Category Archives: ExpertWitness

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.

Lawsuit

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 sons 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.

Court

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.

Court room trial

Should the Daubert Rule Be Revised?

Expert witnesses play a vital role in court. In civil cases. Plaintiffs and defendants both rely upon expert witnesses to persuade jurors that a defendant was or was not liable for alleged wrongdoing. Experts also play a key role in helping jurors assess the damages that should be paid to a plaintiff when a defendant is liable for harm that the plaintiff suffered.

In criminal cases, defendants rely on experts to counter the testimony of crime lab employees. Defense experts also explain the psychology that underlies misidentifications, false confessions, and unreliable accusations.

In routine cases, the admissibility of expert testimony is uncontroversial. When drivers disagree about which car crossed the centerline to cause a head-on collision, there is little doubt that the court will allow both sides to call qualified accident reconstruction engineers to explain where on the road the accident probably occurred. The fact that experts have an honest disagreement has no bearing on the admissibility of their testimony, because resolving conflicts in the evidence is why we have juries.

In some cases, however, advocates for the insurance industry and corporate defendants have tried to portray expert witnesses as shills and hired guns — but only when they are hired by plaintiffs. Particularly in cases involving toxic torts, dangerous medical devices, and medical malpractice, advocates for defendants have long argued that experts who testify for plaintiffs should be kept out of the courtroom.

Complaints about “junk science” are sometimes legitimate, particularly when directed at the unfounded testimony that prosecutors have too often relied upon in criminal cases. Unfortunately, the term is primarily used by corporate and insurance company lawyers to disparage any expert testimony that helps suffering plaintiffs prove that their injuries were caused by corporate malfeasance.

Life Before Daubert

Until 1993, federal courts generally followed the Frye standard to determine whether expert evidence should be admitted at trial. The Frye standard allowed expert testimony to be admitted if it was relevant, if the expert was qualified, and if the expert’s conclusions were based on scientific principles and techniques that are generally accepted within the relevant scientific community.

Plaintiffs’ lawyers criticized the Frye standard because it prevented plaintiffs from relying on opinions based on scientific advances, no matter how sound those opinions might be, until the advances had come to be generally accepted by other scientists. Defendant’s lawyers, on the other hand, contended that generally accepted scientific principles and techniques can be manipulated to produce unsound results.

Dissecting Daubert

The Daubert decision addressed a claim that birth defects were caused by the anti-nausea drug Bendectin. The drug’s manufacturer, Merrill-Dow, relied on an expert witness who cited multiple studies purporting to show that Bendectin could be taken safely by pregnant mothers. The plaintiff relied on eight scientists who had conducted animal studies that found a link between Bendectin and birth defects.

The plaintiffs’ experts explained why the epidemiological analyses cited by the drug company’s expert were flawed. The trial court excluded the plaintiffs’ experts because their analysis of those epidemiological studies had not been peer reviewed and was therefore not generally accepted by the scientific community. The court also concluded that using animal studies to prove a link between a drug and a health condition in humans was not a generally accepted methodology.

The Supreme Court concluded that the Frye standard was too limiting because it prevents new or novel advances in science from being used as evidence until those advances are generally accepted. Parties should not be deprived of sound expert testimony simply because the field in general has not caught up with the advances made by expert witnesses.

On the other hand, the Supreme Court did not want to open the door to unsound testimony. It therefore devised a test that broadly admits expert evidence, whether or not it is generally accepted, provided that the expert opinion is based on the application of a reliable methodology to sufficient facts. The general acceptance of a methodology is relevant to that analysis, but it is not always decisive. A court might find, for example, that a testable theory with a known and acceptable error rate is reliable even if the scientific community in general has not yet embraced the theory.

In dissent, Chief Justice Rehnquist predicted that the new standard was unworkable because it would be applied by different judges in different ways. That criticism was prescient. Although the decision both broadens and narrows the range of expert testimony that should be deemed admissible, some judges view their “gatekeeping” job as shielding juries from any expert evidence unless the expert’s conclusions are indisputable, while other judges think it is the jury’s job to evaluate expert testimony if the jury could reasonably consider the testimony to be based on a reliable foundation.

Should the Daubert Rule Be Revised?

The essence of Daubert was eventually incorporated into Rule 702 of the Federal Rules of Evidence. Advocates for insurance companies and corporate defendants have urged states to adopt their own version of Daubert. They do so in the belief that empowering judges to limit expert testimony benefits corporate and medical defendants that are sued by injury victims and consumers.

