Category Archives: ExpertWitness

Biking, Race

Lance Armstrong Doping Expert Banned for Doping

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

Expert Witness John Gleaves

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

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

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

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

Gleaves’ Doping Ban

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

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

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

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

Doping Among Seniors on the Rise

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

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

Gleaves said:

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

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

 

Expert Silenced for Giving Truthful Testimony

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

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

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

Release from Confinement

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

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

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

Sexual Predator Laws

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

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

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

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

Expert’s Study Undermines Premise of Sexual Predator Laws

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

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

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

Padilla’s Expert Testimony

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

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

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

Expert Silenced for Telling the Truth

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

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

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

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

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

 

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

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

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

Smith’s Discovery Disclosures

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

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

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

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

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

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

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

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

Scheduling Order Issues

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

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

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

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

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

Automatic Exclusion of Expert Testimony

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

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

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

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

Factors Courts Must Consider When Sanctioning a Scheduling Order Violation

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

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

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

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

 

Growing Trend of Using Rap Lyrics as Evidence in Court

An expert on hip-hop culture has noted an uptick in the trend of prosecutors using rap lyrics and videos as evidence of guilt.

The Shooting Death

On December 10, 2016, shots were fired at a “Naughty or Nice Pajama Jam” party being held in the warehouse district of Carson in the Los Angeles area. A 24-year-old partygoer, Davion Gregory, was shot five times. Gregory was brought to the Harbor-UCLA Medical Center and pronounced dead on arrival. Two other people were wounded in the shooting: Travis Harvey-Broome and Kwentin Polk.

Investigators found shell casings from a .40-caliber Glock and a .38 revolver at the scene. There was no video footage of the shooting and no one could identify the shooters. L.A. County sheriff detectives Francis Hardiman and Richard Biddle visited Harvey-Broome and Polk at the hospital, who described seeing a “light-skinned black guy with braids or dreads” in the parking lot, vaguely remembering seeing a black Mercedes SUV and red Mustang or Benz.

Approximately one week later, Hardiman heard the name “Drakeo the Ruler” on a wiretap in an unrelated gang case. Detective Hardiman alleges that he spoke to the victim’s family about Drakeo and they told him that they had also heard rumors about Drakeo being involved with the shooting. This led to an investigation into Darrell Caldwell, a rapper who goes by the name, Drakeo The Ruler.

Darrell Caldwell/Drakeo’s Trial

Drakeo was eventually charged with murder, attempted murder, felony gun possession by a felon, and criminal gang conspiracy in connection with the shooting death of a Davion Gregory.

Drakeo was acquitted of all charges of murder and attempted murder and convicted on a charge of felony gun possession by a felon. The jury was hung on the count of criminal street gang conspiracy. The prosecutors’ theory behind this charge is that Drakeo had ordered the shooter to kill a musical rival, “RJ,” but the shooting was botched and Gregory was killed. As evidence, prosecutors cited a line from Drakeo’s song “Flex Freestyle,” in which he raps, “I’m ridin’ round town with a Tommy gun and a Jag / And you can disregard the yelling, RJ tied up in the back.”

Hip-Hop Culture Expert

Drakeo’s defense attorneys called Erik Nielson to testify as an expert witness in Drakeo’s first trial. Nielson is an Associate Professor of Liberal Arts at the University of Richmond. His research is focused on African American literary and musical traditions with an emphasis on hip-hop culture. Nielson has co-authored two books on the topic, The Hip Hop & Obama Reader and Rap on Trial: Race, Lyrics, and Guilt in America. He is also the author of numerous academic articles, chapters, reviews, and feature articles on the topic.

Nielson has estimated that he has been asked to consult on over 60 cases where prosecutors have introduced rap lyrics or videos as evidence of guilt. Nielson also conducted research with University of Georgia law professor Andrea Dennis that reveals over 500 instances of prosecutors using this tactic.

Nielson explained that the role that he plays at criminal trials is correcting prosecutorial mischaracterizations of rap music. He noted that prosecutors “routinely ignore the fact that rap is a form of artistic expression – with stage names, an emphasis on figurative language and hyperbolic rhetoric – and instead present rap as autobiographical.”

