligent if the harm was solely caused by a subsequent, intervening act of negligence. The appellate court found no error in giving that instruction.

Causation Expert Testimony

Miles’ estate objected to the expert testimony of Dr. Michael Rinaldi. Although Dr. Rinaldi was designated as a causation expert, he was not designated as a standard of care expert. The estate contended that he gave impermissible testimony about the standard of care when he was asked if there was “anything unusual” about the stent placement. Dr. Rinaldi responded that the stent was placed pursuant to a “normal procedure” that he had followed himself.

The appellate court did not decide whether the testimony was erroneously admitted — it clearly was, since Dr. Rinaldi gave an opinion about the method of stent placement normally used by surgeons like himself — but concluded that any error was cured by the court’s instruction. Before playing the video of Dr. Rinaldi’s testimony, the judge instructed the jury that Dr. Rinaldi was not providing an opinion about the standard of care.

Why the judge did not simply excise the objectionable testimony from the video is unclear. Perhaps the judge was not asked to do so. That would have been a more effective means of assuring a fair verdict than reliance on a presumption that juries follow the instructions provided by the court. The presumption is contrary to human experience, but appellate courts invoke it routinely.

Satisfied that the jurors dutifully disregarded the improper standard of care testimony, the court of appeals affirmed the verdict in favor of Dr. Hearn. This was ultimately a case of experts who disagreed. Given the court’s rulings, the jury was entitled to credit the defense experts.


Prosecution Undermines Weinstein’s False Memory Witness

The prosecutors in Harvey Weinstein’s criminal trial got the defense “false memory” witness to admit she was not an expert in brain regions, potentially undermining the testimony that she offered in Weinstein’s defense.

The Criminal Charges Against Weinstein

In May 2018, Manhattan District Attorney Cyrus Vance Jr. charged Weinstein with “Rape in the First and Third Degrees, as well as Criminal Sexual Act in the First Degree, for forcible sexual acts against two women in 2013 and 2004, respectively.”  In July 2018, the charges were amended to include “one count of criminal sexual act in the first degree and two counts of predatory sexual assault.”

Weinstein pleaded not guilty to all charges.  If convicted, he could face life in prison.

Weinstein is charged with four similar sex crimes in Los Angeles County.  That case is on hold until his New York case is resolved.

The False Memory Witness

Weinstein’s defense team retained Professor Elizabeth Loftus to testify in his defense.  Professor Loftus is a Distinguished Professor of Psychological Science; Criminology, Law and Society; Cognitive Science; and Law at University of California Irvine (UCI).  She has her Ph.D. from Stanford University.

Professor Loftus concentrates her studies on human memory.  According to her UCI faculty profile, Loftus conducts experiments that “reveal how memories can be changed by things that we are told.”

Loftus has worked as an expert witness on numerous high-profile cases, including those of Michael Jackson, the Menendez brothers, and Ted Bundy.

Weinstein’s defense team is arguing that his accusers are misconstruing consensual sexual encounters as assault and rape.  They contend that these accusations are particularly suspect in light of the constant negative media coverage surrounding him.  They retained Loftus to strengthen these arguments.

Under the questioning of Weinstein attorney Diana Fabi Samson, Loftus testified that media exposure can weaken memories.  She said, “it doesn’t take a Ph.D. to know a memory fades over time. … As time is passing and the memory is getting weaker and weaker … it becomes more vulnerable to post-event information.”

Loftus continued, “By exposing a witness to media … post-event information can cause a contamination in memory.”

The Cross-Examination

Prosecutor Joan Illuzzi took the lead on cross-examining Loftus. Illuzzi questioned Loftus as to whether “all memory is wired and retained and retrieved equally?” Illuzzi then brought out a diagram of the brain to question Loftus about it. lluzzi asked Loftus whether the diagram fell within her area of expertise. Loftus replied, “I would defer to the neuroscientists who study the brain.”

Illuzzi pressed further, “Doctor, does that fall within your area of expertise?” Loftus replied, “I know a little bit, but I am not an expert. That’s a more complete answer.”

Justice James Burke, who is presiding over the case, then repeated the question, “Field of expertise?” Loftus replied, “I will say, no.”

Illuzzi also got Professor Loftus to admit that she had previously written a book entitled Witness for the Defense and asked whether her prior testimony that Valuim can impact memory had been tailored to the case.


Justice Scales

Eighth Circuit Reverses Exclusion of ADA Expert

Although expert testimony is not always necessary, it is often used in disability discrimination cases to prove that an employee is disabled. In a case recently decided in the Eighth Circuit, the question was whether an employer regarded an employee as being disabled. Whether she had an actual disability made no difference to her theory of the case.

Expert testimony was nevertheless important to prove that the employer relied on a pretext when it claimed to have fired the employee for poor job performance. An expert witness who worked in the same field as the plaintiff opined that the plaintiff performed according to professional standards. The district court’s exclusion of that opinion was reversed on appeal.

Facts of the Case

Paula Babb, a certified registered nurse anesthetist (CRNA), was employed by Maryville Anesthesiologists in Tennessee. After she had worked for a month, one of the physician-owners of the business that employed her asked her why she was placing her face so close to the computer screen. Babb told him that she had a degenerative retinal condition that made it difficult to read certain medical records.

The physician-owners began to discuss Babb’s future. One of them expressed the concern that Babb would be blind within the next ten years, although Babb denies she ever said that. Rather, Babb assured her employers that her condition did not affect her ability to perform her job.

Two physician-owners nevertheless held a meeting with Babb to discuss her condition. She explained that she had been diagnosed with a degenerative eye condition but that the condition was currently stable. The physicians told her that she was a good fit and was doing her job well. They then instructed her to obtain an update from an ophthalmologist and to report back. One of the physicians, expressing the concern that she had a disability, asked her if she had disability insurance.

The physicians asked Babb to have another CNRA confirm her reading of medical records if she had any doubt about their content. When she followed that instruction, the physicians viewed her occasional request for assistance as evidence that her vision problems were becoming more acute.

By email exchange, the physicians discussed their fear that no ophthalmologist would clear Babb to perform her work. They also discussed the need to get legal advice. Babb’s annual evaluation noted her vision problems (without documenting any impact they had on her work) and suggested that those problems were causing surgeons and other professionals not to “accept” her.