Yet some critics contend that Rule 702 should again be amended because too many judges are allowing juries to do their jobs. The critics lament that the “unclear” standard created by Daubert is too often interpreted in ways that allow disputes about the reliability of expert testimony to be resolved by juries. They want courts to shield corporations from testimony that juries might find more reliable than a business-friendly judge.

For example, the general counsel for pharmaceutical giant Eli Lilly complains that “courts have written that the factual basis for an expert’s opinion is a matter for the jury to sort out, not the judge.” That’s hardly surprising. In the American system of justice, juries resolve factual disputes while judges determine the law. If there are competing views of the facts that underlie an expert’s opinion, the jury should decide which view of the facts is worthy of belief.

Eli Lilly’s lawyer also complains that some “courts have deliberately decided—as a matter of policy preference, not interpretation of the rule—to be more permissive with expert testimony than other circuits.” It would be more accurate to charge that some courts, as a matter of policy preference, have decided to be more restrictive than the Daubert decision permits.

As Georgetown Law Professor Lisa Heinzerling argues, Daubert was expressly intended to “open the courts to a wider range of admissible scientific evidence.” Judges who feel it is their duty to shield corporations from liability have used the decision as an excuse to prevent juries from deciding whether expert testimony is credible.

And as the late Professor Margaret Berger observed, widespread misunderstanding of the Daubert decision has resulted in “trial judges encroaching on the province of the jury to decide highly contested factual issues and to judge the overall credibility of expert witnesses and their scientific theories.” A cynic might think that those judges do not misunderstand Daubert so much as they misunderstand their duty to render neutral decisions, even when neutral decisions do not advance a corporate-friendly agenda.

Perhaps Rule 702 should be amended to make it clear that if any factual foundation for an expert’s opinion is reasonably supported by the evidence, whether an expert opinion is grounded in sufficient facts is for the jury to determine. Or perhaps it should be amended to reinforce the rule that an expert’s credibility is for the jury, not the judge, to determine. No other standard is true to the American belief that juries, not judges, resolve factual disputes in litigation.

court house

Social Worker Cannot Testify That False Accusations of Child Abuse Are Rare

The Michigan Supreme Court recently decided two consolidated cases in which an expert witness was deemed to have vouched for the credibility of a child who reported a sexual assault. One case, discussed here, addressed a social worker who testified that children “overwhelmingly” do not lie about being sexually abused. The other, discussed in a separate ExpertPages post, addressed a doctor who based an opinion that a child had been sexually abused solely on the child’s statements to the doctor.

Prosecutors have long hoped that experts can convince juries to believe children who make accusations of sexual abuse when no physical evidence supports the accusation. The desire to assure the conviction of criminals who sexually abuse children is laudable. Unfortunately, when prosecutors and courts attempt to make it easier to secure convictions, they also make it easier to convict innocent defendants who are accused of crimes that never occurred.

While courts are in general agreement that an expert cannot opine that an accuser is telling the truth, experts are generally allowed to testify about how the victim of a sexual assault might behave. Testimony that a child’s conduct is “consistent with” the behavior of a sexual assault victim is particularly suspect. Since experts acknowledge that victims might behave in a variety of different ways, an accuser’s behavior can always be seen as “consistent with” the behavior of a victim. The risk is that an expert’s testimony about “consistent” behavior — whatever that behavior might be — will persuade the jury that the accuser behaved in a particular way because the accuser was sexually assaulted.

Judges who care about fair trials forbid that testimony because there is no way for an expert to know whether particular behavior was or wasn’t caused by a sexual assault. Courts might, however, reasonably permit testimony to explain why children might engage in specific kinds of behavior (such as delaying reporting of an assault) that might be regarded as evidence of innocence.

“Vouching” Testimony

Expert testimony becomes troubling when it sends the message that the expert believes the child is telling the truth. Testimony that a child’s conduct is consistent with the behavior of a sexual assault victim, when it is equally consistent with the behavior of a child who wasn’t sexually assaulted, is an example of indirect vouching for the child’s credibility.

“Vouching” is also problematic when experts opine that children do not generally lie about being sexually assaulted. Experts acknowledge that it is a child’s nature to tell false stories (“I visited the moon”) and that young children have difficulty distinguishing fantasy from reality, but experts who act as advocates rather than objective witnesses testify that children are never untruthful about “really important things.”