Nielson further explained that this practice is effectively asking “jurors to suspend the distinction between author and narrator, reality and fiction, and to read rap lyrics as literal confessions of guilt. No other art form is exploited like this in court. And yet it’s an effective strategy precisely because it taps into stereotypes about rap music and the young men of color who are its primary creators.”

In Nielson’s opinion, introducing rap lyrics as evidence in criminal trials can be highly prejudicial because it allows prosecutors “to draw on stereotypes about young black and Latino men as violent, hypersexual and dangerous.”

Drakeo is set to be retried on the criminal gang conspiracy charge. If convicted, he faces life in prison.

 

Memories

Are You Thinking About Becoming an Expert Witness?

In this time of economic uncertainty, a part-time gig as an expert witness might provide helpful supplementary income. Almost anyone who has knowledge or training in a specialized field that exceeds the knowledge of most people has the potential to be an expert witness. At the same time, some people are more suited for the role of expert witness than others.

Individuals with degrees in engineering, accounting, psychology, and a variety of scientific disciplines regularly appear as expert witnesses. They explain or refute the economic and emotional losses claimed by plaintiffs. They analyze the likelihood that a defendant’s conduct did or didn’t harm a plaintiff. Medical experts testify about the nature and degree of injuries or disabilities.

In intellectual property cases, experts explain how a new invention or song is similar to or different from a patented invention or a copyrighted song. Experts in real estate valuation offer opinions about the value of real property. Experts in all kinds of personal property, from classic cars to comic book collections, offer opinions about the value of property that has been lost or damaged.

In criminal cases, expert witnesses who are employed by the government offer forensic or “criminalistics” testimony. The criminal defense bar hires experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

Not every field of expertise requires a degree. An auto mechanic who has serviced cars for many years might be well qualified to explain that a brake failure was the likely cause of an accident. An experienced roofer is well positioned to explain the cause of a leaky roof in a newly purchased home.

On the other hand, people often consider themselves to be experts despite having little more knowledge in a field than the average person. When experts in a field typically have specialized training, a court is unlikely to regard an expert as qualified in that field unless the expert can prove that he or she has the same training or experience that other members of the field commonly possess. Things do not go well for purported experts who try to fool a court by falsifying their credentials.

While specialized knowledge is essential, an expert witness must also be able to express that knowledge, both in writing and in testimony. In federal cases and in many state courts, a retained expert must prepare a written report. A witness who cannot prepare a report that states and supports opinions in clear language will have difficulty finding work.

Expert witnesses are often called upon to testify in depositions. Since most cases settle, they less frequently testify in court, but experts are sometimes called upon to give trial testimony. People who are nervous about speaking in front of a small group of people might not be good trial witnesses. People who are short-tempered or impatient will not respond well to cross-examination. Good expert witnesses have the ability to think on their feet, to answer complex questions in language that juries can understand, and to earn the respect of lawyers, judges, and juries by giving honest answers to difficult questions.

Expert Witnesses Are Not Hired Guns

Advocacy organizations that complain about “judicial hellholes” have tried to undermine the credibility of retained experts. To make it harder for plaintiffs to prevail in lawsuits against insurance companies and corporations, they have tried to spread the message that experts are “hired guns” who will say anything in exchange for a paycheck.

The truth is that most expert witnesses give honest opinions, whether they have been hired by a plaintiff or a defendant. They analyze the facts and arrive at conclusions that are supported by the evidence. While they are conscious of the goals a client hopes to achieve, they do not bend the truth to help a client win a case.

Experts who are “hired guns” in the sense that they offer unsupported or irrational opinions quickly lose credibility in the legal community. They become vulnerable to cross-examination. They risk having a judge reject their reports and bar their testimony because they offer opinions that no jury could regard as reasonable.

While expert witnesses can and should earn income by providing services to lawyers and their clients, the best motivation to become an expert witness is a desire to help jurors understand the facts of a case. Honest and ethical experts can enjoy a long and fruitful career as expert witnesses.

a doctor and a child

Where Are the Dauberts Today?