Evidence in the record suggested that any lack of acceptance resulted not from her job performance but from gossip within the hospital where her employers customarily practiced. Gossip that reflects prejudice against disabled people is not a legitimate basis upon which to base an employment termination.

Perhaps in reliance on legal advice, the physicians also documented job performance errors, although they could only find two. Neither error related to Babb’s vision, neither caused any harm, and one was entirely speculative. The physicians then decided to fire Babb on the ground that she could not provide safe patient care.

Disability Lawsuit

Babb sued her employers for violating the Americans with Disabilities Act (ADA). The ADA prohibits firing a qualified employee because of a disability. The ADA defines a disability as including an employer’s perception that the employee is disabled.

A significant impairment of vision can be a disability. When an employer fires an employee because it regards the employee as being disabled, whether the employee actually has a disability is irrelevant.

Babb argued that she was not actually fired for poor job performance, but because she was regarded as being disabled. When an employer gives a reason for discharging an employee that a jury could reasonably regard as pretextual, the jury can view the employer’s reliance on a pretext as evidence that the employer is trying to mask an unlawful motive for the firing.

Babb offered evidence that her job performance posed no threat to patients and that her employer relied on a pretext to conceal its discriminatory motive. She relied on emails and evidence from witnesses to prove that the physicians were actually motivated by the perception that Babb suffered from a disabling condition affecting her vision.

In addition, Babb offered an email written by another CNRA at the direction of a physician-owner. The email makes reference to complaints about Babb’s deteriorating vision and strongly implies that Babb was fired for that reason.

Finally, Babb relied on an expert witness. Taken together, all of the evidence should have entitled Babb to a jury trial. But many federal judges favor employers in discrimination cases and look for reasons to toss out their cases on summary judgment so that the employee will never have a chance to present evidence to a jury.

One legal scholar cites studies indicating that “judicial hostility” to civil rights claims is a continuing problem. Hostility to expert witnesses who help plaintiffs prove their cases may be a corollary to that problem.

In Babb’s case, notwithstanding fairly obvious evidence that would allow a jury to rule in Babb’s favor, the trial judge granted summary judgment in her employer’s favor. The judge excluded her expert evidence and decided that the remaining evidence was unconvincing. Babb appealed.

Expert Testimony

It is not discriminatory to fire an employee for a legitimate reason, but when an employer fabricates an excuse to justify an employment termination, the employer’s reliance on a pretext can be taken as proof that the employer is concealing a discriminatory intent. To prove that the doctors were relying on a pretext, Babb offered the opinion of an expert witness concerning her job performance.

Jennifer Hultz, an experienced CNRA, offered the opinion that the two job performance errors asserted by Babb’s employer were not errors at all. According to Hultz, even if Babb’s job performance was exactly as the doctors described, Babb did not violate the standard of care that applied to CNRAs. Hultz provided specific information about why Babb’s alleged errors were not errors, but were consistent with the way CNRAs are trained to do their jobs.

Rule 702 of the Federal Rules of Evidence requires a trial judge to decide whether an expert witness is qualified to render an opinion, whether her opinion is relevant, and whether the opinion is reliable. The trial judge did not reject Hultz’ testimony on the basis of her qualifications or reliability. Rather, the judge thought Hultz’ opinion would not assist the jury.

The judge ruled that Hultz was expressing improper opinions about the credibility of other witnesses. The judge also concluded that Hultz’ opinion invaded the province of the jury by telling the jury what result it should reach. The court of appeals rejected both grounds for excluding Hultz’ expert testimony.

Appellate Analysis

While the Court of Appeals found fault with Hultz’s opinions, it concluded that the trial court “used a sledgehammer, when the law required that it only use a scalpel.” In other words, the court erred by excluding all of Hulz’s testimony when only a few of her statements were objectionable.

The Court of Appeals agreed that some of Hultz’s statements were nothing more than attacks on the memories of the physician-owners, and thus improper attacks upon their credibility. Yet Hultz also assumed the truth of the statements made by the physician-owners and explained why, even if their memories were accurate, Babb’s actions could not reasonably be viewed as clinical errors. That testimony was relevant to the question of pretext and should not have been excluded.

The Court of Appeals rejected entirely the District Court’s conclusion that Hultz was telling the jury to conclude that the employer-based Babb’s employment termination on a pretext. That may have been the logical conclusion for the jury to draw, but the Court of Appeals recognized the important distinction between expressing an opinion on the ultimate question of liability and stating opinions that guide a jury to a particular conclusion about liability. The former is impermissible; the latter is not.

Hultz did not opine that the employer discriminated against Babb because it perceived her to be disabled. She did not use the specialized language of discrimination law, including the term “pretext,” in her report. Rather, she testified about the standard of care and whether Babb’s performance was consistent with that standard. Those were factual, not legal conclusions, and they did not invade the jury’s ultimate power to decide whether Babb was the victim of discrimination. Accordingly, Hultz’s expert testimony was admissible.

After deciding that the trial court erred by striking Hultz’s expert report, the appellate court concluded that ample evidence would allow a jury to find that Babb’s employer believed that her vision was impaired. The evidence would also allow a jury to find that the employer fired Babb for that reason. Since that evidence would allow a jury to conclude that Babb’s employer violated the ADA, she was entitled to a trial.


Lab Analysts May Be Required to Testify in Person in Criminal Trials

Failure to Hire DNA Expert Leads to New Trial

A bloody sneaker was the only physical evidence introduced in the murder prosecution of Nicholas McGuffin. The blood belonged to the crime victim, Leah Freeman. Thanks to a crime lab analyst who chose not to reveal the facts, the jury never learned that DNA belonging to an unknown male — not McGuffin — was also found on the sneaker.

The jury found McGuffin guilty of the lesser crime of manslaughter. After McGuffin completed most of his 10-year sentence, a judge ruled that a diligent defense attorney would have hired a DNA expert to review the crime lab’s file and thus would have discovered the omission. The judge granted McGuffin a new trial based on his counsel’s failure to retain an expert witness.

Facts of the Case

Fifteen-year-old Leah Freeman disappeared in June of 2000. She had been dating McGuffin, who dropped her off at her best friend’s house on the day she disappeared. Freeman later stormed out of the house after arguing with her friend. No witness saw her with McGuffin again.