Unfortunately, courts have been all too willing to admit that testimony, notwithstanding the absence of a scientific foundation to support the expert’s belief. While some experts have attempted to persuade juries that children who report abuse should always be believed, the fact that children sometimes make false allegations of sexual abuse is undeniable.

Not all false allegations are deliberate lies. Children can easily misinterpret actions and their memories can be shaped by suggestive questioning. Experts who are not agenda-driven also acknowledge that “there are no reliable tools or methods for detecting whether a child has made a false allegation.”

Facts of Thorpe Case

Joshua Thorpe was in a relationship with Chelsie for four years. Before they started dating, Chelsie had a daughter who is identified in the Michigan court decision as BG. Thorpe also fathered a daughter with Chelsie. BG referred to Thorpe as “dad.”

After the couple broke up, Thorpe continued to parent both children. A couple of years later, Chelsie began a relationship with a new boyfriend. That relationship resulted in tension after Chelsie began to deny Thorpe access to the children. After Chelsie became pregnant by her new boyfriend, she told Thorpe she did not want him to have a parenting relationship with BG.

Thorpe stopped seeing BG, a decision that might have caused BG to resent Thorpe, particularly since her mother clearly favored her new boyfriend and wanted BG to have nothing to do with Thorpe. Some months after she last saw Thorpe, BG told a friend about a single instance of inappropriate touching by Thorpe. When authorities questioned BG, the number of allegedly inappropriate touches multiplied.

The entire case against Thorpe was based on BG’s evolving statements. No forensic evidence pointed to Thorpe’s guilt. No witness saw Thorpe behaving inappropriately with BG. Thorpe denied sexually abusing BG. As the Michigan Supreme Court recognized, the trial was a classic “credibility contest” between BG and Thorpe.

Expert Testimony

Thomas Cottrell testified as an expert witness for the prosecution. Cottrell has a master’s in social work and provides counseling services for the YWCA. He gave uncontroversial testimony about why children might delay reporting a sexual assault, why different children might react to sexual assaults in different ways, and the decision-making process in which a child might engage before deciding to disclose a sexual assault.

On cross-examination, Cottrell made the unremarkable admission that children can lie. On redirect, Cottrell was asked if he could estimate the percentage of children who, in his experience, lie about being sexually assaulted. The defense objected that any such opinion had no foundation. The judge ruled that the defense opened the door to that testimony, a response that failed to address the legal merit of the objection.

Cottrell admitted that literature on fabricated allegations of sexual assault is “extremely variable,” then testified that in his experience at the YWCA, about two to four percent of children lie about being sexually abused. He testified that in those cases, the children had a clear motivation to lie, such as a desire for the same attention that an abused sibling was receiving.

Cottrell did not explain how he was able to determine that percentage or, for that matter, how he can distinguish between children who made false allegations, children who misunderstood what was happening, and children who reported the facts accurately. On re-cross, he admitted that “we don’t know what we don’t know.”

Appellate Decision in Thorpe

The appellate court noted that “Opening the door is one thing. But what comes through the door is another.” Cross-examining a witness about whether children sometimes make false accusations does not open the door to inadmissible opinions about witness veracity.

The Michigan Supreme Court applied the well-established rule that no witness, including an expert, can vouch for the veracity of an alleged crime victim. That is what Cottrell did when he suggested that false reporting of sexual assaults is “rare,” that it only occurs in 2% to 4% of all cases, and that the reasons he has seen for making a false report were not present in the Thorpe case.

The court wisely recognized that “although he did not say it,” Cottrell effectively testified that there was almost no chance that BG was not telling the truth about being sexually abused. A jury would likely have viewed his testimony as vouching for BG’s credibility.

Although Michigan is a Daubert state, the court rejected the testimony as violating the vouching rule without analyzing whether it satisfied Daubert. A Daubert analysis would have achieved the same result. Cottrell applied no reasonable methodology to arrive at his opinion that fabrications of sexual assault are rare. He acknowledged that study results of fabricated accusations are “widely variable” and he identified no criteria that allowed him to determine with any certainty whether the accusations he accepted as true were actually true. Since his expert opinion was not informed by a reliable methodology, it should not have been admitted against Thorpe.

cannabis leaf

Legalization to Provide More Work for Drug Recognition Experts

Law enforcement agencies expect that the legalization of cannabis in Illinois will provide additional work for police officers who testify as drug recognition experts.