The Supreme Court’s Daubert decision revolutionized the law governing the admissibility of expert witnesses. The decision imposes a duty on trial judges to decide whether expert testimony is sufficiently reliable to be admitted as evidence in court. While there remains widespread disagreement about whether Daubert is meant to open or close the door to expert testimony, the decision’s influence on American law is undeniable.

A majority of states have adopted some version of the Daubert analysis, although states often put their own spin on the role that judges should play when the assess expert witness testimony. One scholar has applauded the Daubert “revolution” for bringing “scientific enlightenment to the law.” Another has questioned whether judges are any better than juries at evaluating expert evidence. In short, opinions about Daubert are all over the map.

The Daubert Decision

The Daubert decision was the culmination of a lawsuit commenced by Joyce and Bill Daubert. Among other deformities, their newborn son was missing three fingers and a bone in his forearm. Doctors told her that she was probably exposed to something that caused her developing embryo to deform, but they could not identify the specific cause.

About ten years later, Joyce read a newspaper article about a little girl with symptoms that were similar to her son’s. The girl’s parents were suing Merrell Dow, alleging that the birth defects were caused by Bendecin. The company marketed the anti-nausea medication as a remedy for morning sickness.

In 1983, the parents of the little girl won a $750,000 verdict against Merrell Dow. Their lawyer called a reproductive epidemiologist and a pediatrician as expert witnesses. About two weeks later, Merrell Dow pulled Bendecin from the market.

The Dauberts brought their own lawsuit against Merrell Dow. They assembled a team of expert witnesses. By that time, pharmaceutical and insurance companies had launched a public relations campaign against “junk science.” The campaign disparaged juries as being too “sympathetic” to injury victims (as if human empathy is an evil trait) and contended that experts chosen by plaintiffs (but not drug companies) were “hired guns” who slanted their unscientific opinions to favor the parties who hired them.

Merrell Dow moved to dismiss the case without a trial, based on an epidemiological study that found no “reproducible or consistent association of birth defects with Bendectin exposure.” The Dauberts challenged that study. They relied on eight experts, including experts in reproductive epidemiology, developmental biology, toxicology, biostatistics, and pharmacology. The experts reanalyzed the epidemiological data and concluded that the study advanced by Merrell Dow did not rule out the possibility that Bendectin caused birth defects.

The trial judge sided with Merrell Dow. On appeal, the Ninth Circuit applied the Frye test for expert witness admissibility. The court concluded that the methods relied upon by the Dauberts’ experts were not a “generally accepted” means of proving causation and thus could not be admitted as evidence.

The Dauberts took their case to the Supreme Court. The Court rejected the Frye test. The question, the Court said, should be whether expert testimony is reliable, not whether it is based on a methodology that is generally accepted by other scientists. While acceptance is one factor that helps a judge assess reliability, making it the only factor prevents juries from hearing reliable evidence simply because it is new or novel.

The Supreme Court reversed the Ninth Circuit’s decision. It rejected the Frye standard and crafted an admissibility test that is now known as the Daubert standard. The New York Times reported that the Court raised the bar for admitting expert testimony. The Washington Post reported that the Court lowered the bar. That controversy has continued to this day.

The Aftermath of Daubert

The Ninth Circuit applied the new standard and again rejected the Dauberts’ experts. This time, the court concluded that epidemiological evidence did not prove that Bendectin exposure would double a child’s risk of being born with birth defects. If the risk is not doubled, the court decided, it was impossible to say that birth defects were probably caused by Bendectin.

Putting aside the wisdom of the decision, the Ninth Circuit’s reasoning has been widely adopted. Judges have used it to reject expert testimony in a variety of contexts that involve potentially dangerous exposures, from chemical products and pollutants to radiation from power lines and cellphones.