The police department in Coquille, Oregon assumed that the high school student ran away from home. The police came to that conclusion despite the absence of any evidence that Freeman ran away.

On the day of her disappearance, a county employee found a tennis shoe in the road. The shoe apparently resembled tennis shoes that he had recently purchased for his child, so he picked it up and brought it home. After determining that the shoe was not his child’s, he paid no attention to it until Freeman’s disappearance was publicized.

About a week after Freeman disappeared, the county employee brought the tennis shoe to the police, who had a DNA test conducted. The test showed that the shoe belonged to Freeman.

The next day, the matching shoe was discovered by a Coos County Sheriff’s deputy in “a spot often used by local teens as a place to drink and hang out.” That spot was about ten miles from the location where the first shoe was found. During a casual conversation with a Coquille police officer, the deputy realized that the two shoes formed a pair.

Freeman’s blood was on the bottom of both shoes. The DNA of the deputy who found the second shoe was present on that shoe. The DNA of an unknown male was also found on the second shoe, but the state crime lab employee who wrote the report failed to include that critical fact.

About a month after the discovery of the second shoe, Freeman’s body was found. The body was badly decomposed. The medical examiner concluded that Freeman died from “homicidal violence” of some kind, although he could not identify a more specific cause of death.

McGuffin’s Trial

Having no evidence that pointed to a particular suspect as Freeman’s murderer, the Coquille police allowed the investigation to languish. The Coos County district attorney was displeased that an unsolved murder had occurred on his watch, but his efforts to light a fire under the police chief were unsuccessful.

Nine years later, the district attorney persuaded the new police chief to reopen the investigation. He then discovered that the police had collected a large body of evidence that he had never seen. From that evidence, he developed a list of a dozen suspects. McGuffin was on that list because he had been dating Freeman and their relationship was reportedly troubled.

The police eliminated all of the suspects but McGuffin, so the district attorney unwisely decided to charge McGuffin with the crime. “We can’t eliminate this person as a suspect” is a poor basis for subjecting someone to the risk of a criminal conviction. Most teen relationships are troubled, but the fact that a boy argues with his girlfriend falls well short of proof of guilt.

At McGuffin’s trial, the district attorney emphasized that no DNA pointed to the existence of an alternative suspect. He relied on the DNA report as evidence that no other male had touched McGuffin or her clothing.

A jury convicted McGuffin on a vote of 10-2. Oregon is the only state that permits a criminal verdict to be less than unanimous. Fortunately, every other state recognizes that wrongful convictions are less likely to occur when all twelve jurors agree on a defendant’s guilt.

Failure to Hire Defense Expert

McGuffin’s defense attorney asked for the crime lab file. The district attorney told the press that he assumed the defense lawyer would have an expert witness review the file. Apparently, the district attorney did not review the file either, perhaps on the assumption that the crime lab employee included all relevant information in her report.

Data about the unknown male’s DNA appeared in the bench notes contained in the file but, since it wasn’t in the report, the district attorney contends that neither lawyer was aware of that DNA at the time of trial. Both lawyers should be faulted for failing to pay more attention to the contents of the file, as opposed to the filtered contents of an analyst’s report.

The Oregon Innocence Project reviewed the case in 2015. Innocence Project lawyers reviewed the crime lab file, consulted with an expert, and determined that McGuffin never knew that DNA on Freeman’s shoes belonged to an unknown male. A new analysis discovered that the unknown male had left DNA on both shoes.

Since the shoes were discovered at different times in different locations by different people, the likelihood is that the unknown male is the actual killer. The judge who considered McGuffin’s request for a new trial found that “the DNA is not from the various males associated with the case.” That finding undercuts the district attorney’s unsupported speculation that the same ungloved police officer might have handled both shoes.

The failure to disclose the existence of DNA that was known to the crime lab was compounded by the misleading testimony of crime lab employee Kathy Wilcox, who told the jury “that the only DNA evidence found on Freeman’s blood-spattered Nike sneakers belonged to the victim and to a sheriff’s deputy who had handled the evidence.” That testimony was blatantly untrue.

The judge did not fault the district attorney, who claims he was unaware of state crime lab protocols that purportedly gave analysts discretion to ignore small DNA samples. Whether that is a correct statement of the crime lab protocol is a disputed fact that the judge did not resolve. If that protocol existed, it allowed (and perhaps encouraged) crime lab employees to ignore evidence that was inconsistent with the prosecution’s theory of guilt.

Lessons Learned

The judge ultimately decided that McGuffin was deprived of his constitutional right to the effective assistance of counsel. A reasonably prudent lawyer would have hired an independent DNA expert to review the crime lab report. Had counsel done so, the jury may well have concluded that McGuffin was innocent.

Given the propensity of some state crime lab employees to slant their testimony to favor the police and prosecutors, defense counsel should always hire an independent expert whenever forensic results of crime lab investigations are important to a criminal prosecution. McGuffin’s case illustrates the important role that independent experts play in the criminal justice system.

Fortunately for McGuffin, the district attorney has decided not to seek a retrial. The independent experts who were belatedly retained on McGuffin’s behalf thus helped him win his freedom and restored his opportunity to live his life.


Medical Expert

When Is an Expert Needed to Prove an ADA Disability Claim?

Medical experts often provide evidence that helps injury victims prove their damages. In some litigation, including medical malpractice cases, medical evidence is also needed to prove liability.

Is medical evidence needed to prove a claim under the Americans with Disabilities Act? A decision of the Court of Appeals for the Tenth Circuit explains that the answer depends on the nature of the plaintiff’s alleged disability.

Facts of the Case

Empire Marketing Strategies (EMS) employed Jonella Tesone as a product merchandiser. Her job duties included changing product displays in grocery stores. When it hired Tesone, EMS was aware that she could not lift more than 15 pounds.

EMS gave Tesone a performance review after she stayed an additional night in Colorado to complete a time-consuming project. Tesone did not obtain permission to stay an extra night at the hotel. During the review, Tesone explained that she needed extra time to finish the project because of her lifting limitation.

For the first time, EMS requested documentation of the limitation. Four months later, after repeated requests, Tesone supplied a doctor’s recommendation that her chronic back pain be accommodated by limiting her job duties so that she would not be required to lift more than 15 pounds or to lift anything above her head.