Legalization of Cannabis in Illinois

On January 1, 2020, the state of Illinois legalized the purchase of cannabis for recreational use.  Under the Cannabis Regulation and Tax Act (410 ILCS 705), cannabis can be purchased without a prescription from a state-approved dispensary by anyone 21 years or older. Nonresidents are allowed to buy cannabis, but in smaller quantities than Illinois residents.

By passing this legislation, Illinois became the eleventh state (plus Washington, D.C.) to legalize cannabis in the United States. According to Compass Point analyst Rommel Dionisio, who spoke with Bloomberg, Illinois expects to eventually achieve between $2 billion and $4 billion in annual sales.

Illinois reported almost $3.2 million in sales on the first day that cannabis was legalized. These sales represented 77,128 transactions.

Cresco Labs, a vertically integrated multi-state cannabis operator, announced that it had served 3,145 people on New Year’s Day at its five Sunnyside Dispensaries located in Lakeview, Elmwood Park, Champaign, Buffalo Grove and Rockford, Illinois. Cresco’s stores sold 9,258 cannabis products, including Cresco’s house of brands and items from other Illinois suppliers, with an average ticket price totaling $135.

Law Enforcement Agencies Worry About Consequences of Legalization

As Illinois legalizes a substance that can impair a person’s ability to function, it follows logically that there will be an increase of incidents related to people who are accused of driving under the influence of cannabis.

Law enforcement agencies in Illinois began to plan for the increase of incidents involving cannabis before the new year.  According to the Chicago Tribune, Illinois law enforcement agencies are calling in new specially trained officers to deal with cases involving cannabis.  The need for these specially trained “Drug Recognition Expert” officers arises from the fact that there is no simple breath test to determine impairment after consuming marijuana like there is for alcohol.

What is a Drug Recognition Expert?

Drug recognition experts, or DRE officers, are law enforcement officers who are allegedly trained to classify the type of drug that a person took into one of seven categories using a 12-step evaluation process. Some of the things that these officers evaluate include a person’s pulse, their eye movements, and the size of their pupils.

DRE officers are often qualified to testify as expert witnesses in court as to whether a driver was high or under the influence. Currently, there are only about 160 DRE officers out of the about 40,000 law enforcement officers in the state of Illinois.

DRE officers carry around a set of tools far different from a standard police officer. These special tools include a stethoscope, thermometers, pupil measuring charts, flashlight to shine in someone’s eyes, a black light and blood pressure cuffs.

State’s Attorney for Kane County, Illinois, Joe McMahon, told the Tribune that more officers need training in how to recognize the signs of drug use now that cannabis is legal for recreational use.  McMahon said, “It’s an expensive but very important process…I don’t know how many there are in the county, but not every police department has them.”

Gavel and scales

Fatal Car Crash May Test Florida Expert Rule

The new trial of a man who was previously convicted of five counts of vehicular manslaughter and sentenced to 30 years in prison may be the test for how Florida courts apply the recently adopted Daubert standard.

The Crash

On April 13, 2013, a then-21-year-old Jabari Kemp, was behind the wheel of a Mercedes sports car that was estimated to be traveling at 128 mph when it traveled down an Interstate 95 exit ramp and crashed into another vehicle.

The impact of the crash was so powerful that four of the five occupants of the other vehicle were ejected.  All five died from traumatic injuries, including crushed internal organs, broken bone, and severed limbs.

Kemp was initially charged with five counts of DUI manslaughter in connection with the fatal crash. The Florida State Attorney’s Office dropped the DUI charges because of questions concerning the validity of blood samples that reportedly showed high levels of THC.

First Trial

Kemp testified that he lost consciousness and that he does not recall the crash.  His defense team argued that he likely lost consciousness with his foot on the accelerator, which caused his car to speed up as it traveled down the ramp.

The state’s key witness was Florida Highway Patrol Corporal Robert Dooley, an accident investigator who provided testimony about the evidence of braking.  Dooley testified that damage to the crash victim’s vehicle indicated that Kemp’s car was braking at the time of the crash. He based his opinion on the assertion that braking caused the front end of the braked car to “dip” and that the nature of the crash damage indicated that Kemp’s car had dipped at the moment of impact.