The Ninth Circuit judge who wrote the decision rejecting the Dauberts’ claim later became an advocate for applying the Daubert standard in a way that benefits not just corporations accused of wrongdoing, but defendants who are accused of committing crimes. The judge noted that government crime lab employees too often view their jobs as helping prosecutors, not as seeking the truth. They rely on junk science to prove guilt without regard to its unreliability.

The legal system has been slow to reject the testimony of crime lab analysts who were allowed for decades to base opinions on anecdotal evidence rather than rigorous methodologies. While change does not come easily, courts are beginning to recognize that dubious testimony about bite marks, hair comparisons, blood spatter, and other branches of forensic science cannot be considered as proof of guilt.

What Happened to the Dauberts?

Where did the Daubert decision leave the Dauberts? Joyce feels that justice was not done because she never had her day before a jury. In the absence of any better explanation for her son’s birth defect, she still blames Merrell Dow. She might be right, but the Ninth Circuit’s questionable belief that doubling a relative risk is essential to proof of causation has become widely accepted by federal judges.

On the other hand, Joyce’s son — who is now 46 and working in the field of information technology — appreciates that a case bearing his name is being used to reduce the risk of innocent defendants being convicted on the strength of junk science. While disagreement about the application of Daubert in civil cases continues to spark controversy, there is a growing recognition of its importance as a shield against overzealous prosecutors who disguise biased opinions as “expertise” in their effort to convict accused defendants.

How Do Jurors Evaluate Expert Opinions?

A study co-authored by professors of psychology and law at the University of New South Wales examined the factors that jurors are likely to consider when they decide whether an expert’s opinion is persuasive. The goal was to determine how jurors “differentiate witnesses who offer genuinely expert opinions from those who do not.”

The study was motivated in part by the consistent use of questionable forensic expert evidence to prove guilt in criminal cases. In Australia as in the United States, innocent defendants are convicted when prosecutors bolster weak cases with expert opinions that are founded on unreliable science — or no science at all.

Understanding how juries might evaluate expert evidence should help lawyers as they select experts and prepare them to testify. An understanding of jury psychology may also help lawyers cross-examine experts to expose testimonial weaknesses that are most likely to matter to jurors. Experts can also benefit from the study by shaping their reports and testimony in ways that are the most persuasive to jurors.

Methodology

After examining existing scholarship in the areas of persuasion generally and jury decision-making specifically, the authors proposed “eight broad attributes that are logically relevant to the merit-based assessment of an expert opinion.” They termed those attributes the “Expert Persuasion Expectancy (ExPEx) Framework.”

The ExPEx Framework suggests that jurors consider these factors when they evaluate expert evidence:

  • Foundation for opinions — whether the field of study upon which the expert relies is sufficiently valid to support the expert’s conclusions
  • Field expertise — whether the expert has sufficient training and experience in the field of study to merit trust in the expert’s opinions
  • Specialty of expert — whether the expert’s training and experience in the field addresses the specific specialty that forms the basis for the expert’s opinions
  • Ability of expert — whether the expert states opinions accurately and reliably
  • Opinion expression — whether the expert’s opinions are stated clearly and with necessary qualifications
  • Support — whether the expert supports opinions with evidence
  • Consistency — whether the expert is consistent with other experts in the field
  • Trustworthiness — whether the expert is personally reliable as a source

The study did not examine actual jurors who consider the testimony of actual witnesses in actual trials. Rather, the authors provided different study participants with different versions of an expert report: a control version plus versions that weakened or strengthened one of the attributes identified above.

In one experiment, the control report was strong as to every attribute. Each of the remaining eight reports weakened a single attribute but made no change to the rest of the report. In a second experiment, the control report was weak while each of the other reports strengthened a single attribute.

In each experiment, roughly fifty participants reviewed the control report, another fifty reviewed a report with a weakened or strengthened attribute, another fifty reviewed a report with a different weakened or strengthened attribute, and so on. About 450 people participated in each experiment.

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in one of the weak reports was a hand surgeon. Other attributes were manipulated in similar ways.

Test subjects were asked questions to measure the persuasiveness of the various reports. The questions asked participants to rate “the credibility of the witness, the value of their evidence, and the weight they would give to the opinion” on sliding scales of 1 to 100.