Tesone presented evidence that EMS suddenly began to make subjective complaints about her job performance. It then terminated Tesone’s employment for “consistent violations of company policies.”

Complaints about job performance that only arise after the employee asks the employer to follow the law are inherently suspicious. Tesone argued that the performance concerns were invented as pretexts to mask her employer’s desire to fire her rather than to accommodate her lifting restriction.

The ADA Accommodation Requirement

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations that will allow disabled employees to perform their essential job functions if the employer can do so without undue hardship. Federal court decisions consistently undermined the remedial purpose of the 1990 law until Congress revitalized the ADA in 2008. New legislation was enacted that year that eliminated many of judicial interpretations of the ADA that undercut its effectiveness.

The ADA defines a disability as an impairment of body or mind that substantially limits (or that an employer regards as limiting) a major life activity. Under the current version of the ADA, an individual whose major life activities are significantly limited as compared to the general population has a “substantial” limitation.

Major life activities include such ordinary functions of daily living as standing, walking, sleeping, breathing, seeing, hearing, and working. The impairment of a bodily organ or system is also defined as the impairment of a major life activity.

Many federal judges denied discrimination claims advanced by disabled employees prior to 2008 after concluding that the employees failed to prove that they were disabled. Judges often required employees to prove that their disabilities were severe and long-lasting, notwithstanding the absence of any language in the ADA that limited the ADA’s protections to a small subset of disabled employees.

When Congress amended the ADA in 2008, it made clear that proving the existence of a disability should not be an onerous burden. Courts should instead focus on whether an employer met its legal obligation to accommodate a disabled employee who was capable doing the work with an accommodation.

Failure to Designate Expert

The district court entered a scheduling order that set a deadline for disclosing expert witnesses. Tesone failed to meet that deadline. Counsel for EMS told Tesone that she could not prevail without an expert. A Magistrate Judge expressed that same opinion during a settlement conference.

After the settlement conference, Tesone filed a motion to enlarge the time for naming an expert. She also moved to amend her complaint to allege that she was discriminated against because of a perceived disability. Since an employer’s perception that an employee is disabled does not require proof that the employee is actually disabled, no expert testimony would be needed to support that claim.

The district court decided that Tesone waited too long to file her motions. The court concluded that nothing prevented Tesone from complying with the scheduling order’s deadlines for amending the complaint and designating an expert witness. Since Tesone failed to act with reasonable diligence, she could not demonstrate good cause to extend the deadlines.

The district court next concluded that expert testimony is necessary to establish the existence of a disability. Since Tesone could not produce that testimony, the court granted summary judgment in favor of EMS. Tesone appealed.

When Is Expert Testimony Required to Prove an ADA Claim?

The court of appeals agreed with the district court that Tesone failed to show good cause to amend her complaint to allege claims of discrimination on the basis of perceived disability or retaliation. While complaints must generally allege facts rather than legal theories, the case is a reminder to lawyers that they may be out of luck if a complaint fails to put a defendant on notice as to each legal theory the plaintiff might pursue.

The court of appeals disagreed, however, that summary judgment necessarily followed from the failure to name an expert. It should be self-evident that juries do not always need a medical opinion to prove that a plaintiff is disabled. A plaintiff who is confined to a wheelchair, for example, can easily establish the existence of a disability through his or her own testimony.

Expert testimony may nevertheless be helpful in establishing the existence of a disability. The regulations interpreting the ADA make clear that parties are not prohibited from relying on expert evidence to prove their claims or defenses. However, the regulations also state that a comparison of a plaintiff’s ability to perform a major life activity to the general population’s ability to perform the same activity “usually will not require the presentation of scientific, medical, or statistical analysis.”

In some cases, expert evidence may be critical. It is doubtful, for example, that most people are capable of self-diagnosing a psychological disorder. The existence of many physical disorders, on the other hand, produce obvious disabling symptoms.

The symptoms of a disabling health condition may be sufficiently recognizable to make it unnecessary to use an expert to prove that they substantially limit the performance of major life activities. Notably, the ADA does not require an employee to prove the cause of a disability (which may require a medical diagnosis), but only that the disability exists and that it impairs a major life activity.

The ultimate question is whether a health condition would be so outside the realm of a typical juror’s experience that an expert diagnosis is required to prove its existence. The court of appeals cited the example of a rare condition that causes the death of bone tissue because of a deficient blood supply. Since most jurors would not be familiar with that condition, expert evidence is needed to prove that it meets the definition of a disability.

Appellate Court’s Ruling

The court of appeals recognized that some heath conditions can be readily understood on the basis of a lay juror’s own observations and experience. As an example, the court cited a knee injury that impairs an injury victim’s ability to walk normally. The court cited other cases addressing arm, neck, and back injuries. A victim’s own testimony, describing how those injuries limit the victim’s activities, is often sufficient to prove the injuries are disabling. All of those conditions are familiar to lay jurors, many of whom will have experienced (or at least observed) similar impairments, even if the symptoms that the jurors experienced were less severe than the plaintiff’s.

Tesone’s condition — back pain that is exacerbated by lifting — is neither rare nor of a character that can only be understood by a medical professional. Lay jurors are capable of understanding that severe back pain can be disabling. Tesone should therefore have been allowed to prove she is disabled by testifying about the ways in which her back pain limited her major life activities.

Since nothing in the ADA requires expert testimony to prove the existence of a disability, the district court committed legal error by holding that expert testimony is always necessary to establish a plaintiff’s case. The court did not decide whether Tesone’s own testimony was sufficient to prove her disability but remanded the case to the district court to decide that question using the correct legal standard.

Lessons Learned

Back pain might or might not be disabling, depending on its severity. The case will likely turn upon whether Tesone described the limitations she experienced in sufficient detail to permit a jury to conclude that her pain substantially limits the major life activity of lifting.

Her case would have been stronger, and this controversy could have been avoided, if Tesone had submitted admissible expert evidence of her back condition and the lifting restriction that it caused. The case stands as a reminder that even when expert testimony is not necessarily required, experts can help parties make a more convincing case.


a doctor and a child

Another Shaken Baby Conviction Based on Unreliable Evidence is Reversed

A Mississippi jury convicted Joshua Clark of murdering his four-month-old daughter, Kyllie Clark. That tragic death spawned a tragic prosecution that was based on the discredited diagnosis of shaken baby syndrome.