Dooley’s expert testimony was allowed based on the Frye standard of whether the expert testimony should be admitted.

Kemp was convicted of five counts of vehicular manslaughter and sentenced to 30 years in prison.

Daubert Standard

In 2013, the Florida Legislature and then-Governor Rick Scott changed Florida law to require judges to use the more-stringent Daubert standard in deciding whether to admit expert testimony.

The Florida Supreme Court initially directed courts to continue using the Frye standard.  However, when new justices were appointed to the Florida Supreme Court, the new justices directed courts to begin using the Daubert standard.

Florida’s adoption of the Daubert standard happened while Kemp’s post-conviction proceedings were pending.

New Trial Ordered

On appeal, the 4th District Court of Appeal found that the testimony of the Florida Highway Patrol accident investigator, Robert Dooley, did not meet the Daubert standard. On July 31, 2019, the appeals court ordered a new trial for Kemp.

Florida Supreme Court Appeal

Florida Attorney General Ashley Moody’s office appealed the appellate court’s ruling.

On November 29, 2019, Moody’s office filed a brief with the Florida Supreme Court, asking it to place a stay on the lower-court proceedings. The brief argued that the appellate court did not properly apply the Daubert standard.

It argued, “Here, the Fourth District adhered to a rigid approach, robotically applying the factors set forth in Daubert in order to exclude evidence rather than employing a flexible approach to permit the jury to weigh the testimony…Whether testimony is admissible as an expert opinion is determined by the facts of a case measured against the principles of Daubert….Here, the proponent of the opinion — the state — failed to establish that Dooley’s expert testimony satisfied any benchmark of reliability required by Daubert.”

semi truck

Eighth Circuit Reverses District Judge Who Allowed Expert to Amend a Report

Philip Petrone and other named plaintiffs brought a class action lawsuit against Werner Enterprises and Drivers Management. The class consisted of student truck drivers who alleged violations of state and federal wage laws. Specifically, the student drivers argued that they were entitled to unpaid wages for time that they spent on short rest breaks and while resting in a truck’s sleeper berth.

After a trial, the jury disagreed that the student drivers were entitled to compensation for time spent in the sleeper berth but agreed that they were denied compensation for brief rest breaks. The Fair Labor Standards Act generally requires employers to count a short rest period as part of the hours worked by an employee.

The jury awarded the student drivers almost $800,000 in damages. Werner and Drivers Management appealed. The dispositive issue on appeal was whether the district court erred by extending the deadline to disclose expert reports in the absence of a showing of good cause.

Expert Report Disclosure

The Federal Rules of Civil Procedure require the disclosure of expert reports in most cases. Rule 16 requires the district court to set a scheduling order which may (and usually does) alter the deadline for disclosing expert reports that appears in Rule 26.

The student drivers disclosed an expert report within the deadline set by the scheduling order. The defendants took the expert’s deposition. The district court characterized the deposition as revealing “considerable flaws in the methodology” for computing the unpaid compensation owed to class members.

The student drivers moved to modify the scheduling order so that a supplemental report could be filed. The supplemental report was intended to correct the errors that appeared in the original report.

The district court noted that Rule 26(e) requires experts to “supplement or correct” a report if the party employing the expert “learns that in some material respect the disclosure or response is incomplete or incorrect.” That duty extends to the report itself and to “information given during the expert’s deposition.”

Motion to Extend Disclosure Deadline Denied

The district court concluded that the request to supplement the report was not based on new information that the expert learned after preparing the report. Rather, the request was intended to correct flaws in the expert’s methodology that were exposed during his deposition. In the district court’s opinion, those flaws should have been known to the expert before the report was submitted.

While the rule allows an expert to amend a report if the expert “learns” that the report is incorrect, some courts have concluded that the expert can only amend the report if what the expert “learns” is based on information that was unavailable at the time the report was written. The rule doesn’t say that, but the district court relied on that questionable precedent to conclude that the expert could not “learn” about flaws in his methodology that were pointed out to him when his deposition was taken.

The court concluded that the supplemental report was untimely because the changes could and should have been made before the submission deadline. The request to supplement was made about two months after the disclosure deadline passed and about a month before the deadline for filing Daubert challenges. The court found no good cause to extend the disclosure deadline.