The three ratings were closely correlated to each other. The authors thus combined them into a single “persuasiveness” rating.

Study Results

In the first experiment, the participants regarded the control report as highly persuasive. Weakening the Support attribute made no difference in perception of the report’s strength. Weakening the other attributes had some impact on perceptions of persuasiveness, but perceptions of persuasiveness were significantly affected only by four attributes: Ability, Trustworthiness, Consistency, and Opinion.

In the second experiment, the participants regarded the control report as unconvincing. Strengthening the attributes for Ability or Consistency significantly improved perceptions of persuasiveness. Strengthening one of the other attributes of the weak report had no significant impact on how participants viewed the report.

Perhaps unsurprisingly, the study suggests that jurors are most likely to be persuaded when an expert in the relevant field who is trained and unbiased provides an empirically supported, confident opinion derived from methods that have been endorsed by other experts in the field.

Conversely, jurors are less likely to be persuaded when they consider an empirically unsupported, doubtful, contentious opinion from a novice “hired gun” who is testifying outside his or her field of expertise.

According to the authors, a “strong expert opinion was significantly undermined by a high likelihood of error, disagreement among experts, and questionable integrity. Conversely, a weak expert opinion was significantly improved by a low likelihood of error and agreement among the experts.”

Selecting and Preparing Experts

Perhaps the most surprising finding is that participants were not particularly concerned with whether an expert supported an opinion with evidence. Instead, “Ability, Consistency and Trustworthiness may be particularly influential attributes.”

Judges in a Daubert regime, of course, focus largely upon the Support attribute. Admissibility depends upon whether the evidence upon which the expert relies is supported by sufficient facts and a reliable methodology.

The study suggests that trial outcomes will be best when the evidence assures jurors that an expert is honest (Trustworthiness), that the expert is stating opinions accurately (Ability), and that the expert’s opinions are consistent with those of other experts in the field (Consistency). Witness preparation that focuses on those attributes might persuade a jury to believe an expert’s opinions.

The authors also acknowledge that decision-making is a subtle art, and that the interplay of the defined attributes might not always be obvious. For example, Confidence and Trustworthiness are both important, but other studies suggest that an expert can enhance Trustworthiness by acknowledging reasons to doubt the expert’s opinion. Since Trustworthiness is a more important attribute than Confidence, acknowledging weaknesses in an opinion might actually strengthen its persuasive value.

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Experts Testify at Congressional Hearing About Blockchain Technology

A panel of experts have offered testimony at a United States Congress hearing over the benefits of blockchain technology for small businesses.

Congressional Hearing

The hearing, entitled, “Building Blocks of Change: The Benefits of Blockchain Technology for Small Businesses,” was held before The Committee on Small Business on March 4, 2020. The purpose of the hearing was to give the committee insight into “how innovators and entrepreneurs are using blockchain technology to help small businesses boost productivity, increase security, open new markets, and change the way business is done.”

Blockchain technology utilizes a distributed, decentralized, digital ledger or database that allows multiple parties to engage in secure transactions with each other without the use of an intermediary. Blockchain technology is most commonly associated with cryptocurrency such as bitcoin. However, it has many potential uses, including: monitoring goods in global supply chain, use in retail reward loyalty programs, serving as digital identification, digital voting, and transfers of items like real estate or motor vehicle titles.

Expert Witnesses

The experts who were called to testify before the Committee included: Shane McRann Bigelow, Dawn Dickson, Marvin Ammori, and Jim Harper.

Shane McRann Bigelow is the CEO of Ownum, LLC, a blockchain tech company focused on unlocking business growth and making government more efficient. Bigelow offered testimony on behalf of the Chamber of Digital Commerce. Bigelow testified that his company hoped to use blockchain technology to “Help the poorest in our country, who are also disproportionately minorities, to gain better access to their vital records in a secure way by encouraging federal and state governments to allow for the digitization of not only their vital records, but the process to acquire them.” He emphasized, “Additionally, we will help improve public safety through more accurate data, particularly in the vehicle title arena.”