The alleged “syndrome” has been debunked, a reality that too many prosecutors refuse to acknowledge. Prosecution experts continue to testify that they can confidently diagnose the cause of a baby’s death from evidence that is inherently ambiguous. Fortunately, the Mississippi Court of Appeals recently recognized that convictions based on discredited expert testimony are inconsistent with the right to a fair trial.

Facts of the Case

Kylie died in 2008, a time when (as the court noted) criminal charges based on shaken baby syndrome were common. Clark had no criminal record. Clark’s wife knew he was a good father. Although several people lived in Clark’s home, no witness had ever seen Clark shake or mistreat his baby. For that matter, no witness ever saw Clark mistreat any of his children.

Clark’s wife left the home in the middle of the afternoon to run errands. Clark stayed home to watch their children. About ten minutes before his wife returned, Kyllie (who had been fussy all day) made a gasping sound and went limp.

Clark’s wife returned as Clark was getting dressed so he could take Kyllie to a doctor. Clark’s wife attempted CPR. Clark and his wife then rushed Kyllie to the hospital. As she was entering the hospital, Clark’s wife bumped Kyllie into the hospital door.

Kyllie did not respond to aggressive medical efforts to revive her. Doctors at the hospital thought that Kyllie probably experienced sudden infant death syndrome.

Medical staff took Kyllie to a children’s hospital. More efforts were made to revive her. Kyllie was diagnosed with rib fractures, retinal and subdural hemorrhages, and brain swelling. She was declared brain dead and removed from life support.

Dr. Karen Lakin, a pediatrician, concluded that tests showed older bleeding of the brain followed by a new bleed. A police investigation later revealed potential causes of an earlier brain injury, none of which were associated with Clark.

Dr. Lakin noted her opinion in the medical records that Kyllie died from shaken baby syndrome. A social worker reviewed that record and made a child abuse report to the police. Because Kyllie was in Clark’s exclusive care when she began to experience breathing difficulties, the police decided that Clark must have injured her. The murder charge followed.

Trial Court Proceedings

Clark’s lawyer, perhaps fearing Clark would be sentenced to death if convicted, advised Clark to plead guilty to a reduced charge of depraved-heart murder. The lawyer did not consult an expert witness and was apparently unaware of the controversy surrounding a diagnosis of shaken baby syndrome. Clark entered the plea and was sentenced to life imprisonment.

The trial court later granted a postconviction motion to withdraw the plea. The judge decided that Clark’s lawyer breached the duty to provide effective assistance to a client. In the court’s view, an effective lawyer would investigate the medical evidence and would retain an expert witness to challenge a prosecution witness who alleged that death was caused by shaken baby syndrome.

The case went to trial after Clark withdrew his plea. Dr. Lakin, having learned that shaken baby syndrome is a discredited diagnosis, now referred to the diagnosis as abusive head trauma. Nothing about the diagnosis, other that the term used to describe it, actually changed. Given the adverse publicity surrounding shaken baby syndrome, some child abuse pediatricians who cling to the belief that the syndrome can be infallibly diagnosed have tried to avoid controversy by giving the syndrome a new name.

Clark’s lawyer filed a motion to exclude Dr. Lakin’s testimony on the ground that abusive head trauma is not a medically accepted diagnosis in the absence of external evidence of an injury. Although the motion was supported by a wealth of scientific literature, the trial court allowed Dr. Lakin to testify.

Dr. Lakin testified that someone killed Kyllie by shaking her. She also testified to an absolute certainty that trauma was inflicted within the three hours during which Kyllie was in Clark’s exclusive care. On cross-examination, however, Dr. Lakin admitted that she could not determine the exact time at which Kyllie’s brain injury occurred.

Dr. Lakin testified that her opinion was supported by research findings that were endorsed by the American Academy of Pediatrics (AAP). On cross-examination, she admitted that she was unaware of the AAP’s updated position, which acknowledges that no simple test distinguishes between accidental and intentional causes of brain trauma. Dr. Lakin was also unaware that the AAP no longer advises pediatricians to presume that child abuse occurred when subdural hematoma, retinal hemorrhages, and brain swelling are found.

Dr. Lakin admitted that she did not examine Kyllie for a neck injury. She also admitted that Kyllie’s rib fractures were healing and acknowledged that healing does not start until a week after the injury occurs. Notwithstanding the notation she made in her medical records, she testified that she didn’t mean to imply that Clark had anything to do with Kyllie’s rib injuries.

Defense Expert Evidence

Testifying as a defense expert, forensic pathologist Dr. Mark Shuman told the jury that Kyllie’s brain injury was probably caused by a blunt head injury or impact head injury, not by being shaken. Dropping a baby or dropping something on a baby’s head are examples of accidents that could produce a blunt head injury or impact head injury. Relying on biomechanical engineering studies, Dr. Schuman testified that the absence of any neck injury ruled out any likelihood that Kyllie was shaken.

Dr. Schuman explained that the onset of symptoms of a brain injury can be delayed. He therefore disagreed with Dr. Lakin that symptoms always develop immediately after a brain injury and that Kyllie must therefore have been injured while she was in Clark’s exclusive care. Dr. Schuman also cited studies proving that retinal hemorrhages can have many causes, including efforts to revive a baby.

According to Dr. Schuman and a pathologist who testified for the prosecution, the best way to place a date on a brain injury is to prepare a histology slide of the dura (the connective tissue that forms a membrane surrounding the brain). They also agreed that the histology slides created under the supervision of a state-contracted doctor were poorly prepared, and none could be used to place a date on the brain bleeding.

In general, Dr. Schuman explained that forensic pathologists focus on science-based conclusions. While many pediatricians believe that shaken baby syndrome is a valid diagnosis, Dr. Schuman noted that no scientific study has ever established that it is possible to shake a baby hard enough to cause a primary brain injury. Nor does any study explain how a baby shaken that hard could avoid having a neck injury.

Clark testified that he did not abuse Kyllie. No witness saw him abusing Kyllie. The Mississippi jury nevertheless found him guilty. The judge sentenced Clark to forty years in prison.