Court Allows Supplemental Report at Trial

When disclosure of a supplemental report is untimely, Rule 37(c) provides that information in the supplemental information cannot be used at trial “unless the failure was substantially justified or is harmless.” The court decided that a supplemental report would have “imposed on” the defendants by requiring them to analyze the report a second time and possibly to depose the expert again. Using information in the supplemental report would therefore not have been harmless.

The court nevertheless weighed the harm caused by excluding the supplemental report against the demand in Rule 1 that the rules be construed and administered “to secure the just, speedy, and inexpensive determination of every action and proceeding.” It would have been unjust, the court thought, to prevent the student drivers from presenting valid expert evidence in support of a meritorious claim simply because of mistakes their expert made in the original report. The rule express a preference for cases to be resolved on their merits, not on the technical application of procedural rules.

The court therefore extended the time for filing the supplemental report. It remedied the prejudice caused by that order by allowing the defendants to take a second deposition of the expert and by awarding the defendants the expenses they incurred as a result of the untimely disclosure.

Appellate Opinion

From the standpoint of placing justice ahead of procedural technicalities, the district court’s opinion is sensible. Denying a class of workers their earned wages simply because an expert made mistakes that he later corrected is a harsh result.

The court of appeals, on the other hand, saw the case differently. While appellate courts generally uphold discretionary decisions made by trial courts, discretion must be guided by a correct application of the law. The court of appeals faulted the district court for failing to apply the correct legal standard.

A scheduling order, once entered, can only be changed for cause. In reality, parties will often agree to extend deadlines and courts will often honor that agreement without inquiring deeply into whether there is good cause for changing the order.

In this case, there was no agreement to modify the order. A party who moves to extend a deadline must show that the party cannot meet the deadline despite diligent action. As the district court found, no effort was made to change the deadline to submit the expert’s report until after its flaws were exposed during a deposition. The court of appeals agreed with the district court that those circumstances did not support a finding of good cause to extend the disclosure deadline.

The court of appeals also noted that the disclosure deadline was relevant because the supplemental expert report materially changed the contents of the report. A revised report, the court concluded, is not a supplemental report, even if the report is revised to correct mistakes in the original report. Since the changes to the report were based on information that could have been obtained prior to the disclosure deadline, the report needed to be disclosed before the deadline expired.

The ultimate question was whether the district court could rely on Rules 1 and 37 to allow the late disclosure of the revised report. The court of appeals held that neither rule trumps the requirement in Rule 16 that expert reports must be disclosed within a time set by the court.

Rule 16 only permits the extension of that time for good cause. The court deemed that standard to serve the purposes of Rule 1 by assuring that cases proceed on schedule. Justice apparently takes a back seat to the prompt resolution of cases.

Rule 37 covers sanctions for disobedience of discovery orders but (the court held) does not apply to a motion to extend a disclosure deadline. The court’s logic in that regard is not self-evident. Had a supplemental report been belatedly disclosed without moving to extend the disclosure deadline, Rule 37 would plainly have applied. The court then might have allowed the late disclosure subject to the sanctions it imposed. It is difficult to know why a party that makes a late disclosure should be treated more favorably than a party that asks to make a late disclosure.

Nearly all Rule 37 violations deal with a party’s failure to make timely discovery responses that satisfy the rules. Why the untimely disclosure of an expert report should be treated differently than any other untimely document disclosure is unclear.

In any event, the court of appeals held that the court applied the wrong legal standard and was powerless to allow the student drivers to use a supplemental expert report that was not timely disclosed. The unfortunate result is that drivers, who were (in the jury’s view) cheated out of wages, will be unable to recover their losses.

Lessons Learned

The appellate court’s decision reflects a rigid belief, common in federal court, that justice equates to strict adherence to procedural rules, as opposed to assuring that injured parties receive just compensation for their losses. That belief is manifested in holdings that give experts one and only one chance to produce a report that will satisfy Daubert. Attempts to amend the report after the disclosure deadline are typically rejected, even if meritorious amendments would help an injured party achieve justice.

The lesson for lawyers is that expert reports should be scrutinized well in advance of the disclosure deadline. If the report’s methodology or factual basis is likely to be challenged, the party’s lawyer should ask the expert to address those challenges before the report is finalized and disclosed. Expert witnesses in federal court rarely get a second chance to prepare a satisfactory report.

police car

DNA Expert Testifies in High-Speed Chase and Shootout Trial

A DNA expert has offered “likelihood ratio” testimony in the trial of two co-defendants who are on trial for leading police officers on a high-speed chase through downtown Cheyenne while shooting guns.