Dawn Dickson is the CEO of PopCom, a company that uses blockchain technology in “high-IQ automated retail technology” or smart vending machines. Dickson testified, “Blockchain is not a silver bullet. But it can solve problems that small businesses face.” She gave the example that her company believes that the most “secure way to check and confirm a customer’s identity, while ensuring that their personal data remains secure, is to have the customer verify their information securely on their mobile device and store that data on blockchain.”

Marvin Ammori is the General Counsel of Protocol Labs, a research, development, and deployment institution for improving Internet technology. Ammori testified on behalf of the Blockchain Association, a trade association for organizations who are interested in responsibly building and investing in the next generation of digital services. Ammori testified that blockchain technology benefit businesses in many industries, including health care, supply chain, law, and enabling investment and competition in internet infrastructure services such as cloud storage.

Ammori also testified that, “The tax treatment is very complicated” and “doing your taxes for crypto is the worst nightmare.” He explained that doing taxes involving crypto is currently a nightmare and that the system should be reformed before mass adoption. He gave the example, “If you wanted to spend Bitcoin on a coffee this morning, you’d have to keep track of what you paid for the Bitcoin and how much it was worth the moment you spent it, and pay the capital gain or loss on every single transaction.” Ammori also argued for clearer crypto guidelines from both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CTFC).

Jim Harper is a visiting fellow at the American Enterprise Institute. Harper identified “three advantages of blockchain I can identify for small business: First, simple efficiencies may produce lower costs for small businesses. Second, blockchains may allow for diversified and open market structures that support more niches and specialties. Finally, blockchains may reduce the competitive advantage that large businesses have in the world of data.”

 

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Colorado Supreme Court to Weigh in on Experts in Domestic Violence Cases

The Colorado Supreme Court has decided to hear a case to determine whether to permit expert witness testimony in domestic violence trials by experts who are not familiar with the details of the case.

The Domestic Dispute

In the summer of 2013, Kerry Lee Cooper and his partner, L.K., got into an argument over where to place an electric fan. L.K. testified that Cooper shoved her face into the fan’s blades, cutting her, and she retaliated by hitting him. L.K. claims that Cooper then punched her, grabbed her by the jaw, and beat her with a tire iron.

Cooper claimed that L.K. had been the aggressor. According to Cooper, L.K. asked him to reposition the fan. When she was unhappy with the way he had placed it, he threw the fan on the end of the bed. He claims that L.K. hit him with the flashlight and bit his hand when he tried to take the flashlight away from her. Cooper only admitted to pushing L.K. in the forehead.

Cooper’s daughter, who lived nearby, heard screaming and called the police.

The Domestic Violence Expert

At Cooper’s trial, the prosecutors brought in an expert witness to testify about the “characteristics of domestic violence relationships” and the “power and control wheel,” a tool that was developed with the intent to “explain the ways that an abusive partner can use power and control to manipulate a relationship.”

Cooper’s attorneys objected to the testimony, but the court allowed its admission. A jury convicted Cooper of third degree assault and harassment, but acquitted Cooper of related menacing and cruelty to animal charges — Cooper’s dog had entered the room during the incident.

Colorado Court of Appeals

Cooper appealed his conviction. On appeal, the Colorado Court of Appeals considered whether the district court erred by admitting a subject matter expert witness who had no familiarity with the facts of the case.

The Colorado Court of Appeals ruled that the trial court had erred by admitting the expert witness. Writing for the court, Judge Michael H. Berger stated that “No evidence presented to the jury proved or even suggested that prior to the charged incident Cooper had assaulted, or physically or nonphysically abused, L.K.” Berger also noted that there was no indication of a cycle of violence or control over L.K.; however, “the expert was permitted to give extensive testimony about how domestic abusers exercise such control”.

In essence, the expert testimony had no factual foundation that made it relevant to the case. Berger wrote that the expert’s testimony “may well have caused the jury to infer that there was a prior history of domestic violence.” The court reversed Cooper’s conviction and ordered a new trial.