Appellate Analysis of Daubert Motion

The Mississippi Court of Appeals concluded that the trial court should not have admitted Dr. Lakin’s testimony. Both the Daubert hearing and Dr. Lakin’s trial testimony made it plain that Dr. Lakin’s shaken baby syndrome diagnosis was not grounded in a reasonable scientific methodology.

The appellate court noted that Dr. Lakin has testified for the prosecution in other cases, but noted that an expert’s opinion in each individual case must be grounded on a reliable methodology and based on adequate facts. Whether Dr. Lakin met that standard in the past does not determine whether her present opinions are admissible. In addition, newer research debunking a diagnosis of shaken baby syndrome undermines the continuing reliability of that diagnosis.

A prosecution-friendly dissent argued that Dr. Lakin is a qualified expert. The majority did not take issue with Dr. Lakin’s qualifications. Rather, the majority focused on whether she based her opinions in Clark’s case on a reliable methodology.

The court noted that “Dr. Lakin needed to establish that a qualified pediatrician can reliably diagnose a child with Kyllie’s injuries (subdural hemorrhages and retinal hemorrhages) as a child suffering from injuries caused by [shaken baby syndrome].” Dr. Lakin also needed to establish the time at which the injuries occurred because timing was the sole evidence against Clark. She did neither of those things.

Dr. Lakin admitted that many articles in a variety of specialties, from biomechanics to neuropathology, conclude that shaken baby syndrome is not a reliable diagnosis. She does not know the error rate associated with the diagnosis and has not conducted any research of her own to determine whether other causes, such as a fall from a short height, might cause the same symptoms. She could cite no supporting evidence for her opinion that brain injuries always cause immediate symptoms. She thought there might be literature from the AAP to support her opinion but the prosecution failed to produce it, despite promising to do so at the Daubert hearing.

In contrast to Dr. Lakin, Clark produced overwhelming medical evidence at the Daubert hearing to establish the unreliability of a shaken baby syndrome diagnosis. The appellate court recognized that evidence-based medical experts are increasingly abandoning the belief that the diagnosis is sound.

The trial judge evaluated none of that evidence. The judge simply decided that Dr. Lakin was qualified to testify. Because the judge failed to carry out the judicial gatekeeping function imposed by Mississippi’s adoption of the Daubert rule, the appellate court reversed Clark’s conviction.

Surprisingly, the court remanded the case for a new trial. It did so after finding that the only evidence of Clark’s guilt was improperly admitted. Disregarding Dr. Lakin’s expert evidence leaves no admissible evidence at all upon which the jury could find Clark guilty. Since the admissible evidence fails to prove guilt beyond a reasonable doubt, Clark was entitled to an acquittal. The prosecution should not have a second chance to convict him.

Lessons Learned

Clark’s case is a further reminder that expert evidence for the prosecution should always be challenged. In Daubert states, a careful motion that is supported by a defense expert can lead to the exclusion of unreliable evidence. Defense attorneys who consult with experts in order to challenge prosecution experts can save defendants from a wrongful conviction.


Gavel and scales

Expert Designation Issue Loses Med-Mal Case

A California appeals court has affirmed the decision of a trial court in a case where the patient sued a doctor for malpractice, but was unable to present testimony from the doctor who successfully treated her because the doctor was not designated as an expert witness.

The Unsuccessful Treatment

From 2014 to 2016, Lyudmila Lerner was treated by Stanley Cowen, M.D. for a wound on her leg.  During the time Lerner was treated by Dr. Cowen, her wound grew in size and her discomfort increased.

In March 2016, Lerner suffered heavy bleeding from the wound. She was admitted to Cedars-Sinai Hospital for an emergency procedure. Dr. Suzuki treated Lerner at Cedars-Sinai. Dr. Suzuki’s treatment resulted in fast and positive results. Lerner was discharged from the hospital within two weeks and has not suffered a relapse since.

Trial Court Proceedings

In October 2016, Lerner filed a complaint against Dr. Cowen. Lerner argued that Dr. Cowen’s “breach of the applicable standard of medical care” exacerbated her wound and increased her pain and suffering during the time of treatment. The case was scheduled for trial on January 14, 2019.

Dr. Cowen filed a motion in limine, arguing that the court should exclude the proposed testimony of Dr. Suzuki because he was an undesignated expert witness. Dr. Cowen argued that the opinion of a physician who was not designated as an expert is irrelevant in a medical malpractice action. Dr. Cowen pointed out that Lerner had taken the deposition of Dr. Suzuki without providing him with any notice. Because of her failure to properly provide notice, Dr. Cowen was unable to attend or participate in the deposition in any way.

Dr. Cowen also noted that Lerner served an expert designation in December 2017 which listed one retained expert and one non-retained expert. This expert designation did not list Dr. Suzuki as either a retained or non-retained witness. However, at the time of the trial, she indicated that she intended to call Dr. Suzuki as a witness at trial.

Lerner filed an opposition to Dr. Cowen’s motion in limine, arguing that as a treating physician, Dr. Suzuki “was permitted to testify to his understanding of the standards of medical care and their application to the plaintiff’s treatment.” Lerner also argued that Dr. Cowen should have been aware of Dr. Suzuki’s role as a treating physician and had been given a copy of the deposition.

The trial court heard argument on the issue and granted Dr. Cowen’s motion in limine, preventing Dr. Suzuki from testifying at trial. The jury returned a defense verdict.

The Appeal

Lerner appealed. On appeal, she argued that the trial court had abused its discretion in excluding the testimony of Dr. Suzuki. The California Court of Appeals for the Second District reviewed the relevant case law as to whether a treating physician must be designated as an expert in order to testify.

The court of appeals determined that the trial court was correct. It wrote, “testimony from a treating physician such as Dr. Suzuki is not admissible in a medical malpractice trial unless the physician is designated as an expert. (County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455 (County of LA).) Like other expert witnesses, treating physicians have knowledge ‘sufficiently beyond common experience,’ and their testimony is ‘[b]ased on matter (including . . . special knowledge, skill, experience, training, and education) . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.’ (Evid. Code, § 801, subds. (a), (b).)”

The court of appeals affirmed the judgment of the trial court and awarded Dr. Cowen the costs of his appeal.