The Chase

On May 3, 2019, Chasity Jacobs and Dominique Childers were arrested following a high-speed chase and shootout that took place in downtown Cheyenne, Wyoming.

Authorities claimed that Childers was driving a stolen 2016 Toyota Camry along Interstate 25 at speeds of up to 115 miles per hour while attempting to avoid being pulled over. Police reports also claim that Childers was driving through downtown Cheyenne at speeds close to 65 miles per hour.

During the chase, multiple shots were fired at a Wyoming Highway Patrol Cruiser and a Cheyenne Police Department cruiser. Both vehicles were struck several times.

The chase ended only after Childers was shot by Cheyenne Police Department officers who were in pursuit of the vehicle.

Jacobs was initially charged with a felony charge of taking a controlled substance into a penal institution (later dropped) and misdemeanor possession of methamphetamine.

Childers allegedly told the police that Jacobs hadn’t fired a gun and he was responsible. However, as Wyoming Division of Criminal Investigation investigated the case, agents claimed to have found Jacobs’ DNA on a 9mm Ruger pistol, two magazines, and the magazine from the other gun used in the shooting. Two recorded phone calls made by Jacobs from Laramie County Detention Center also allegedly implicated her in the shooting.

Jacobs was charged with attempted first-degree murder, first-degree accessory to murder, reckless endangering with a firearm and misdemeanor possession of methamphetamine.

Childers was charged with two counts of attempted first-degree murder, two counts of felony property destruction, felony possession of methamphetamine, two counts of misdemeanor property destruction, reckless endangering conduct and eluding.

DNA Expert Witness Testimony

The state called Jennifer Brammeier as a DNA expert witness. Brammeier is employed by the Wyoming State Crime Lab. The state asked Brameier to testify about DNA evidence collected from the weapons and ammunition used in the alleged shooting.

Brammeier explained that she used a “likelihood ratio” when testing the DNA evidence. This means that she matched the DNA collected on the evidence to reference samples to see if there was a correlation with the DNA. Childers and Jacobs had given reference samples of their DNA for the DNA evidence analysis.

Brammeier compared Childers’ and Jacobs’ DNA profiles to DNA that was found on evidence such as the guns and ammunition found inside the black sedan that was used during the chase. She was able to identify DNA that correlated to that of Childers and Jacobs on both the guns and ammunition.

Cassie Craven, defense attorney for Jacobs, questioned Brammeier about how DNA transfers between objects. She asked whether a person’s DNA could be transferred to an object that he or she never touched. Craven used the following example: If she was touching the courtroom podium and someone else touched that podium and then the door knob, would it be possible for her DNA to be transferred to the door knob, even if she had never touched it herself?  Brammeier replied that this type of DNA transfer is possible.

Brammeier also clarified that it is not possible to determine when or how the DNA was transferred to the objects where it was found.

a doctor and a child

Media Investigation Describes How Careless Expert Analysis Leads to Unfounded Child Abuse Allegations

As ExpertPages has reported, courts in Michigan, New York, Ohio, and other states have recognized that unsound expert testimony has placed innocent defendants at risk of conviction for shaking babies. In response to growing awareness that innocent people have been imprisoned because experts assured juries that evidence of abuse was undeniable, the American Academy of Pediatrics revised its ethical guidelines for pediatricians who give expert testimony.

According to the Houston Chronicle, child abuse pediatricians, “now stationed at virtually every major children’s hospital in the country, work closely with child welfare agencies and law enforcement, providing expert reports and court testimony in thousands of cases a year.” When they acknowledge that they are basing their opinions on an interpretation of the evidence, not on personal knowledge that abuse occurred, expert pediatricians clearly play an important role in the criminal justice system.

Unfortunately, child abuse pediatricians who testify unethically that their opinions leave no room for doubt do not limit their improper certitude to shaken baby cases. A Houston Chronicle and NBC News investigation has focused attention on the continuing problem of prosecution experts who fail to acknowledge that the medical evidence supporting a variety of child abuse accusations is uncertain.

Accidental Burns

The investigation found that “some child abuse pediatricians have at times overstated their ability to determine when a child has been intentionally harmed.” By way of example, the media organizations examined a Texas case in which a child abuse pediatrician conducted a burn pattern analysis using a flawed methodology. The doctor’s claim that a child was intentionally scalded in a bathtub filled with hot water was based on speculation, not on science.