Colorado Supreme Court

The prosecution petitioned the Colorado Supreme Court for a Writ of Certiorari.

The Colorado Supreme Court granted the petition, agreeing only to determine the issues of (1) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence was inadmissible because the charged act was the first act of domestic violence in the relationship; (2) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence must be limited to those facets of a subject that are specifically tied to the particular facts of the case; and (3) Whether the court of appeals erred in finding that the admission of the expert testimony was not harmless.

 

Only an Expert Can Testify that a Patented Invention Was Obvious

One defense to a patent infringement lawsuit is that the patent should not have been granted because the patented invention is based on an obvious modification of existing ideas. The issue in HVLPO2, LLC v. Oxygen Frog, LLC was whether a lay witness could testify about the obviousness of an invention. The Court of Appeals for the Federal Circuit ruled that expert testimony is often required to establish obviousness.

Facts of the Case

The two patents at issue involved a device that manages the flow of oxygen gas mixtures to torches used by glass artists. There was no question that Oxygen Frog infringed two patents held by HVLP02. The only question at trial was whether the device used a method for controlling the flow of oxygen that would have been obvious to a person with ordinary skill in the field in light of existing ideas and technology.

To establish that the technology underlying the patents was a matter of public knowledge before the patents were issued, Oxygen Frog pointed to a blog post on a glass blowing internet forum that described an oxygen system. That system was similar to the patented device, but it involved a single circuit while the patented device used two circuits, one to provide power to oxygen generators and the second to provide power to an air compressor.

Oxygen Frog also pointed to a video that was posted online by Tyler Piedbes, a glass blowing artist. Oxygen Frog deposed Piedbes and played most of the deposition for the jury. Oxygen Frog did not offer Piedbes as an expert witness.

Piedbes was asked whether he thought adding a second circuit to the oxygen system described online was an obvious modification. HVLPO2 objected that Piedbes was not offering admissible lay testimony because an opinion about obviousness could only be provided by an expert witness. The trial judge overruled the objection and Piedbes answered “yes.”

The court instructed the jury that Piedbes could offer an opinion as to whether the modification “would occur to him from his perspective” and whether the modification was obvious. The court also instructed the jury that it was to make its own determination of obviousness.

The jury decided the obviousness question in favor of Oxygen Frog. HVLPO2 appealed. It contended on appeal that Piedbes’ testimony was inadmissible because he did not testify as an expert.

Appellate Opinion

Obviousness is not analyzed from the perspective of an ordinary person. Rather, the question is whether the patented invention modified an existing invention or technology in a way that would have been obvious to a person of ordinary skill in the relevant field (“a person of skill in the art,” in the language of patent law).

The Court of Appeals noted that it “is often helpful to have a technical expert explain, for example, the scope of the prior art or motivations for combining various components.” That explanation cannot typically be provided by a lay witness, because explanations of facts that are beyond the knowledge of ordinary jurors can only be made by expert witnesses. A person who is not an expert in the relevant “art” cannot usually assist the jury’s determination of obviousness.

Priebes might have been an expert, but he did not testify as an expert. He was not disclosed as an expert witness and did not prepare an expert report. The appellate court rejected the argument that Priebes was entitled to provide lay testimony about obvious modifications of oxygen system that had been described online. That testimony was “the province of qualified experts, not lay witnesses.”

Oxygen Frog argued that Priebes’ testimony, even if inadmissible, did not harm HVLPO2. Of course, Oxygen Frog only called Priebes as a witness because it hoped his testimony would influence the outcome. The Court of Appeals noted that the jury may have relied entirely on Priebes’ testimony when it decided the question of obviousness.

The trial court’s limiting instruction did not cure the error because it expressly allowed the jury to consider Priebes’ inadmissible opinion. In addition, HVLPO2 could not make a Daubert challenge to test the reliability of Priebes’ testimony since Priebes was not designated as an expert. Under those circumstances, the failure to designate Priebes as an expert could not be dismissed as harmless error. HVLP02 was therefore entitled to a new trial.