Expert Witness Report Alleges Negligence in Prison Death

Experts Retained for Jail Overdose Death Case

Davis County has retained three expert witnesses to defend claims that its jail personnel were “deliberately indifferent” to a man who died of a drug overdose while in their custody.

Death of Gregory Leigh Hayes in Davis County Jail

On December 13, 2017, Gregory Leigh Hayes, 33, was brought to Davis County Jail because a police officer had determined that he was intoxicated. Because of his condition, jail personnel placed him in a holding cell rather than completing the booking process and assigning him to his own cell.

On December 14, 2017, Hayes died, while still awaiting booking. Hayes had a history of drug addiction.


Hayes’ mother, Susan Johnson, filed a suit in U.S. District Court in Salt Lake City against the county and the Sheriff at the time, alleging that the jail failed to adequately monitor her son’s medical condition.

Davis County Experts

Davis County attorneys have filed documents putting Johnson on notice that they have retained three expert witnesses to testify on the county’s behalf. The experts that have been retained include: Dr. Kennon Tubbs, Glen R. Hanson, Ph.D., and C. Donald Leach II.

Dr. Kennon Tubbs provides medical care in 10 Utah and Wyoming county jails. Tubbs will testify about the standard of care for people who are suspected to be under the influence of drugs or medicine in a jail setting. He is also expected to testify about the specific monitoring and treatment of Hayes.

Glen R. Hanson, Ph.D. is a toxicology expert who earned his doctorate in pharmacology from the University of Utah. Defense attorneys indicated that Hanson will testify about the substances that Hayes consumed and the effects that they had on him.

C. Donald Leach II is a consultant in jails’ handling of people under the influence of drugs. According to court documents, Leach is expected to address the jail’s policies and procedures regarding the handling of incoming inmates who are under the influence of drugs or medication. Leach will also testify about Hayes’ admission to jail that night.

Plaintiff Experts

Johnson retained two expert witnesses to testify in support of her case. She retained Dr. Ken Starr and Tom Green.

Dr. Ken Starr is a California authority on emergency rooms, drug abuse recovery, and jail medical services.  Dr. Starr is expected to testify about Hayes’ “survivability had appropriate precautions been taken.”

Tom Green is the former chief deputy in the Washoe County Sheriff’s Office in Nevada. Green is slated to testify about the standard practices for safely admitting and monitoring incoming inmates who are suspected to be under the influence of illegal drugs or medication.

Heather Miller Civil Suit

Dr. Starr and Dr. Tubbs were both expert witnesses in the recent civil suit over the death of Heather Miller, who fell off a Davis County Jail bunk and died on December 21, 2016. In September 2019, a federal judge ruled that a jail nurse was deliberately indifferent to Miller’s care. Davis County is currently appealing that decision to the U.S. 10th Circuit Court of Appeals.

Finance and business concept

Experts Offer Testimony in Shreveport Competency Hearing

The competency hearing of a Shreveport, Louisiana businessman accused of defrauding investors involved the testimony of four expert witnesses who had differing opinions on whether he is competent to stand trial.

The Alleged Crimes

The U.S. Attorney’s Office Western District of Louisiana charged Shreveport, Louisiana businessman, David deBerardinis, with a five-count indictment that alleged he defrauded more than $96 million from investors and financial institutions.

According to the Department of Justice, deBerardinis misrepresented himself through the use of fake documents, identities, business transactions, and other false information. The Department of Justice claims that deBerardinis operated multiple business entities and represented himself as part of the petroleum industry involved in the sale, trade, and transport of fuel. The Department of Justice also alleges that deBeradinis attempted to cover his misconduct by creating fake documents, bank statements, promissory notes, news articles, and even hiring a makeup artist to disguise himself as an Orthodox Jewish businessman to attempt to obtain investor funds from a New York-based private equity group.

David deBerardinis faces charges of mail fraud, wire fraud, bank fraud, money laundering and false statement to a bank. If convicted, he faces 20 and 30 years in prison, respectively. He also faces a $1 million fine, restitution, forfeiture, and five years of supervision for each charge.

Motion to Determine Competency

In March, deBerardinis filed a motion, under seal, to determine competency.

The request represented that a preliminary report from a physician determined deBerardinis “may not be mentally competent to assist in his defense or to stand trial,” stated a memorandum order signed by U.S. Magistrate Judge Mark L. Hornsby.

The Competency Hearing

At the competency hearing, four experts who have evaluated deBerardinis over the past year offered testimony regarding their evaluations.

Dr. Samuel Browning, a forensic psychologist employed with the Federal Medical Center in Fort Worth, Texas, testified on behalf of the government.  Dr. Browning evaluated deBerardinis in August at the Federal Medical Center after the question was raised on whether the defendant was mentally capable of trial.  Dr. Browning testified that he believed that deBerardinis is competent to stand trial.

deBerardinis’ defense team called Dr. Robert Ouaou as their first expert witness. Dr. Ouaou is a neuropsychologist who examined deBerardinis in the spring. During that examination, Dr. Ouaou determined that deBaradinis had symptoms of psychiatric disorders.

Defense expert Dr. Erin David Bigler, a neuropsychologist, provided testimony via video conference call. Dr. Bigler’s testimony related to his analysis of deBerardinis’ MRI scans and amounts of white matter in his brain.

The defense team also called Dr. George Woods as an expert. Dr. Woods is a neuropsychiatrist who spoke on the symptoms of cognitive and psychiatric disorders he observed in deBerardinis.

The Department of Justice and the defense team agree that deBarardinis claims he has done business with a man named “Albert” and that the man exists despite it being proven that the persona is fictional. The persona is believed to have been created around 2008.

The decision regarding deBerardinis’ competency is expected to come sometime in the new year.


Pediatrician Cannot Testify that Child Was a Sexual Abuse Victim Based on Child’s Statement

Prosecutors increasingly turn to expert witnesses in their effort to prove that an accuser is telling the truth. Yet experts are not lie detectors. Psychologists and people who purport to be skilled at reading microexpressions might or might not be better than ordinary jurors at determining whether someone is lying, but even polygraph evidence is inadmissible in court. It is the function of the jury, not a witness, to decide whether an accuser is telling the truth.