Accidental burns from hot water are common. Housing complexes and apartment buildings often set high water temperatures so that people on upper floors will have hot water. That makes it easy for people who live on lower floors to suffer accidental burns from dangerously hot water.

Some child abuse pediatricians contend that 10% of all child abuse cases involve intentionally inflicted burns. That statistic, unsupported by any peer-reviewed study, is based on the assumption that children who are burned accidentally will remove limbs from a tub before their burns become severe.

Some experts therefore consider a clear line between burned and unburned skin as a “classic forced immersion burn pattern” that proves child abuse. Yet no scientific study supports that opinion.

Other experts recognize that some children experience pain more slowly than others and thus do not leave a hot tub before they are burned. Some pediatric burn victims, for physiological or environmental reasons (such as a closed shower door), are physically unable to remove a limb from hot water before being burned. The simplistic claim that a “classic forced immersion burn pattern” proves that a parent abused a child is the kind of junk science that leads to wrongful convictions.

The Houston Chronicle describes one expert’s testimony that a child will experience “splash burns” — burns caused by hopping from foot to foot in hot water — unless the child is being held in the water. The doctor was unaware of a research paper that debunked the likelihood of splash burns when water temperature is less than 130°. Nor did the doctor acquaint himself with the actual water temperature produced by the defendant’s water heater, which the police determined was 129°.

Crossing the Line from Objectivity to Advocacy

As Dr. Shaku Teas, a forensic pathologist in Chicago, told the Houston Chronicle, some child abuse pediatricians begin with an assumption that injuries were caused by child abuse and then interpret the evidence to prove that assumption. The experts do not interview the parents or look for other evidence that may cast doubt on their opinions. As Dr. Teas says, starting with a conclusion and then working to prove the conclusion is “a recipe for bad forensic analysis.”

Expert witnesses are not advocates. The criminal justice system assures that children have multiple advocates, including police officers, social workers, prosecutors, and victim-witness specialists. An expert’s only advocacy should be for the truth.

The doctor who testified about splash burns was cross-examined about research demonstrating that the water temperature in the defendant’s home would not cause splash burns. The evidence also showed that there were burns on the bottoms of the child’s feet, an unlikely scenario if the child was held with his feet against the bottom of the tub. Rather than graciously conceding the possibility that the evidence was open to interpretation, the doctor doubled down, testifying that the new information did not change his opinion.

The doctor compounded his unfortunate testimony by insisting that he was absolutely certain that the burns could not have been accidental. The doctor wasn’t present when the child was burned. At best, the doctor was drawing inferences from burn patterns. No ethical expert should testify with absolute certainty that a conclusion must be correct, particularly when evidence exists that is inconsistent with that conclusion.

Experts who insist that their opinions cannot be questioned further the misperception that an expert is nothing but a hired gun. Experts are, in fact, a vital part of the truth-seeking process, but only when they maintain their objectivity. Experts who cross the line from objectivity to advocacy make it more difficult for honest experts to gain a jury’s respect.

Bad Science Ruins Lives

Nobody doubts the importance of protecting vulnerable children from harm. However, as parents become increasingly aware that child abuse pediatricians sometimes opine that accidental injuries resulted from abuse, parents may have an incentive to withhold medical treatment from their children rather than risking an unfounded arrest.

Responsible parents, of course, will take that risk to assure that their children receive the treatment they need. When those parents are arrested because ambiguous evidence suggests that they abused their children, the results can be devastating.

When experts assert that a child was the victim of abuse, their opinions can be responsible for “traumatic family separations and questionable criminal charges.” In their zeal to carry out that mission of child protection, too many physicians have erred on the side of concluding that child abuse occurred when the evidence is equivocal.

As researchers from Harvard Medical School wrote, basing a guilty verdict on “inadequate analysis” is “anathema to our system of justice, and the impact on the child and the family can prove devastating and lasting.”

The Harvard research underscores the need for criminal defense lawyers to acquaint themselves with state-of-the art science when confronted with a child abuse accusation and to retain experts who are capable of explaining to a jury why the facts lend themselves to interpretations that are consistent with innocence. The right to an acquittal when reasonable doubt exists can only be protected by meeting expert testimony with competing expert testimony that exposes flaws in the prosecution expert’s methodology, assumptions, or reasoning.