The Michigan Supreme Court recently decided two consolidated cases that address experts who essentially vouch for the credibility of children who testify that they were sexually assaulted. This post addresses a doctor who diagnosed a child as a probable victim of sexual abuse based solely on the child’s statements to the doctor. A separate ExpertPages post addresses a social worker who testified about his unsupported opinion that children “overwhelmingly” do not lie about being sexually abused.

Facts of the Case

A girl identified as TH was raised in a dysfunctional home by a drug-addicted mother before being placed in foster care. While she was living with her mother, TH’s uncle, Brandon Harbison, occasionally babysat for TH. Harbison was 18 and TH was 9.

While watching a movie with her foster mother, TH claimed that Harbison had done something “really bad” to her. TH was interviewed by a social worker and a pediatrician, among others. After she alleged that Harbison touched her in a sexual way, Harbison was arrested and charged with a number of sex offenses.

TH testified that she was sexually abused at least 30 times, at least once while her older brother was in the room. She testified that Harbison made her watch pornography, attempted vaginal and anal penetration, and placed his penis in her mouth.

No witness corroborated TH’s testimony. During part of the time that TH claimed Harbison was sexually abusing her, Harbison was in jail because of a probation violation.

TH’s grandmother testified that TH was never alone with Harbison when he babysat TH at the grandmother’s house. Harbison’s girlfriend testified that she was always with Harbison when he babysat at TH’s residence and that Harbison was never alone with TH.

After Harbison was convicted, new counsel persuaded the trial court that Harbison’s trial lawyer was ineffective because he failed to present the testimony of TH’s brother, who would have denied that Harbison had sexual contact with TH in his presence. Remarkably, the Michigan Court of Appeals reversed the trial court’s decision to grant Harbison a new trial.

The appellate court thought that TH’s brother had “credibility problems” and that the jury might not have believed him. Of course, if the jury believed TH’s brother, it might have decided that TH’s obvious credibility problems created a reasonable doubt about Harbison’s guilt. Since the jury never heard the brother testify, it is impossible to know whether the testimony would have changed the trial’s outcome.

Expert Testimony

The prosecution called Dr. N. Debra Simms as an expert witness. Dr. Simms is a pediatrician who testified as an expert in the field of “child sexual abuse diagnostics.”

Dr. Simms conducted a head-to-toe physical examination of TH. She found no physical evidence that TH had been sexually abused. TH’s hymen was intact and her genitalia showed no trauma that could be attributed to sexual abuse.

Dr. Simms nevertheless testified that she diagnosed TH as a probable victim of pediatric sexual abuse. She based the diagnosis on information she received from TH and from the foster mother.

Dr. Simms also testified that she based her diagnosis on a “practice standard” developed by “individuals that do pediatric sexual abuse evaluation nationwide.” In her view, the standard calls for a diagnosis of probable pediatric sexual abuse if the alleged victim tells a consistent story of sexual abuse to the pediatrician, even if the pediatrician’s physician examination reveals no evidence that would corroborate the story.

Michigan Supreme Court Decision

The Michigan Court of Appeals concluded that Dr. Simms was entitled to take TH at her word and that her expert testimony was therefore admissible. To the extent that it was error to admit her testimony, the appellate court concluded that the error was not prejudicial because TH testified and the jury was able to evaluate her credibility independently of Dr. Simms’ testimony.

Unsurprisingly, the state supreme court found that the court of appeals had ignored Michigan precedent. Michigan has long recognized that a pediatrician’s expertise does not extend to knowing whether a patient is being truthful.

A pediatrician can make findings based on a physical examination and can base a diagnosis on those findings. The patient’s statement might help a pediatrician arrive at a diagnosis — if there are alternate explanations for a physical finding, the patient’s explanation might guide the diagnosis — but in the absence of physical evidence, a physician’s diagnosis that a patient was sexually abused rests on nothing more than the pediatrician’s unsupported belief that the patient is telling the truth.

Notwithstanding that precedent, the Michigan Supreme Court cited six instances in which the Michigan Court of Appeals concluded that an examining physician’s diagnosis of “probable pediatric sexual abuse” was erroneously admitted. Some of Michigan’s trial judges apparently didn’t the message that the supreme court long ago sent, leading to multiple convictions based in part on inadmissible testimony.

The Michigan Supreme Court concluded that Dr. Simms’ testimony was prejudicial. The jury could only have viewed Dr. Simms as vouching for TH’s credibility. The trial was a credibility contest and TH’s credibility was suspect. The prosecution called Dr. Simms as a witness in the likely belief that the jury would regard her testimony as bolstering TH’s credibility. Dr. Simms’ testimony was prejudicial because it invaded the jury’s role in assessing the credibility of accusers.

The court also faulted Dr. Simms for claiming that her diagnosis was based on a “national standard” when the authors of the article she cited made clear that pediatricians should not rely on the article to make a diagnosis of “probable pediatric sexual abuse” at trial. The standard relates to a pediatrician’s duty to report suspected abuse, not to a pediatrician’s trial testimony. The authors forthrightly acknowledged that in the absence of physical evidence, pediatricians have no way of knowing whether a child is telling the truth, and that convictions may be unreliable if they are based on a medical opinion that is not supported by medical evidence.

Lessons Learned

No reasonable person thinks that a person who sexually abuses a child should avoid a conviction. But our time-honored system of justice attempts to assure that only the guilty are convicted and punished. To achieve that goal, the Constitution demands that individuals accused of crime — all crimes, no matter how much sympathy we might feel for the alleged victim — receive a fair trial.

Courts have long understood that only a jury can determine whether an accuser is telling the truth. Juries cannot be assisted in that chore by witnesses who testify that they believe the alleged victim. Vouching for the alleged victim’s credibility is particularly likely to result in an unfair trial when a witness with a respected position, and particularly a witness who is identified as an expert, testifies or implies that the alleged victim is telling the truth.

Yet vouching by social workers, psychologists, pediatricians, and other expert witnesses has become commonplace in child abuse trials. Defense attorneys must be prepared to object and to cite decisions like Harbison when a prosecutor asks an expert to state an opinion that implies the expert’s belief that the accuser is telling the truth.

At the same time, experts must understand that they do not take the witness stand as advocates for children but as impartial reporters of opinions that they base on sound methodologies. An advocate’s opinion that a child’s accusation should always be believed is not the kind of methodology that can reasonably inform an ethical expert’s opinion.